argument ok next case will be two zero one four dash three one two three apple berry versus  law well in this case down it to five questions can be resolved first in a chapter forty three case must an arbitrator apply the same standard properly under under the collective bargaining agreement then the board standards and there are seventy seven zero one she hears something apply but cornelius was a matter in which the matter was presented properly to the arbitrator the problem here is that it looks for all the world like this matter was not presented frankly that is to say there's a collective bargaining agreement that seems to say these procedures are exclusive thirty a day which to me is the most important of the of the clauses that says jake if you have a grievance not one of the excluded ones that we don't seem to happen next would it one particularly about the pit plan and the failure to live up to the plan here's how you have to challenge it and you didn't complete that process in which case that matter is over standards were valid they were communicating i don't see the government having having opposed the argument you made that had this case been brought in the m s p all of these things would be fair game i don't i don't see them opposing that idea but that's not really chose to bring it in and lots of instances where different forums administrative versus judicial versus other have different scopes of authority in terms of what they can and cannot clear you chose to bring this through the arbitration channel through the grievance procedure the removal you had multiple choices of form but you chose this one if judge toronto's reading is we have to were aiming for consistency between arbitration forum and m s p be so why why there are all kinds of things you can bring in the arbitration form you can't bring in the m s p be like for example so why is it shocking that there are some things you could have brought me amiss p b that you can't bring in the arbitration forum it's shocking because chapter forty three converse is specifically said agencies will let you off with a lower burden of proof if you follow the standards which the courts and m s m s p b have said even if nobody brings it up even if none of the parties mention it ever we have an obligation to determine if the standards are objective if didn't take it through the arbitration you absolutely had the right to challenge all of that you didn't do it so i and the the collective bargaining agreement says that if something is not counted all the way through to arbitration deemed withdrawn so it's as if those were never even filed so then the question arises must you in an arbitration file a separate grievance or go all the way to arbitration over the hip and the pip close out letter which would set up a different standard than m s p p cornelius talks about inconsistency and i agree there are some differences in those forums but they're not in areas where congress like in chapter seventy five or chapter forty three has said very specific rules for how it's going to be handled if they want to negotiate some different terms and procedures over you know the height of a water fountain or something like that may be allowable but here we're talking about congress giving specific rules about how it wants federal employees to be fired so we have to disregard those rules if we're going to allow an arbitrator to say that you d congress has not said that in a collective bargaining agreement there cannot be procedural requirements including timing requirements that congress never specified what seems to be going on here is that as part of the deal of getting a lot more things to be reviewable lots of non adverse actions and all kinds of things that could never go to the board  you there's a set of very specific procedure or requirements which you know with the right attentiveness you can comply have thirty days or thirty five days after the incident you have to do this and then lose the next step and you have to complete it don't i haven't seen anything of what you said that indicate that enforcing those plain requirements is contrary to the statute or that there's something less than plain about them or one of the less than plain being my wiggle room question is is there some language in there that says oh here's an ambiguity and then let's let's open up the ambiguity to say well as long as there's an am and that's why i get back to thirty a day which says this is exclusive and then provisions that say when an incident occurs you have the following amount of time to complain about it so let's assume that what a bit of the way and then you withdrew it as if it never happened then we're back to violating the requirement that within thirty thirty five days you have to agree that either way i don't see how it makes a difference well if we  congress has set up a larger rules the parties can't negotiate those they can't even negotiate them in the favor of the employer they can't negotiate them in favor of the agency that cannot change those rules and our position is a chapter forty three is the same way it says disses how you fire a federal employee for performance and one of those things is the standard that's automatically an issue regardless of whether any party ever mentions so a party to go to mr p v it may not be mentioned the judge still has to consider it under under the proposition your presenting party goes to the arbitrator if they don't mention that the arbitrator doesn't have to consider it so that's a different approach to the law then is applying an m s p be laying arbitrator off without having to consider i mean he he the agency never had to comply with its burden of proof its obligation to show the standards were valid it never had to do that be the it does not appear disputed that the arbitrator did not follow the same law as him a speedy would follow he refused to address the merits of the case the merits of the standard so the question is is it excused by the contract language of the contract cannot apply different standards in federal law such as chapter forty three and as i just said the parties cannot negotiate negotiate away federal law they can't ignore chapter forty three if it were some  area where congress was not a specific certainly