discredit the witnesses who testified at trial against her and the district court disregarded and made no factual findings about the multiple witness statements that were before the union at the time that it decided not to  itrate if the law contemplated such a trial the novo of a plaintiff's grievance in a fair representation case that course would have been appropriate and on appeal the union would be relegated to making a very long shot argument to this court that the district court's demeanor incredibility resolution should be reversed ok let's take take us through the process here what this is a fair representation claim right breach of duty of fair representation correct what is the showing that needs to be made in a case such as that another what's the crime if they share showing that needs to be made and then what is the response that puts the case at issue well the plaintiff needs to show that in declining to arbitrate her grievance that the union acted outside the wide range of reasonable minutes that the supreme court defines and that judgment cannot be made in hindsight it is not made from the district court's decision as an arbitrator hearing the witnesses it is made from looking at the information that was before the union at the time that it made its decision now there are two events that gave rise to cheryl beck's terminations in april the union representative barbara cluck in a received a phone call from cheryl back that she was being fired on a charge of profanity and barbara kleckner immediately scheduled in person meeting with the store manager where cheryl back was present the district court go into that meeting the store manager said that it was his intent to fire cheryl back for what had happened but as a result of that meeting cheryl beck was not fired the union demanded to know whether cheryl back had any prior live discipline that is anything within the last nine months that would support progressive discipline and ing up and terminations and the answer was no cheryl back had no prior live discipline and as a result cheryl back was not fired she only received a three day suspension and a warning what's more cheryl back herself the plaintiff testified on direct examination that during this meeting her union representative barbara  specifically pressed the manager for an assurance that she would not be fired even after this warning for and quoting the record now that if she dropped the box on her toe and said oh shit this would not be this would not be grounds for termination and the and the manager said no of course not that's ridiculous what management had at the april meeting they had not only the statement of the manager who said cheryl beckett abused him but a statement from a member of the bargaining unit that is one of the union's own members who contradicted the cheryl backs denial that she had said anything untoward the union was basing in effect a two to one credibility dispute furthermore the district court's findings whitewash what it was that cheryl beck was being accused of she was not simply being accused of using four letter words that indicates that indicates oral sex she was being accused of using that language in the course of direct personal abuse of a manager on school property and this is something that the district court's findings concealed from you that review in court the district court simply credited the plaintiffs testimony that she said nothing wrong at all would be fighting words it was a direct personal attack on the manager this makes a big difference in title seven law that for example cheryl back had been overheard telling a body joke to a coworker in the break room about let's say president clinton and monica lewinsky the union would have had a much stronger case to take to arbitration if that had been the basis for the three day suspension but will that language is used as part of a to the filing of the grievance even taking at face value the credibility determination that cheryl back did in fact ask for agreements to be filed is that there is no showing a prejudice that is to say there's no showing that through their grievance proceedings would have made any difference to the information that was before the union there's no showing that the manager if he was interviewed in person by the union would have recanted the statement that was read to the union during that meeting there's no showing that ra would not has developed any more information than was already before the union if the plaintiff could point to some other witness but the union would have turned up had it pursued a grievance that would have changed the mix of immediately schedule a meeting with the store manager it did prevent her from being terminated and it did change the assurance that the the outcome of the written warning would not be that she would be fired simply for saying oh shit in dropping a box o toe that that may not have been satisfactory to the grieving in the sense that it didn't get every last piece of relief that she would have liked but the fact remains that the union was still facing a two to one credibility conflict and there's no showing that further investigation in a grievance proceeding would have changed that mix of information before the union know moving quickly to the july incident the july incidents for which cheryl back was fired i know at the outset that if this incident had happened more than nine months after the april warning management would not have been able to intimidating verbal tirade and the fact that she's using four letter words in the course of that tirade makes it somewhat worse but it's not really the point the point is that she silk car came out of that room crying plaintive was absolutely blameless and that woods and car in the lane yes or all and there's no question that a fact finder has the power to credit one witness and discredit all the others are we looking at what information that the union had before it and that includes written statements provided to it by management and if you look at it from from that perspective and not from hindsight you're