grounds first in that case the primary issue rule because of the case we have now from this court is not a public policy case it's simply a case of it which i think is controlled by northern power that the case that two thirteen case that came down two days i think the first battle probably court but as for the first half of it the primary argument in voting or your honor that you ruled was that their argument had been waived that they had not asserted that it violated a certain an ambiguous contract face contract clause of the contract and so therefore there's waiver we do not have that argument here the second one your honor is in  boring a case in that first are you mentioned that they were not referring to a specific collective bargaining agreement clause rather they were referring to an extraneous set of rules in this case we are referencing  collective bargaining agreement clause that says insubordination shall result in discharge in addition we have a specific contract clause that says the company shall be able to institute rules and th discipline can be applied for those rules and the rules in these were inconsistent at the time that we negotiated the collective bargaining agreement that this is now under i don't think that anywhere that the union asserted state this issue to draw it to a head and in this case as you know from for me in the case we had a very serious safety issue that she left a gear agreement left to gear up on the ra that if it would have fallen it would have killed somebody and she but the rail back and in operation and she was told to check the other side and she said i checked the other side and it's fine and she put it in operation when in fact the arbitrator found she did not check the other side her union coworkers testified against her at the hearing she testified that they went up there and there's no way that she could have checked it as she said she did because when they put their screws into the boat they were still that he thought she did a lot well but here's he did not specifically address that he just found that the company's testimony was more credible than her testimony but the actions of the company were taken because they believed that she was told she that to do something she said she did it and she did not do it and this was the second time that very same thing it happened she had been told previously to check the crane she said she checked it she didn't check it and kirk skews the first time was when i must have overlooked it she did the exact same thing again and the company's belief was that she said she did it when she manner which was claimed to bite the company in other words the company's claim was she was insubordinate she lied to us and once he found that we had met our burden of the events occurring in the manner in which she you know what he or she checked and she missed it then we would have a different determination but what we have here is he found that we proved that she was insubordinate upon which we we might well my under say what they working within the confines of the of the agreement and goes to article twenty one and says well this is just car yes we have insubordination and yes she did all these things but i don't find it rises to outside the agreement or went beyond his authority sure your honor and inherent in your case i looked for ways in which the three of you had to find it and in your case back from two thousand and three the s c h o c case that you wrote two thousand and three you said an arbitrator's a word can be vacated if it was completely irrational meaning it fails to draw out the essence from the agreement in this case my question is how can you be directed by her employer to check a safety issue to make sure it's safe and you telling your employer that you did that and that it's safe and you put it in operation when in fact you did not do it how can you say that that's not an intentional a reasonable definitions of what insubordination is but here's here's what i was searching on and i think it's the bigger issue that judge loken had mentioned about our reiko case and some others were seeing more and more arbitration cases before this court when i started saying yes i plastic that this is a professional reading and there were four cases listed and they were all discharged cases and in every one the architecture found that the company did what they proved what they said the employee did but they reduced the penalty what's happening is arbitrator selected by the parties you get a panel in the labor field and they want to be selected by both sides so we're seeing more and more cases where they are finding that the company proves their underlying basis but that they're finding a way to say that the he didn't use the word just cause but he found that on the employer had no option but to terminate the the grieving but he thought the punishment was too great and in this case with judge murphy dissenting it was two to one said look at the penalty phase so i did years he made the opposite of the term explicitly well he did not find just cause to term but he made a finding that does company meds burden of showing the reason that it terminated the employee in which was insubordination your honor exactly what we believe he did here i know you do but he didn't but he was careful enough to make it clear that he stopped where he disagreed with the employer but how was it was a remedy not find we think it's a showing that it was result oriented how could he find that we met our burden of proving that she said she did something she didn't do it that that's not intentional that's on insubordination how to be negligence to tell your boss i did this when you know you didn't do it how can really love me suggest you and