these charges of misconduct brought against miscue ms smear excuse me the student violated the collective bargaining agreement specifically article twenty three section two which says the charges have to be brought time or for a determination on that issue the second issue is a bit more complex factual and that is whether or not the conclusions of the arbitrator are supported by substantial evidence that giving an overview of the arbitrator's decision she agency won't rush to judgment that the agency will look at an employee's cumulative record and what goes on in a period of months whether this is just a once in a lifetime thing or whether this is part of a pattern and it seems to me that if you the charges to become stale which which would important in the discussion regardless of which side of this argument to rahm is that these things were known shortly after their occurrence to the agency and they did in fact did goodman and say what is your side of the story and she gave them a presentation she said x y or z and the agency then says nothing says nothing and we pointed this out in our brief they didn't reprimand her they didn't say or you know you're doing this wrong they didn't say if this continues you're in deep trouble and you can lose your job we have testimony from the direct supervisor that she never even said to her you know if these problems occur come to me i'll help you i'll show you a better way to handle these things they left these matters totally on the drums what's the implication of that behavior by the agents the implication is one of two to one or both of the following that they agreed with ms guzman that events occurred as she represented and therefore they were not violations they were not written was not true true ignorant of the client it was not a violation of the procedures of the social security administration the second implication is is that even white you know fair is fair that's why there's a provision about timely notice bring in there's a separate provision about bringing matters to the attention of an employee as promptly as possible so they employ a fresh recollection of events availability of regards she ignored the motives that the claimants might have had in making complaints and just address that very briefly on virtually every single case if not in every single case ms guzman delivers looks just call it negative information to the member of the public she says you don't qualify for this i can't use that deduction i have to do this and they're unhappy with those decisions in one particular case involving you know but i tried to evidence is a low bar for the prevailing party and it's a high bar for the challenging party but in this case if you look at the totality of this i mean let me give you another example of how off base if i may be is the vernacular how off base this arbitrator was and therefore why it's proper to conclude that she did not look to substantial evidence she says this employee has fun couldn't get along with coworkers three coworkers come in and say she's a great coworker she refers to an incident that occurred four years prior and she refers to equal employment opportunity complaints that are settled by the agency that occurred more than a decade prior that's offensive to say evidence of not getting along with her coworkers is that you  if a lawyer hanson his or her own office a set of certificates that say he or she is known to the supreme court every federal circuit court and so on and so forth and one draws the conclusion this is a preeminent lawyer on those facts alone i'm a soap here but when you talk to those lawyers colleagues and you say no think this lawyer really isn't very good really hasn't done very many cases and hasn't done very well in the cases that he at then you come to a totally different conclusion and you can say that just because she can point to an into account whatever it is that seems to have caused the player in the first answer is no there is not such evidence in fact it's the opposite again the immediate supervisor missile launch test was asked did you do anything to suggest any classes to suggest any remedial steps and the answer is no i did not did you suggest to sit with your to do suggest a mentor there were a whole series of questions or outlined in the briefing the answer all those questions of snow she was never put on any kind of a performance plan she was never put on any kind of probation the prior discipline has met my just find out if i may for one of the very first was a three day suspension in one thousand nine hundred thirteen years before this occurred it had to ninety which is twelve years before sailing out of time twelve years before she gets a ten day suspension because she didn't offer a shield as allegedly didn't offer a seat to a claim of a claimant that she assisted in an extraordinary way would come in there was a question about whether someone had died this does months we're going to ponder celtic at the funeral home on the phone get the death certificate and process the claim yet she was disciplined for that and then she was given a thirty day suspension because she has allegedly didn't request official time to engage in union duties so the first in the third offenses are wholly unrelated to the issue of why she was removed all three of those disciplines closely followed her filing of the claims all three were imposed by the same supervisor woman by the name of mary solver so the past record which the arbitrator seems to rely on heavily is really missed and grossly misinterpreted and i would say in the language of of the reviewing  an reasonable interpretation and if you look at the way she analyzed up was other double factors you find scuse me the same kind of an reasonable conclusion conclusions that are drawn i mentioned before the i i mean as with any i mean that every court every every decider of of what is just and what is fair has to have the confidence of the people that come before dinner and adjudicate claims before this she was spoken to after each complain to give her side of the story at that point in time she was put on notice of the public's perception of her and repeatedly these complaints echoed each other that they were perceiving as rude arrogant disrespectful and ms goodman was aware of specifically how the cleans representative is required to treat members of the public and i don't just have a basis for believing that when this was called to her attention that her supervisors continued to feel that this was not a perceptible behavior or was she to think after everything happened and she bonded that they went back and said ok with us they did not specifically warn her at those times or reprimand her but they were deliberating during that time after the first complaint deserves a warning or reprimand how are we to put into context the events particularly so some of the time aspects of counsel as pointed out the relationship to filing any complaint and other actions how does one they determine after this first complaint came in that ms goodman behavior had demonstrated that she could not be rehabilitated they had already gone through informal efforts to counsel her to send her to