misinterpreted article twenty six section six of the contract that refers to the term the last day of mediation and that is finding that the december th two thousand and twelve was the last of mediation i do not know that the record reflects the answer to that question the reason i ask is because if the rules require an arbitration within a certain number of days the conclusion of the grievance procedure which in this case w mediation is an important that we know when the mediation was believed to be ended by the parties that is a very good question that i do not believe that the record answers  the agenda for the two thousand and fifteen media that said this is this is this whole process and the way you all do this is baffling to me because it seems like well st of all it seems like the agency issues its decision on a gr denying it and doesn't even wait for the employer to invoke arbitration and just sunset up the mediation immediately yes i don't understand why that happens at all i mean if the agency thinks its decision is right why would it bother to mediation but this process of mediation seems to be you have this big list you all get together go through some of them and all you issue is a list saying here's the ones we have for solved but it is silent as to are different things i am what this case is i think procedurally in the us and complicated partly by the way you all do this stuff but just looking at the two thousand and twelve at the end of the expiration of the two thousand and twelve session you know a list of ones that are result yes and that it doesn't say anything about the remaining ones whether they're held over d or where they're there they're finished as to mediation right i am guessing that there was nothing that  more th two thousand and fifteen this is the two hundred and fifteen thing is there anything about the two thousand and twelve that would indicate after that because i don't think there's anything in the record  decision rejecting the mediation efforts which with the trigger the twenty day requirement i know of nothing in writing that memorialized that and but the isn't that i mean we would be good practice yes it would be good practice to more well it would be really really good practice considering that we have no idea because of the language of the bargain the agreement seems to suggest that if that stage doesn't result in any action in the twenty day period kicks and that to file something and it seems like given the way this is operating that the failure to resolve something here and two thousand and twelve should a trigger that twenty but i can't conceive of any system where something would be fighting all and then suddenly become not quite all again i can only suggest that the fact that management considered an open issue in their mind that it was still a case to be discussed again and they had to get all questions how do we know that they considered to be an open issue i think you're a lawyer on this table of the peers at three all not where help us to understand how this table works this is this is prepared by management it's over open grievances the list right yes and we're going where is the where is the particular arbitration we're talking about it is  prepared this chart ok so there it says as of two thousand and fifteen it's men do not what what does the record show about the status of this grievance in twenty out because it d would be fight all and you had to go on a time and so the arbitrator's decision in that sense is correct so what we're looking at is whether somehow this ring listing implicitly meant it wasn't final or somehow implicitly revived it i think it explicitly says it wasn't final it's listen there's an open grievance but it also says tonight when that's the they would be denied to wind up on the steps well ok but one of the problem i have is the c b i expressly says that you can file for arbitration twenty days following the conclusion of the last stage of the grievance procedure if your telling us the grievance procedure didn't conclude after mediation induced member well december two thousand and twelve how did you comply with that because you claimed the reason it and the former sentence in two thousand and fourteen right so this the c b i doesn't say you can file for arbitration before a grievance procedure is concluded does it the part it doesn't say you i did not see that argued in the record in a dargah traders decision based solely on the notion that it was untimely as to the st mediation which was caused yes and therefore you're out on that any he  time period he has a role on whether a premature or arbitration request in advance of that mediation is on holiday or not although it does seem like he's going to be bound by whatever that a same time where the form was submitted into the one thousand and fourteen and the matter was needed again in two thousand and fifteen and there was no objection to the timeliness that was the point in case the curb carmona case and the vendor case and there reproduced in the in the joint appendix because you relisted it for twenty that team well your honor and appoint the court to appendix twenty one which is the testimony regarding this list this list was not an agenda and it was not prepared by management was prepared by a paralegal as an organizational tool of all of the  section so with an agenda that these are all of the things we're going to substantively discuss but there were but you unless she's missing something you can't point to anything post two thousand and twelve that addressed whether this mediation was rejected baffling and really lead to bizarre results i mean how is this person so supposed to know whether she quit her her mediation was finished in two thousand and twelve and trigger the time for her to file the arbitration requests i know she's relying on the union and maybe they should do a better job but she and she personally be aware of these fine lines well we are honored that either her or in this instan agreement that says parties can mutually agree to extend any timeline so there could be a mutual agreement that says we're not quite there are we don't have time in this mediation so let's extend any dotted lines and mediate again and if they dug and done another mediation that her mediation was discussed again in the two thousand and fifteen and so it was discussed it was you know mediated then she was twenty days all owing the final decision at that mediation which would have been the memorandum of what they are to take or didn't address mediation was not resolved because if it's unresolved and the timeline starts and there was testimony here that the two thousand and twelve was unresolved and so if it's unresolved under article twenty six dollars that triggers the time limit or excuse me the timeline if there was some sort of agreement between those or anything is under resolved or carried over well certainly on or both parties are at the mediation so they know whether we reached an agreement or we did it sure but that tells you whether you reached an agreement or not it doesn't tell you whether it's carried over to the nets whether if you don't reach an agreement and i think that it seems to be the practice here and it's it's unresolved it was not in the know so i'm resolved could lead to arbitration or it could lead to a nd mediation well there's really no procedure by which the nd mediation happens it seems like the evidence and that we have in the record is that grievances are routinely carried over for mediation t mediation well your honor the paralegal maintains this list that the court looked at earlier and there as i want to show you i don't think you can excuse any of this because you let a paralegal to as i think you're bound by your actions just as the employer is bound by the union when it ever go to the nd mediation had the