important is that this appeal was brought to assure that arbitrator's comply with the law and there's it's well established that arbitrator's must follow the jurisprudence of the merit system protection order in this and this court in this particular case we are arguing that the arbitrator's just regard our proffered similarly the treatment of similarly situated employee tell us the facts of that investigation it's a an appropriate question to say the least in retrospect i've asked myself the same question my co counsel as dr steele and i were talking about that this warning the short answer is that we felt that it was of little significance the details were of little significance that two years had white house nappy trail i mean i understand your point but we don't know when the investigation  occurred if the investigation started immediately after your client for move all that might be more relevant that there's you know and that's occasion and if it was two years later or or the like it just seems to me very difficult for us to say to look at th as as i've already said you have any additional information about what's going on with the investigation to our knowledge and agency counsel is here as well as the department of justice counsel my delusive elucidate this but i have no knowledge that anything has ever been done about this other than that one mention which was mentioned so to speak at the eleventh hour we had no idea so i think the reason that that even though they the agency claimed that they didn't really know about these discrepancies to your own client and and her sister i guess it was correct and figured out what these records really showed that that the mere fact that they weren't even looking at the other records any othe employees in of itself shows the difference in treatment it does it does and it shows something else it shows that despite the conclusory statement that this is a very serious offense and i see a lot i'm i'm union counsel i see a lot of proposals and decisions and i've yet to see one it is you know this really isn't serious no matter what the offense really big and regardless of what the proposed penalty is so if we look at the facts that are reduced on this record and weigh whether or not this truly is a serious offense because that's part of the calculus that's that's the agency's primary argument that it's harmless error because even if this is so serious it's justified but let's look at the facts mr schwab who's the immediate supervisor who was a supervisor seven of the eight comparatives so he didn't force time in attendance he didn't know whether people were filling out their their time slips he'd in looking sadness office that's his testimony that's one controvert can i ask you this earth and you said he's the supervisor did they all work with your client in the same office yes same did it with one exception how big was that office i think it was eight employees i think there was the whole i'm sorry no it's essentially all of them i believe that's correct and she's in the middle of the path that is correct and did what was the discovery that she asked for to get those time records and she say could you give me a time or herds of my entire department  say could you give me the time records of employees x y and z no you know now that you say that yes for x y and z i'm not sure i was going to say she asked for the whole department rather than specified employees i really think the agency in what mr schwab was saying is look these are high level technical people these are these are highly skilled i t people and they service says as set out in the brief they said they service both internal and external they call them customers i find that an odd phrase ology but they're known commonly as internal and external customers and so they go any number of places in order to perform their duties it's not like they're sitting at a fixed task which again says something about how important is time this is not an assembly line this is not a receptionist this is not a guard people that have that where the their presence at a particularly specified time is highly important they go in they do their work and they're self motivated so it's rick that she isn't really  there were many times where she can't establish that she was at some other location and that that she was doing personal things yes the record is somewhat vague in this regard she says there were times when i would go and service a next gen client but i can't question for you about your ship could be i would rather have the arbitration tell the results of these other investigations were found i mean what could the arbitrator have done in a circumstance where the investigations are ongoing is there anything it's well i would bet it's one misstep i thought that the stipulation was of no great consequence that the mere fact that it was so far after the fact that the really it was a a pretext because it's really an invitation to live can be that old about it if you say you know all an agency would ever have to do is come in and say you know there are other people who are under investigation but that's the problem with the way you stipulated to this it doesn't give us any facts in maybe that it's a pretax it certainly seems a little shaky given the timing but it may and then they had some good faith reason that they didn't learn of this and tell you your client asked for the information once they got it to you know year seems like a long time that it took some time for them to put the investigation or it may be that the investigation didn't start in sixteen a man started in fifteen and so it's hard to tell agency to show why there's a difference so was their burden to show why any of them to answer the questions that you just asked me we didn't make them prove their burden because you stipulated to an investigation well again it's the really the investigation was done by by our by our witness who took these records and spoon fed the results to the agency the investigation was done we did  look i get it i mean if they came up with this with this notion of instituting investigation sixteen right before the arbitrator is going to decide that's extremely problematic but if what happened was maybe they weren't as as up to speed as they should have been but as soon as they found out that your client had requested information they went back and looked at it and then they started an investigation into all these other people themselves that seems to be good faith and so whether nothing can be used by comparables might be up in the air but we don't know any of that but see the comparability is this two years after the fact and a year after the information is marshall and several months after the analysis is provided to the agency