trainings to learn how to work with the public they went oh is it what time afraid it will be prior to that complaint but this had been an ongoing issue that district manager listener testified to that he was working with her wanted to send a lot of time pondering what penalty to take because he did not take rueful lately he wanted to investigate consult with the regional office and as he was investigating the first complaint the second one rolled and and then the third one rolled in and through this time period he was unable to institute a penalty because he was still deliberating what penalty would be issued arbitrators say and i know that the arbitrator talks about counseling and so on in the penalty analysis of why it's time for removal other things haven't worked that does the arbitrator actually address the timeliness question not specifically no but if i think going through the douglass factors she does state that the agency met counseling short term intermediate and long term penalties and that removal is the next appropriate penalty but she does not specifically address the length of time between the complaint and the proposal for because you don't want to force an agency to an all or nothing to her only choice maybe it has to do with considering the cumulative effect of things but if it's a reasonable in this determination and the arbitrator didn't actually address it don't we have to remit and for that to be addressed or is that i guess a tell me why would be wrong to say the alternative would be to say this is plainly as a matter of law there is no funding that could go the other way  argument but she did not and explicitly result it and her decision but i but we can look to the implicit resolution because she did not she did not say that the length of time  unreasonable so she had this issue before her and she did not specifically find it to be problematic and arbitrator is not required to go through every minute piece of evidence in reaching that decision  and now it's substantial evidence doesn't support the arbitrator's conclusions she considered the written complaint five individuals who had appeared before ms goodman as well as testimony from her supervisors and farrel one of the individuals who complained as well of her coworkers now the quantity of these complaints also for the pork the decision because there they were in a short period of time  followed each other very quickly and mirrored each other and their substance these individuals repeatedly described her as rude disrespectful arrogant speaking over them interrupting them and she gave way to the review and demonstration of improvement or him at that point they had already found her to be beyond rehabilitation that it would not be possible for her to continue her job working with the public  quite a dramatic psychological judgement due to that in the record it isn't as they go through the douglas factor they determine that she cannot be rehabilitated because of her  interactions with the public and that this position eighty to eighty five percent of the time is interactions with the public and almost through twenty years of employment you're saying those things are going factors way against saying all sudden after twenty years it's appropriate for the agency without notice to say you didn't know possible rudy well according to the collective bargaining agreement that agency determined that they had met did look at the entire range through the length of her federal career in making the ultimate determination as well as their personal experience with her viewed the length of her career and felt that they had given her those notices that she was on notice about the requirements of her position and as these complaints came in they felt that she was not meeting the requirements testified in arbitration that he that ms good men had the technical technical s expertise but that certain moments her mood and disposition interfere with that expertise and that is when she did not perform her job up to the standards required of her position and that he had been working with her over a number of years to improve those issues and they spoke about it at their midyear  that he had arranged a training to deal with members of the public that he had done that specifically geared towards her and this is what he testified to in arbitration so at the point in time when he proposed removal well i think on page twenty seven it doesn't specifically mention mention in the context of the collective bargaining agreement but it does mention this length of time between october and  the notice of remove all your article but i mean page twenty seven the hour traders decision is a summary not complete summary of the union's position where there is some implication of timeliness you know would look to before coming here today for my brief thinking it was in the appendix and it's not so but timeliness was implicit throughout the whole case it was a major part of the response to the proposal and if you look at the decision to remove which is founded seventy six of the of the appendix it's mentioned almost in the first discussion of the of the merits of the accusations wh seventy eight seventy six it says your representative mr joseph stated that the charges in mr listeners proposal notice are without merit he stated that the alleged misconduct in these cases occurred more than a year ago prior to the proposal and that the length of time which as a la shows management's lack of conviction and sentence so forth yeah but that doesn't in the heart of what i understood understood to be the contractual i can well here's the contract the contracts are larger i think your honor was was on to it it is article excuse me document exists that would show that the union before the arbitrator not before the agency that the union address that issue of a violation of that particular section of the contract be to the arbitrator the worst question is one that the answers to i don't know i'm not i thought it was in the record because i thought the brief was in the record when we discovered it was not you know whether it's in the transcript pages that have been included there's some discussion of that i can't honestly tell you because i don't know i'm sorry i'd like to point out to look at your position that it was yeah you just can't support it because where is it like in the response to that there's some of your filings here and i guess i'm not seeing where annual performance evaluations i'm sure the court is well aware and they may occur in october of every year if my arithmetic is correct ten of the thirteen offenses alleged occurred in a period for which a performance perform a performance evaluation is given and it was a fully satisfactory performance evaluation including interpersonal relations which includes not only in a relationship with your coworkers but with the public comment that the i'm missing something in terms of the timetable here because i thought i think those are all the months and one one there was a there was an allegation that something happened in september although i think it was a minor minor part of the charge ok so your point is that the least those that occurred