just sort of do a quick summary i know you're familiar with the facts but that bernadette was hired to work at asarco as a long haul truck driver in two thousand and five and she worked there for twelve years she also was a member of the local union has the other different in this case for eight years events occurred for bernadette in december of two thousand and twelve where she lost her vision she became completely legal legally blind and she thought it was due to something from an l can't she gotten something in her eyes hunting elk but it turned out was just a genetic issue but she qualified for and went on family medical leave she then returns from him from the family medical leave on february twenty first of two thousand and thirteen and this is where the problems began and what i wanted to address with the court are some of the issues i think in the in the lower courts order that were problematic for the case itself and one of those is that she returned what she testified to is not part of the court's finding but what she did was when she returned to work that morning she had a work release for her eye condition she had also previously had some treatment for a low back injury she was not off work for the low back injury there were no work restrictions for the low back injury but she had made her employer aware that that was something out there for her she returns to work she meets with rosa geary who is the human resources representative and there is an exchange where  has the work release for the eye condition she has nothing for the low back because she's not off work for the low back there's pressure put on her at this meeting to not come back to work to continue off until she either has a work release for the low back which is unrelated or to take what asarco has to offer which is sort of an internal little they pay you per day to stay off of work it's not work comp but it's a little bit insurance policy that they have within a stark a takeover offer that you know that i think you said in your brief that that was part of some broader pattern here what's the incentive on the employers part to discourage workers from going well my understanding is that they had two problems one of them rosa geary testified to they didn't want injured workers coming deposition that there were concerns about employees coming back who had previous m l a leave injuries and then having an on the job injury so they were concerned about workers comp claims coming back on the bottom  stay off of work and given what was happening at asarco which is where the previous thirty five people prior to her had also been on from a medical leave and what would happen your honor based on the deposition testimony of mr  these thirty five others just prior to my client she would have been thirty six had been on time in medical leave and they would come back to work and they would be told to stay off or pressured to stay off they then go on this little internal insurance policy with  sarco and the were then being terminated for job vandeman because they had a work release and said hey you should be back you on this date but they'd stayed off additional days for job abandonment and mr door to the union president had personally handled those claims and that's what he testified to had preceded bernadette murphy the two hours comes up later but in that initial meeting with the h r person she was upset with the exchange in feeling pressured to stay off which is why she then called for the union reps to come meet her there in the h r office which is what occurred so that's what that sort of elevated it it wasn't just come back to work your way to go but you're right they did put her back in the same position  interest of time yesterday asked me to skip ahead because the thing that really matters is not even the first meeting where she was paid for this but this is the second meeting so i just help me with this my review of the record suggests that the company seemed like it was in the right to say that you didn't have the authority to go in the system on that day and it wasn't it wasn't even like two after it was like over time give yourself over time and they said you were in other words you do that and why isn't post a justifiable reason to try and here's why there right yes or exact that we're on the same one that's the meeting i believe on the twenty sixth of february and she goes and she believes she's going to meet with the union president and her supervisor from asarco that's what she testified to she shows up she clocks in she also testified is that at that time there's a level five supervisor this jack old father sitting in an office and she tells him i'm going into a meeting with the union president she's already clocked in on their computer thing she's early two hours early for horse for her regular shift she checks in with him she testifies the jackal father writes it on a paper calendar and she goes in to meet with eric doherty now here's where she testified that she believed the union excuse me asarco as boss mr smith was going to come to that meeting he never showed but she continued in the meeting with just mr two or take for the two hours and then left the meeting and went to her regular shift the subsequent testimony that's not cited in order is that mr duarte testified hey there's no written policy that they cited in the work that's true asarco had no written policy that said you're going to get paid if you come to meet with the union rep here on company grounds but as a practice mr door to said they always got paid in his deposition he said they got paid for meeting one on one with the union rep correct but on company property in his deposition he says if it's on the company property not just like if they met in a bar or at the company offices at the union offices then you're correct they didn't get paid on the side of her outside of her shift correct me i thought actually that he even the union rep person said no there is no everybody knows that if it's just me and an employee meeting just the two of us even if it was i thought it was even if it was on company property you don't get paid for them everybody knows that you only get paid when it's like you know the company you know sort of requires correct and that he got paid and he in fact believes she should have gotten paid for the two hours because he challenge that as you know as the union rep he appealed it that she should have gotten paid for the two hours and should have been terminated so he was he testified that he and not actually she felt it was ok because of what she testified she did in terms of procedure she had already cleared it