[00:00:01] Speaker 00:
Takes number 15-1062 at L, Verizon New England, Inc.

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Petitioner versus National Labor Relations Board.

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Mr. Tellegen for the petitioner, Mr. Heller for the respondent, and Mr. O'Connell for the intervener.

[00:00:14] Speaker 05:
Good morning.

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Judge Henderson is not here this morning.

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She will consider these cases based on the audio recording of the oral arguments.

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You may proceed.

[00:00:23] Speaker 03:
Thank you, Your Honor.

[00:00:24] Speaker 03:
May it please the Court, my name is Arthur Tellegen and I represent Verizon New England.

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The IBEW of Horizon New England had a collective bargaining agreement that contained the following thing.

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The union agrees that during the term of the agreement or any extension, it will not cause or permit its members

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Now, will any member of the union take part in any strike or other interference with any of the company's operations or picketing of any of the company's premises?

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Then it goes on to provide an exception for primary picketing away from, observing primary picket lines away from the company's premises.

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That ban is framed in absolute terms, clearly extends beyond the obligation, statute of obligations, for example, the Norris-Blodier Act restrictions on

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on the union's responsibilities are gone, the union guarantees its members won't do what the language forbids.

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In 2008, in anticipation of collective bargaining, the IBW in Massachusetts made up ticket signs.

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And the due course distributed them to various locals, and they in turn distributed them to its members.

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In Western Massachusetts, at a union meeting, it was decided that the picket signs would be used both inside and outside company premises before work employees would picket

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outside the company's premises, then they would take their picket signs inside, it was decided, and place the picket signs in their automobiles or trucks in a fashion that would display the picket signs in order.

[00:02:04] Speaker 04:
Can I ask this question?

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There's an underlying question of interpretation here about the collective bargaining agreement, which is to say,

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does the conduct that was engaged in the display of signs in the windshield constitute picketing within the meaning of the Collective Bargaining Act?

[00:02:19] Speaker 04:
Yes, sir.

[00:02:21] Speaker 04:
Your position, it sounds to me, is that as long as the arbitrator concludes that the conduct at issue constitutes picketing within the meaning of the CBA, that's the end of the matter.

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The board has no ability to review that interpretation of the CBA.

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Your Honor, as long as the result he reaches, that is the collective bargaining agreement as interpreted by the arbitrator, is not inconsistent with the National Labor Relations Act.

[00:02:47] Speaker 04:
Yes.

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So, right, and so if it's a subject that's waivable, so if we assume for purposes of argument that the kinds of conduct that might arguably constitute picketing are things that can be waived in a collective bargaining agreement,

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that I take it, then you would say, well, no matter how the arbitrator construes the word picketing in the agreement, it can't be contrary to the act because it's waivable.

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And if it's waivable, then as long as the arbitrator concludes that the conduct at issue constitutes picketing, that's the end of the matter.

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The board has no ability to take a second look.

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As I believe this court has said repeatedly,

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And so would that be true, for example, if you had a situation in which the underlying conduct wasn't posting of signs within a car, but it's just a conversation in the workplace where one of the employees says to another employee, you know, whatever this sign says, Verizon honor your contract or something like that, as I recall.

[00:03:44] Speaker 04:
If the person had just said that to their colleague in the workplace, I think Verizon should honor its contract.

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And then suppose that the employer takes some action against them.

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And then the arbitrator says, well, the collective bargaining agreement says no picketing.

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Picketing is communication.

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The employee was engaged in communication.

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Ergo, it's picketing.

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It's waived.

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There's no ability for the board to take a second look at that, is that right?

[00:04:10] Speaker 03:
No, two reasons.

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One is I don't think that right's waivable.

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You've described a communication within the workplace between two employees, and I have some doubts as to whether the parties could waive that right.

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What's different about that than a communication and writing?

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I don't know, maybe there is a difference, but there's a difference between verbal communications and communications and writing for purposes of whether it's

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the entitlement to do that is waivable?

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There might be, I just don't know.

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You described an oral communication between two employees in the workplace, whether that's waivable or not.

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No one has questioned that hosting signs, hosting ticket signs, is waivable.

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And where one would draw the line on that continuum, you're right, I'm not fully prepared to describe that.

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Oh yeah, well, let's suppose it's waivable.

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But then the second part of the answer is,

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The case isn't over.

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The union has a right to bring an action under section 301 saying that the arbitrator's decision is so bizarre it doesn't draw its essence from the collective bargaining agreement.

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There are constraints.

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The question is which constraints can the union pursue?

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With respect, Your Honor, the example you've given is pretty extreme.

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I mean, that's not this case by any special imagination.

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But yes, the proper disposition of the case, the rule ought to be, as I think has been said by this court a number of times, as long as it's waivable and the parties have submitted the case to an arbitrator to decide what's been waived,

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the arbitrator's decision on rebinding and the board shouldn't second-guess the arbitrator's decision, as it did in this case.

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No matter how egregiously wrong the arbitrator's interpretation of the CBA might be.

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Yes, Your Honor, with the caveat that if it's egregiously wrong, there's a federal court to stand in.

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And where, you said, we've said that repeatedly.

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Cornell case, Your Honor.

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Cornell, where does it say that?

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I think it's a pretty critical point because I think there's a question as to if this is true, if this is in fact the proper interpretation of the lay of the land now, that has to come from somewhere.

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It either has to come from our decisions or it has to come from the statute.

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That kind of limitation on the board's ability to look at whether the arbitrator has made an egregiously erroneous interpretation of the CBA has to come from somewhere.

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In Fornell, the court said that the error that the board committed is an assumption that the statutory issue separate from the contractual issue, and went on to describe the fact that once the contractual issue was decided, there can't be a statutory issue.

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I don't know if that was, for now, I thought that was, I thought that was Judge Edwards' opinion in American Freight, although maybe I'm wrong.

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No, you're right.

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Okay, so as I understood American Freight, I thought what was going on there is that everybody agreed with the interpretation, with the arbitrator's interpretation of the collective bargaining agreement.

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The problem was that

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the argument was made that even if that's the right way to interpret the collective bargaining agreement, well, then there's a statutory right that kicks in and trumps it.

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And I think what our court said was, well, that can't be right, because if you can waive it under the collective bargaining agreement, then the statutory protection just goes away, and all we're talking about is the scope of the contractual protection, and that can't.

[00:07:20] Speaker 04:
And once everybody agrees with the

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interpretation of the CBA, or the statute drops out of the equation.

