we believe that the issue that the court must consider is simply that the government failed to make a timely objection  is it in the contract that would compel the government to do what you say should have done that not to compel the government to notify the arbitrator epimetheus yes there is nothing explicit in the contract that compels the government but if you examine the joint appendix at a forty five notice was given to bot parties if there were any actually require by f m c s or the arbitrator they were supposed to let them know i won't of these arbitration take are you familiar with the arbitrations themselves if you participated in the summer how long how long does disease arbitrations take typically the hearing a one day matter how how long does it take to have a hearing can go one day two days three three weeks before the deadline and he didn't do anything to move the case forward we know why he didn't do anything was he too busy what was the problem well i think one of the regulations he has because it generally were asked for a submission and it was a contractual issue the contract of course would have to be presented to the opportunity but  is this particular arbitrator arbitrary other grievances under this collective bargain agreement not to my knowledge less and exceeded it sounds like it seems to me like a very very unusual provision because in theory not suggesting that the government would necessarily act in bad faith but it seems like there are no less circumstances in which we would  ceed four months here and if it's true that if you exceed four months you lose your right to vote arbitration that seems pretty cold well the government takes musician that to comply with one hundred twenty day deadline would result in the employee losing i think one case i think an issue was raised early on i think back in the late eight of supreme court in a court of appeals cases including cases from this court that suggest that agency deadlines like that are housekeeping matters and that the agency doesn't lose its already to act once the time runs  so that would support your suggestion that it's ok it's a goal rather than aren't there any indication that this arbitration provision for months was modeled after the hundred twenty d contract a question or a question of fact probably treated it as a mix question i wonder section eleven of the agreement it says that the ira trader has to decide the case within thirty days of the hearing are you aware of any consequences as a within thirty days in evidence the evidence will help you decide what sanction will be in post against our project but as a matter of practice they do basically whatever they feel like doing when they want to do it this transplant just cases that the government relies on are those all cases and in which the case never got to an arbitrator within the four month period absolutely and we stay there then i brief as me examine each particular case that the government relies upon not one of those cases involve an arbitra in fact only one of the cases involved in issues about selecting an arbitrator but never has the government sam please the court hamas does the government agree that if this four month provision were in the statute governing agency procedures that the failure to decide within a four month period would have no consequence so the hearing is not held within the four months the are you suggesting that under those circumstances that the employee would lose no your honor there is flexibility built into the four months that line it states that the parties  usually agree personnel july both the government refuses to agree and the deadline go i mean the with the way this arbitrator's decision reads it doesn't make any difference what the clause of exceeding the four month period is the employee lose well if if this were ever a situation where the union had active the due diligence hat and circumstances beyond the unions control prevented the matter from going to a hearing within four months and the union had requested an extension but been denied the union could certainly argue the arbitrator that the agency had unreasonably or arbitrarily refused consent and that would be a matter for the arbitrator to decide and for the court to review the the arbitrator zone fall under those circumstances you know even under the federal arbitration that one of the provisions for setting aside an arbitrary war war is that the arbitrator didn't do what he was supposed to do and under hypothetical we have a situation in which the arbitrator didn't do what he was supposed to do and that can it really be that the arbitrators failure results in the employees losing your honor that would be a situation where the union would have to are you assuming that the agency would refuse consent in that situation which hopefully the agency would not receive consent in that situation but if the agency did the union could argue to the arbitrator and then to this court that the union that the agency unreasonably employee wins i think the question would be one of the facts at issue in the case of evidence a situation where the agency in order to ensure that both sides actually has the benefit of argan that the agency had to in the deadline could have been met why is that why is the employees lose as a result of that i'm having trouble understanding well the foreman said line apply even after the arbitrator has been selected the deadline doesn't say that the arbitrator shall be selective  the standard is you do the contract but it requires that you also fought the contract is clear but it also requires a finding that the union acted in a double tory fashion i think the question isn't based on th language the only reason to extend the deadline according to the parties an agreement is if the parties mutually consent so it has an easy straightforward question and a case like this one hallmark of arbitration is that the parties can agree on what procedures will apply so they you agree they didn't agree that the employee would lose after four months it doesn't say that they clearly intended for there to be a consequence for the failure to meet the the four months that brought was had otherwise the agency would be in an extremely difficult position if if if contrary to the agency's practice since at least at september two thousand and eight if we're assuming that the four months deadline does not require cancellation of the arbitration if it's not met then the agency would be in the position of having to wait and diviner speculate how how much of a delay is long enough before it can terminate an what and consequences judge the best if that's true that's correct judge still pointed out that the contract the parties also agreed that the arbitrator will issue his decision or her decision within thirty days what are the fact that the parties mutual agreement is required to extend the four months outline demonstrates that is it is intended to have some meaning by thing that when i think when the provision can be extended imply a plea the other right cannot be extended  mamzer but let's assume that's a factor of good that the arbitrators finding that the union was the primary cause and direct cause for the failure of the parties to meet the form of the climate is something that is important to the decision and even necessary as you pointed out i think or somebody pointed out the largest chunk of so called de lay in this instance was in the selection of the arbitrator right that the forty had a lead the forty two day well the the six weeks went the initial period where the union requested and received a panel of four yep yep so that's the largest portion we can a point to where the union the way right yes but everything but what bothers me about that is that the contract says that either the union or the director may submit a request to s m c s for a list of the arbitrators look so if that's the case why isn't the government equally why is that late equally attributable to the government as it is to the union it's not the union was primarily responsible for that at least joint me both the government and the union are responsible right the reason why the provision refers to both parties is that both parties maybe may have initiated the arbitration and it is the lost any part of the ins the movement that is responsible for advancing the grievance through the arbitration process and that makes sense because many arbitration it would essentially be requiring the agency to guess or speculate about whether the union isn't acting because they choose to abandon this matter or there is a delivery method where where is that an agreement you're 'm making an argument based on the party past practice and we know that sponsors well we see in the left the letters the past letters from the agency in which when the union as a movement had failed to advance this through the unlike the supreme court cases reported said again and again and again if there is a time limit unless the agreement is less the statute specifically provides a consequence grievance so there's the consequence and the problem with mr miller's argument that he provides no tax base reason why that same consequence should not apply when merely one more incremental step has passed but the material deadline which is the hearing has still not occurred so the past the past practice is relevant for providing that very consequent to the extent that it's not clear based on the agreement notably section nine of the  think that the question of if there were an ambiguity that may be a different issue but but here the army traitor said that this was clear and that yes the approach let me just ask you one for the question this is the problem with section not which i understand section nine and you say that your argument was going to be the parties agreed it will handle stuff in an expeditious manner and abide by the top well what about the second sentence of that section which says if the spending limits are not met the grievance w move to the next step as provided in section ten of this article doesn't that lend support to what to strike with saying was that this is an example where the parties articulated what the consequences of not meeting the timeframe which they feel to do with respect to the four months that well actually the so that's actually precisely the sentence i was hoping to address so i think that this provision essentially says that the event associated with t process therefore the arbitrator properly cancelled the arbitration there is nothing further that that there's no further steps to proceed to and indeed the next the very next paragraph in the first section eight of section eleven said that the contacted the parties until june and i was in a period of time i agree with his nominee that a hearing could have been hel counsel for the union quickly responded noting he had an emergency that he intended to just totally incorrect because they rely on appendix four and if you examine appendix four the arbitrated didn't say council he said the union representative quickly responded i've been the only counsel for the union over the last two and a half years but i don't want to take credit for something that i did not