involves a a small neglected group of people that are often treated as second class citizens and those people who are temporary employees you know i can accept your characterization at all there's various kinds of employees in temporary employees aren't the same as the people who get the benefits of the meat and confer ordinance and there's a clear rational basis in the law for doing that well your honor this is different treatment but there's a rational basis for it according to what we read in the record of your clients a temporary employee yes your honor what's the matter with that i mean there are good zillions of temporary employees all over the world including the united states and they're treated differently than different kinds of employees well first of all your honor i would disagree with the with the assumption that a rational basis is sufficient in this case to differentiate between temporary employees and by what we look to you're saying there's an equal protection problem ye period she's not precluded from being a union member but the city basically is taking the position that that she doesn't have protection against retaliation for being a union member the way that the other employees do the purpose of the  the city established was to protect the organizational and representational rights of employees to join unions and to have unions participate i mean i don't i don't understand what this has to do with union the ordinance has both procedural and substantive aspects to it the substantive parts are found in section two to fourteen which is in the eggs are just exert number beginning of page thirteen and it defines the the the rights of public employees public employees shall have the right to form join and participate  refrain and then park the public employees to have the right to be represented by an employee organization to meet and confer and to be represented in the determination of grievances arising there under and what we're contending here is that when the act was involved in a grievance and she brought the union in that the that her supervisors resented the fact that she was bringing the union to bear on this issue and in the middle of the grievance process somebody noticed that she was a temporary employee and at that point they said you have no more rights you have no union fights because you're a temporary employee they terminated her right in the middle of the grievance process and she and the union wanted to go to the per board to her rights under the ordinance and the per board was prepared to consider the case and then the city of phoenix said no she's a temporary employee you haven't and that's the problem you know i have to tell you this appears to me of you wholly frivolous appeal yet the rational basis test and the rational basis test applies to legislative acts that do not burden fundamental rights or class of persons based on race alien  national origin or sex you've got a temporary employee that's what you're talking about that i can't find any foundation that offer your claim that there's an equal protection violation when you're under the euro is that our contention that against for participating in union activities and what the ninth circuit said in the case is that they were they were talking about the question of standing the union standing and the employees standing and they said that the well they presumed that both the employee and the union had protectable first amendment rights of free speech and association there when things require something plus in order to protect people who do not have substantive rights in connection with their jobs there's been a recognition of the distinction between employees who ha rights who are for example permanent employees and and those who do not and so something that implements that concept how do you get into that constituting a constitutional deprivation well your honor student you know in the due process cases the courts make a distinction between say probationary employees and permanent employees and the distinction is a distinction that one perhaps from a company employee who has that sufferance will essentially well then that distinction for due process purposes is important because the due process clause only better protections and procedures then the folks who don't meet that criteria and i don't understand why they didn't completely rational well first of all your honor i disagree that that is the classification when it comes to civil service protections the distinction is between probationary employees who have not yet completed their probation and permanent employees who have completed probation and that's where the property interest attaches but that that's not the distinction that the per board its makes these are simply temporary employees they're not even probationary employees on the way to becoming permanent employees well the reason that was in shock was a temporary employee had nothing to do with how long she was in this category into the regular system well look let me again address the issue of this classification if you take say a probationary employee who is considered permanent probationary employees this only applies to a small group of people whose funding comes from something other than the city's regular budget and our  arizona law and title sees people to the same protections as other employees when it comes to union organizational rights and so forth and that the first amendment is the basis for that is before this court doesn't prohibit any employee from union representation and the only thing that the plaintive wishes to hang its hat on is that she is prohibited from union representation  therefore there's a fundamental right and therefore we go beyond rational basis to compelling state interest type analysis or even intermediate type analysis which was not argued before judge went down below the media confer st is such twat pointed out is that it provides greater protections to those employees who have a greater expectation of continued employment because they're permanent and as judge graber pointed out that is a body of law starting with roth and others which says that is rational to give those particular employees better protection is rational and that is what judge waves said down below he said that that's a rational basis upon which to agree that the the distinction in fact is well based and the city's objectives judge wakes opinion should be affirmed there's nothing here that i've heard a lawsuit or has any questions that much appreciated thank you