morning and may it please the court and the decision rendered against union pacific by the united states district court for the district of nebraska the court in the conclusion portion of the memorandum wrote although this court has ruled in favor of smart as to the reinstatement of mister sec the court is troubled with this case upon careful review of the record this court is puzzled how the arbitration board in this matter came to the conclusion that m disciplinary action was contemplated it would have been reasonable for the carrier to st of saint clement for a comprehensive psych and medical evaluation to determine his fitness for duty and his credibility and the credibility of his explanation and if found fit then it would have been appropriate to handle the incident strictly as a disciplinary matter but your honor that was all that was before the arbitration board it was a disciplinary matt the arbitrator then and his decision is treating it clearly as something different or more than a disciplinary matter outside the scope of his jurisdiction and section forty been reasonable for team pacific to require a comprehensive psychological and medical evaluation your honor and then if found fit the fitness for do you determine ation is not even a not part of the collective bargaining agreement and not subject to it and yet this arbitrator arbitrator morgan felt that he had the authority in crafting a remedy to change what was before him from a strictly disciplinary matter he advises that it would have been reasonable to have it be or was it necessary in fact to have it be st a witness for duty determination and then in light of their knowledge of this specific employee any psychological problems and everything that was in his fitness file so they act like they're talking just about this case i know you want a horrible situation but then how do you respond t have knowledge of that but it's frontline supervisors in charge of discipline would have no knowledge of that and because this case was not a fitness for terminations the the medical medical file the  medical file would not have been made or of the carrier pacific's record at the hearing and it wouldn't have been a consideration of the superintendent moreover that it presupposes evidence it's nowhere in the record and moreover the eighty eight makes it clear that that kind of medical information is to be segregated in excluded separate a physical or mental condition moreover this for duty to getting outside of record but the fitness for duty regulations and statutes are not part of the collective bargaining agreement those are detailed and set forth by the federal agenda at page thirteen to the general statement says locomotive engineers will not be disciplined without st being given a fair and impartial investigation except as provided below now there's more there but it does not say it does not say anywhere that engineers will not be disciplined without st being given comprehensive medical and interrupt you and i know we've got a little light here but but it has the word investigation right and that's already in the decision and investigation include investigation in america no your honor because the medical terminate for must be made for a fitness for duty if an employee has a problem with a fitness for to be determination there is a provision and again i'm getting outside record this just happens and things constable not that there is a provision that can to make a determination whether an individual is fit for duty but again that wasn't before the arbitrator there was no issue with respect to fitness a disciplinary matt and it is your position that in this investigation before a disciplinary matter there is no place for anyone to ever consider the mental or physical health oh in that disciplinary process period end of argument goodbye see you later correct your honor you cannot clearly when the agreement when the agreement states between the parties that the arbitrator cannot change working conditions then ye in the story you don't get to change the pre rect you don't get to retroactively addict prior to imposing or proceeding in disciplinary in the disciplinary process when pacific had no idea that it had an obligation to engage in such a comprehensive medical and psychological evaluation prior to proceeding in discipline and your honor the arbitrator acknowledged the union pacific and would have been able to proceed in terminations that would have been eight would have been reasonable if pacific had would have st right conduct i have held up my finger so now are your and your about there's a whole host of black letter law regarding the review of arbitration a work specifically under the railway labor act but i guess it is important to raise a few points for the purposes of this case st that this standard of review of these awards is  known as among the narrowest known to law that is what the supreme court has and this is by design because when congress and acted the railway labor act the desire was to provide parties with a dispute resolution process that would grounds here for our purposes the challenge is made pursuant to the provision that the arbitrator allegedly exceeded the scope of his jurisdiction now while it challenges permitted  union pacifics argument that they certainly this is a case where the carrier is as old as the railway labor act this is a case where one party is upset at an arbitrator's decision that happens all the there are a number of explanations for what was going on with him at the time but the only question for the arbitrator was what discipline was appropriate and now here as you noted judge burton the arbitrator found that mr website had a number of physical and mental health issues at the time and he had eighteen year work history that was relatively clean with union pacific and then he found that dismissal was excessive under those circumstances i mean getting specific and i bring this up because union pacific does not raise these mitigating factors and there filings or nor does it raise it here but the arbitrator found that mister love sack had physical and digestive problems panic disorder anxiety he was suffering from fatigue the day of the incident and he also had personal issues where his wife had informed him two days before that she was leaving him and wanted a divorce so under the house and castigation th your adversary referred to did that investigation include finding these psychological facts or just after the fact that we find out about all things this was all introduced at the investigation your honor essentially the investigation and it's in the record i don't have the exact citation for you but the investigation was there was no question of the conduct the