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It seems to me that the issue here is an antecedent one, which is that everybody doesn't agree about the interpretation of the CBA.

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The arbitrator said one thing, and the board disagrees with that interpretation.

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So I don't know that American freight gets you all the way home.

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It may not get me all the way home, Your Honor.

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But I point out that what the Court has said repeatedly is the parties may not have agreed to that interpretation.

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The parties have agreed to the person who's going to render the interpretation.

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And I believe the point of Fornell and American Freight and other cases is that the ones having bargained reach an agreement that they'll be bound, the parties will be bound by the interpretation of the arbitrator.

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That should be dispositive.

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What about the statute that says this power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement law or otherwise?

[00:08:21] Speaker 05:
The board cites that as saying, well, right, the board can defer, even defer fully, as Judge Edwards advocated in the Ohio State article you cite, but it doesn't have to.

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given that statutory language?

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The language does not oust the board of jurisdiction because there is a collective bargaining agreement.

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It doesn't say what the parameters of the jurisdiction are.

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And I take that language to mean that the board retains jurisdiction to decide whether the collective bargaining agreement is consistent with the act.

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And therefore, if the collective bargaining can waive rights,

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then it's for the arbitrator to decide whether those rights are waived.

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And the arbitrator's decision essentially merges into the contract?

[00:09:12] Speaker 03:
Yes, Your Honor, as not only Judge Edwards, but this Court has said in a way.

[00:09:15] Speaker 05:
And this would mean, presumably, that the Board's new policy, the Babcock policy, is problematic too, because the Board's moved in the opposite direction from where it was even in this case, right?

[00:09:30] Speaker 03:
The new policy is a non-deferral policy, Your Honor, with respect to the board.

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Right.

[00:09:36] Speaker 05:
But if we accept your argument in this case, that new policy's out as well, correct?

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It is indeed, Your Honor.

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I didn't come to argue the new policy, but I certainly believe that the new policy... It's a lesser included.

[00:09:49] Speaker 03:
It is a lesser...

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I'm not so sure, Your Honor, it was lesser than this case.

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I mean, this case is such that, absent that you're deciding that the board really has plenary review of arbitration awards, you can't get to the result of what the board got to in this case.

[00:10:06] Speaker 04:
No, no, no, that doesn't have to be true, because I think plenary review is one thing, de novo is one thing.

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Nobody's claiming, I don't think the board claims that it has de novo authority to review arbitrators' interpretation of a collective bargaining agreement.

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I think what it's saying is,

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The way it construes the repugnancy part of the standard that it's invoked repeatedly, repugnancy encompasses circumstances in which, with some deference given to the arbitrator's decision, it's just beyond the pit.

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And your argument would be, and I'm not saying whether it's right or wrong, your argument would be, well, that can't be something the board can do.

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It simply has no ability to take a second look at the arbitrator's interpretation of the CBA, unless that interpretation is itself in violation of the Act.

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What I'm advocating is not Spielberg, literally.

[00:10:51] Speaker 03:
I agree with that.

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However, in this case, the application of Spielberg-Olen is so extreme that I would suggest virtually plan a review.

[00:11:01] Speaker 05:
Even with our deference to the board, we have to give some deference to the board.

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The board, in essence, says that the arbitrator's decision is palpably wrong, to use the term.

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And we have to say that it was unreasonable for the board to conclude that the arbitrator's decision was palpably wrong, if we're in this box.

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I know you say we're not even in this box, but if we're in that analytical box.

[00:11:22] Speaker 03:
Yes, Your Honor.

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I mean, palpably wrong in this case seems to be that not only was the regional director of Region 1 wrong, she found no violation at all when she reviewed the facts.

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Not only was the administrative law judge wrong,

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But the board in reviewing this arbitrator's decision doesn't question his result.

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The result is waivable.

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Everyone seems to agree on that.

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The question is the reason he got there.

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And he didn't find a clear and unmistakable waiver.

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And he made the mistake of, because he's a humorous guy, citing a footnote in 1898 treatise,

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And the board seems to say, well, that's the reason for his decision.

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It's going to hold the rest of the award, which describes in detail the party's positions, describes in detail his consideration.

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And he comes to the conclusion saying somewhat cursorily, this is picketing.

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So your argument is not, just so I understand it correctly, your argument is not that what the board did in this case in taking a second look at the arbitrator's interpretation of the CBA is contrary to the board's own practices in the past because the board has done that before.

[00:12:27] Speaker 04:
Your argument is the board did that here, the board did it before, but the board's never authorized to do it because if the board does that, it violates this court's decisions.

[00:12:37] Speaker 03:
The latter point is true, but the first point, I would say, is not exactly right.

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I do think that even if this court said Spielberg, Olin, and even Olin on a little bit of steroids, that is the constraint, Olin on a little bit of steroids, is correct.

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You kind of get this case there.

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This case seems to be based on the singular proposition that there was no clear and unmistakable waiver.

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And the board nephis says what expected to be clearly and unmistakably waived.

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The zero question that the restriction on picketing is complete.

[00:13:12] Speaker 05:
Just to explain, again, if we're in that analytical box, I think what they're saying is it's palpably wrong to say that a ban on picketing extends to a ban on signs in the car in the parking lot.

[00:13:27] Speaker 03:
That is correct what it says.

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But that means that it would say, in this case, that a ban on picket signs

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a use of picket signs in a car in a parking lot is not picketing.

[00:13:42] Speaker 03:
It ignores this case law out there that seems to point somewhat in the other direction.

[00:13:47] Speaker 03:
It ignores, in the circumstances of this case, a very experienced regional director of Region 1 said it's not a violation at all, because it's not just picket signs.

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If this case was simply about somebody put a sign in a car,

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and the arbitrator concluded on that basis it was picketing, then the board's decision would at least be understandable under Olin and Spielberg.

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I think still not consistent with this court's rules, but consistent with the Spielberg-Olin doctrine.

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They were picket signs.

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They were used in picketing.

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They were distributed for picketing purposes.

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They were used, although not as the council points out, not exactly before the picket signs.

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Picket signs were put in cars in this case, but they were throughout Massachusetts.

[00:14:38] Speaker 04:
When you said they were picket signs, what do you mean by that, that they were picket signs?

[00:14:42] Speaker 03:
They were signs that looked like picket signs and walked like picket signs and were used as picket signs.

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They were 22 by 24 and they had a message, there was a uniform message throughout the Commonwealth of Massachusetts.