they say well we still know what we're going to do understand what you're saying is that it does list similarly situated factor is not simply a stand alone are you being treated differently it goes to the whole question of how serious the offense was meek eyes if this was a pattern and practice that that they you know management authorized then it might not be such a serious affair exactly the point exactly and we think that that's that is the heart of this case i mean you know did we think you know personally that i think when we asked for that information we're going to find out that there were all these other violations no i could not i mean i would think quite the contrary fact federal supervisors are charged with certifying time in attendance records and it's on down when they certify and say yes this employee really worked as stated in this form they're supposed to be a check and balance system in this case the supervisor said i don't know i you know he didn't say it but but if you look at the whole situation he that the agency's argument is that it's so serious that even if there's a description of the you lose because it's harmless error that's set out in every from that's why i'm attacking this whole notion of seriousness because i don't think information he had no i don't care what's the answer to what's happened with the answer to the question is and i think it helped would be helpful to lay out the timeline a little bit better because i think you should you know there's a question ok well so the information that the analysis that did in fact prompt verification procedure by this essay given that it was provided through the course of the you know litigation to of course you're not helping yourself i mean this information was in your possession at the time you removed her i just want to know what happened did you investigate these people was any adverse actions taken against any of these other people so at the time of the arbitration let me let me make it simple this is a yes or no question were any adverse actions taken against any of these other people after a supplemental investigation was done they found a vast improvement for the period between two you know the answer no there was counselling for two of the individuals no one was removed but that one had anything other than counselling there were two counselling and that was that and maybe they'd get better after a couple years and so all you do is counselling but that doesn't change the fact that their prior record was just as bad as her for the period between two thousand and eleven two thousand and thirteen what we do know is at the time of their  material you can't say it's new should you keep you sat on it and didn't do anything with it you let her have to go through the whole analysis instead of doing yourself but it wasn't new and i think that this really important question of you know your  essay could have been more vigilant you know when this information was requested that the whole department was for i don't understand what you're talking about when this information was requested when the deciding official made a decision on her propose removal he was he was obligated to undertake a proper douglas factors analysis if he had undertaken the proper douglas factors analysis and realize who we have a huge time in attendance problem here maybe i bet and we also you know somebody has resigned in the face of a similar thing maybe i better look and see what my other employees are doing he didn't do that and he didn't nobody apparently did that until she brought that information to your attention how is that a charges there were eight people and he had records that he could access because he accessed hers so he didn't do the analysis of all those who were in the same department so there was no i g complaint that came in specifically to miss miscall and so mr schwab realized ok we should do the investigation analysis with respect to her and he now missed miscall that asked for the time entry information for everybody else in her department and then there was no investigation of those folks for and how long did it take i mean between the time that their government provided the information until the time of the arbitration how much time was there so this is where i think that timeline would in fact be helpful that information was so so this miscalled was removed september twenty eighth two thousand and thirteen the information was requested february march two thousand and fourteen then the analysis was or the agency did nothing and if it took only two months to analyze her data you're telling me that you couldn't have analyzed it even between the time she supplied in june and the time of the arbitration well what i'm saying is we're talking about an entire department that was sought and so eight people write you took two months to do hers you're telling me you could not have done the analysis from say january or february until november well even if you didn't do it at the time of the removal you should have been on notice when she requested information about all of her coworkers that she was looking at this one and you do the similar under analysis that she did that upon the request o the data well you know upon the request of the data the parties are in litigation and i and i and i don't intend to make excuses for their sakes i think in hindsight we could say they could have done this better and i think we agree on that but at the time that the parties are in litigation or in our if i was so what they did as part of the six factor douglas factor analysis with a look at what have we done in the past they didn't think about what have what exists now that we have not yet charge but this is not the i mean if this is what thomas says it's just wrong but i think you're you're seriously over reading top as i mean it says it's backward looking but it don't doesn't only say it's backward looking as to people who have actually been accused of misconduct otherwise the first person to do it may not have any comparables even though all of our other colleagues have done the exact same thing and not been charged i mean if there's some particularly if it's a policy maybe it's not a formal policy but if it's a practice that time in attendance is is ignored you have to look at how the policy is applied to everybody and you didn't do it here let me ask you hypothetically if instead of being the first person to be investigated miss miscall was the last person and of all the other eight people two of i guess to explain that the two counseling first that was based on a supplemental now says and if it's ok with right the reality of so if she was the last person she would have gotten better to do right and we see you're saying that that you're saying that