about constitutional due process there really is only one issue in this appeal whether the arbitrator failed in address the an appellate constitutional due process argument in favor of just addressing the contractual due process argue that as of co so these three documents are all part of the same manual is that right you know your other there's some three different documents all right there's two that are legacy ins documents from department of justice and there's one document that's from the customs service or the legacy customs service as part of department treasury at the time ok so they all talk about sort of what the standards are correct they talk about that agency the legacy agencies interpretations of day you will rules that were in place at the time back in one from  argue as i understand it that that those documents relate to anything other than charge one is that right correct that your argument is that even if charge one is ignored it's still in fact the entire process i believe so under the court have any law that you can rely on for now and get in and now in this area of the law for that position for example in criminal contacts through there might be multiple different characters and there are some due process violation on one but not others course case law which i believe mandates the reversal mandates the arbitrator at least assessing the constitutional due process violation before coming to the course of leave the arbitrator was required to at least address the constitutional due process violation as a part of the packet of information is provided to him i don't think there should be a distinction between an ex party verbal communication as opposed to somebody providing the documents the decision maker the information is still provided to decision maker that wasn't given to the appellate in this case i don't believe that it requires that there be some type of do they have an obligation to say well i looked at them for a manual that governs this conduct and so i therefore have to tell the employee that this very thing that might be available to them for he is something i'm looking at i believe the because in their house various examples of what is a will qualify that what is not a will qualify an activity and that information mr bosco pointed to and said you know what i was doing falls under one of these other categories i should have allowed to claim o for that time period but he could have received he could have looked at these manuals there as well and made that kind of an argument again these manuals weren't specific to mr abbas's behavior in terms of claim that their arbitrator should review the constitutional due process violation if it found a violation he received a new costly for constitutionally correct procedure where all of the charges would be able to be addressed based on all of the evidence that the decider fishing was going to have collective bargaining agreement that's what the or other trader found in this case the arbitrator implicitly rejected all of the are there arguments that were made including the argument about a constitutional  and when you say implicitly the arbitrator just didn't address the cost to regulation he said clearly there is a violation of the collective bargaining agreement so i'll just wipe out that charge and move on but he didn't really contending the arbitrator does make the decision in the first instance on issues that are presented but in this case it is the burden to have to obtain a reversal on appeal and it's the burden of the employee to demonstrate first of all that there is evidence in the record that could support a determination of a constitutional violation and what this to other activities of mr abbas so they were there were the kinds of things that fall squarely within stone ok this is part of a hypothetical and they spilled over or at least arguably spilled over to all the other charges that you were saying that the arbitrator didn't have an obligation to assess that and we're supposed to assess it in the first instance we have argued in the alternative first of all our first argument is that there is no constitutional violation with regard to charge one or any of the chargers with regard to the penalty because importantly the nature of the documents as this court has recognized these are just simply referenced documents only two of the documents were introduced at trial the third is totally irrelevant was never introduced into evidence the other the two documents the first one is the one nine hundred ninety seven training guide that's in the appendix said pages one forty nine to two seventeen the second document is the three page custom directive which document that i'm paraphrasing now from his actual testimony is that page eight seventy seven he said this is the document that most chiefs you are used to everybody refers to it violation evidence that could support a finding of a date due process violation mr boss never introduce that document into the oven into the record so it's not before the court it becomes becomes irrelevant here i was thinking about this and i was the when we got this document that the arbitrator saying that this document which we don't have a copy of doesn't relate to the first charge so that concern me a little bit but i heard mr process counsel say today that they grieve that none of the documents relate to the first charge so does that resolve the issue do you think the as i understand it the arbitrator found in his opinion that the documents relate only  charge one and there's no dispute there's no just spew here they're not challenging that factual finding for a lack of substantial evidence the only issue before the court is whether there is evidence in the record that could support the finding of a violation of mr boss's right to proceed to old due process it's our contention that there is no such evidence in the record and therefore it doesn't warrant a re excuse me why is this a hard question it's on the last page of your brief you have an alternative argument where you say even if there were a due process violation are intertwined there isn't a due process violation aren't her just going to read is that correct  alternative that's the alternative argument but the court as i'm pointing out doesn't need to get there because there isn't one haven't i mean what if women are you you know like your own you know i mean it's it's an argument we made in therefore we think it's easier just to simply look at the record and the record doesn't contain evidence that would support a constitutional violation even with regard to charge one and even with regard to the penalty  yes with regard to the criminal context faith in the criminal context they're off often separate separate criminal counts and what happens in the criminal context is it's analyzed in terms of  whether there is a constitutional violation that results in a harmful era and if there is a horrible error with regard to a harmful constitutional error with regard to say  of which you will found guilty it is vacated that that part of the judgment is vacated if there is no constitutional harmful error with regard to count b and you were found guilty by the yes that's where there are separate counts but even when there are separate accounts a constitutional violation as to one can in fact the jury's consideration as the other depending on what the constitutional violation  sometimes you can separate it out sometimes you can not i think that's fair i think that's certainly where i'm at i think for happens particularly in the context of exploratory well let's say that there are two charges one think in general the answer suffices you know what happens in that circumstance i can provide a citation with regard to what i'm saying about the if there are two separate charges charge pay and charge pay maybe i don't know the answer no i don't have anything specific to the ports hypothetical i hope i do have citations for what i've stated both with regard to the the issue of what's in the record clear viger cetaceans from what you've evidence in the record that could support a finding that of a due process violation under this court's decision in the stone case as was pointed out there's there's not  communication here but also there's not evidence in the record that would support the other two prongs of the stone test firstly as we pointed out in our brief there has to be new and material evidence and that is looked at in the context of all of the evidence that was provided to the employee in this case the employee was given the and mr bowles was given the full one and what that policy said is that you all hours unrelated to processing suspects or not ordered by the supervisor must be worked in the field except for fifteen minutes which was allowed her completion of administrative duties that policy was contained in an e mail mr boss admitted that he knew of the policy and that it was also given him a copy of the policy the so there is nothing in these if the court looks at the two documents at issue there's nothing in the two documents that could constitute your evidence there's nothing that's there's nothing that's probative of whether mr boyce committed the misconduct alleged in charge one there's nothing in the documents that makes it more likely than not that he can committed the misconduct and in charge one there's also nothing in the documents that bears on penalties or discipline or  whether there should be any penalty at all in this circumstance where there are also these documents don't meet the the part of the stone test which asks whether the document or the communication is of a type likely to cause prejudice these are just merely referenced documents they're not documents that would as i said they're not probative of whether mr boss committed the misconduct alleged in charge one and they're not probative of any whether there should be discipline at all ok thank you thank you you just briefly your honour's wanted to address the two thousand and ten quote you all policy close quote my colleague on the other side was talking about the policy that jobs was talking about is an e mail message from a appendix paid twenty fifty three in one fifty four i believe those documents would be exculpatory nature towards charge one because at pages one fifty three and one fifty four it talks about the employee who decides when to continue a well as opposed to the e mail messages i counsel just reference as far as being the agency policy at issue in this case so i believe there certainly would be a constitutional due process issue for the arbitrator to address and we would ask that the court remanded to the arbitrator