[00:00:00] Speaker 01: Good morning, Your Honors, and may it please the Court. [00:00:03] Speaker 01: Michael Mutie from Benesh here for the Wilton Rancheria Tribe. [00:00:07] Speaker 01: I'd like to reserve five minutes for rebuttal, please. [00:00:11] Speaker 01: Your Honors, this is a case about tribal sovereignty. [00:00:15] Speaker 01: Wilton Rancheria, a sovereign nation, enacted the Tribal Labor Relations Ordinance through its full constitutional legislative process in 2019. [00:00:26] Speaker 01: The arbitrator acknowledged that the tribe adopted this ordinance, but he concluded that doing so was not a sovereign act. [00:00:35] Speaker 01: So he disregarded the TLRO and concluded that a prior private agreement overrides that tribal law. [00:00:43] Speaker 01: That decision manifestly disregarded the law. [00:00:47] Speaker 01: The trial court erred by denying Wilton's petition to vacate, and it did so in at least three ways. [00:00:54] Speaker 01: First, the arbitrator manifestly disregarded the core principle of tribal sovereignty. [00:01:00] Speaker 01: And he did so by holding that a compact with California somehow extinguished the tribe's power to legislate. [00:01:09] Speaker 01: Compact-making, however, is a... Well, but I thought the district court was a little... [00:01:14] Speaker 03: The district court said that the arbitrator, it was a little bit more nuanced than that. [00:01:20] Speaker 03: It said that, acknowledged that there was tribal sovereignty at issue here, but that they had, when they used that tribal sovereignty to enter into an agreement, which effectively seeded their tribal sovereignty into the agreement. [00:01:34] Speaker 03: Why is that manifestly unjust? [00:01:37] Speaker 01: The MOA did not, it was not an act of tribal sovereignty on par with the TLRO. [00:01:44] Speaker 01: The TLRO went through the full legislative process, all three stages. [00:01:50] Speaker 04: Can we start with what Judge Nelson just said? [00:01:52] Speaker 04: Do you dispute that a tribe could do that? [00:01:55] Speaker 04: I know you obviously don't think that's what happened here, but do you dispute that a tribe exercising their sovereignty could enter into an agreement [00:02:02] Speaker 04: with somebody and give up their sovereignty in some sliver. [00:02:09] Speaker 04: A, you agree they could do that? [00:02:13] Speaker 04: I do agree that they could, although... Okay, so if they can, and I guess you would agree that if you're somebody who's going to make an agreement with a sovereign entity, that might be something you really want them to do. [00:02:25] Speaker 04: You don't want to make a deal with them [00:02:27] Speaker 04: that they can just back out of. [00:02:29] Speaker 04: So you have to, which is what sovereigns can kind of do. [00:02:33] Speaker 04: So you'd want that. [00:02:35] Speaker 04: And so this all goes to your manifestly disregarded. [00:02:41] Speaker 04: In the arbitration context, you have to, what the words are, you have to manifestly disregard the law and not get the law wrong. [00:02:50] Speaker 04: And reading the arbitration decision and reading the district courts, it's really hard for me to see that [00:02:57] Speaker 04: the arbitrator disregarded, as in didn't take into account sovereignty at all, just ignored it, which would be another way, I guess, a synonym for manifestly disregarding. [00:03:07] Speaker 04: Is your position that the arbitrator ignored it, or is it your position that somehow the arbitrator got it so wrong that it's effectively ignoring it and therefore meets the manifestly disregard? [00:03:21] Speaker 01: The latter, Your Honor. [00:03:22] Speaker 04: And I think this court's precedent illustrates exactly why this arbitrator's... What's the cases to say that if you don't actually disregard, you actually don't ignore as an arbitrary taken, but you get it really wrong that it meets that standard? [00:03:42] Speaker 01: I'll offer two, Your Honor. [00:03:43] Speaker 01: First, Comedy Club Inc. [00:03:45] Speaker 01: versus Improv West associates. [00:03:48] Speaker 01: There, the Ninth Circuit held that an arbitrator manifestly disregarded the law. [00:03:54] Speaker 01: When he acknowledged a statute, there was a provision of the California Labor Code, but he refuses to apply it. [00:04:02] Speaker 01: Same here. [00:04:04] Speaker 01: The arbitrator acknowledged the TLRO, but he refused to apply it. [00:04:10] Speaker 03: OK, but I mean, all these things, look, [00:04:15] Speaker 03: I have a problem with this. [00:04:16] Speaker 03: I mean, I wrote the heyday opinion, which isn't directly on point, but does, you know, applies this manifestly and just. [00:04:24] Speaker 03: I mean, it was completely wrong application. [00:04:28] Speaker 03: Absolutely wrong. [00:04:29] Speaker 03: Cost them millions of dollars. [00:04:31] Speaker 03: I thought there's no way we can uphold this. [00:04:34] Speaker 03: But when you look at it, [00:04:36] Speaker 03: I mean, it goes to what Judge Van Dyke is saying that the standard is so high. [00:04:40] Speaker 03: And so when you come in and say, well, yeah, but he just disregarded, he didn't disregard it. [00:04:46] Speaker 03: He said there's two agreements, there's TLRO and there's the MOA. [00:04:52] Speaker 03: And I think the MOA applies here. [00:04:54] Speaker 03: He could be completely wrong. [00:04:56] Speaker 03: He could be completely wrong. [00:04:57] Speaker 03: The problem is when you agree to arbitrate under the FAA, that's what you get. [00:05:03] Speaker 03: You're bound by the arbitrator. [00:05:06] Speaker 03: It's very, very difficult to unwind these arbitral decisions. [00:05:12] Speaker 01: I fully acknowledge the high standard here. [00:05:15] Speaker 01: You just think you meet it? [00:05:16] Speaker 