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They were intended to be used and were in fact carried outside in picketing.

[00:15:02] Speaker 03:
And those same signs were printed up for the specific purpose of picketing, were brought inside the company's facilities, and put in the windshield.

[00:15:10] Speaker 04:
So they were designed for use in picketing?

[00:15:14] Speaker 03:
I wish I had one with me.

[00:15:16] Speaker 03:
They were picket signs.

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I don't think anybody quarrels with that proposition.

[00:15:22] Speaker 04:
But it just seems to me that whether they were picket signs depends on whether what was done with them is picketing.

[00:15:28] Speaker 04:
Because you could have a sign that could be used for picketing, and it could be used in ways that I don't think anybody would consider to be picketing.

[00:15:33] Speaker 03:
Right, and it's true that you could picket with a candy wrapper, and it's true you could take a picket sign and frame it and put it in your living room.

[00:15:40] Speaker 03:
These signs were printed up for picketing and were carried by pickets for picketing.

[00:15:46] Speaker 03:
I mean, there was no ambiguity.

[00:15:49] Speaker 03:
When we went through the award, there's a significant substantial quote from the manager who asked the picket signs to be removed.

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And his response to why he did it was, there were picket signs that the pickets carried, and then as far as I was concerned, the car was carrying them when they were inside.

[00:16:04] Speaker 03:
Now, that's not dispositive of any legal issue, but I think it's a fair description of the practical implications of what was going on.

[00:16:11] Speaker 04:
So the collective bargaining agreement, I think in the clause that refers to the ban on picketing, there's also a subsequent sentence that talks about crossing the picket line.

[00:16:18] Speaker 03:
Crossing a picket line away from company facilities.

[00:16:21] Speaker 04:
Yeah, so so how would you cross the picket line where the picket signs are put in the car?

[00:16:25] Speaker 04:
Does that mean walking by the cars?

[00:16:27] Speaker 03:
If that's picketing?

[00:16:29] Speaker 03:
You could not cross the picket sign picket line to the extent there was a line of cars No, could you cross the picket line as the picketing was described?

[00:16:38] Speaker 03:
This was informational picketing outside There was no intention to interfere with the company's business and I realized my Time's up at one point

[00:16:48] Speaker 03:
The language of the contract talks about strikes, interferences with a company's business, or picketing.

[00:17:02] Speaker 03:
The board's description of what it thinks is picketing is inherently interference with a company's business.

[00:17:10] Speaker 03:
board's view of what the voucher did a much better job reading the contract than the board did.

[00:17:13] Speaker 03:
I mean, picketing has to be something than disruptive picketing, and that seems to be what the board says it has to happen.

[00:17:21] Speaker 04:
As opposed to informational picketing?

[00:17:23] Speaker 04:
Yes, sir.

[00:17:23] Speaker 04:
All right, thank you.

[00:17:25] Speaker 05:
Thank you.

[00:17:39] Speaker 06:
Morning.

[00:17:39] Speaker 06:
May I please record?

[00:17:40] Speaker 06:
My name is Joel Heller, representing the National Labor Relations Board.

[00:17:44] Speaker 06:
Employees have the right under the NLRA to display pro-union signs in their personal vehicles.

[00:17:49] Speaker 06:
And the board did not abuse its discretion in this case in declining to defer to an arbitration award countenancing Verizon's deprivation of that right.

[00:17:57] Speaker 06:
The award was fundamentally inconsistent with two well-established labor law principles.

[00:18:01] Speaker 06:
the settled meaning of the term of our pinketing, and the process for discerning whether a statutory right has been waived.

[00:18:07] Speaker 04:
You don't take issue with the proposition that the use of science is something that's waivable.

[00:18:14] Speaker 04:
That is a waivable right, but there's no... So if the contract says specifically enough,

[00:18:19] Speaker 04:
then there's nothing that could be done.

[00:18:21] Speaker 04:
The arbitrator enforces the contract.

[00:18:23] Speaker 04:
There's no review of that by the board.

[00:18:25] Speaker 06:
There is review by the board, but it's a review for whether it is repugnant to the purposes and policies of the act.

[00:18:30] Speaker 06:
Whether the agreement is?

[00:18:32] Speaker 06:
Whether the award, whether the arbitrator's award is repugnant to the act.

[00:18:35] Speaker 06:
That has always been part of the board's deferral framework, and that's what the board was doing here.

[00:18:40] Speaker 06:
The award

[00:18:43] Speaker 06:
essentially modified this term.

[00:18:45] Speaker 05:
But our cases, as you're aware, and as opposing counsels pointed out, have long expressed doubts about that.

[00:18:53] Speaker 05:
And Judge Edwards, several opinions of Judge Edwards, Judge Silverman,

[00:18:59] Speaker 05:
utility workers, plumbers and pipe fitters, American freight for now, all make the point that if the contract is interpreted by an arbitrator, then it's a contractual issue, not a statutory issue, so long as it's a waivable right.

[00:19:18] Speaker 05:
Right, so the discussion... So how do we get around, under your theory, our case law?

[00:19:23] Speaker 06:
Well, I don't think there's ever been a holding that says, as long as it's a waivable right, the award is necessarily not repugnant.

[00:19:32] Speaker 06:
There's not been a case from this court finding that the board abused its discretion.

[00:19:37] Speaker 05:
Well, Plumbers and Pipefitters says, where the statutory right implicated by a grievance settlement is within the category of waivable rights, then it is unclear why the board would ever have any choice but to give deference.

[00:19:49] Speaker 06:
Right, so the reason for the repugnancy analysis is essentially a backstop.

[00:19:56] Speaker 06:
The board gives respect to the arbitral process by allowing the parties to attempt to go through their contractual grievance arbitration process in the first instance.

[00:20:07] Speaker 06:
As under section 10A of the act, as your honor quoted earlier, the board has a role in ensuring that the output of that award is not fundamentally inconsistent with the rights that the board is tasked with enforcing under the NLRA.

[00:20:23] Speaker 05:
So that is the... So all of our cases, I think Judge Edwards summarized them, saying our cases make clear then that the issue is not one of board deferral, instead is

[00:20:33] Speaker 05:
the parties have by waiving their statutory rights ridden the board out of their disputes.

[00:20:39] Speaker 05:
That's Judge Edwards describing our case law.

[00:20:42] Speaker 05:
That's wrong?

[00:20:43] Speaker 06:
The court has also said that the board's deferral policy is not one of abdication.

