terms with lockheed however westbrook could not have had those discussions over day next couple months because just fourteen days later on august council look let me understand how this fits into legally in your claim of unfair representation by the union it can only be based either on bad faced arbitrariness perhaps  r discrimination i'm not hearing any discrimination argument arbitrariness arguably doesn't apply here to a question of judgment bad things as i understand it requires evidence of fraud deceit was dishonest conduct number one do you agree and if so if you do agree what is your best evidence of fraud deceit or dishonest conduct the most important thing is that perhaps september point on they call for a meeting and at that meeting allegedly west groups while he talked this case oh that is one of issues but that's good that you're saying about the bad things is the lack of disclosure not the actual substance of the agreement and no overall record they kept him up a mock mad they look for an excuse to get rid of him they were encouraging him to get his job somewhere else they simply were trying to get back to him because several months earlier ten must establish must create a submissive case both of the breach of duty of fair rep against the union as well as a submissive will case of a breach of the collective bargaining agreement he does not address the the latter of those at all and i know the courts are very aware that the gramma summary judgment is subject to do noble review but it's very important to understand that mr two books he could only be terminated for just cause under the collective bargaining agreement and under article four section two of the collective bargaining agreement it struck me as an odd place the employee placement resignation if you misses the five days without valid justification where do i find on the record without having to go into the declarations that the district judge excluded that binion gentles not a valid justification well i think there's multiple ways of looking at it st relative to reading the just cause provision in light of the other provisions of the contract all those have to be read as an integrated whole nd of all with respect to that particular language you have to look at has the plaintiffs in in the case below has the appellant created any sort of submissive will case other than his own argument bat that has been treated in the past by the parties as a valid justification and when we look at valid justification you've got to look at does the employee he bear or blame for the situation as to why he could not report him self or is the plaintiff is the employee responsible for the situation being in jail due to your own conduct which mr bad can acknowledge has he engaged into it in it he pled guilty to it is no different then going on to a ten day bender and not reporting either again be mcquade is responsible for that he was fired i think on the th while he was still in jail so for all we knew at the time he could have and that would be consistent with and there's no showing by plaintiff that it's inconsistent with the practice of on a five day no call no show you terminate everyone automatically now and showing the good faith of the union ended zeb good faith of walk he the grievance sad look if in fact he's exonerated of these charges and found to be without fault either because the charges are false or because he has a valid defense for his discharge of the weapon it is daughter's boyfriend any of those things in vision to him being justification for not calling for which he doesn't bear personal responsibility for the reasons apparent and as well or else the st lucky you have a written policy that that report of not being able  to show that we're asked to be done by the employee or legal counsel is seen in the record it seems like there's only declarations that justin if the practice that it must be done consistent with all the other practices now we don't discuss personal employment medical and other issues with people other than the employee themselves you end up in a slippery slope and or there's a generic it's just a prop if there is no written policy about practice and indeed the federal courts and to realign cases have long acknowledged that look you have to read a collective bargaining agreement in wide of the practices between the parties that's why the standard is so deferential to the decisions of the employer in particularly the union in deciding no this is consistent with what we've done in the past this is what we know the practice to be this isn't an individual employment contract between mr bad tim lucky this is a contract between the company in the union in the union in representing the collective has to be given the discretion to determine is this a fight worth fighting or is this some geonic tilting at windmills here that doesn't make sense to exhaust the women had resources of the union and the collective to fight a fight that it should in fact and if it decides it did in this case look the best outcome for mr bad considering the pendency of these charges is that if he can be exonerated then he can come back to work which to address minister to book indicated here there was no do away or dragging feet from may to september mr bad can do to his own conduct was in a never never land of n and unable to move the process for he blames the union for not come back to work and then immediately after that rather than mr bad can going back to the union and saying hey my court cases coming up we're talking about settling it he blames the union and not having contact when it had already been resolved from the outset back in may here's the request the request is if i'm exonerated can i come back to work again this comes back to a july and meaning it was communicated to him again in september and the fact that he understood those terms he had knowledge is and minutes an email that he sends to the union i and april south was reinstated that he understood the terms of the settlement agreement that was made with the union and not cute he didn't get a copy of it that's true but there was no bad faith no  group so it wasn't secret and as judge simon as you indicated that the standard for duty of fair presentation is there's only a breach if the time it was arbitrary discriminatory in bad faith if the and where union exercises judgment may soon form decision though we don't get to go back and look critically at that whether we agree with that decision whether we think that was a good with is was a discriminatory or was it in bad faith all that we have here for the bad faith is apparently this idea there was a secret settlement and again it wasn't secret he was informed of the terms and he indicated knew that that would and shows he understood with those terms were i think some of this goes to the district court striking our supplemental affidavit the nd affidavit from west because in there he directly responds to this secret settlement allegation hadn't been made previously and we didn't have that in it had wasn't said in deposition didn't know that was an allegation we're going to have to respond to when we use them in our opening papers and westwards opening declaration and the supplemental and directly respond in the district court acknowledged it directly responded to  those allegations in arguments made by plaintiff in his reply briefing and so for the district court to strike that i think was an error and certainly the district court should have invited briefing on it before ruling on  out there where there was communication between him and the union official talking about jobs and applications but it no point in the next seven months does he say hey what's going on with my grievance when they have their arbitra november nd and nothing happened then what he knew before may nd this case had been settled by the union and that the union was taking no further action on his behalf minturn it quickly back over to anthony and see if you found that state or least i did not find other charges other than the st degree assault in the record as of method i will note that the original requested wrongdoing as provided in the allegations and charges that need to want to know exactly what the charges and allegations were and see the factual allegations but the only charge i could find in the record was the charge of st degree assault with  weapon yeah actually that was in the record that's actually not the charges but the the r arrest that resulted what the prosecutor brought initially is actually not in the record it's the arrest record which says he's arrested for st degree assault with a probable cause statement behind it and then the ultimate plea agreement that's specifically provides that on lest he has a valid justification for his inability to call that requires pre term addition here he wasn't to last day he argument calendar for this morning will recess until tomorrow