judgment of the union and therefore quite the right to go through the internal formal decision making process all based upon its interpretation of the last chance agreement regardless of any interpretation of the last chance agreement plaintiffs still should be entitled to go through the internal decision making process because obviously in this kind of circumstances there is substantial room for presenting to the union membership but there's less chance agreement faith that's the question or the reason i can say that that that is arbitrary in bad faith because even if you assume that that's the issue there still is that's not an explanation or justification for depriving jacobs  the formal decision of the union if that decision is the decision of the union it should have been made by the authorised people when he i'm sorry and that mohsni tried the union has a process for deciding grievances and the process is member to start the internal process i mean jacobs was shut out of the process ok so now you're flipping the meaning to the euro and you're on now that it took to the rope to the and then there was one board meeting where nobody said go forward with agreements i don't think that that those are undisputed facts i think the undisputed facts are the day after he was terminated he went to the president and s to file a grievance and the president said you've got no right to appeal there is nothing in the next emergency board meeting indicating anything of consideration of dates of jacob's appeal he goes  against or doesn't have to decide to appeal or not to appeal doesn't it under the bylaws there are two processes for decision making one the standing committee which according to the bylaws reviews all grievances and presents some to management has general supervisory powers of the union between meetings subject to approval of the membership if there were some issue that jacobs could not file take grievance with through the union it needed to be approved by the membership so the fact that a group of individuals if they met on january ninth as opposed to february makes some kind of determination really isn't a decision of the union through an authorized process no more rights under the collective bargaining no more reasons process no more of us pawns required for terminations i mean that's the bottom line a judgment call maybe you could have gone the other way maybe not the threats but you need to call me by so i don't i don't i don't see that that is where the case turns because even if there is a judgment call to be made it should be made through the normal you know process giving jacobs the opportunity for example no one interviewed jacobs about whether or not this provision in the last chance agreement waived any appeal rights nobody gave him the opportunity to bring in information for the formal union decision makers to consider whether or not this provision in the last chance really might actually you know what the actual language was up and as we noted in once we got into discovery leroy thorpe the president of the union conceded in deposition that it doesn't waive appeal rights the triggering event has to occur and we also presented information that the union had filed appeals and under the exact same language and a went through their normal process they gave the individual they presented it to management they did their investigation they let their standing committee make its decision that's what jacob was denied and there was a lot of room for a lot of room for arguing that the union its attorney everybody knew that this last chance agreement didn't waver right to grieve i mean the language was playing house it on its face so i would see the way that the thing turns on regard most of what the issue is there really isn't any harm to the union or any reason for the union to not allow jacobs to go through the decision making process he should have been able to appear in front of the board should have been able to present this disposition  appeal to the membership just like any other member of the union if you don't accept that proposition basically he's lost all his membership rights and basically what they're telling him here is you're no longer a member of the union you don't have any rights to go to membership president or the vice president no evidence whatsoever well i take that back if there is a conflict in the evidence as to whether that decision belongs where the president is authorized to make that decision we presented evidence  that in fact the bylaws did not authorize the president to make that decision there is nothing in the bylaws which say that the president can decide whether or not to process an appeal i mean that's that's that's why we argue that they didn't go through the standard decisionmaking process though those decisions should be made by the stanley committee or by the board subject to approval of membership the due process argument  opportunity for hearing if that's the case and i might add that the evidence is all susceptible to the argument that the union could have with very nuoro focuses on four factors and those are is there an issue regarding the proper procedures of the unions using in our view the evidence presents issues as to whether the union went through the proper procedure to is there a conflict of interest we believe is there a potential conflict of interest we believe there is a potential conflict of interest in the roles of mr fortenberry who was an executive board member and in the roles of mr mcdon we believe was acting as much on behalf of the employer in union decisions yes as a union member and three that the union intend to handle the grievance and a perfunctory or summary manner the union admit that it intended to handle the grievance in a summary manner the final ten oreo issue is it does it concern the most significant issue and that's terminations so in our view it's squarely on point this would be a different case if this decision had been if somebody had talked to jacobs about your side of the story somebody had gone to the standing committee and the union had made a decision that there was no merit grievance but those aren't that is a factual scenario here i want to reserve about five minutes so i'm going to take just about two minutes to talk about the disability discrimination claim knowledge or notice of the underlying condition and how you know