[00:20:50] Speaker 06:
And that is what Verizon would have here.

[00:20:53] Speaker 06:
The board simply says, as long as the award has issued, or as the arbitrator has issued an award, the board needs to defer.

[00:21:01] Speaker 06:
But here it is, the award was contrary to settled board and court case law on the meaning of picketing.

[00:21:09] Speaker 06:
And which... That's really only if we get to that, right?

[00:21:13] Speaker 06:
We'll get to that issue.

[00:21:14] Speaker 06:
The first question is whether we get to that.

[00:21:16] Speaker 06:
Right.

[00:21:17] Speaker 06:
But it goes to that first question, because it is whether the award is repugnant to the act.

[00:21:23] Speaker 06:
And it's repugnant to the act if it relies upon, or if it is irreconcilable with settled law.

[00:21:29] Speaker 06:
And the settled law in this instance is.

[00:21:31] Speaker 05:
But I think the case law, at least one interpretation of the case law, and I want to parse this and hear your response.

[00:21:36] Speaker 05:
But one interpretation of the case law is, if the arbitrator interprets the contract to waive a right that is waivable under the act,

[00:21:45] Speaker 05:
then that's the end of it for the board's purposes in terms of reviewing the substance of the arbitrator's decision.

[00:21:53] Speaker 06:
I don't think that has ever been a holding of this court.

[00:21:56] Speaker 06:
And there's certainly board cases finding that.

[00:21:58] Speaker 05:
I know there are lots of board cases.

[00:22:00] Speaker 05:
And that's why I asked about the new Babcock policy, too, which I think is at issue if we were to accept the other side's Verizon's interpretation here.

[00:22:10] Speaker 05:
But the court cases seem

[00:22:13] Speaker 05:
And there are a bunch of them, and I agree you could find, I guess, some tentative wording in a few of them, but there's certainly not tentative wording in several of them, too.

[00:22:24] Speaker 05:
Starting with Fornell, which, you know, that's 1982, Judge Edwards, we hold that the board was not free to substitute its own interpretation of the contract for the interpretation of the arbitrator.

[00:22:36] Speaker 06:
And I don't think that's what's happening here.

[00:22:37] Speaker 06:
It's not because the word picketing is not simply a word in a contract.

[00:22:41] Speaker 06:
It is a term of art that has a settled meaning in the labor law context, including from Supreme Court decisions.

[00:22:46] Speaker 06:
But that's an argument that the arbitrator blew it.

[00:22:49] Speaker 05:
But we need to... But that's not an argument that's cognizable, at least under the reading that I'm positing.

[00:22:56] Speaker 06:
Verizon doesn't challenge the board's framework, which includes this Repugnancy Announcement.

[00:23:02] Speaker 05:
Yes it does.

[00:23:02] Speaker 05:
They challenge the application.

[00:23:04] Speaker 05:
They forthrightly challenge it.

[00:23:05] Speaker 05:
They just did it.

[00:23:06] Speaker 05:
Well, I think they challenged it.

[00:23:08] Speaker 05:
And I think the Babcock thing would go too, by the way.

[00:23:10] Speaker 06:
Well, that's for another day.

[00:23:11] Speaker 05:
Yeah.

[00:23:12] Speaker 05:
Well, no, but actually if we took their, I want to get your position on this, if we took their position here, I think the Babcock policy goes with it, doesn't it?

[00:23:20] Speaker 05:
Because we would be saying, if we took their primary position here, we would be saying that the

[00:23:28] Speaker 05:
board has no role in reviewing the substance of the arbitrator's decision, so long as it's a right that was waivable.

[00:23:37] Speaker 06:
I think that would be contrary to section 10a of the act, which says that the board has authority to adjudicate unfair labor practices irrespective of their agreement.

[00:23:47] Speaker 04:
So I don't think that... But what about the interpretation that Verizon gave to that language, what the council did today, which is that

[00:23:53] Speaker 04:
What it says is that the board has jurisdiction to make sure that at the end of the day, the agreement doesn't violate the NLRA.

[00:24:02] Speaker 04:
So in other words, you can't purport to waive something that's non-waivable.

[00:24:07] Speaker 04:
So that would give some, it seems like that would give at least some effect to the statutory language without, no, it wouldn't be robust effect, but it would give some effect to the statutory language.

[00:24:16] Speaker 06:
Well, essentially what would happen is that

[00:24:19] Speaker 06:
Verizon's position would lead to arbitration awards that find that countenance and deprivation of Section 7 rights would otherwise be an unfair labor practice.

[00:24:31] Speaker 06:
without any evidence, or possibly without any evidence, that the parties waived that right.

[00:24:36] Speaker 06:
And that's what we have here.

[00:24:38] Speaker 05:
They are waivable rights.

[00:24:39] Speaker 05:
They are waivable rights, but only if they are actually waived.

[00:24:43] Speaker 05:
And if the arbitrator jumps the rails completely, there, as you suggest happened here, there is federal court review of arbitrators' decisions.

[00:24:53] Speaker 06:
there is that that's under a different standard here.

[00:24:56] Speaker 05:
That's the point I think which is they say that's the standard that should govern and otherwise the act and our case law suggests strongly that the arbitrator's decision otherwise has to be accepted by the board and they cite a different provision of the statute of course

[00:25:15] Speaker 05:
final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective bargaining agreement.

[00:25:28] Speaker 05:
So that's what they use as their statutory

[00:25:31] Speaker 06:
Well, I would just like to step back for a minute and say that the board's deferral policy is a discretionary one.

[00:25:39] Speaker 06:
There's nothing in the statute that requires the board to defer to arbitration awards.

[00:25:44] Speaker 06:
The board has decided to do so and it has set up this framework in order to do so.

[00:25:48] Speaker 05:
And so you're this is a helpful question.

[00:25:51] Speaker 05:
Your point is that the board could do what they're advocating, but the board is not required to do what they're advocating in terms of review of arbitration.

[00:26:03] Speaker 05:
Are you not even saying that?

[00:26:04] Speaker 06:
Well, I think.

[00:26:06] Speaker 06:
Right.

[00:26:06] Speaker 06:
I guess the board could have established a less rigorous as far as board review framework for deferral.

[00:26:16] Speaker 06:
So a more deferral-friendly framework.

[00:26:19] Speaker 06:
But it was reasonable for the board to set up the framework that it has here.

[00:26:24] Speaker 04:
But you'd also go the other direction and say that the board doesn't need to defer at all.