forget what they did it hasn't as of the point of time when she was charged because after she got church they started behaving themselves well you know what if she wasn't the first one church she probably would have started being better about her time in attendance records too and would have got nothing but it's possible i mean there were cars a little bit of speculation to know precisely what she would have done what we do know though is the supplemental now says for these eight other compared tours that ultimately resulted in the do counseling was based on more timely information because the problem with your argument that they didn't do a proper analysis at the time of her all if they've done a proper analysis and said look she's doing this all but all these other people are doing the same thing either they remove them all who are more likely they do some counseling or do a short three day suspension or an on their like because you've you've obviously sad and they clearly did get better after somebody was made an example but you can't pick out one person arbitrarily and impose a harsh penalt on them when everybody else is doing the same thing well the reason why there are that improvement had to be taken account into account with no i don't i get it if you waited two years and then tried to remove him one conduct that  occurred that much earlier he would be up here arguing that that was improper and who the union rules do and he would when he has to do that that doesn't solve your argument as to why the agency didn't properly consider the douglas factor f also again this goes back to the s s a as they understood the double spec they understood the douglas factor to be looking backwards at precedent information what travis said was normally it's backward looking we can look at contemporaneous also said you can look at post individuals were part of the same investigation so that because that information came to the agency's attention contemporaneously or as part of the same investigation they treated the individuals a similarly situated for that purpose i mean here we're looking at something like that's the only way you get to simil because there was a group of people all acting the same way we have evidence of that now you don't dispute it and they treated her differently without doing a proper investigation well so i guess what we come back to is this idea that anytime an employment action is taken against any individual you have to take in the six dollars factor analysis and do an investigation of everyone to see whether the misconduct is whether you have  information about that occurring or not whether it came through a specific source or not just before you take an action on a single individual you have to look at the entire agency or an entire living and it's not hard when you've got the right kind of records that we're talking about i mean i guess for this  maybe it wouldn't be that difficult but i guess it's hard to fault you know the d n c or the s s a to say you know is this required in the law their understanding of law at the time was we look back or what have we done in the past for these individuals who have done the same thing would think that his supervisor would have to treat his or her people right under his supervision the same way it seems like it does for us if we if we impose some kind of broader search on the agency that at least the same office he has to have some idea or be on notice that he his employees may be doing time in attendance abuse and he can't single out one of them you know i guess if this what this comes down to is the subject of awareness of  a you know what the record shows is that a saint didn't become aware of it until the verification i say we can look at objective data from which they could become aware that it's a very different thing than saying only you know you have to go out and do some you know deep investigation or research it was simple objective data that was available at that moment and i try and sit here and i think that's a point that in hindsight could they and should they have been aware of it i think you can make that case this do you think it's appropriate for us to tell the arbitrator to reopen the record to reconsider to consider the results of the investigation i don't your honor and if it goes back to persuasive i mean aren't you going to lose if you don't well because i think there's no alternative grounds to say that you know even if the six douglas factor wasn't considered with you know to the to the court satisfaction sufficient analysis what we have is you know the conduct that wasn't denied ultimately you know we have four hundred instances and because it goes to the full seriousness of the of the offense here you're trying to take that factor and make it sort of a stand alone thing that has nothing to do with with the ultimate punishment but the whole point is if this was not treated as the city is a serious matter and the supervisor let everybody in the department do it and nobody else gets panelized for it then then maybe it's not so serious that could ever justify discharge and i guess i guess i'd push back and against that a little bit it's not that the supervisor was allowing it to happen if anything it's that supervisor wasn't aware it was happening to such a widespread fears he was allowing it to happen he was a bad supervisor he wasn't paying attention to what was happening in his office and that he's the one that personally signed the time an attendance report i mean you're right and some sense this is a very serious offense but if the agency didn't care about it enough to monitor people's time in attendance as he did come on the job in two thousand fifteen and as soon as he was alerted to two instance specific instances of people engaging in these time keeping improprieties he did what he was supposed to do he went through the procedural process of suggesting removal in the first instance that person chose to reopen a little uncomfortable because it's a lot of evidence after the fact on the other hand i think we need to know what the results of this investigation are i think it would be appropriate you know i said at the very outset of my argument there were two reasons to take the deal one was to get relief  could put it in the vernacular and i apologize for doing so so i think instructions from the court are important you know in the days arbitrators always thought that their opinions should instruct the parties about their future conduct so regardless of what the disposition of the grievance was they would say you know similar to the questions at the bench just ask counsel you know why didn't you do this or you know you've got a problem because you didn't do something even though i might ultimately rule against