arbitration been triggered when it should have right and so were in this weird position but it was like that mediation that it wouldn't go to the nd group mediation if they hadn't agreed to carry it over and keep it alive either well there was no agreement your honor to carry over it just stayed on the list isn't that an agreement to carry it over i mean you all need to do it i mean it seems to me what's happening here is the union and the agency have operated this very loose percy church where they decision pro brand new f r a and then you have barely spoke because the employee i mean this whole process backs up the agency knew all along that it was going to go to arbitration on this it took it up for mediation and once more it's apparent that you take up tons of cases for mediation and multiple times when arbitrations are pending events and then at this almost last minute on the right before the hearing you say what's this is a time because you should have filed three years ago even though we've been engaging you in this process throughout since then but if that were the case your honor and we did mediate this in two thousand and fifteen in the party an argument is well this was a nd mediation so we procedural question and not a jurisdictional one why isn't your failure to object to their timeliness waived your honor because we can see did object with enough time for mischief can to prepare  union was very surprised at this untimely defense because it had never been brought up before here and this case the agency raised this in january the arbitration reappoint year january of two thousand and seventeen your honor and when  you make your question you know i know that we actually selected the arbitrator and we walked in line with them and did all this but now we're going to say your whole request for of attrition we now untimely and you i think that you can do this at that stage is my bigger question you think you have a right to do it at that stage and the reason i say that is because this particular lower court didn't conclude that the equities in his mind caused him to believe he would allow you to raise it even though it should have probably been raised earlier what he said was well liked don't have a choice because of precedent that binds him but guess what doesn't by and therefore i have to conclude gun doesn't apply here and i don't have a choice so i guess what you're arguing to me is i should decide as a matter of st principles that you should equitably be entitled to raise something at the stage you did four years anyway and so the agency would in either situation whether they signed and helped select a return trader or whether they didn't sign it either way they're ending up before the arbitrator with their own timeliness issue but there's no notice so you think it's  your honor sure they were on notice way prior to the actual hearing so there's really no reason i think to this dialog demonstrates that we're not the proper forum to decide whether it is equitable to allow you to raise the defense when you did in the process so if i believe that gun control and if the selection or the election to arbitrat let's assume we agree with you that they were untimely as to the two thousand and twelve mediation that seems pretty clear and if you had done nothing and proceed it mediated again you would know you wouldn't be here didn't specifically asked him to but that doesn't prevent us from remaining and saying look you really miss the support question and given that this is goes ready to the employee's rights to have due process and challenge the removal look at whether the  effect of that sikat mediation on the grievance because there's no discussion whatsoever there and it really feels unfair to the employee to keep stringing them along and relisting them through for multiple mediations but then it come back at the end of it when what those multiple mediations are truthful and say oh well you're out for arbitration and you can't get a judicial review of your removal because you should have filed eight years ago well i think your honor that that miss was well aware that her st mediation was unresolved to finish by filing for arbitration you can't be involved mediation and arbitration at the same time and so when mrs baf can file and request an arbitration that's an implicit acknowledgement that mediation is over now or in the next sequence of this group in process which is arbitration so it's not as though she was in this you know wrong or she was unsure where she was she's the one who affirmatively moved it to arbitration she just did so too late  so i want to ask you a question related to this because one of the things we are discussing is the haas ability i think if this went back giving the arbitrator a chance to decide whether to early is untimely right that's one of the questions this arbitrator said unequivocally with regard to the gun analysis that he was absolutely bell my decisions of the f l r a is that correct correct and isn't it true that the l f l already has already ruled that an early arbitration is an untimely arbitration that's correct your honor and so i think that that would really operate in a need to know what if i think that's wrong well if you're that arbitrator now wouldn't  applies here and that's the only thing the arbitrator ruled on is that he was bound by the f l or a decision that the gun didn't apply but if i say gun applies i can't decide whether it's timely or untimely because there aren't clear rules on that the arbitrator has to do that in the st instance i can just tell him he's not bound to reject your untimely mis argument and might have gotten her right i know i read gun as saying that you've got to inject a timeliness at the don't recall correctly but if i recall correctly the court suggested it should have been when they when they were asked to submit sign off on selecting an arbitrator which happened years and years and years these are all facts specific d case specific questions at woody and this wasn't specifically addressed by the arbitrator and it's probably don't know if there is any other reasons so you're asking us essentially to look and that's  very sparse record with a very confusing set of proceedings between even an agency and make that actual determination for the person you know well except i think the work is very clear that there was about a half a dozen or more opportunities over the course of three and a half years of the agency to jack well there is also half a dozen opportunities over the course of those years for you to timely file an arbitration of the cuesta i mean i mean if you were reading the agreement correctly and at up ends when you have a nd mediation and you have one going back and forth discussions between the union and the government and requests for arbitration that doesn't seem to me such an easy call or whether it's ecuador  to excuse this filing it or say it's premature and therefore untimely or right and some time on this or anything like that i understand that reasoning i would just didn't closing i just want to defend however slot b this process looks like i'm not going to  mediations the parties did result sixty one cases that did not need to go to arbitrate well i understand i mean it is i'm not suggesting mediations a bad thing it just seems to me that you all should be much clearer about your intentions of what is happening after the mediation so everybody is on notice of how these thailand's are going to apply shouldn't that order listening the grievances resolved say that also and give notice to the union in the underlying employees that if your grievance wasn't result through mediation then we consider it closed and you have a right to seek arbitration d why don't you insist that that language be put into the to the document well i think those will very good recommendation