[00:26:28] Speaker 04:
It could also, by act of grace, that the board is deferring at all to arbitration.

[00:26:33] Speaker 04:
Right.

[00:26:33] Speaker 04:
Right.

[00:26:34] Speaker 06:
And once the board has established this framework, it must stay within that framework.

[00:26:38] Speaker 06:
And that is what the board did here.

[00:26:39] Speaker 05:
So on the framework, can I just ask?

[00:26:41] Speaker 05:
So the framework is palpably wrong, I think.

[00:26:44] Speaker 05:
Yes.

[00:26:47] Speaker 06:
Does that mean a palpably wrong interpretation of the contract?

[00:26:52] Speaker 06:
I think there has to be something fundamentally wrong with the decision.

[00:26:55] Speaker 06:
And here, it's not just that the... Just pause.

[00:26:58] Speaker 05:
Yes.

[00:26:59] Speaker 05:
What do you mean by that?

[00:26:59] Speaker 05:
Are you agreeing or disagreeing with the way I said it?

[00:27:02] Speaker 05:
Palpably wrong interpretation of the contract?

[00:27:04] Speaker 05:
Is that correct or not correct?

[00:27:06] Speaker 06:
That is not the whole universe here.

[00:27:08] Speaker 05:
Is that part of the universe?

[00:27:10] Speaker 05:
It is palpably wrong.

[00:27:11] Speaker 05:
In a case like this, where that seems to be what's going on, the board saying, here's the contract, here's what happened.

[00:27:18] Speaker 05:
The arbitrator missed the boat in interpreting the contract.

[00:27:22] Speaker 06:
Well, the arbitrator missed the boat in the process he used.

[00:27:25] Speaker 06:
I mean, there was an improper mode of analysis here, which the board is found to be grounds for.

[00:27:29] Speaker 06:
finding an award repugnant.

[00:27:31] Speaker 06:
And that is, the award gave no consideration to the understanding of the parties as to Article G-10, which is a cornerstone of the waiver analysis.

[00:27:39] Speaker 06:
The award also gave no consideration to the board and court case law on the meaning of picketing.

[00:27:46] Speaker 06:
And as the Supreme Court instructed in Mastro Plastics, a collective bargaining agreement must be read in light of the law existing, what it was figured into.

[00:27:54] Speaker 04:
Go ahead.

[00:27:54] Speaker 04:
I've seen this distinction in your decisions.

[00:27:57] Speaker 04:
I think it's in this case in

[00:27:59] Speaker 04:
in footnote 10, and then in U.S.

[00:28:03] Speaker 04:
Steel way back in 1982 or thereabouts, the distinction between just a palpably wrong interpretation of the agreement, which is the way that Judge Kavanaugh phrased it, and a critique of the process by which the arbitrator reached his or her decision.

[00:28:21] Speaker 04:
But I guess I'm not seeing the distinction between those because it seems like

[00:28:25] Speaker 04:
What the board is saying when it says that there was a wrong process by which the arbitrator reached its interpretation, his or her interpretation of the contract, is that it was a palpably wrong interpretation because it didn't take into account board decisions, it didn't take into account court decisions, which all just seemed like another way of saying,

[00:28:44] Speaker 04:
This interpretation is just out of balance.

[00:28:46] Speaker 06:
Well, I think the distinction would be if the award did give some consideration to this past practice evidence or to prior court decisions and said, you know, I look at all this evidence, and I think it leans towards a waiver here.

[00:29:01] Speaker 06:
So it went through the correct process, but came to a different result.

[00:29:05] Speaker 06:
Well, that, I don't think, is the type of case where the board would decline to defer.

[00:29:10] Speaker 06:
But here, it's not just that the board.

[00:29:11] Speaker 05:
Even a palpably wrong result?

[00:29:14] Speaker 06:
Well, I mean, obviously, it would depend on the facts of the case here.

[00:29:21] Speaker 06:
But what we have here is not just a probably wrong result, but it is also a probably wrong process leading to that result.

[00:29:31] Speaker 06:
It was a misapplication of labor law concepts.

[00:29:34] Speaker 06:
And so I think that's why, in this case,

[00:29:37] Speaker 04:
But when you say this application of labor law concepts, I mean, it seems to me that suppose you have a situation in which the arbitrator actually looks at relevant board decisions on what picketing means and then just completely misunderstands those decisions.

[00:29:50] Speaker 04:
And you could say, well, that's a really flawed process because it's a terrible process because all those decisions clearly say X and the arbitrator read them to say Y.

[00:29:58] Speaker 04:
But that seems to me to be the same thing as saying it was just a palpably wrong result.

[00:30:02] Speaker 04:
Because if you look at the relevant decisions, they just don't support the result.

[00:30:06] Speaker 04:
I'm not seeing what fundamental divide.

[00:30:10] Speaker 04:
I mean, you may well take the position, I think you already have, that we don't have to focus on the process.

[00:30:14] Speaker 04:
We can just say that the interpretation of the agreement is just palpably wrong, so palpably wrong, because it's so contrary to every legal assumption that must have underlaid the party's expectations when they entered into the agreement that the board can

[00:30:27] Speaker 04:
second guess the arbitrator's decision based on that but short of that I guess I'm having a little trouble seeing the distinction between the process by which the decision was reached and the palpable wrongness of the decision.

[00:30:40] Speaker 06:
Well I think they were both palpably wrong in this instance but the fact that

[00:30:45] Speaker 06:
Whether only a publicly wrong result would be enough is not a question that has to be answered in order to uphold the board's decision in this case.

[00:30:54] Speaker 06:
And as you were getting at before, I think it's not just a wrong result in this case, but it is such a broad definition of picketing that it could cover something like an employee conversation, or a bumper sticker, or a shirt, or a letter to the editor, perhaps.

[00:31:09] Speaker 06:
And because arbitral awards sometimes have a presidential effect, Verizon could rely on this broad decision in the future to prohibit or even punish employees for engaging in a wide swath of protected activity.

[00:31:22] Speaker 06:
And that is clearly a result that is palpably wrong or repugnant to the purposes and policies of the Act.

[00:31:28] Speaker 04:
Can I follow up on one question which you started to say?

[00:31:32] Speaker 04:
which is whether Verizon in fact is making the threshold argument that we've been discussing this morning to the effect that once the arbitrator construes an agreement, the board has no role to play in looking at the bona fides of the arbitrator's construction.

[00:31:48] Speaker 06:
That seems to me what the argument is, that they're reading the repugnancy analysis out of the deferral framework.

