[00:00:00] Speaker 04:
Mr. Weisbrot, proceed.

[00:00:07] Speaker 01:
Good morning, Your Honor.

[00:00:08] Speaker 01:
Thank you.

[00:00:09] Speaker 01:
May I please support?

[00:00:10] Speaker 01:
This case concerns the arbitrator's dismissal of the grievance arbitration concerning a removal action of a federal employee.

[00:00:17] Speaker 01:
Appellate Robinson ceased an order from the court addressing three critical rulings in which the arbitrator erred as a matter of law because the decision was arbitrary, not in accordance with law, and unsupported by substantial evidence.

[00:00:30] Speaker 01:
First, the court should reverse the arbitrator's decision to dismiss the grievance for lack of jurisdiction due to election of remedies.

[00:00:38] Speaker 01:
Second, the court should reverse the arbitrator's decision to dismiss for failure to prosecute lachis and or unreasonable delay by the union, HOFA, and proceeding schedule or whole arbitration hearing.

[00:00:50] Speaker 01:
And third, the court should instruct the arbitrator on remand that he must rely on this certificate law in Boston and the Supreme Court's ruling in Cornelius 1

[00:01:00] Speaker 01:
So Vice President?

[00:01:02] Speaker 00:
Excuse me.

[00:01:03] Speaker 00:
I have just a couple of questions here.

[00:01:06] Speaker 00:
The government has conceded error on the first point that you raised.

[00:01:12] Speaker 01:
Yes, Your Honor.

[00:01:13] Speaker 00:
I agree that we still have to rule on it.

[00:01:16] Speaker 00:
But let me ask you on the second point about the dismissal, OK?

[00:01:25] Speaker 00:
Yes, Your Honor.

[00:01:27] Speaker 00:
I view this as a situation of not latches, but a dismissal for failure to prosecute.

[00:01:37] Speaker 00:
That seems to me to be the environment we're in here, because obviously the union timely invoked arbitration in the first place.

[00:01:49] Speaker 00:
So if we're in the fair to prosecute situation, I think we still have to look at the arbitrators ruling under an abuse of discretion standard.

[00:01:59] Speaker 00:
You'd agree with that?

[00:02:02] Speaker 01:
Well, Your Honor, I would say that it would be de novo review.

[00:02:06] Speaker 01:
And the court could apply various standards of review under Yates.

[00:02:13] Speaker 01:
This would be a jurisdictional issue.

[00:02:15] Speaker 01:
the arbitrator indicated that he was precluded from addressing this issue based on what he sees to be the unreasonable delay.

[00:02:22] Speaker 00:
But in other words, I see.

[00:02:24] Speaker 00:
My take on it would be I look at the arbitrator's decision, and I have to say, OK, he exercised his discretion to dismiss the case.

[00:02:35] Speaker 00:
And I have to say, was there an abuse of discretion there?

[00:02:39] Speaker 00:
Now, let me ask you this.

[00:02:43] Speaker 00:
PTO here filed a motion to dismiss.

[00:02:47] Speaker 00:
You came back with an opposition and they replied.

[00:02:52] Speaker 00:
And you lay out in your opposition sort of a little summary of the way the case progressed and so forth.

[00:03:01] Speaker 00:
And I had one question in respect to that.

[00:03:04] Speaker 00:
One of the points that you

[00:03:06] Speaker 00:
make or you did put forward before the arbitrator in opposing the motion to dismiss was that the parties were sort of engaging in a satellite discovery process before the EEOC.

[00:03:25] Speaker 00:
You recall that?

[00:03:27] Speaker 00:
OK, could you explain that a little bit more, that point?

[00:03:30] Speaker 00:
What exactly was going on before the EEOC, number one?

[00:03:37] Speaker 00:
And number two, why was it relevant to the arbitration proceeding that was at hand?

[00:03:46] Speaker 01:
Sure, Your Honor.

[00:03:47] Speaker 01:
So there was an EEOC case pending between the parties that involved several actions, most of which were not relevant at all to this matter.

[00:03:57] Speaker 01:
But what happened was the union submitted a statutory request for information.

[00:04:03] Speaker 01:
And there were delays in TTO's response.

[00:04:07] Speaker 01:
They provided untimely and or improper responses.

[00:04:10] Speaker 01:
And so in dealing with that, the party had agreed that they would utilize the EEOC discovery process

[00:04:17] Speaker 01:
to address all of the exchanges of documents and information that would be responsive to the request for information.

[00:04:24] Speaker 00:
So let me make sure I understand.

[00:04:26] Speaker 00:
I'm sorry to interrupt you, but I want to make sure you understand.

[00:04:28] Speaker 00:
You're saying the parties had some disagreements over discovering the arbitration proceeding.

[00:04:34] Speaker 00:
But what you're saying is, as a result of that, they stepped back and said, well, we'll see what comes out of the EEOC document request, and we'll go with that.

[00:04:45] Speaker 00:
Is that what you're saying?

[00:04:47] Speaker 01:
Yes, Your Honor, and I'll just say it's not discovery because it's not technically discovery of the arbitration, but yes, that's exactly right.

[00:04:55] Speaker 01:
And the parties also agreed at times to hold an abeyance to scheduling of the arbitration hearing while certain aspects of the EEOC hearing were taking place, including, again, the discovery.

[00:05:07] Speaker 01:
But also then, once the summary judgment was issued, they agreed to delay scheduling the hearing while appeal to that EEOC summary judgment decision

[00:05:17] Speaker 01:
could be drafted and submitted.

[00:05:19] Speaker 02:
Can you give us a little better information?

[00:05:21] Speaker 02:
This is Judge Prost.

[00:05:23] Speaker 02:
On what time frame we're talking about, I'm looking at what I think Judge Shaw was referring to, which is Appendix 2186 and Number 11.

[00:05:32] Speaker 02:
Is that what you were looking at, Judge Shaw?

[00:05:34] Speaker 00:
Yes, 2186, the way you said it.

[00:05:36] Speaker 02:
And that purports to number 11, at least, which deals with the EEOC case, says from the fall of 2015 through the summer of 2016.

[00:05:47] Speaker 02:
Is that at least what we're confined to in your assertion in this thing, or are you saying it went beyond the summer of 2016?

[00:05:58] Speaker 01:
Well, I think that could actually, yes, Your Honor, could go beyond that.

[00:06:02] Speaker 01:
The summary judgment decision was issued in March of 2017.

[00:06:06] Speaker 01:
And there's reference to the email about scheduling the arbitration at that time.

[00:06:13] Speaker 01:
Subsequently, there was a conference between the arbitrator and the parties in April of 2017.

[00:06:19] Speaker 01:
At that time, it was discussed postponing scheduling the hearings until the briefing of the appeals of the EEOC matter would be completed.

[00:06:28] Speaker 01:
And then after that, there was a hearing scheduled.

[00:06:30] Speaker 01:
And the hearing was initially scheduled for December 2017 and January 2018.

[00:06:34] Speaker 01:
It was subsequently postponed.

[00:06:38] Speaker 01:
It was an approved postponement due to a family medical emergency of one of HOPA's counsels.

[00:06:45] Speaker 00:
Mr. