removed from his position mr actor isn't a very it's never an issue preliminary issue whether or not your client is was had the time a member of the collective bargaining makes reference to the process to be used which is found in the collective apartment in agreement not the collective not the product not the procedures but the process and the process is arbitration and under that still gives him the right to build arbitration now if you if you read the contract specifically states that the contract is to be interpreted under the laws of the state of michigan so now we have to take a look at was your client not placed back into the marketing a as leinert is is that the rung that generated these problems as opposed to these questions  direct our attention now to the due process which is as i understand it somewhat independent of arbitration are you on the procedural due process or what right were you deprive process when they say it's a lot of the process it comes with certain requirements and i understand it is one of the understanding is that after the determination is made as a discipline there has to be but you're talking now seems to me that you're saying your your concern is the poster of the nation here it is not the suspension without you know th was the audio portion audio portion which my client was able to record him stuff on his cell phone when it was brought to his attention by another commanding officer the commanding officer came into his office and said matt you better look at this and put it to the conversation where person said matt did not assault them he was for you call out of the car and that was never given to the oakland county sheriff's department and  it i'm still singing it how do you know it was destroyed i'm not sure he answered that because you don't have it because you don't have a good shot that makes you know that it was destroyed we are going to several times and they have never said anything to the contrary it was argued before the court twice oh argument ok argued to say what we need it and we don't have it and please please order it spew be given as and what the collective bargaining agreements as indeed it's very important that we actually look at what those agreements say the contracts the employment contract that mr actors referring to it section five that he's looking at quote be afforded the rights provided in the w p c oh a collective bargaining agreement for the purpose of determining whether he was properly removed or barred from returning to  our position is that that under this contract that that class that section by class is implicated in the event that the mayor terminate or damone to the individual it does not deal with a disciplinary and the mayor decides you know i made a mistake in appointing his individual he needs to be backed down to a captain or a lieutenant and i'm to put somebody else in the deputy commissioner position so the mayor has this agreement with all of his appointees including a deputy commissioner position that says that in the event that you know this isn't working that well just remove you know put you back to your old position and so however that doesn't mean that you are forever your either terminations or removal gives you this process but in order to access the process he had to be returned to the bargaining unit and you refuse to do that now he doesn't have to be returned to the market he has a right you know your argument is that you have made a contractual obligation for the processes of the bargaining unit and the collective bargaining agreement to be to all of the claims that he could my pursuant to a grievance procedure the union might decide not to take forward his grave that's but but under labor law the people who are in the collective bargaining unit are those who are who have rights under the collective bargaining agreement but the concern here is that you did not place him back into the unit so that he was capable of employing the rights that you say he has and why wasn't it a procedural due process problem to fail to allow him to be any uni dollars out of the collective bargaining agreement indicates that although the deputy commissioner is exempt he has this singular right and in the event that he is removed from his position and so the collective bargaining agreement recognize the memorandum of understanding that is and the record recognizes that although this position is exempt there is this singular right to the grievance process so you so you didn't actually hold grievances process or just arbitration the whole grievance passes there is absolutely no provision and that's where mr actor's problem is there is absolutely no provision there is no contractual language there is nothing that can be relied on in this case to say that mr nichols had some right to arbitration he had a right to complain that his terminations was wrong it was done by the wrong person it was stepped out you know the right reasons he is right to complain under the grievance process so in other words ok well halo is one capable of pursuing a grievance you have to be a member that unit covered by a collective bargaining agreement in order to do that but you wrote and denied him the opportunity to return to the unit so that he could pursue that r are that correct expected david mack so so when he requested to go back to the unit to pursue his remedies did you not tell him that he was in agreement does not arise however he had the right under not just his employment agreement but section thirty six of the collective bargaining agreement gives him that singular right under the collective bargaining agreement so i don't we don't have to return him back he has expressed in the collective bargaining agreement the right to pursue the grievance process he he alone not us he chose not to do so so tell more process of reading back terminations were any discipline just like anyone else who has such a right under the collective bargaining agreement he did not take any action he did not speak to the union you did not sir th circuit there is yet you know so what happened in this case was was sort of a unique judge in that that before that the term nation was served by mr nichols during that suspension process he filed a l he did not go to the union and complain that the process was taking too long without a lawsuit about it and when that he was terminated he simply amended complaint he did not again go to the union and file the process he had that randy according to him i dispute it defendants dispute that that because the mayor did take action our position is he doesn't have his or her fine structural remedy but the lower court sag i'm to assume in favor of the plain jet that he does have a section five contractual remedy and that he could have gone to the collective bargaining unit and followed that article twenty nine dollars grievance process the problem here is he didn't he didn't initiate the process to let me here's my struggle so what you're telling me is that you as a separate entity may enter a contractual agreement that binds you to represent through the grievance procedure a person who is not a member of the unit it would not have that ability to judge but there is a memorandum of understanding that's in the see the way to the right to pursue a grievance right so they're not actually the way that it happens in fact we would be prohibited and the union would be perhaps a bit from putting him into a tent position