looking at an extremely difficult case to take t arbitration you're looking at the single car the store secretary to union members all saying that cheryl back not only used a four letter word records focus on that one but one aspect of the charge misses the hundreds of four letter word is not really the point here the point here is what cheryl back allegedly did to see your car plus what the union representatives heard or became aware of with respect to that incident which leads me might my next question that is what were the findings of fact made by judge carroll with respect to that in other words judge carroll did not make any findings a find it necessary to to address them because the district court apparently considered them to be inadmissible under the federal rules which only which only shows the analytic error that the district court committed if i can turn to the title vaca versus types will not protect the union the error that we complain of in the district court's analysis on disparate treatment is that in every instance the district court either disregarded the collective bargaining agreement or sheryl back to both did bad abusive things the question is whether what larry monitor did in both cases is comparable to sheryl back in april or sheryl back in july because if you draw the comparison months and only after that point that the union asked that he be restored to his original store in prescott but it did not ask for his demotion to be rescinded it only asked for him to be transferred back into a rank and article three j of the union's collective bargaining agreement which provides the notices shall be voided after a nine month period and it is not available to a fact finder even in the course of a title seven disparate treatment situated the district court identified a number of other areas in which they were similarly situated so are you saying that this court would find that the district courts find with clearly erroneous because of this one area where they and one as being in the same position as cheryl back in april not cheryl back in july and we will stand up to that comparison between mahler's her and back in april and show you that back in march or were treated in the same  can be where a district court found that somebody was not only treated based on her sex because she was not eligible for a particular promotion on the collective bargaining agreements and on appeal the ninth circuit found that no she was eligible under the collective bargaining agreement and it refused to pay clearly erroneous deference to the district court's findings in that respect because the construction of contract was an issue of law and that something else when you may do so we'll hear from  representation claim there has never been a case and none has been cited in which a factual finding of discrimination by a trial court has been reversed on appeal by a court of appeals on the grounds that the fact that the trial court was supposed to have given deference to a union where the union is found to have been acting in bad faith and subjecting a union member to invidious discrimination under title seven it has never happened in the ninth circuit and we have found no case in any other circuit in which that has happened less known impact do you remember my colloquy with reporters counsel what is your standard or of the review on what seems to me that arguably we should be looking at the findings of the court made with respect to what the union understood the facts to be rather than what the facts might or might not have been in any of that that would be kind but we were looking at a finding of unfair representation where the we're dealing with the trial court is supposed to make those findings based on a trial that the trial court conducts now if they in this case judge carroll found against us on sufficient investigation so as to withstand a finding of unfair representation based on the arbitrariness prong so that's not what we're dealing with what the trial court was dealing with was and what we were dealing with and what the court of appeals is dealing with now are factual findings of discrimination and bad faith made after a full trial where by the district court judge now it doesn't troubling me with this case is that there are a whole bunch of findings made by judge carroll and some have to do with what he that is the trial judge perceived to be what actually happened before the contact was made with the union and less with respect to what may be the really legally controlling issue and that is what the union perceived what the union perceived as more of an issue with respect to our returning us but we do have sort of a case within a case here i mean obviously the judge has to look at all of the facts and circumstances not just the facts and circumstances before the young and of course those were important to his determination that the union had not that we've lost our arbitrariness climb that he had to look at the demeanor of the witnesses and all of the facts to determine whether or not this union with in cahoots with fries the employer and with invidiously discriminating against this union member the only way he can do that with by looking at all of the facts and circumstances there was evidence that the union representative had had conversations that our client didn't know about with pricing which fry's told her that they were going to that they were after this woman to fire ok that's one of the things she didn't repeat that the union representative did not share that information with back contrary to what was stated here a few minutes ago in which they said well the union knew about these various statements at that meeting and defended this woman vigorously with on based on the information that they had the trial court found that the unions  don't show us your statements and we don't have to show you are that's what the trial court found the union had not seen anything that  the that prize had the union told back that they were going to proceed with a grievance on the first claim which was the start up and they just