01: I do think we meet it. [00:05:18] Speaker 03: Do you meet it because tribal interests are at issue here? [00:05:21] Speaker 03: Does that somehow put this outside of it? [00:05:23] Speaker 03: Because to me, he recognized tribal interests were at play here. [00:05:29] Speaker 03: He said it just doesn't control. [00:05:30] Speaker 03: Does that somehow give you a different standard because the tribal interests, in your view, were disregarded or trampled on? [00:05:40] Speaker 03: Is that different than any other contractual right? [00:05:44] Speaker 01: Tribal sovereignty is not a contractual right. [00:05:47] Speaker 01: It is a core principle that the arbitrator manifestly disregarded by concluding that the tribe had sacrificed it by exercising its sovereignty. [00:05:59] Speaker 04: But if you agree, at the very beginning I asked you [00:06:02] Speaker 04: Would you agree that a tribe can come in and cede some of its sovereignty? [00:06:07] Speaker 04: And I think you agreed that, and I think you have to, that they can do that. [00:06:12] Speaker 04: Then I assume you would agree that that issue of whether the tribe did in fact actually cede some of its sovereignty in a given instance is not somehow, I want to say that that issue can be arbitrated if a tribe agreed to arbitrate that, that issue, right? [00:06:31] Speaker 04: Could it be arbitrated or is your position that that just can't be arbitrated? [00:06:34] Speaker 04: I don't think that's your position. [00:06:36] Speaker 01: Perhaps I need to clarify. [00:06:37] Speaker 01: I think if a tribe goes through the full constitutional process of legislating to cede its sovereignty, then it could do it. [00:06:46] Speaker 01: Signing a contract doesn't do that. [00:06:47] Speaker 04: Let's just make it simpler. [00:06:48] Speaker 04: If you agree that a tribe can cede its sovereignty and you agree that that issue can be arbitrated, okay, then [00:06:57] Speaker 04: Beating the drum about how important sovereignty is doesn't actually help us in deciding whether or not this arbitrator in doing what an arbitrator can do, deciding whether or not sovereignty was ceded, manifestly disregarded. [00:07:11] Speaker 04: Because it seems to me your arguments are basically sovereignty is so important here that by not recognizing and applying the sovereignty, then the arbitrator manifestly disregarded. [00:07:24] Speaker 04: But the arbitrator did take it into consideration and just concluded that the tribe had ceded it. [00:07:29] Speaker 04: And maybe got that wrong. [00:07:31] Speaker 04: Maybe got that wrong. [00:07:31] Speaker 04: But I don't see how that meets the manifest disregard. [00:07:35] Speaker 04: Unless, to Judge Nelson's question, sovereignty somehow is just different in kind. [00:07:42] Speaker 04: And so an arbitrator can do it, but they have to say magic. [00:07:46] Speaker 04: I don't know. [00:07:46] Speaker 04: I'm trying to figure out why the importance of sovereignty, which is super emphasized by you and you understandably. [00:07:53] Speaker 04: why that somehow changes the inquiries, whether they manifestly disregard it, because the arbitrator didn't, in any sort of plain meaning of disregard, didn't disregard it, completely took it into account, just reached a conclusion that had been ceded. [00:08:13] Speaker 01: Waivers or abrogations of sovereignty are not lightly inferred. [00:08:18] Speaker 01: And here, the arbitrator did just that. [00:08:21] Speaker 01: He lightly inferred a waiver of sovereignty by the tribes exercising its sovereignty by entering into the compact. [00:08:29] Speaker 01: That's a problem. [00:08:30] Speaker 02: I want to make sure I understand your argument about why you think the arbitrator was wrong here in a way that we can take cognizance of. [00:08:44] Speaker 02: Do you, is it your position that just that when the arbitrator turned to the issue of how the correct understanding of the memorandum of understanding relates to the TLRO that he got that wrong? [00:09:03] Speaker 02: Or are you also making an argument that the arbitrator had authority to determine the scope of the MOU [00:09:11] Speaker 02: but didn't have the authority to interpret the status of the TLRO and therefore its relationship to the MOU. [00:09:18] Speaker 02: Or do you concede that the issue of how the TLRO and the MOU intersect was properly within the purview of the arbitrator? [00:09:28] Speaker 01: The agreement to arbitrate was for the arbitrator to decide the relationship between the MOA and the TLRO. [00:09:37] Speaker 02: Even a post enactment TLRO. [00:09:40] Speaker 02: a post MOU changed to the TLRO. [00:09:43] Speaker 01: Correct. [00:09:44] Speaker 02: You can see that was properly within the scope of the arbitrators can to look at how the 2019 amendment to the TLRO relates to the MOU. [00:09:55] Speaker 01: That's what the parties agreed to arbitrate. [00:09:59] Speaker 01: That was the agreement to arbitrate in this case. [00:10:04] Speaker 01: And here, a couple of things. [00:10:07] Speaker 03: Why would you agree to arbitrate it if your view was it can't be arbitrated because it is so intertwined with our tribal sovereignty? [00:10:20] Speaker 01: The agreement to arbitrate was necessary. [00:10:24] Speaker 01: There was a procedural thicket in the district court. [00:10:28] Speaker 01: Initially, the union sued. [00:10:33] Speaker 01: that was to pursue a different arbitration under the MOA? [00:10:38] Speaker 02: Is it your position that if the tribe has some other law that isn't mentioned in here that might override in some way in the exercise of its sovereignty some provision the MOU then the arbitrator would have had jurisdiction to decide that issue as well? [00:10:56] Speaker 01: The MOA [00:10:58] Speaker 01: expressly recognize that