because there are others in the marketing unit waiting to rise so that w that could never happen from your perspective he could not give in that would grieve you can directly gave him a wry you sending back you make him a member of the unit the guy who says no that's my job or you might be designated that but you don't get the current job because lieutenant is not a job it's also a title so were he given back the title and became a member of the union yet it meant he could pursue this of your unit i'm not an officer in the more but i want you to run and work through the whole grievance procedure with me and i want arbitration the problem with that is that th e way the national labor relations act works is the unit is what is covered by the collective bargaining agreement by law you don't have to that member of the  him the duty a fair representation and would have had to process it doesn't mean that it had to take it to arbitration but it meant i had to process your failure to place him in on to the unit strand is that that would be correct but why are the collective bargaining agreement in this instance actually provides the remedy so he doesn't have to be a member because the collective bargaining agreement the uni members the contract that they all agree to that governs allows for this process or the deputy commissioner position wow in the same section thirty six dollars recognizing that he is otherwise exactly the deputy deputy commissioner did he would not be subject to the disciplinary process there would be no way he he could have murdered someone during duty and he could have raped a suspect and that was caught and there would be no entitled to the rights whether you are charming now you did for disciplinary reasons or remove you said that earlier no matter how you got they are you may go through this process so he's terminated he is member of the unit he grade his charmin unction i didn't say actually that it applies to the disciplinary process what i said is that it applies to a determination or a discipline it applies in both in great in that article that there is no right under this contract to avoid terminations of young clement and in fact that there is no right to have an arbitrator automatically come in and evaluate whether that was right or wrong you yeah what you get according to doesn't like the contract is the right to file a grievance and so that right had to come through a memorandum of understanding and then be incorporated into the collective bargaining agreement and it was the memorandum of understanding as part of the record below and it is part of article thirty six in this particular collective bargaining agreement so you don't have a due process problem here because you have this unique  not have some all encompassing right our position is under the employment agreement he has the right to the grievance process if the mayor asks if the mayor who is the subject of article five of the employment contract the mayor terminates or the mayor removes because the mayor is the one who appointed but this individual in this position serves at the pleasure expressively under section two of his contract he serves at the pleasure of the mayor and the police who removed you know he has no rights under your search under our position the district court however sad i'm going to take everything in the light most favorable to the plaintiff i'm going to say that article five applies regardless of who took the action language article five and the language of section twenty nine dollars article twenty nine dollars from the c b s it does it provides an absolute right to arbitration it's a process mr actor just told then the question becomes how does one access the process you file if you submit a grievance it's as simple as a letter that you submit to the union you have the union rejected his grievance and by saying that he was examined then judge french i can understand where you were coming from and how does one pursue a union remedy if the union is rejecting you are you are grievance i understand back as it's been in this situation we never got there this particular plaintiffs had filed a lawsuit he amended his la when he was terminated he never pursued his grievance remedy the only right of arbitration the only due process right that he's bringing before this court is arbitration the only way he gets started transition is through that  cattle so i know but time has expired and i with the judge morse permission i still have a question about that assuming he forewent arbitration as you argue the claims that lodges here in this case with regard to the constitution a right to have a hearing bet aspect of due process were does that were does that end up in your oh so he was he was given interpretation of article by under article five he had the right to go through the c p a process that was whether the commissioner or the mayor so although i disputed it farhad says he's entitled to the opportunity for post germination review he had that here under the district court's interpretation of article five which says that no matter who are right so he every every aspect of the of the arguable due process procedural d actually and that turned the advance occurred you told him he didn't know why because that was your position at that time and the court subsequently said no he really didn't have something so if you denied him the right to the post terminations hearing the satisfaction of latter middles requirement even if the court the city of warren and the defendant at the time which was only commissioner dwyer in the city of one we took a position we the city took the position i'm how his contract was interpreted he did not pursue any remedy with the counsel what our view of the wild west because we were in litigation mr nichols and his counsel however were not constrained by mines are pretty sure there is a separate counsel for the union there are union there is not one document that the defendants can point the court to that says in this instance with this deputy commissioner that the chief of police has the authority  over all the contract and every entry between this surely the mayor and my car that contract which was ratified by the city states that only the mayor terms the deputy commissioner is appointed by the mayor of the city of warren and he shall serve at the pleasure of the mayor he may be terminated at any time and for any reason without cause and without prior notice this agreement shall govern the terms and conditions of his employment during which time he serves in such capacity and in the event the mayor in the event the mayor decides that the services of the employee are no longer needed in this appointed position for any reason or not re off the employee shall have the right to return if he so chooses this is his to chooses to his former position the mayor only the mayor has a right to appoint and to determining as far as we're concerned he still is city employee and that is you has not been addressed by the court the and i have read that argument in your breach i don't see that argument at all in your boston law enforcement twenty years as a police officer detective and ten of those years as a president of the union when i retire from one conscious apartment i became a laborer trinity representing cops i have never seen anything so egregious in my life as taking a seventeen d year veteran commanding officer deputy commissioner and throwing his career in the