[00:31:53] Speaker 04:
But you don't take issue with the proposition that Verizon is in fact making that argument.

[00:31:58] Speaker 04:
I thought you were starting to say that you didn't understand Verizon to be making that argument.

[00:32:03] Speaker 06:
And I'm just wondering what... I don't think they are... They don't directly challenge the framework.

[00:32:09] Speaker 06:
But I think the effect of the argument, yes, would be to read out the repugnancy prong of the analysis.

[00:32:17] Speaker 04:
Because they are making the argument that once the arbitrator construes the collective bargaining agreement, that's the end of the day.

[00:32:23] Speaker 04:
The board has no role to play after that.

[00:32:25] Speaker 04:
Right.

[00:32:25] Speaker 04:
I think they have.

[00:32:26] Speaker 04:
Yeah, they have been making that argument.

[00:32:29] Speaker ?:
OK.

[00:32:29] Speaker 05:
Again, on our case law, maybe I'm over reading it, but the Gorman and Finken treatise describing plumbers and pipe fitters, the court concluded that when the statutory right claim before the NLRB is waivable by the union, a settlement that is reached through fair procedures must automatically prevail and the board cannot decline to defer.

[00:32:55] Speaker 06:
Well, I think the language as plumbers and pipe fitters, the language is dipped up because in that case, the board had deferred to a arbitral settlement and the court was upholding the board's decision to defer.

[00:33:11] Speaker 06:
So the court does not hold that the board can never find an arbitral award repugnant to the purposes and policies of the act.

[00:33:20] Speaker 05:
Well, we also said in that case, we're at a loss to discern

[00:33:25] Speaker 05:
the theoretical underpinnings of the palpably wrong criterion?

[00:33:30] Speaker 06:
Well, I've attempted to provide some theoretical underpinnings in the brief.

[00:33:35] Speaker 06:
But again, that would be dictated in that case, because the ultimate holding was affirming a decision to defer.

[00:33:42] Speaker 06:
I haven't found any decisions from this court

[00:33:46] Speaker 06:
reversing the board, declining to defer on the repugnancy prong.

[00:33:51] Speaker 06:
There are cases from the Second and the Fifth Circuit enforcing board decisions, finding an award repugnant and thus declining to defer.

[00:34:00] Speaker 05:
Do you think we have room, notwithstanding our precedence, to apply the powerfully wrong standard?

[00:34:09] Speaker 06:
I think the court does, yes.

[00:34:10] Speaker 06:
The court has, excuse me, the court has

[00:34:18] Speaker 06:
I think I at least approved of that standard, or at least applied it.

[00:34:25] Speaker 05:
Well, there are a lot of cases expressing skepticism.

[00:34:28] Speaker 05:
Now, they're dated, but there's been nothing in the interim that I've found to depart from what those cases said.

[00:34:37] Speaker 05:
They're all in the 80s and 90s, but still they still seem to be the governing standards or precedents in this court.

[00:34:43] Speaker 06:
Well, again, I would just say that the language of suspicion on the repugnancy prong is not part of the holding of that case.

[00:34:51] Speaker 06:
So I think the court does have a role.

[00:34:53] Speaker 05:
That's true in Fornell, and that's true in?

[00:34:56] Speaker 06:
Fornell was not a deferral case.

[00:34:58] Speaker 06:
Plumbers and pipefitters, utility workers, those were both cases.

[00:35:02] Speaker 06:
Well, as Judge Univasan mentioned earlier, American freight, it was a different prong of the deferral analysis.

[00:35:08] Speaker 06:
That was whether the issue was considered by and before the arbitrator.

[00:35:12] Speaker 06:
It was not about repugnancy.

[00:35:14] Speaker 06:
Utility workers.

[00:35:15] Speaker 05:
But in describing the tests, it did say that the obvious fallacy in the board's analysis is its conclusion that there is a statutory issue apart from the contractual issue.

[00:35:26] Speaker 06:
Yes, and I think the distinction there is like Judge Srinivasan was mentioning, that in American Freight, it was clear that there was a distinction between the contractual issue and the unfair labor practice issue.

[00:35:38] Speaker 06:
And the court found, well, once we resolve the contractual issue, there's nothing left of the unfair labor practice issue.

[00:35:43] Speaker 06:
That's the end of the story.

[00:35:44] Speaker 06:
But here, there is a difference between the contractual, the word picketing

[00:35:55] Speaker 06:
Sorry, there is not a distinction.

[00:35:57] Speaker 06:
There's no evidence of a distinction between the word picketing in the contract and the word picketing in labor law.

[00:36:02] Speaker 06:
And so we're only getting into that repugnancy prong of the analysis.

[00:36:07] Speaker 06:
We're not getting into the question of whether those are separate issues, which was what the court said was not the case in American Freight.

[00:36:14] Speaker 04:
Because I thought in American Freight, the board didn't dispute the arbitrator's interpretation of the CBA.

[00:36:19] Speaker 04:
Right.

[00:36:20] Speaker 04:
Here the board is disputing the arbitrator's interpretation of the CBA.

[00:36:23] Speaker 04:
That's the whole point.

[00:36:24] Speaker 06:
Right.

[00:36:25] Speaker 04:
Yes.

[00:36:25] Speaker 04:
And so that's why it's not.

[00:36:26] Speaker 05:
But the sentence before did say the board may not substitute its own interpretation of Article 16 for that of the grievance committee.

[00:36:34] Speaker 05:
Right.

[00:36:34] Speaker 06:
And I don't think that's what's happening here.

[00:36:37] Speaker 06:
Because picketing is not simply a word in a contract that needs to be interpreted.

[00:36:41] Speaker 06:
It is a term of art that has a meaning.

[00:36:42] Speaker 06:
And what the board found.

[00:36:44] Speaker 06:
Suppose it were just a word in a contract.

[00:36:47] Speaker 06:
So if it's a word like, well, in utility workers, it was enforcing a board's decision in Southern California, Edison, deferring to the arbitrator, finding that the employer could implement a reasonable safety rule.

[00:37:02] Speaker 06:
And so the word reasonable was interpreted by the arbitrator to cover the rules in that case.

[00:37:08] Speaker 06:
And so that is a word in a contract that the arbitrator has the primary role of interpreting.

[00:37:17] Speaker 06:
Picketing is, like I said, a term of art with a specific set of meaning.

