and it's sort of a novel question and these two of my review of the case was concerned in the ninth circuit and anywhere else for that matter and that really is when the union explanation for why you did not pursue agreements to arbitration does not match the evidence presented by the plaintiffs as to what they did that investigation actually case for me whether the district court did it was wrong was to say i'm going to ignore the fact that the union president who decided what issues he needed to get answers to in order to have this slaves had made a lot of mistakes but that if you really want to know how he's doing you should talk to general luis the guy that everybody agrees is the most skilled and and the best most knowledgeable as far as this goes in the works right alongside with point page one twelve of the excerpts of record and not adequately investigate the grievances that much of what the union has presented as factual investigation is simply not true and a jury could decided it didn't happen  i i never said that either that's preposterous i was working right alongside him when he made the error on the one that caught it on the one that reported to management i feel terrible that he got fired over it it's not spare that just happened to him and i feel badly but  course i never would say that i was i couldn't comment to earl about what happened that night that precipitated the ultimate layoff terminations and that scrap is here so start that you have to wonder and  many contracts to administer and really didn't recollect and he gave statements deposition about why he drafts agreements but we don't know why he dropped the grievance and that's what this comes down to if earl state loo at least apparently wouldn't agree we don't know what their status discussion was as far as what they wanted and signed but the fact that it only has any mention of ever having allegedly told with the second which is i didn't say that it was true i never would have said that it's not my opinion of gary if ever been asked to comment on his skills i would have said he's as foreign as anybody else we all make mistakes he made a stage and he is not the legal standard of course we all know arbitrary discriminatory or in bad faith we talk a little bit about where we are in this case we do not have a situation involving discrimination plaintiff has not performance evaluation the two thousand and one progress report any discipline as well as training materials he review and in particular with regard to the documents the documents  also our undisputed factual records in this case so with regard to the september two thousand performance evaluation it shows that mr sick r t needed improvement  of twenty different desperate to get into the merits of the case and in this particular instance the court need only and properly only look at the union's conduct its investigation referee look at the union's conduct  disputed on the part of the point but more importantly even if there is some discrepancy with regard to the facts here then if that's the union's judgment not to go for but the case that judgment can the union interviewed mr bob nelson and mr dave gagner neither of those two witnesses indicated that mr sick r t was working to the level of other journeymen operators here attempt to reach proficiency in those core areas after that september two thousand performance review and i believe in october of two thousand and one of the four areas he was deficient in only one he managed to improve upon and so in the october two thousand and one performance evaluation he still needs improvement in quantity quality in job knowledge and so they gave him an opportunity aggressive discipline in that notion in labor arbitration as well and bet it and here the company said look we're putting putting you one noticed you're not meeting our expectations here's a plan of action for you to  and probably most of them good job or also will continue well and in fact based upon their progress from september two thousand and so finally the last straw broke the camel's back when the company said that's it well very quickly i want to preserve some time for counsel for the employer but the union also reviewed the collective bargaining agreement and in particular attention to the section at issue in this case mentioned five point eight attended all agreements meetings arabic if i understand the court's question correctly the merits of the grave grievance are completely irrelevant you don't even look at that judgement you don't for example this notion that mr balloon's opinion one way or the other of the right to go through the internal formal decision making process all based upon its interpretation of the last chance agreement regardless of any interpretation of the last chance agreement different still should be entitled to go through the internal decision making process because obviously in this kind of circumstances there is substantial room for presenting to the union membership that there's less chance agreement that's the question or the reason i can say that that that is arbitrary in bad faith because even if you assume that that's the issue there still is that's not an explanation or justification for depriving jacobs oh the formal decision of the union if that decision is the decision of the union it should have been made by authorised people when he i'm sorry and lost me right now the union has a process deciding grievances and the process is on the was an board meeting where nobody said go forward with a grievance i don't think that that those are undisputed facts i think the undisputed facts are the day after he was terminated he went to the president and said i wan file a grievance and the president said you've got no right to appeal there is nothing in the next emergency for a meeting indicating anything of consideration of traits of jacob's appeal he goes against or doesn't have to decide to appeal or