single employment case but if that makes it not final at the agency can take a second or third by with the ample now one point case will be final what do you understand the arbitrator has to have sent this issue back to the agency on the question of whether there was a violation on december sixth we have december sixth and december seventh which are floating around in this case the arbitrator by the time the case got to the arbitrator apparently december seventh it somehow better worded removal letter i guess it would be a little theoretical i think that shows the odd but it has a very practical impact i take a non theoretical impact in that i take it your position is if they should choose to go back and start again on today or for that cash and ultimately the m s p be the side of the case was not made by the agency you go back you get reinstated you get back pay but then you see this situation is a little different and that's what you what's puzzling me here she was charged with two different instances and arguably even more with the background of of the wall she's charged with at least december sixth and december seventh december seventh is not pressed before that the arbitrator does that mean that the agency then is in exactly the same positions they would be if they had never charged december seventh at all and does it also mean where you have an alternative ground that you didn't put in an alternative legal basis for the conduct that you have involved that you can't pressure on rina and if so what cases or case says that to me the agency dropped to that at the attrition point but can they are they entitled to say we want to continue with that now that we've lost the first pitch right so she did have notice of the december suppose that you've got a case in which somebody is charged to take my example with theft from petty cash and the agency in the removal l you got you cited the wrong regulation and the agency says ok do you think in that situation that the agency would be allowed it would be permissible under the law that we've developed on returning for the agency just to proceed again without reinstatement and so forth on the spiritual charge given that the charges off the conduct had been noted it's just that the the specification of the nature of the events the loss of them of regulations or not i think they should be what the defenses are if to the employee at every chance to refute the charge and if there are some new element in the regulations that clarify a couple of actual points in the record that are important context for the arbitrator's decision i think help demonstrate why even if this court were to reach the question whether remained was proper here which again we don't think it's properly before the court shows that that  aside the removal to the contrary the arbitrator found that the basic facts underlying the charge which were were always the same they were failure able as a result of failure to bring in medical documentation supporting the december sixth we request determinations and reaches the the conclusion that those facts were proven false only to finding on the previous page j ten that misleads while it's understood she was required to submit such documentation nonetheless recognizing that the agency in its initial removal letter cited the wrong provision but did correct that provision while the matter was still pending before the agency the arbitrator looked at the server all  the provision they need to do the agency agreed at the step three grievance decision after his claims wallace came in and made her response to the removal letter the agency agreed in it cited paragraph to the both paragraphs to see into the at the last chance agreement pertaining to what kind of documentation or to bring in a legal question now important difference between this and the typical chapter seventy five case is that misleads wallace then under the collective bargaining agreement had an additional opportunity at this point in time to make another response to the agency while she was still in the grievance procedure the collective did not at that time request an additional response the agency didn't give her that in that clearly disturbed the arbitrator in the arbitrator found it really missed his while should have had an opportunity to respond and that's what she has remained in this matter to have happen and that's where the matter really should stand today instead of being before this court misleads wallace to present her arguments and shooting very importantly the arbitrator's it sounds like an argument on your part that the  my understanding that occurred on well the fact that yes i'm not contesting that the arbitrator found harmful error we accept that finding and but i think that's important provides additional important context to explain why the arbitrator section referring to trudy and that those questions have been averted to at the hearing but not fully resolved so i think that also explains that the arbitrator was looking for some more factual development on this issue which she clearly contemplated would happen clean case in which i was charged with theft in the course of the agency and in the course of which there was evidence of other theft that i had committed other than say ok go back and in the context of this single proceeding go back and consider charging the other that with that be permissible or would it be done you you made your claim that the one thirty was listed in the removal letter you all you've done is press that one theft is your charge and while there's evidence of these others that that wasn't part of the part of the claim i have to be case you would say that therefore the amnesty bill can send it back and the employee has to wait until that long proceeding which was totally unjustified and unwarranted is finished before that case ultimately gets resolved b exception in there in hasn't pointed to cases for example saying that improper remain and somehow  clearly viewed this all is to be part of the same underlying charge whether the agency cited two c or two d she treated it all as part of the same issue she identified the issue as one understanding is no intention to try to revisit this dream and would be focused entirely on the december sixth issue with respect to date yesterday and particularly with the factual questions that the arbitrary units again in context and i do it it maybe doesn't fit in this part of the argument but i'd be remiss if i didn't at least mention they do want to point out that the arbitrator did not find the due process constitutional due process violation here she didn't find the harmful process violation so instead and in context the arbitrator is viewing this as a situation where ms please while it's understood what she was supposed to do she hadn't done it she was asked to bring in medical documentation supporting her leave  paragraph two dini incorporates there were different articles of the collective bargaining agreement and the one that is relevant here  is a person agreement in the record but it's also reproduced in the arbitrator's decision at the bottom of page eight and over into the top of page nine and under this article the operative provision for this case i which is on page nine of the joint appendix it says that as a looking at the middle of the paragraph here first sets forth a general rule that if you have sick leave for three days or less you do not need to bring in the medical pick it up but there is no let unless unless the employee has been warned in writing about an abuse or suspected abuse of sick leave and says an employee will not be issued a written warning and less he or she has first been counseled by his or her supervisor and this is the language that the arbitrator was keener character each thirteen of the record in saying that there were some factual questions here that had been alerted to but not fully developed at the hearing and that the arbitrator so i think it also makes sense here that the arbitrator remained in this keeping in spirit with the nature of collective bargaining to give the parties an opportunity to address these issues and if they could resolve them the briefs don't cite any cases that really are i would say on point i think it's fair to say you don't you're not aware and i couldn't say case find anything that was after this case to give me comfort one way or the other are you aware of any case public in uniform and then for the first time in this is another difference most these cases for the first time at the board the agency set hoops we meant some other charge so that's another important distinction here that we have this unique provision of the collective might also again i don't know have arguments along the lines of the the supervisor did not consistently impose these requirements and so that that might somehow affect it then too lax and then decide to focus on this date w the second of the two charges was not part of the notice of removal again not where it's a completely different well hold even if they're closely related you know of any case in which for example the the ultimate finding here that this was harmful that by saying that factual issues have been raised and phrasing the issue as one broadly of breach and all her other actions are team jurisdiction those are all indications that she considered th in which one simply is arguing well it was inappropriate to remand on this case because you know i should have won a district court case let's say which one once argument is that if history court said this back that there was really no need to given the looking for a category what you see is that category which presumably is less than or remains i'm not sure that answers your question but i know we cited like the after case in a footnote in our brief where sometimes arbitrators