with mr old father a supervisor she testified in her deposition that she told other supervisors who were at the pit it's like a room and they have a clipboard with these log sheets that's that are public so you can go in and you can see how many hours i worked and we can all see each other's hours and time so it's not a secret document and what she did was take that launch she down in front of other supervisors make the changes clear it with the dispatch which is that she testified and so did the dispatcher that he was called that's that greg zaragoza he said oh yes she called said she was going to put down the extra time so she tells him she puts it on a log she makes the change puts it up there and turns it in she believed she was ok to do this and did it very publicly this is not that she went into a computer and just entered dated it was never seen again those long sheets were hung up on a board and she cleared it with several people before hand it's two hours of overtime and she put it through every system and thought she was ok to do it and thought she was qualified to get it which was union as well if i if i've covered what you were concerned about with the second  that has she's attended at all and in fact the only time and that's what i want to focus with the second half of this case which was the union issue which is this what bothers me about the the  union is in looking at the line of cases i realize that the union is is entitled to you know to some delays that's totally reasonable things that might be delayed because they don't have staffing or those issues but this case is unique in this case the deposition testimony i think i had four witnesses who all testified mr door taser goes phil i think it was last name as soon as i sit down the witnesses that i that i deposed were all union folks said they had had grievances sitting out there and that the union had taken the position that they were not going to take any cases to arbitration until they had a new contract with asarco the promise by the time now but i do know that when i filed my motion for reconsideration i attached another letter to the lower court judge that showed they still weren't doing it necessary if you order that they still want taking cases to arbitration yet and where where that becomes problematic is we get on that sliding scale then of what is arbitrary you know it's not negligent to put everybody off indefinitely i think we slide down that scale into a reckless disregard because these are this is their livelihood you have people who have lost their jobs and the court says well there was an arbitration requested that's not a complete statement at the the lower court excuse me the local union guys were  trying they did the four steps of the grievance process they were trying to help out their coworkers there's no question the problem came when it kicks kicked up to the national level and they're supposed to set the arbitration they're just not setting them and in this case yeah  together on this i mean they both benefit from there being no arbitrations so there definitely is i mean it's a financial windfall to take all the employees dues which continued there's no refund take your dues as an yes ma'am yes and everybody benefits except for the union workers they get caught in the rope and so you know not after she was fired up to the time she was fired because they were taken out of her paycheck but not after she was fired she thinks when she her last day was marched with excuse me february twenty seventh when they walked her off the property but her official terminations came march fourth of t claims that the union abandoned her grievance i wanted to clear up an issue this is incorrect the union actually timely appealed for events which is undisputed and therefore preserved her right to challenge her discharge so this is not a case in which the union missed taking grievances arbitration while it was involved in difficult time track negotiations the union did make a request to schedule this arbitration and my understanding is that the company's position is that it was not going to arbitrate this grievance while this years ago or more than that right at some point don't you have you can just continue to say well we're in contract negotiations right now i mean i understand temporarily we have other priorities we're going to put this on the back burner but at some point doesn't your time run out for that several things in response that your honor first we have taken several steps in an attempt to arbitrate this grievance and second the standard doesn't look at the amount of time and there's a good reason that courts haven't set a specific you know say three years five years it's because the standards whether the union has acted arbitrarily discriminatorily or in bad faith taking account all the legal and factual landscape at the time the union acted or it didn't act and that sort of case by case analysis tencent doesn't allow to say you few things in response that your honor first missile gets or murphy never contacted the union to ask about the status of her grievance so we don't know whether it would have taken a lawsuit i mean she could have taken steps below that such as contacting her union representative same thing and the plaintiff wouldn't what i mean we're talking about stuff that's outside the record right now but the plaintiff wouldn't withdraw their litigation and arbitrate she chose her form we went through discovery we've gone through the whole litigation process all the time and expense she had her hearing she had her matter heard before a federal judge a summary summary judgment was granted against her just because what you said seems to directly conflict with what your colleague said a minute ago when when in this process where you are when was the company willing to arbitrate and it was or i guess it sounds like you're saying you were going to arbitrate but only if she dismissed the lawsuit with prejudice as we didn't want to have to try the case in two different venues are you willing to mediate it now your honor we've already gone through the entirely addition process the plaintiff asserted two claims for relief both claims or dismissed because there are no genuine issues of material fact yes or no answers no it would be continued and i guess we would have to determine which would be the proper form and we would have to litigate it through that forum to be fair i mean this case started with two claims retaliation for a wage claim and whistleblower case morphed into a wage claim under the arizona statute for wages now today for the first time it's morphed into a conspiracy between