subsequent legislative enactments might nullify portions of the MOA. [00:11:06] Speaker 01: That's in paragraph 16 of the MOA 489. [00:11:08] Speaker 02: Does that mean that it is within the ken of the arbitrator to decide when that occurs? [00:11:16] Speaker 01: We don't dispute that that was within the arbitrators. [00:11:21] Speaker 01: What the parties bargained for here? [00:11:24] Speaker 02: Maybe this is part of what Judge Van Dyke is getting at. [00:11:28] Speaker 02: It seems really odd to say that it's important to have this sovereign right to override, and yet we subordinated it to an arbitrator. [00:11:37] Speaker 02: I mean, because the federal government enters a contract [00:11:39] Speaker 02: Congress can override it tomorrow. [00:11:41] Speaker 02: There might be a breach claim in the Court of Federal Claims, but there's no question Congress can override it with the exercise of its sovereign authority. [00:11:50] Speaker 02: But one would not think that the scope of Congress's sovereign authority would be itself part of the contract. [00:11:59] Speaker 02: But you're conceding that the relationship between the MOU and the subsequent sovereign enactment was within the arbitrators' ken to decide. [00:12:10] Speaker 01: The parties bargained for the arbitrator to resolve the question in front of him. [00:12:16] Speaker 01: And the question in front of him required him to consider the core principle of tribal sovereignty, to consider the legislative enactment valid tribal law that was a TLRO. [00:12:28] Speaker 01: And he didn't do those things. [00:12:30] Speaker 04: So if we take all of your argument, and I understand where you're at, but this is really important, because if we take all your arguments and put them together, it feels like your argument is, [00:12:39] Speaker 04: that you are conceding. [00:12:40] Speaker 04: Yes, the arbitrator had the authority to decide all these things. [00:12:44] Speaker 04: But if you add that to your other arguments, your further argument is the arbitrator had the authority to decide. [00:12:49] Speaker 04: But if the arbitrator decided it against us, then you have to overturn that because that is somehow by definition, this is what I was trying, a manifest disregard of the law. [00:12:59] Speaker 04: So it's a little bit of a heads we win, tails you lose type situation. [00:13:03] Speaker 04: Yes, we completely submitted to this arbitration, including all the questions and answers. [00:13:07] Speaker 03: Because we knew you couldn't actually do it. [00:13:08] Speaker 04: Because once it comes to you guys, if we lose, we will win. [00:13:11] Speaker 04: And that feels kind of unfair. [00:13:13] Speaker 01: Perhaps it would be possible for an arbitrator to fully account for tribal sovereignty and the TLRO as a valid legislative enactment. [00:13:23] Speaker 01: But that is not what this arbitrator did. [00:13:26] Speaker 01: Looking at his decision, he gave three reasons. [00:13:29] Speaker 01: Two of them had to do with motivations regarding the MOA. [00:13:33] Speaker 01: That kind of presumed the primacy of the MOA over the TLRO. [00:13:38] Speaker 01: And then he cast aside the TLRO saying, look, this wasn't a valid act of sovereignty. [00:13:49] Speaker 04: Ordinarily, if I was hearing these kind of arguments in attacking an arbitrator's decision, I would just say, yeah, it sounds like the arbitrator really flubbed this one. [00:13:57] Speaker 04: But it also doesn't sound like, I mean, you're telling me all kinds of things the arbitrator did but did wrong. [00:14:02] Speaker 04: And so it doesn't sound like the arbitrator manifested disregard, which kind of brings us full circle. [00:14:06] Speaker 04: Is the sovereignty thing doing some special work here? [00:14:10] Speaker 04: And I'm struggling with that in your argument. [00:14:13] Speaker 01: The sovereignty does this work. [00:14:16] Speaker 01: It makes the TLRO a law. [00:14:19] Speaker 01: The arbitrator did not apply it as a law. [00:14:22] Speaker 01: He looked at it as just something else that was out there. [00:14:25] Speaker 04: But that's not true, because the arbitrator said both, I mean, the arbitrator said both exist, and they can both exist at the same. [00:14:30] Speaker 04: He didn't even say that TLRO doesn't also provide a different mechanism. [00:14:34] Speaker 04: He said you can use both mechanisms, the one in the MOA. [00:14:38] Speaker 04: So I mean, I didn't quite understand. [00:14:40] Speaker 04: That doesn't seem to me at all a fair representation of what the arbitrator concluded. [00:14:45] Speaker 01: So I think the ASPEC engineering case is most relevant here. [00:14:49] Speaker 01: In ASPEC engineering, [00:14:51] Speaker 01: Court overturned an arbitrator's award, vacated an arbitrator's award, because there, the contract incorporated federal acquisition regulations. [00:15:00] Speaker 01: And the arbitrator said, I really don't think it's reasonable for an Afghan subcontractor to comply with those. [00:15:07] Speaker 01: It's not reasonable for the parties to expect that they would apply. [00:15:12] Speaker 03: But there, you at least have the argument that he said, I'm not going to consider those. [00:15:18] Speaker 03: That falls within. [00:15:20] Speaker 03: potentially the manifest disregard. [00:15:24] Speaker 03: That's not what happened here. [00:15:26] Speaker 03: He didn't say, oh, well, you can't get around this with the TLRO. [00:15:30] Speaker 04: He didn't even say the TLRO does not apply. [00:15:33] Speaker 04: That's the thing. [00:15:33] Speaker 04: He didn't say, I'm picking MOA over. [00:15:35] Speaker 04: He just said, I think both apply. [00:15:37] Speaker 04: I don't think they're inconsistent. [00:15:38] Speaker 01: He disregarded the TLRO as a sovereign act. [00:15:43] Speaker 