didn't do it failure to even file agreed grievance we're not even talking about whether they pursued it they didn't file it so they lost that completely  they went on and they relied entirely on what on the statements that management had taken they wouldn't return her phone calls after months and months months and then when they finally she filed a claim with the e e o c and it wasn't until the day that that claim was filed that they did anything to conduct any interviews on their own and now we're getting into the whole full blown record at this point they had the very same month that they were meeting with respect to the so called profanity used by our client in the parking lot mind you she's a blue collar worker there are very very few women in this work life we have testimony that profanity was common we have specific examples gross violations of the profanity rule it was the job of the union to stand up for her just like they stood up for larry mollett tar when in august they said to that they argued for his repositioning in the very same store that he was just a big who had i mean supervisor yes they had been dating they were boyfriend and girlfriend at midnight with no customers present when cheryl back was off duty that was  up charge and when it came to trial the boyfriend didn't even appear as a witness the union couldn't even get the guy to come forward and repeat what supposedly w bad in the parking lot the only substantiation that the union had that it even happened came from his written statement and he didn't even appear at trial what   would be a lot of what would be a motive for the union to conduct itself  because i have a supplemental citation it's cornwell person select central credit union at four thirty nine after third ten eighteen ninth circuit two thousand and six decided on march first of two thousand six which analyzed kate case involving a complaint that the numbers were comparatives were too small for it as a basis for circumstance circumstantial evidence of discrimination i mean basically what was happening was that the women and there were very few of them were being drummed out based on doing the very same thing that the men were doing regularly and in the case of mary mr moll was drummed out for doing the very same thing that they had done the union just like they did in this case we did not disclose to this ryan hauled hold the evidence that they had that would have been decayed at her with respect to the charges that were made against her so we're dealing with a workplace frankly i mean there aren't there aren't thousands of workers there but we are seeing an atmosphere of profanity  that it couldn't have have been pursued but that's irrelevant and the judge by the way was never asked to interpret we never asked him to interpret three i three j or any other particular complement of an interpretation and didn't turn on an interpretation of the collective bargaining agreement other than the fact that the collective bargaining agreement gave our client the right not to be terminated unfairly so your position is that nevertheless he was similarly situated ye union was going to bat for him they were getting him moved in spite of all of his prior record and appropriately so that's fine that they were trying to get a move but they didn't do the same thing for me is that they didn't defend this back they they didn't use the same arguments that they could have used from this back when it had to do with profanity being being commonplace in the work place place and mind you these are the same union representatives i mean we're not talking about a huge group of people here where maybe somebody you know forgot or something like that and the judge to you know the judge looked at all of that and he listened to mr kleckner in the union representative and he found her to be snide and he listen i i wanted also to point out that this whole business of the standard of review their first circuit the sixth circuit and the eight the high deference standard emanating from the one that i've been talking about the summary judgment standard it's just a regular summary judgment standard in every single case that they cite the court specifically said oh our arbitrariness you're wrong on arbitrariness that's sort of an objective we're deal and then they'd say and by the way there was absolutely there was no substantial evidence of discriminatory discrimination or bad faith in this particular case and that's why expired mr anderson you have some reserved time there's a lot to report in all that first off there are not very few women in the grocery industry there was there's nothing in the record sport the statement you just heard from counsel and that's not in fact true on the issue of whether the ninth circuit reviews claims of bad faith differently than contract requires employees to sign such a form not as an admission of liability but only as receipt of receipt of service and that's on the face of the notice that is article three of the contract the district court was not free as a fact finder to incorporate the plaintiff's misunderstanding of the contract and turn it into some kind of a demeanor resolution where he found bad faith by the union on that basis finally and most importantly article three j the nine month rule is not irrelevant from the union's perspective because it determines what the union can do for someone who's charged with misconduct if they have lived discipline with the law within the last nine months there is a lot less the union can do it  ion for them then if they do not that is why the union was able to stop the terminations of cheryl back in april because she had no live discipline and the case for union collusion with management falls apart a court recognizes what the district court ignored that when a worker has lived discipline within the last nine months there is a lot less that the union can do for them than when the there is no discipline within the past nine months for a very stimulating oral argument on both sides in this case the case just argued will be submitted for decision and the