i hate to argue the other side but you are better heard the testimony here heard testimony and as you enjoyed local talk but he didn't find her blind he didn't fire not i'm not credible he possibly filed and maybe probably found that she's just negligent and i don't mean to be to be critical of her but you know just maybe just said but she's kind of an airhead she just doesn't do or job very well she doesn't she didn't intend to go out there and say you know i'm going to i'm going to created a dangerous safety situation it's just i didn't feel like doing it that day well that's negligent it's not intentional you might argue it's gross negligence but they're wise not that within the authority of the arbor to say i've heard or testified i think that she she just was negligent your honor my response to that is it's not the negligence that she didn't do it it's the intent that she told her lawyer she did to avoid this that's what his service the difference in this case directly contrary to the contract there's a difference between finding that the events occurred the way the company claimed and a finding that the agreement was insubordinate because insubordination is not merely conduct it requires a certain state of mind and the arbitrator here found specific way that the grievance actions were not willful or deliberate and that she was not aware of the consequences so two things one the defense is so serious that she should have she should be let go number two the arbiter found all the facts that she essentially lied to her lawyer didn't use that word but the facts are she didn't tell him the truth and and maybe we should say that the that the made all the factual findings for just cause they're very strong inclusion my response to that is that that's a factual argument that the company had a right to make to the arbitrator by cause for termination that is not what the arbitrator did here because the arbitrator made specific factual findings that her actions were not willful or deliberate and this is this a lot of what the supreme court found in misc zero where the grievance was found in the front seat of a car there was marijuana in the back seat and the arbitrator found that was insufficient evidence that the grievance has marijuana the supreme court said that may be silly or improv fact finding but it's not grounds for overturning the a you're on is do you have any more questions employment discrimination cases for example treatise but he ends the constitutional law term he said it was not it was would be unconstitutional for me to consider any reason other than what was in the termination misinterpreted instead of the state what made him do this and that best that strikes me has come pretty close to what he did here this is not a state law that the arbitrator is referring to  i'm sorry i do not have a court case for that and then you would have i mean he was he was threw that out there but it did and if it if it made a difference i wouldn't confirm that that was i mean that is so i mean in a typical collective bargaining arrangement the employee is disciplined the employee goes to the shop steward says i think it's unfair they greed and they go in and both sides tell their story usually gives a reason for this charge and it gives another it expands on the reason why it's responding to the it ministry the equal employment agency and then it gives an even more expansive reason when they come to court  seven case and then and no no employment discrimination principle says you're stuck by you mean you may not rely on any reason other than what you put in the discharge whether different from an employment discrimination situation they're both discharge you call the capital punishment i mean of saying the same crime so to speak in employment discrimination generally we're dealing with an where the employer could discharge for any reason other than one that violates discrimination ok if you put it in a pool if you put a steel workers get in the collective word agreement that's a whole different that's a whole other issue well everything else the parties here agreed to leave certain procedural issues to the arbitrator and that is very common and if procedures procedural issues related to arbitration are not  in the contract those are generally left up to the arbitrator oilers six circa one nine hundred eighty in that case it was the same thing and and they found the facts to support insubordination but they did not make a finding of insubordination and they reduced the penalty and the court said even though they didn't make a finding  things about that and the the fact that she knew that the unions do a participated in the investigation the facts were laid out she testified she knew what the issue was she knew the standards of conduct exciter that that's addressed in was she was one of the officers of the union so that stressed there and finally i would make a point to the to your honor that the fact of how strong the arbitrator ruled like the due process and and narrowed it all of those factors go to show that he was intent on disregarding the language of the contract that said if you commit insubordination or facts that are insubordination as a matter of law that you should be discharged right now in your view that the process  issues not consider because of this view he did not consider the other rules of conduct the standards of conduct that we had outlined that included careless or poor workmanship continued and satisfactory performance of duties violation of any safety rope or providing false information to the company in any manner those rules were outlined a footnote to to my comments brief he specifically disregarded those based on the argument of a due process but all of those are