01: Very clearly, he did that. [00:15:44] Speaker 04: All he did was he didn't say that the TLRO [00:15:47] Speaker 04: Essentially abrogated and made ineffective as a section eight or whatever though with the one second. [00:15:51] Speaker 04: I can't remember what section two eight seven I don't remember it. [00:15:55] Speaker 01: I see my time is up if we'll give you time for a bottle. [00:16:00] Speaker 01: Would you like me to answer that now your honor or safer? [00:16:02] Speaker 01: Okay, the the TLRO is incorporated into the MOA. [00:16:10] Speaker 01: The MOA says expressly that the parties will agree that the TLRO governs. [00:16:14] Speaker 02: That's the then existing version, right? [00:16:17] Speaker 02: Because the whole point here is it was later amended after that was signed. [00:16:21] Speaker 02: And that was, as I understand it, an exercise of sovereign authority and overrides the contract. [00:16:29] Speaker 01: The timeline is in June of 2017, the Compact was signed by the tribe, the Compact with California. [00:16:40] Speaker 01: The next month, July of 2017, the parties began negotiating the MOA. [00:16:46] Speaker 01: The compact became effective in January 2018. [00:16:49] Speaker 01: And then the TLRO was executed, signed, passed into law in April 2019. [00:16:59] Speaker 01: So that's the timeline. [00:17:01] Speaker 02: After the contract. [00:17:02] Speaker 01: After the MOA. [00:17:04] Speaker 01: The MOA. [00:17:04] Speaker 01: So while the union was negotiating the MOA, it knew full well that one... This was coming. [00:17:11] Speaker 01: The compact had passed. [00:17:13] Speaker 01: Two, the compact would... And this was in the compact. [00:17:16] Speaker 01: Exactly. [00:17:16] Speaker 01: The compact would require a TLRO. [00:17:19] Speaker 02: And three, that TLRO... So just so I understand the timing, so the MOA was executed after the compact or before? [00:17:29] Speaker 01: The MOA was executed two months after the Compact in August of 2017. [00:17:35] Speaker 04: There's two different versions of the Compact. [00:17:37] Speaker 04: There's the Compact and then there's the TLRA, which is basically the Compact language plus a couple other provisions. [00:17:43] Speaker 04: Is that correct? [00:17:44] Speaker 01: The compact required passage of the TLRO. [00:17:49] Speaker 01: There was a model TLRO attached to the compact. [00:17:52] Speaker 04: And there were some added provisions in what actually was passed, which happened after the MOA. [00:17:57] Speaker 01: Correct. [00:17:57] Speaker 01: The prefatory provisions of the TLRO that passed made clear the tribe's intent that the TLRO be narrowly construed into require no more than the compact required. [00:18:12] Speaker 01: That's important. [00:18:13] Speaker 01: That's incorporated into the contract. [00:18:17] Speaker 01: And further, the contract, the MOA, in paragraph 16, expressly acknowledges that the parties anticipated that subsequent legislative enactments could nullify portions of the MOA. [00:18:32] Speaker 04: This is what Judge Collins was getting at earlier. [00:18:36] Speaker 04: Since it was passed later and it's a sovereign act, that's basically like the United States saying, yeah, I know we agreed [00:18:42] Speaker 04: pay you all this money, but Congress passed this thing, and we don't have to. [00:18:45] Speaker 04: But in answer to Judge Collins' questions, you said, yeah, but we agreed to have that arbitrated, including the subsequent thing that was passed by the tribe. [00:18:59] Speaker 04: And so I think your only possible way I think you could win [00:19:08] Speaker 04: would be if you somehow that subsequent thing was not really before the arbitrator. [00:19:14] Speaker 04: The arbitrator could not interpret the subsequent thing that was passed. [00:19:18] Speaker 04: And you've conceded that it was before the arbitrator. [00:19:23] Speaker 01: The parties acknowledged through the MOU or MOA that there would be subsequent or could be subsequent legislative developments that could nullify provisions of the MOA. [00:19:37] Speaker 01: The arbitrator disregarded the TLRO. [00:19:41] Speaker 04: He did not disregard it. [00:19:42] Speaker 04: What he said is that he read it a later thing and said it did not actually, it didn't, because he said it didn't actually [00:19:50] Speaker 04: Abrogate that the portion that you want to have abrogate. [00:19:53] Speaker 04: That's what he did he interpreted could have got that wrong Maybe got it badly wrong, but that's what he did and so unless there's some reason he did not have the authority to interpret the moa against the subsequently enacted TLRO whatever TLRO a then [00:20:14] Speaker 04: Then your argument is very hard because you're trying to get us to conclude that he disregarded it when he obviously didn't disregard it. [00:20:22] Speaker 01: I honestly don't think it's that hard, Your Honor, for us because of the Comedy Club case. [00:20:27] Speaker 01: In the Comedy Club case, same thing. [00:20:30] Speaker 01: The arbitrator identified a statute and said, here, I know that statute exists, I acknowledge it, but I'm just not going to apply it. [00:20:40] Speaker 04: See, that's different. [00:20:41] Speaker 04: As Nelson said with regard to the other, that's different because here he didn't do that. [00:20:46] Speaker 04: What he did, he said, it's like having two statues. [00:20:49] Speaker 04: It's not saying, I'm not going to apply this other statue. [00:20:51] Speaker 04: It's going to say, I'm going to apply both. [00:20:53] Speaker 04: You both win. [00:20:54] Speaker 04: You could do it under the MOAs provision, the whatever check thing, or you can do it under the TLA. [00:21:02] Speaker 04: That's different. [00:21:04] Speaker 04: Judge Nelson is trying