question was what sort of this open was appropriate and the evidence introduced in the record involved he's all these various issues that he'd had going on at the time as a way to him that that was in the original investigation correct yes yes yes i personally thank you so but a under these factors the board found  mean i would st argue that that appellant puts too much stock into the statement about medical and health evaluations it plain reading of the award is makes it clear that the arbitrator was looking at all these factors that were going on and just felt that this missile was excessive under those circumstances but is assuming our view i know is that union pacific argues here is that there was some sort of prerequisite imposed upon union pacific for before they could implement discipline against an employee i would st say that as as a judge benton mentioned the collective bargaining agreement requires a fair and impartial investigation now that is a very open ended term it doesn't have a lot of specifics but certainly an arbitrator is within their discretion to interpret that provision that is there that is their duty under the railway labor act and in this instance if we are to accept the argument sorry the possible interpretations that arise out of that are you really arguing that it's tentatively limitless or are you saying that within a fair and impartial investigation that the mental state underlying the act is a reasonable area of inquiry in a limited investigation because i think you're going to sit there and say there is no limit investigation then we want to just roll the c v a hope and say start over again you know impartial investigation i might buy that but it's like well we can just go into anything if so long as it's fair and impartial i don't see how the whole that well i push it to question your honor i think it's important to consider that the context of the underlying incident correct this is a longtime employee who had a very limited disciplined history who engaged in what i mean to least be fair is at least considered bizarre behavior that raises questions as to their mental state at the time that this was happening so i think the arbitrator would be certainly you know it's not limitless but in the context of this case i think it certainly  health at the time of the incident was certainly i think on the table at least as far as the investigation goes counsel my question is a little bit different the board believes is determining if the discipline was arbitrary excessive reasonable or abuse of carriers discretion sorry i'm reading quotation work from from there amended final award page to ok ok if you look down there at the end of the st paragraph that page it says the board may modify the penalty if we determine the penalty was arbitrary excessive and reasonable is that language in the c b a is it in some of these rules we're talking about is it previous or decisions where does that language come from well determinations like that your honor or socially typically arise from the  common law of arbitration decisions it is a regular practice in the in its specially in the rail industry discipline imposed can be considered excessive and another discipline can be imposed in the alternative stated diamond is one and i think robinson's another but i don't know that we've ever indicated that in our cases and it does seem to be if you look at the you know the board's decisions it seems to be all over the place all over the country that they keep saying that but but doesn't seem to it actually seems like the th circuit lifted it from the bar so i mean it doesn't look like there's any regulation rule or anything in there you say that as far as you  know that's just the board's kind of rather short handed and doesn't come from anywhere else well well yes your honor that is my understanding there is a one hundred year history of rail arbitration awards  and i will admit and i come across that in my employment sometimes different arbitrators will refer to maybe a different standard but it is generally speaking that is the standard that they consider when they are looking at the type of discipline that's imposed it's not part of the actual record of this case i don't think counsel for opponent would disagree that an arbitrator has discretion to kind of look at the discipline that's imposed and maybe impose something in the alternative that's certainly not an issue that they've appealed to this court that was part of the district court case  and with the limited time i have left there are a couple things i think it's important to address the eighty eight arguments union pacific has argued that to require testing of this nature would violate the americans with disabilities act just briefly i want to touch on that st that was not raised before the district court when the notice in the brief in more detail but the only mentions of the a b a or the f n l a in the filings before the district forward assuming that argument is not waived i think again we look at the circumstances of this case you have an employee who has an eighteen year work history who engages in this sort of conduct i think while the union pacific has argue that they had no reason to believe that he had a disability or you know essentially anything was going on i think that's that's that's belied by the facts in this case i mean certainly when an employee engages in this sort of conduct it may raise a question as to their their their mental health and lacking in the final point i want to make just to touch on we argue for it in the brief as part of the enforcement action that is true the arbitrator did not award back in this case but it has now been nearly two years since union pacific ha the enforcement action itself and in this case i think to give the full of facts of the arbitrator's decision that backpay at least from the period that he was denied reinstatement up until he is reinstated would be appropriate  not partial what about the words fair and impartial ahead of investigation that's an eighty two and clearly the when the arbitrator says that there was substantial those the right words if they are perceived with the argument where your time short you are again i did not hear your question i'll be dav use me let involving a union representative and a front line manager i don't think they're there arguing for me not well i think what they're arguing is that if the conduct is is bizarre and unusual enough in the work history is long enough one needs to consider what may have makes it necessary that an employer center for a mental comprehensive mental and psychological evaluation i don't i don't believe that that's necessarily a business assessment think your honor my time is ok listen