[00:37:22] Speaker 05:
So if an arbitrator just botches the interpretation of a word in a contract, interprets it to mean something contrary to its obvious dictionary meaning, the board has to defer on those cases?

[00:37:33] Speaker 05:
I don't think that's your position.

[00:37:34] Speaker 06:
Well, I don't think it's, they have to be, but that would be a different type of case when the,

[00:37:40] Speaker 06:
Phrase at issue is a word that has a meaning in the labor law context.

[00:37:45] Speaker 06:
That's really where the board has to step in and say, this is repugnant.

[00:37:48] Speaker 06:
This is if an arbitration decision read a contract and declared that in this collective bargaining agreement, the word employee shall mean supervisor.

[00:37:57] Speaker 05:
And why did the region and the original people to confront this

[00:38:01] Speaker 05:
make the same mistake that the arbitrator did.

[00:38:04] Speaker 06:
So the regional director found, as the board did, that the award was repugnant and declined to defer.

[00:38:13] Speaker 06:
She went on to rule on the merits, essentially.

[00:38:18] Speaker 06:
Rule on the merits that the arbitrator's decision would stand.

[00:38:26] Speaker 06:
No, well, the effect, the ultimate effect would be the same, but she did not defer to the arbitration award.

[00:38:33] Speaker 06:
And of course, I don't think that the board can be found to have abused its discretion by declining to defer to an award on grounds that were not in the award, so I don't think that the regional director's analysis goes to defer.

[00:38:46] Speaker 05:
Just pointing that out, because I think that's part of their complaint here, is that it went through several steps and then.

[00:38:52] Speaker ?:
Right.

[00:38:52] Speaker 05:
And I'm explaining why I don't think that helps them.

[00:38:55] Speaker 05:
And ultimately, legally, that's neither here nor there.

[00:38:57] Speaker 05:
But I wanted to give you a chance to respond to that.

[00:38:58] Speaker 05:
Sure.

[00:38:59] Speaker 05:
That would be my response.

[00:39:00] Speaker 05:
OK.

[00:39:00] Speaker 05:
Thank you for your submission.

[00:39:01] Speaker 05:
We'll give you a couple minutes for rebuttal.

[00:39:06] Speaker 05:
Oh, I'm sorry.

[00:39:06] Speaker 05:
Yes.

[00:39:09] Speaker 05:
The court sheet.

[00:39:12] Speaker 01:
Thank you, Your Honor.

[00:39:13] Speaker 01:
Alfred Gordon-O'Connell for the intervener, IDW local 2324.

[00:39:18] Speaker 01:
And to pick up a line of questioning that you ended with counsel for the board, when we're talking about the deferral regarding the arbitrarious construction of a word or phrase in the collective bargaining agreement, I think it's worthy of note that in this case, the word at issue in the collective bargaining agreement is not just any old word, but a word that is section seven protected activity.

[00:39:41] Speaker 01:
Just be kidding.

[00:39:41] Speaker 01:
It would be as if the arbitrator construed the word communication or any other word related to protected Section 7 rights and gave it a meaning that is completely inconsistent with that.

[00:39:52] Speaker 05:
But the contract could have waived this right, correct?

[00:39:55] Speaker 01:
The contract could, well, I shared Mr. Telligan's skepticism that the contract could waive the right of employees simply to verbally communicate.

[00:40:02] Speaker 05:
The contract could waive this right of the conduct at issue in this case, correct?

[00:40:08] Speaker 01:
Yes.

[00:40:09] Speaker 01:
And then I would point you back, Your Honor, respectfully to Judge Edwards' own words in the American Freight Systems case, where he indicated that the board had lost its way inasmuch as it did not consider this waiver standard.

[00:40:21] Speaker 01:
But if you look at the words that Judge Edwards used, he described that as a clear and unmistakable waiver standard, not just a plain old off-the-shelf waiver that parties looked at it and therefore were considering a waiver.

[00:40:33] Speaker 01:
Judge Edwards used those words in American Freight Systems.

[00:40:36] Speaker 04:
I'm not quite sure what to do with that because that is part of the decision on this area.

[00:40:45] Speaker 04:
But the board says in its brief at page 14 that, thus, although the board does not require that an award expressly employ a strict

[00:40:54] Speaker 04:
clear and unmistakable waiver analysis, it does look to whether the award examined factors such as legal precedent and the parties past practice.

[00:41:01] Speaker 01:
Yes, Your Honor, and when you're parsing the decisions of this Court, I would respectfully draw distinctions between cases that are 8A5 cases, where this Court and the Board before it was looking to see whether the parties had covered a subject matter by bargaining over it, versus cases where you're looking at a pure Section 7

[00:41:19] Speaker 01:
Right and an 8a1 case where it's a employee right that the parties are that the union is alleged to have waved so Bargaining rights are a bit amorphous You can bargain over any subject matter that is mandatory even permissive and once you've done that the parties are are have to stick with their bargain But when you're waving a section 7 right that has to be cleared on mistake But the Supreme Court has said that this court has said that the board has said that for 50 years and so I would say that if you're looking for

[00:41:49] Speaker 04:
I guess the question it seems like is whether the arbitrator was required to apply a clear and unmistakable waiver standard in construing whether the term picketing encompassed the signposting conduct at issue here.

[00:42:05] Speaker 01:
Under the facts of this case, I don't know whether you'd have to determine whether he looked at it or not.

[00:42:11] Speaker 01:
If he had, it certainly would change the analysis somewhat.

[00:42:14] Speaker 01:
But if this court sanctions the repugnancy part of the test, this court has described it, as the board does in the utility workers case, for example, as finding that the arbitrated decision is not susceptible of an interpretation that is consistent with the act.

[00:42:31] Speaker 01:
not that's consistent with the contract, that's consistent with the Act.

[00:42:35] Speaker 01:
And to find that the Act has for 50 years been construed to mean that Section 7 rights must be clearly and unmistakably waived, and then to say that the arbitrator did not clearly and unmistakably find that,

[00:42:48] Speaker 01:
is almost immaterial if there was no clear and unmistakable waiver, which I think the board has the right to find in the first instance.

[00:42:53] Speaker 01:
And this court has the right to review as well.

[00:42:55] Speaker 01:
And if you posit that alongside what Mr. Tellegen suggests would be the appropriate approach, which would be the union should accept that the matter should be deferred but then file under section 301 to have the arbitration award reversed because it doesn't draw its essence from the collective bargaining agreement, those are completely different standards.

[00:43:13] Speaker 01:
Under those Section 301 standards, there's no intervening act.