to keep control of this thing. [00:21:07] Speaker 03: Not really. [00:21:07] Speaker 03: I've lost control and I'm happy with that. [00:21:11] Speaker 03: Why don't we give you some time for rebuttal at this point. [00:21:16] Speaker 03: Thank you. [00:21:17] Speaker 03: These are important issues. [00:21:19] Speaker 03: Interesting. [00:21:29] Speaker 00: May it please the court, Kristen Martin and McCracken Stammerman and Hulsberry for the plaintiff appellee unite here. [00:21:39] Speaker 00: Let me start by laying out the timeline. [00:21:41] Speaker 00: Here's what happened. [00:21:43] Speaker 00: As counsel said, in June and then in July, the tribe and the governor of California signed the compact. [00:21:49] Speaker 00: The TLRO is an exhibit to that compact. [00:21:53] Speaker 00: compact that was signed in that time said, if this compact goes into effect, it needs to be ratified by the legislature, but if it goes into effect, the tribe has to enact the TLRO identically. [00:22:05] Speaker 00: It uses the word identical, but enact the TLRO verbatim as a condition of opening a casino and then continuing to operate the casino. [00:22:13] Speaker 00: So that happened in June and July. [00:22:14] Speaker 00: In August, the union and the tribe signed the Memorandum of Agreement. [00:22:20] Speaker 00: That Memorandum of Agreement referenced the TLRO in paragraph two, so they were referring to... Were they referring to the existing TLRO? [00:22:28] Speaker 00: Well, there's only one TLRO, and let me explain that. [00:22:31] Speaker 00: They were referring to what was attached to that compact, which is what the tribe had to enact identically without changing any words of it. [00:22:40] Speaker 02: Was there a TLRO on the books that differed from the compact version at that time? [00:22:48] Speaker 02: No. [00:22:49] Speaker 02: No? [00:22:49] Speaker 02: Okay. [00:22:51] Speaker 00: So in August, the tribe and the union signed this memorandum of agreement. [00:22:56] Speaker 00: They know what the TLRO says because it's attached to the compact that's already been signed. [00:23:01] Speaker 00: And it's a model TLRO that's attached to many compacts with many tribes. [00:23:07] Speaker 00: They agree that what the union will give in exchange, the union's consideration is, in addition to labor peace, is also to go and lobby for this compact before the California legislature. [00:23:18] Speaker 00: The union does that. [00:23:19] Speaker 00: I believe in October of 2017, the legislature ratifies the compact, and the compact goes into effect. [00:23:26] Speaker 00: The tribe enacts its TLRO as the compact required it to do, as it agreed to do in the compact. [00:23:33] Speaker 00: Again, without changing any words, [00:23:35] Speaker 00: a prefatory section. [00:23:37] Speaker 04: So you say without changing any words, they didn't, to be precise, they didn't subtract anything from it because that would be problematic, but they added a few things, including a provision that says we're going to interpret this as narrowly as we can get away with. [00:23:52] Speaker 00: Sure. [00:23:52] Speaker 00: Sure. [00:23:52] Speaker 00: They say we're enacting this because the compact requires us to do. [00:23:55] Speaker 00: That's in the prefatory section. [00:23:57] Speaker 00: And then they say it will be construed narrowly. [00:24:01] Speaker 04: There's we have no no problem with that, but they're saying we're doing this only because we agree but they rely heavily upon these additional words as as as influencing the the Analysis of how the MOA and the TLRO interacts I think that's how I read their briefing. [00:24:23] Speaker 04: They did the narrowly interpret narrowly. [00:24:26] Speaker 04: They're saying you should you should interpret the [00:24:32] Speaker 04: the any concession of sovereignty narrowly and you should, so they are relying on that, you agree with that? [00:24:40] Speaker 00: I don't think it does anything for them. [00:24:43] Speaker 00: Let me read the language. [00:24:47] Speaker 04: How about this, I would agree with you that it seems like it does less for them if as, am I correct that the arbitrator's conclusion here was basically, yeah, you get the provisions, what's it called, something check, [00:25:01] Speaker 04: The card check provision of the MOA. [00:25:05] Speaker 04: But you also have, so we could do it either way. [00:25:08] Speaker 04: I suppose it would be interesting, more challenging if the arbitrator had found a conflict, but it's actually the opposite. [00:25:19] Speaker 04: The arbitrator found there was no conflict and that they [00:25:22] Speaker 04: that you could have both. [00:25:24] Speaker 00: Exactly. [00:25:24] Speaker 00: The arbitrator accredited testimony from the attorney who negotiated the original TLRO for tribes that the TLRO was modeled after the National Labor Relations Act. [00:25:35] Speaker 00: And just like the National Labor Relations Act, it sets out an election process. [00:25:39] Speaker 00: It says nothing about card check. [00:25:41] Speaker 00: But it doesn't say a card check. [00:25:43] Speaker 00: A different route to recognition, the card check route, is prohibited. [00:25:48] Speaker 00: And that's what he found that the tribe agreed to a card check, that's unquestioned, in paragraph seven of the MOA. [00:25:54] Speaker 00: And nothing in the TLRO prohibits the union from proceeding on that path. [00:25:58] Speaker 00: So when the arbitrator found that the tribe must comply with the MOA, he's essentially saying the tribe must do what it promised the union it would do. [00:26:06] Speaker 00: And there's nothing in the TLRO, whether we treat that as a provision of the compact, which is what we say it is, [00:26:13] Speaker 00: or some sort of independent tribal law, there's