not to appeal doesn't it under the bylaws there are two processes for decision making one the standing committee which according to the bylaws reviews all grievances and presents some to management or the board as general supervisory powers of the union between meetings subject to approval of the membership if there were some issue that jacobs quit not file take grievance with through the union it needed to be approved by the membership so the fact that a group of individuals if they met on january ninth as opposed to february make some kind of determination really isn't a decision of the union through an authorised process reason why all of those things you just mentioned aren't material because the last chance agreement means more chance i hear he has my virtue a last chance agreement jacobs the opportunity for example no one interviewed jacobs about whether or not this provision in the last chance agreement waived any appeal rights nobody gave him the opportunity to bring in information for the formal union decision makers to consider whether are not this provision in the last chance really might actually you know what the actual language was up and as we noted in once we got into discovery leroy thorpe the president of the union conceded in deposition that it doesn't waive appeal rights the triggering event has to occur and we also presented information that the union had filed appeals and under the exact same language in a about four months before jacobs was terminated the union represented another employee on a last chance agreement with the same language he had to last chance agreements and the union filed an appeal they went through their normal process they gave the individual they presented it to management they did their investigation they let their standing committee make its decision that's what jacob was denied and there was a lot of room for a lot of room for arguing that  the union its attorney everybody knew that this last chance agreement didn't waver right to grieve i mean the language is playing outside on its face so i would see the way that the thing turns on regardless of what the issue is there really isn't any harm to the union or any reason for the union to not allow jacobs to go through the decision making process he should have been able to appear in front of the ebor he should have been able to present his his position to the board and appeal to the membership just like any other member of the union if you don't accept that proposition basically he's lost all his membership rights and basically what they're telling him here is you're no longer a member of the union you don't have any rights to go to membership member conflict well i take that back if there is a conflict in the evidence as to whether that decision belongs whether the president is authorized to make that decision we presented evidence that in fact the bylaws do not authorize the president to make that decision there is nothing in the bylaws which say that the president can decide whether or not to process an appeal i mean that's that's that's why we argue that they didn't go through the standard decision making process so those decisions should be made by the stanley committee or by the board subject to approval of membership the due process argument if the union does not take the is they've decided to side with the employer on this client and they've decided to shut it jacobs out and he's entitled to two two to notice an opportunity for hearing if that's the case on four factors and those are is there an issue regarding the proper procedures of the unions using in our view the evidence presents issues as to whether the union went through the proper procedure to is there a conflict of interest or a potential conflict of interest we believe there is a potential conflict of interest in the roles of mr fortenberry who was an executive board member and in the roles of mr mcdonough who we believe was acting as much on behalf of the employer in union decisions yes as a union member and three that the union intend to handle the grievance and a perfunctory or summary manner the union admits that it intended to handle the grievance in a summary if this decision had been if somebody had talked to jacobs about your side of the story somebody had gone to the standing committee and the union had made a decision that there was no merit to the grievance but those aren't that is the factual scenario here i want to reserve about five minutes so i'm going to take just about two minutes to talk about the disability discrimination claim  mentally unstable and there were reports to the employer to the effect that jacobs suffered suffered from emotional conditions which included poor impulse well i'm not i'm not saying that somebody who has a difficult time in getting along with others has a perceived disability under oregon law but what i am saying is that when the employer solicits a fitness for duty examination gets a  recommendation or a decision from a professional that the individual has emotional conditions that are described in the fashion that are in the report and conditions the employee's continuation of employment upon treatment the perceived disability the employer's assumption that the employee is mentally unstable and as a result of mental instability is unable to get along with employees and has potentially violent under oregon law the employers obligation is to not discriminate on the basis of it in the context of this situation the discrimination is different treatment and argument was very simply that the employer could have and should have sat down to talk with jacobson informed him of what the charges are by his side of the story given him an opportunity to present any evidence of that with the last cance never do well with respect to a new incident yet since they've never heard what you have to say about that there is nothing unfair or inappropriate about that and as a matter