[00:43:17] Speaker 01:
There are no intervening protected statutory rights at issue.

[00:43:20] Speaker 01:
That's why the Board, under the statute in Section 10, has the right to defer or not to defer.

[00:43:27] Speaker 01:
It doesn't have to have a deferral policy.

[00:43:29] Speaker 01:
at all.

[00:43:30] Speaker 01:
It could conceivably look at each case on its own and not defer, which brings up the Babcock question.

[00:43:37] Speaker 01:
If the board has the ability to defer or not to defer, does the board then get to set the level in between?

[00:43:42] Speaker 01:
And isn't what this court is doing really deciding whether the board has adopted a set and understandable criterion for deferring and followed that appropriately?

[00:43:52] Speaker 01:
Because this court and the Supreme Court would say, once the board sets

[00:43:56] Speaker 01:
a path, it should follow that path or describe why it's not following that path anymore.

[00:44:01] Speaker 01:
So if this court were to get to the underlying Babcock and Wilcock question, which has not been briefed to you and which the parties have admittedly not prepared to argue before you today, I would certainly have to posit that the board has the right

[00:44:12] Speaker 01:
could eliminate it altogether.

[00:44:13] Speaker 01:
So the standard they've now set in Babcock would be appropriate.

[00:44:16] Speaker 01:
And under that standard, there is no question this employer violated Section 8A1 of the Act because this employer told employees they could not put signs in their cars just as if it were a bumper sticker to express concern among themselves about their working conditions and that there was no clear and unmistakable waiver of that Section 7 right.

[00:44:35] Speaker 05:
Thank you.

[00:44:36] Speaker 01:
Thank you, Your Honor.

[00:44:38] Speaker 05:
Thank you.

[00:44:38] Speaker 05:
We'll hear a rebuttal.

[00:44:48] Speaker 03:
I don't think that the board could establish a non-neferral policy that doesn't give way to the various congressional mandates about arbitration.

[00:44:57] Speaker 03:
And I do think the statute is complied with because there is review by the board for, notwithstanding what Mr. Cardinal McConnell said, there is review.

[00:45:06] Speaker 03:
I concede that if this contract is interpreted as unlawful, then it's unlawful, and the board can so find that.

[00:45:13] Speaker 03:
Just want to emphasize, arbitration is really important.

[00:45:16] Speaker 03:
It is, in fact, what makes collective bargaining work.

[00:45:22] Speaker 03:
And parties trust that process, even when it comes to a really bad result for them.

[00:45:28] Speaker 03:
And we're focusing on what?

[00:45:30] Speaker 05:
I don't think the board trusts that process, at least not completely.

[00:45:34] Speaker 05:
And that's part of the historic reservation of the probably wrong standard and part of its current move, even to a more stringent review, arguably, of arbitration decisions.

[00:45:46] Speaker 03:
Mr. Heller did a valiant job defending the board's decision in this case, but his inability to really answer your questions about what palpably wrong actually means.

[00:45:55] Speaker 03:
Unless it means, like, really, really wrong.

[00:45:58] Speaker 03:
It seems like what it means to me.

[00:46:00] Speaker 03:
And if it's really, exactly wrong, and if what they really mean is it's not so much the process, that you look at the award and it's really bad, unless you use the vernacular to get in trouble with the score, but it was really bad, then you should find it palpably wrong.

[00:46:15] Speaker 03:
Now, first of all, this award wasn't in any way really, really bad.

[00:46:19] Speaker 03:
That's why we made reference to it.

[00:46:20] Speaker 05:
Well, they think it is.

[00:46:21] Speaker 03:
They do.

[00:46:22] Speaker 03:
They do.

[00:46:23] Speaker 03:
But it's hard to get that out of the existing case law.

[00:46:27] Speaker 03:
But more importantly, Your Honor, with respect, if it's really, really wrong, the Supreme Court has already told us what happens to really, really wrong awards.

[00:46:36] Speaker 03:
And it's very careful about putting constraints around it that protect the process.

[00:46:42] Speaker 04:
That is the separate process you mean under 301?

[00:46:47] Speaker 04:
That's not necessarily to the exclusion of this process.

[00:46:50] Speaker 04:
Just because there is another process doesn't mean that the board doesn't have the authority to look at arbitral decisions that they think are really, really wrong.

[00:46:58] Speaker 04:
Which is deference.

[00:46:59] Speaker 04:
It's still deference.

[00:47:00] Speaker 04:
It's not as much deference as you'd like, but it's still deferential review.

[00:47:03] Speaker 03:
The deference I would like is the board looks at the contract.

[00:47:07] Speaker 03:
And that contract includes both what's written down there and arbitral decisions interpreting the contract and says that's lawful or not lawful.

[00:47:17] Speaker 03:
And the distinction that the board tries to draw in this case between the process of rendering the award and the contract is interpreted as a dangerous one.

[00:47:26] Speaker 03:
It's dangerous to the process of collective bargaining.

[00:47:28] Speaker 03:
It's dangerous to the arbitral process for exactly the reasons that came up in this case.

[00:47:33] Speaker 03:
The party, this was a very clear provision, no picketing.

[00:47:37] Speaker 03:
clearly a non-mistakable waiver of picketing.

[00:47:39] Speaker 03:
And what was left was the question of, well, does picketing cover this kind of curious, strange, particular set of events?

[00:47:48] Speaker 03:
Clearly ticket signs, clearly set up to present a message, but no one's walking around with signs.

[00:47:55] Speaker 03:
Obviously, that was not clearly and unmistakably waived literally in the contract, because who would ever think to negotiate a provision about putting ticket signs in a truck?

[00:48:04] Speaker 03:
The question that was left was, when the parties said picketing, was that language appropriately covered this activity?

[00:48:11] Speaker 03:
Calling it a mistake of a waiver makes no sense in that context.

[00:48:14] Speaker 03:
The question is, what did the parties mean by the word picketing when they wrote down picketing in this contract?

[00:48:19] Speaker 03:
And they probably had no intention whatsoever as related to signs and trucks.

[00:48:24] Speaker 03:
The question really is, in all the circumstances, should ticketing be read broadly enough to cover that?

[00:48:29] Speaker 03:
And the person that the parties agreed to have decide that question was the arbitrator.

[00:48:35] Speaker 03:
And he did.

[00:48:35] Speaker 03:
Thank you.

[00:48:37] Speaker 05:
Thank you.

[00:48:38] Speaker 05:
The case is submitted.