nothing in the TLRO that says it can't comply with the MOA. [00:26:22] Speaker 04: Well, that would be where I think they'd go to the narrow, you know, I guess one way to interpret the TLRO narrowly would be to say that it's [00:26:31] Speaker 04: that its specific procedures for how you recognize a union are exclusive, right? [00:26:37] Speaker 04: So different than the NLRA. [00:26:40] Speaker 04: I think that would maybe be their argument. [00:26:43] Speaker 00: Let me say two things in response to that. [00:26:45] Speaker 00: One is the TLRO itself, which the tribe enacted [00:26:49] Speaker 00: doesn't give the tribe authority to decide how to interpret it. [00:26:52] Speaker 00: It says, an arbitrator. [00:26:54] Speaker 00: Any issues under this TLR will be resolved by arbitration. [00:26:58] Speaker 00: So the tribe didn't have the ability to use its own government processes to decide how to enforce this law. [00:27:05] Speaker 03: That's what's strange here. [00:27:08] Speaker 03: And I mean, you heard us. [00:27:12] Speaker 03: If it's a sovereign issue that couldn't be decided by the arbitrator, it's hard to understand why it was sent [00:27:18] Speaker 03: why it was sent to the arbitrator. [00:27:20] Speaker 03: I mean, if the United States were involved here and the question was, you know, does Congress have the authority to do this, the United States would never agree to send that to an arbitrator, I assume. [00:27:33] Speaker 00: What the testimony before the arbitrator was, was that the TLRO is a tribal law in name only. [00:27:40] Speaker 00: It was structured as a [00:27:42] Speaker 03: And that testimony came from who? [00:27:44] Speaker 00: From an attorney named Howard Dickstein who negotiated the original TLRO. [00:27:48] Speaker 03: But he was not put up by the tribe. [00:27:52] Speaker 03: He was not a tribal witness. [00:27:54] Speaker 00: No, the union called him as a witness. [00:27:56] Speaker 00: But he negotiated the original TLRO. [00:27:58] Speaker 03: But did the tribe say anything to that effect? [00:28:02] Speaker 03: Did they concede this before the arbitrator that it was tribal sovereignty and name only? [00:28:12] Speaker 03: They contested that. [00:28:13] Speaker 00: No, no, they argued that this was a tribal law and so it should trump the... They had two different arguments. [00:28:21] Speaker 00: They said it's a tribal law so it should trump the MOA. [00:28:24] Speaker 00: They said... [00:28:25] Speaker 00: They said, well, look at me. [00:28:27] Speaker 03: They never argued it's a tribal law. [00:28:30] Speaker 03: Not only should it trump, but you should stay out of this because this affects our tribal system. [00:28:34] Speaker 00: Absolutely not. [00:28:35] Speaker 00: So how we ended up in this arbitration proceeding is the union invoked its rights under the MOA. [00:28:42] Speaker 00: And one of the first things that has to happen is the parties have to meet to select an arbitrator under the MOA, that arbitration procedure. [00:28:49] Speaker 00: The tribe said, no, we won't do that because we think the TLRO trumps this or the TLRO controls. [00:28:55] Speaker 00: So the union was preparing to sue to compel the tribe to do so. [00:28:58] Speaker 00: And the tribe said, well, we want to arbitrate under the TLRO. [00:29:04] Speaker 00: So the union's fine. [00:29:05] Speaker 00: If you want to arbitrate this question under the TLRO of whether the MOA or the TLRO provides the procedure to use to get to recognition, we'll do that. [00:29:16] Speaker 00: In fact, the tribe submitted a claim for arbitration with American Arbitration Association. [00:29:21] Speaker 00: And this is all on the record. [00:29:24] Speaker 00: There's an email trail. [00:29:25] Speaker 00: I had a conversation with the tribe's attorney, and we agreed that we would do that. [00:29:28] Speaker 00: We selected the arbitrator. [00:29:29] Speaker 00: We met with the arbitrator and agreed on the issue that the arbitrator would decide. [00:29:34] Speaker 00: That's in the arbitrator's decision. [00:29:36] Speaker 00: I think there's no question that the tribe did not reserve any objection to the arbitrator's power to decide this question at all. [00:29:46] Speaker 04: And even now, their argument doesn't seem to be that the arbitrator couldn't decide this question. [00:29:49] Speaker 04: It's kind of a they're smuggling in. [00:29:52] Speaker 04: We were sovereign, they didn't have jurisdiction, so they're basically saying we're sovereign, and so it somehow feeds into the manifestly disregard inquiry, as I understand their argument. [00:30:02] Speaker 04: And I'm struggling with what work does that do? [00:30:07] Speaker 04: I don't understand what work that does. [00:30:09] Speaker 00: I don't either. [00:30:13] Speaker 00: One of you referred to this as being somewhat odd. [00:30:16] Speaker 00: And it's odd because it is odd. [00:30:20] Speaker 00: What this witness testified was that the only reason the TLRO is not just a pure term of the compact, but it's something the tribe must enact, is because in 1999, when the compacts were originally negotiated, there was a lot of time pressure to get it done. [00:30:34] Speaker 00: There was a deadline because the legislature that had to ratify the compacts, its session was ending. [00:30:43] Speaker 00: all the terms of the TLRA or the labor provisions hadn't yet been negotiated. [00:30:47] Speaker 00: They hadn't reached a final agreement on that. [00:30:49] Speaker 00: And so what the tribes and the state agreed to do to be able to go and get this compact ratified in the 1999 session but still resolve the labor provisions is to say there's a provision in that original 99 compact that says this compact is only valid and this is quoted in the arbitrator's decision, this