of time accommodation is necessary medically necessary i don't even think that this is an accommodation issue rather i think it is an issue of in depositions as mentally unstable and there were reports to the employer to the effect that jacobs suffered suffered from emotional conditions which examination gets a recommendation or a decision from a professional that the individual has emotional conditions that are described in a fashion that are in the report and conditions the employees continuation of in the context of this situation the discrimination is different treatment and argument was very simply that the employer could have and should have sat down and talked with jacobs and informed him of what the charges   there's nothing unfair or inappropriate about that and as a matter of fact our position is that precisely what the employer did in this kind of circumstances because they knew of the psychological evaluation requirement for treatment they assume that he was guilty of what what was claimed without giving him an opportunity to explain his side of the story i'm down to two minutes and fifty seconds so i'm going to save that for rebuttal thank you  leadership of the employer violated company policy and it was clear to the local leadership that's based upon their reading of a last chance agreement that fact the employee had no right to appeal that terminations there was a meeting that was held local i haven't heard any evidence presented on that my i know it's my to my time has just started at nine hundred fifty three so i think i'll take a little more than seven seconds unless the court has any additional questions i'll reserve the remainder of circumstances in the context and the context here which is what i don't think we can forget is that there were last chance agreements and those last chance agreements whether or not the determination that could ultimately be made could disagree with on whether or not the grievances should go forward those last chance agreements in effect when i suggest what the scope of the investigation should be judge roemer i think you're exactly correctly at the beginning of against the union so what i wanted to do was to just spend minutes talking about the last chance agreement itself clarify a few points perhaps and then just talk briefly about the disability discrimination claim the last chance agreement there's a couple of things that i just want to clarify in the reply brief there's discussion of a field arbitration and some suggestion that because a last chance agreement either wasn't authorized by the collective arbitration language which is in the excerpt of record although there's a few missing pages but at least from what i've been able to figure out from it that decision related to again to get coincidentally enough  to last chance agreements that were signed the first one was that was without a union representative present the second one did having a representative present and while the arbitrator on the deals arbitration said that the because there was no union representative present and so i don't think there's any merit to that argument at all there's also some discussion about whether or not there was drafts and the execution of either of the two last chance agreements and conduct relative to the high street incident or to the brics suter bible or the incident with mr herbert somehow that couldn't have known what he wasn't supposed to do but you know mr jake was very clear in his deposition that th were some things that he was supposed to do and he understood and he talked about that he had to act like a robot that he needed to watch his back and not talk out of turn to anybody and do his job all of those absolutely justified in terminating him but with respect to the disability claim it's a let me let me make a couple of points first of all i don't believe i heard counsel  dispute this i think we are clearly under the federal mcdonnell douglas analysis in determining the allocation of the burdens of proof and summary judgment stage even though just a claim sneak case from several years ago suggest  that's the case in diversity cases and i i don't know of principle reason why that wouldn't be the case here and i think that that is accurate there are differences and the oregon court of appeals has recently suggested again that there is a distinction between federal law and state law where the state laws disability skeen relative to what the definition of disability is and that there may be some broader scope of this ability that is picked up that however doesn't mean that we have some difference here in the first place it's just a stream of you are absolutely correct this is regard claims for the accommodation alice does not even apply and we're looking at a regarded as a condition of the cases where the court of oregon courts has found the distinction of disability is a certain kind of analysis do we have at the disability of the individual this is regarded as client and there's we don't have medication we don't have anything like that but we have and judge i think you hit it exactly on the head we have someone who is unable to interact with others there is no evidence of pretext here and that i'm usually we have to have some because the articulated response from the employer is this is a case where the last chance rooms were violated that's why we did the terminations nothing to do with a leg and you know you said continue on go to the doctor you're not regarding someone is necessarily disabled kids these days and the fact is that the incidents were things that  to be regarded as having a disability the employer has to be mistaken about what the disability and what the material limitations are in this case if the employer was concerned about mr jacobs inability to get along with just very briefly the i do want to take a moment just to respond to issues of who was authorized to do something in this kind of circumstance the local thirteen so if i was or stepped forth in the record act bylaws require the standing committee to review any remains up any now over now let's assume that the court concludes that somebody else derogatory saying that it was the executive board who made the decision the union takes the position that this occurred at that informal meeting of union officials where the decision was made however the erasure tories say it was the executive