of fact our position is precisely what the employer did in this kind of circumstances because they knew of this psychological evaluation requirement for treatment they assumed that he was guilty of what what was claimed without giving it an opportunity to explain your side of the story employee was on to last chance for the last chance agreement specifically the employee waived their right to any defenses employee had an incident where by it was clear to the local leadership of the employer violated company policy and it was clear to the local leadership that's based upon their reading of a last chance agreement that after the employee had no right to appeal that terminations there was a meeting that was held peacefully or they're going to fire you you either resign or they're going to fire you and that's an hour and a half long discussion it took a long time to go over those issues repealing subjects that didn't happen didn't happen didn't happen that's  by this local i haven't heard any evidence presented on that but i noticed mike my time has just started at nine hundred fifty three so i think i'll take a little more than seven seconds unless the court has any additional questions  reserve the remainder of what i actually have and let the employers representatives  number of things including the fact that the scope of the union's investigation is limited it is going to be determined by the circumstances in the context in the context here which is what i don't think we can forget is that there were last chance agreements and suggest what the scope of the investigation should be and judge roemer i think you're exactly correct weight at the beginning of the argument when you suggested that this case begins and ends with a last chance agreement the union did an investigation the plane legal advice relating few points perhaps and then just talk briefly about the disability discrimination claim the last chance agreement there's a couple of things that i just want to clarify in the reply  field arbitration and some suggestion that because a last chance agreement either wasn't authorized by the collective bargaining agreement or that because nobody from the union signed on that therefore the last chance a representative present and while the arbitrator in the fields arbitration said that the because there was no union representative present while the union member will negotiate a last chance agreement and in fact in this particular case ambiguous would be the best way to describe it and that there's you know that there's nothing that says that this or jacobs conduct relative to the high street incident or to that rick suiter bible or the incident with mr herbert somehow that couldn't have known what he wasn't supposed to do but you know mr jacobs was very clear in his deposition that there were some things that he was supposed to do and he understood and he talked about that he had to act like a robot that he needed to watch his back and not talk out of turn to anybody and do his job and all of those things those three incidents well or collectively suggest in fact that there was  violation a last chance agreement that he knew what the last chance agreement imposed upon him and that the company was absolutely justified in terminating him but with respect to the disability it's a let me let me make a couple of points first of all i don't believe i heard counsel dispute this i said we are clearly under the federal mcdonnell douglas analysis in determining the allocation of the burdens of proof and summary judgment stage even though it's very clear this new case from several years ago suggests that's the case and diversity cases and i i don't know of present all the reasons why that wouldn't be the case here and i think that that that is accurate there definition of disability is and that there may be some broader scope of disability that is picked up that however doesn't mean that we have some difference here distinction disability is that certain kind of analysis do we have it can we look at disability and the context of mitigating circumstances or not and or again during court to date have said we don't look at the mitigating actually taking place we look simply at the disability of the individual this is regarded nastily and nursed we don't have medication we don't have anything like that but we have and forty point even though if we got that's par the simple fact is that there is no evidence of pretext here and obviously we have to have some because the articulated response from the employer is that someone if someone had broken a leg and you know you said continue on go to the doctor you're not regarding someone is necessarily disabled kids these days and the fact is that just very briefly i do want to take a moment just to respond to issues of bail out who was authorized to do something in this kind of circumstance the local thirteen by laws are set forth in the record  act seventy six and the by laws described the duties of the officers including the president and the vice president the white house contains no authority and they think they contain no statement indicating that either of those people in either  by laws require the standing committee to review any agreements up any member now let's assume that the court concludes that somebody else made the decision besides the standing committee the problem with that argument is that there are disputed issues of fact claims that the president or the vice president made the decision however the president signed it or rather tories saying that it was the executive board who made the decision the union takes the position that this occurred at that informal meeting of union officials where the decision was made however the r r tories say it was the executive board and there is no recorded decision of the executive board so the union can't establish as undisputed fact the facts upon which they were alive to say a judgment w