is only valid [00:31:13] Speaker 00: if we get to an agreement on the labor provisions and the tribe enacts those labor provisions as a tribal law. [00:31:19] Speaker 00: And the witness explained that was sort of a workaround because we couldn't come back and have the legislature ratify that after its sessions closed and they needed to get it done. [00:31:26] Speaker 04: You mentioned that the arbitrator concluded that this was a sovereign law and name only sort of thing. [00:31:33] Speaker 04: And I was trying to figure out what work that part of the arbitrator's decision [00:31:43] Speaker 04: because it doesn't seem to me that, given the ultimate conclusion the arbitrator reaches, that that really matters much. [00:31:49] Speaker 04: I mean, whether this is a full sovereign law, as the tribe is emphasizing, the TLRO, the one that was enacted after the MOA, or whether it's whatever that other thing is, if the conclusion of the arbitrator is that, you know, both provisions are, basically the conclusion is that the TLRO does not [00:32:13] Speaker 04: should not be interpreted as having abrogated provisions of the MOA. [00:32:17] Speaker 04: That's essentially what, as I read the arbitrator's decision. [00:32:21] Speaker 04: So what does it matter if that's the outcome, whether the TLRO is full strength sovereign law or something else? [00:32:31] Speaker 00: Well, I think that's in the arbitrator's decision because he was responding to an argument the tribe was making to him. [00:32:35] Speaker 00: The tribe was saying, I think, alternative arguments, one, [00:32:40] Speaker 00: Here's how you should interpret the MOA's reference. [00:32:42] Speaker 02: I have exactly the same question, which is whether or not that third holding in the arbitrator's decision on page 19 is load-bearing in any respect. [00:32:50] Speaker 02: Because as I understood it, the arbitrator was saying there is, in fact, no conflict between the TLRO and the MOA. [00:32:59] Speaker 02: And if that's the case, then it doesn't matter whether the TLRO was an exercise of overriding sovereign authority, because there's no conflict. [00:33:06] Speaker 02: And in that case, this third finding [00:33:10] Speaker 02: which seems to me extremely doubtful is not load-bearing. [00:33:14] Speaker 00: I think that's correct, Your Honor. [00:33:16] Speaker 00: He was simply responding to an argument the tribe made, but he could have said, I'm just not going to reach it, because I don't need to. [00:33:22] Speaker 02: I don't know how he thought he had authority to decide the status of the TLRO under the compact and to make these claims that by entering into an agreement, that's somehow not a sovereign act. [00:33:33] Speaker 02: None of that seems to me to make any sense. [00:33:35] Speaker 00: Well, I think what he's saying, I think, one, he's responding to an argument the tribe put before him. [00:33:42] Speaker 00: He is, I think what he's saying, the way I understand it, he's saying the tribe, when it entered into a compact in which it said it would adopt this identical TLRO, it was giving up the right. [00:33:53] Speaker 00: To the extent it had the sovereignty. [00:33:55] Speaker 02: The United States signs a treaty with another country, it gives us a sovereignty to the other treaty. [00:33:59] Speaker 02: No, I think it's... I mean, two sovereigns enter into a compact. [00:34:02] Speaker 02: And therefore, that's not a surrender of the sovereignty to the other. [00:34:07] Speaker 02: They're each exercising their sovereignty to reach an agreement. [00:34:10] Speaker 00: Absolutely, Your Honor. [00:34:11] Speaker 00: I think what he's saying is... He said the opposite. [00:34:14] Speaker 02: They surrendered their sovereignty to the state of California. [00:34:16] Speaker 00: Here's how I understand it. [00:34:17] Speaker 00: He's saying it's a condition of operating the casino, because none of this matters if there's not a casino. [00:34:23] Speaker 00: So he's saying, as a condition of operating the casino, the tribe agreed that it would adopt this TLRO as a tribal law. [00:34:30] Speaker 00: identically, so giving up the right to amend it, make decisions about it, about what other provisions it might like, how else it might like to regulate labor relations. [00:34:39] Speaker 00: It gave that up by entering into the compact and saying, we won't handle this on our own. [00:34:45] Speaker 00: Now, I do want to make one other point, though, and I don't know if the court needs to reach this, but I think it's important to understand there's a very real question about whether the tribe even has a sovereign authority to regulate labor relations. [00:34:56] Speaker 04: Our position is that- So, yeah, you had that in your brief. [00:35:00] Speaker 04: Back to the load-bearing question. [00:35:02] Speaker 04: It's all fun, but what difference does it make? [00:35:05] Speaker 04: Because he didn't conclude there's a conflict between the two. [00:35:09] Speaker 04: So I want to add you got the tribe entering into an agreement with somebody, and over here you got the tribe passing a law. [00:35:17] Speaker 04: Let's assume for a second that it's full-blown sovereign act, whatever that carries with it. [00:35:23] Speaker 04: If there's no conflict between the two, then I don't understand what [00:35:27] Speaker 04: what it would be different if the arbitrator said blatant contract between the two. [00:35:34] Speaker 04: I can't deal with that. [00:35:35] Speaker 04: I'm going to knock out this provision in the L, what is this? [00:35:44] Speaker 04: The PLRO. [00:35:45] Speaker 04: I'm going to knock that out. [00:35:47] Speaker 04: That's not what he did though. [00:35:48] Speaker 04: So again, just to be clear, is your position that it makes a difference at all? [00:35:54] Speaker 