the collective bargaining agreement could fill in the gaps but that's not what happened here the next question would be what the remedy is since the merits were not addressed this court cannot do as it did in some cases and say we're going to look at standards and make the decision is this a valid standard it has to go back to the arbitrator there are some cases that express concern about remanding to an arbitrator because it's not judges sort of a part time judge but here the parties  stipulate that's what would happen and you see an arbitrator's decision he says if if and when this case comes back to me i'll do the following so it's not in dispute the romance as an appropriate remedy the arbitrator himself says page four of the joint appendix because the earlier things were not litigated all the way through to an arbitration i've got to consider them as already decided so the arbitrator is saying that failure to arbitrate those separately an infinitely barred him from considering the merits this maimed that someone choosing between m s p b and the arbitrator is going to have to decide between do i want to arbitrate three things or do i want to go to m s p b where i never had to mention the pip until i showed up at the door and that's not consistent that's not the consistency that the supreme court talked about in cornelius it also encourages the form shopping because someone's going to have an advantage go to m s t be where they don't have to have already arbitrary arbitration even though they had some of the individual things have been subject to grievances which had been withdrawn yes your honor that was an option that was available to her so when she was removed she had the option of pursuing  invoking arbitration to the arbitrator which would be a limited review because she had already greek some of the underlying facts or she could have proceeded to b m s t v in which case the board would have examined the entire removal process at one time the grievance and arbitration route with regard to her removal given that her claim from the very beginning has been the test in the standards of the pips that she was subjected to it makes no sense was it just poor judgment bad boy airing counsel by the union or whoever i mean can you think of any reason that it made any sense for her to go to arbitration given what were clearly the nature of her underlying arguments given the government's position on what she can and can't actually about thirty days as the retirement it's over trader decided that he couldn't look at anything in her removal because all of the allegations that she wanted him to look at as part of the arbitration were within the purview of what he said look at because of the simply a socially lawyers up no you're i mean i don't know the timeline whether it's you know whether it's a lawyers screw up or the choice of the employee i mean those deadlines are set in the contract i will say that they're not necessarily jurisdictional they can be waived by the parties i would assume they'd be subject to some sort of equitable tolling so i suppose it's possible if mrs apple perry said something to and make sure i understand this right because i could have it wrong but my recollection of the timing is she was grieving the close out of the path and then the removal came along and she decided to  stopped at that point pursuing the close out of the pep to the grievance she had not given up and withdrawn the grievance of the pip until after the removal and after she filed the grievance regarding the removal which clearly on its face demonstrate that her intent because it's actually almost verbatim identical the section where she complains about the pip agreement she was pursuing that treatment and then she got removed and so she it looks to me like she flipped it because she just cut and pasted all those arguments into the removal grievance thinking that she was sort of umbrella an umbrella in everything together in one grievance and not having all the separate little ones that seem like a really strong case for the government to agree under those circumstances to waive it and let it go forward because it seems pretty darn clear in this record given the timing and the identity of the way the issues were presented she could have kept pursuing the grievance she'd already been actually decided on until october thirty first deadline for pursuing the pip grievance was sometime in the summer she dropped it before there was actually a removal i believe you're on the dates correctly let me just sort of small things that the arbitrators said and i don't know that this is relevant but said that she could have grieved a proposed removal that's one of the specific exclusions of the collective bargaining agreement or as i don't think she put it i think deferential standard for revealing interpretation of collective bargaining agreements that prevails in the private sphere we said as recently as the garcia case that the interpretation that point the supreme court in pamplona in two thousand and nine talked about whether rights were waived when you go to the arbitration forum and the reason it's except of all to our problem right is that we expect the same rules as to substance to apply both in arbitration and meet people do you agree that a crucial dividing line here is between substance and process yes i would say this is whether considering those standards considering the pip as part of the removal as a matter of procedure or substance is  key issue yes and so we look to him s p b decisions that say this right to challenge the validity of standards is substandard right and one of the most important aspects of the chapter forty three arrangement for hiring employees if it were some other right the outcome might be different but again this is one that has to be raised to a sponsor even if no one else mentions it so if she had not filed any other grievances and had gone to the arbitrator the arbitrator should have applied that same rule and the arbitrator himself in the case we cited in our reply brief the panama canal case what's cornelius the arbitrator in a chapter forty three case themselves said i've got to apply the same standards as with m s p b arbitrator or we're going to get into the system see inform shopping you have