asarco and the union at some point your honor the facts are the facts can strum a guitar without any strings and you can't prosecute a case without any genuine fact material facts that are in dispute she walked in she altered her records she she posted it she didn't get any supervisor approval and under the code of ethics under the basic labor agreement between asarco in the union the circle was fully within its rights to terminate her employment and it's so what are the facts as to her and title meant to be seven lines one through six the question is let me get back to my original question though which was in the contract d l a as you understand it is there any written provision saying that employees are entitled to be paid for meeting solely with you with no asarco representative aside the fact of the matter is is she was scheduled for that day at three pm to work nobody at asarco knew she was meeting the this is all the testimony during depositions mr dorsey said yeah i'm going to be  basically office hours from one to three didn't know if she's going to show up or not she shows up at one o'clock allegedly is there for two hours we weren't even aware of the meeting how could i mean she says she says that at the prior meeting  there was some understanding reached that we will the three of us i guess the unit of the company person and the plaintiff would reconvene on on this particular day when mr duarte the union rep says that didn't happen she doesn't have any evidence that it did happen all the  employees that they that are in the room there's no evidence that they say that happened the only evidence that the miss murphy has in this case is her own testimony and allegations and despite the fact that there's all these witnesses not one of them corroborates what she says as to any claim whatsoever oath she made a statement under oath admitting that she was not under date paid paid a status for that day which would have entitled her to go on the computer and grab the laci she was her deposition provided other information her allegations all place other people around her there were two supervisors in the room she said within two feet of her but she didn't have them sign it she didn't put her own signature on that day sheet when she posted it she didn't post that day sheet on top of the old day she she discarded it i mean there's it doesn't take a stretch of imagination to say there's an to deceive she knew she wasn't entitled to two hours and she tried to get it and that's directly a violation of the code of ethics and under the basic labor agreement asarco had the right to do what it d m asking about you know how much money was i honestly don't know your honor i honestly don't know what i do know is that when i lost my train of thought but when she  when she posted that she knew she didn't she could have gotten a signature she didn't get it she didn't have the right to go in there and and take that lock she got in the first place and she did you know when she went on an f m l a leave and this whole thing all these meetings is about our r was harassing her because it's not on the record whether it's a back injury or it's her inability to see she drives a long haul truck those are big trucks she can't see she had a back injury i completely agree on one point with counsel we don't want injured workers working for us we want them to get better and if until they get better when they get better we welcome them back to work thank you thank you counsel here comes for the pla let's put two minutes on the clock thank you and not  twenty i apologize if i have the deposition transcript in front of me but you had asked about mr duarte's prior testimony on the issue of entitlement to pay and what i have in my brief notes refers to your ten quote very far reaching because when we have meetings with everybody else it's on company time and when he was talking about was making a reference that if an employee meets with the union rep for example at a coffee shop that's not a paid meeting but if an employ meets with the union rep on property on company property that that was paid and that's what are you reading i pod as i'm reading actually from my own brief because i didn't pull up the deposition transcript i apologize but it's our ten what your client union representative on company property that she's entitled to be paid that's right and so your your position is that when she went in and openly changed the time records she was doing it because she was indicted that she was entitled to be paid correct and she had she was fired because she changed the records because she wasn't to change the record she was fired she was fired because she stole two hours of time and to clarify she was this issue of day pay she wasn't a day paid employee on that day but she had supervisory status which is why she could access the computers and do things with the computers on that day she was a match and i agree with you not on that shift but that's why she asked the supervisors including jack father before she cleared the two hours before hand she thought she done everything right and she talked to the jacko yes g s is the right  understand i don't believe that that's what occurred i believe what she told him was when she checked in she said i'm checking in and i'm going to see the and i'm checking in now for work so she checked in with the supervisor at that time i said i agree i don't think jackal father authorized that at all i think when she got the impression of being authorized was when she's in the pit room there are supervisors there and she follows the procedure and makes it public and clears it with the dispatcher so it wasn't a as they say some sort of  enough areas as this just your claim your with respect to the employer is that she should not have been terminated for changing the record i think yes absolutely i ask you one hundred percent  works right and yes i totally you're i'm with you on this because she's twelve year employee a supervisory status i mean she has those those job duties an eight year union member and this is done what she thinks i public and what she thinks is ok and there's not even an approach to say hey we're are we with this she's the first effort is to terminator i'm going to be more and i do want to clarify one of the thing which is there has not been a discussion to withdraw all the lawsuits i was probably reacting a little bit a little discussion to do that and go to arbitration because we had to sue before they would even consider setting an arbitration in this case so that i did want to clarify that that you know wasn't that the plaintiff was being obstructionist in any