00: The arbitrator could have ended his decision without responding to that argument by the tribe. [00:36:02] Speaker 00: All right. [00:36:02] Speaker 00: We ask that the district court order be affirmed. [00:36:05] Speaker 00: Thank you. [00:36:05] Speaker 03: Thank you. [00:36:07] Speaker 03: We'll give you two minutes for rebuttal. [00:36:13] Speaker 01: Thank you, Your Honor. [00:36:14] Speaker 01: I'd like to start by addressing the question about whether that portion of the award was load-bearing. [00:36:21] Speaker 01: It was. [00:36:23] Speaker 01: Under Garvey v. Roberts, we don't look at arbitration awards and think, is there another way we could get to the same conclusion? [00:36:30] Speaker 01: The way we might affirm on a different ground of a district court's opinion. [00:36:34] Speaker 02: But you said, I went through a long colloquy. [00:36:36] Speaker 02: You submitted the decision of whether or not there's a conflict between the TLRO and the MOA to the arbitrator. [00:36:45] Speaker 02: And the arbitrator seems to have concluded that there was, in fact, no conflict between them. [00:36:51] Speaker 02: And that doesn't seem, even if it's a sovereign act, that doesn't seem to impinge in any way on your sovereignty to acknowledge that you agreed to submit it. [00:36:59] Speaker 02: So that seems to be the problem for me. [00:37:01] Speaker 01: Well, I think that shows why it was load-bearing, Your Honor. [00:37:05] Speaker 01: If the opinion, the award does not say, I'm looking at both of them and I don't see a conflict. [00:37:13] Speaker 01: It doesn't say that. [00:37:14] Speaker 01: It says, [00:37:15] Speaker 01: We think that the intent for entering into the MOA was this on the union side. [00:37:22] Speaker 01: We're not buying the argument about the intent of the MOA on the tribe side. [00:37:27] Speaker 01: And, oh, the TLRO isn't an obstacle because it wasn't a sovereign act. [00:37:33] Speaker 01: That's why it's load-bearing. [00:37:34] Speaker 03: And I think the problem, and maybe you can address this, is just you never seem to argue before the arbitrator that he couldn't decide these issues. [00:37:45] Speaker 03: To the contrary, you sort of said, no, you can't. [00:37:48] Speaker 03: And so I'm trying to figure out how much weight that places into the argument you're now making. [00:37:53] Speaker 03: It's almost like a quasi-waver type of thing. [00:37:56] Speaker 01: Under the TLRO, the tribe was required to submit to arbitration the dispute. [00:38:02] Speaker 01: I understand. [00:38:03] Speaker 03: But you still could have submitted to arbitration and said, here's the limits. [00:38:07] Speaker 03: Here's the contours of that arbitration. [00:38:09] Speaker 03: And you never did that, as you appear to be trying to get us to do now. [00:38:19] Speaker 01: I'm wrestling with your question, Your Honor. [00:38:24] Speaker 01: Well, so am I. One of the hazards of being an appellate lawyer is frequently you take over a case after the work before the arbitrator and before the trial court has happened. [00:38:38] Speaker 01: So I can't speak to what the thought process was or what the reasoning was there. [00:38:45] Speaker 01: What we have is an arbitration award that [00:38:51] Speaker 01: disregards, with apologies to Judge Van Dyke, that disregards the tribe's sovereignty and the TLRO as a sovereign act. [00:39:01] Speaker 01: By doing that, he cleared the way to elevate the MOU. [00:39:07] Speaker 02: But it says right here, you know, he discusses the argument about there being no conflict between the TLRO's election procedure and the MOU's card check procedure and seems to agree with that. [00:39:21] Speaker 01: I'm sorry, Your Honor. [00:39:23] Speaker 01: He says there's no conflict? [00:39:24] Speaker 02: Yeah, I mean, he's discussing the union's argument that there's no conflict and seems to endorse that. [00:39:30] Speaker 02: Am I misreading it? [00:39:33] Speaker 01: We heard the union say that, and with respect to the union and to the arbitrator, we don't see how you get there. [00:39:40] Speaker 01: I think the most relevant case there is ASPEC. [00:39:43] Speaker 01: Their refusal to apply an incorporated law means that the award doesn't draw its essence from that agreement. [00:39:51] Speaker 01: And here, we have paragraph two of the MOA. [00:39:53] Speaker 01: which says we recognize that the TLRO will govern. [00:39:58] Speaker 01: TLRO section 3-10 twice uses mandatory language about a secret ballot election. [00:40:06] Speaker 01: It says if dated and signed authorization cards from 30% or more of the eligible employees will result in a secret ballot election. [00:40:15] Speaker 01: It says if the election officer determines that the required 30% showing of interest has been made, the election officer shall issue a notice of election. [00:40:25] Speaker 01: That's a conflict. [00:40:27] Speaker 01: That crowds out and precludes the card check procedure. [00:40:31] Speaker 01: And so under either the manifest disregard of the law standard or the failure to draw [00:40:38] Speaker 01: its essence from the agreement, either of those standards, both of those standards are satisfied. [00:40:47] Speaker 01: If I may conclude briefly. [00:40:50] Speaker 03: You've got like five seconds. [00:40:51] Speaker 03: Okay. [00:40:53] Speaker 01: Under this court's precedents, including Comedy Club, Inc., and Aspect Engineering, the [00:40:59] Speaker 01: Arbitrator's treatment of the TLRO compels reversing the district court and vacating the award. [00:41:05] Speaker 01: Thank you. [00:41:06] Speaker 03: Thank you for your time, Your Honor. [00:41:07] Speaker 03: Thank you to both counsel. [00:41:08] Speaker 03: Your arguments have been very helpful. [00:41:10] Speaker 03: The case is now submitted.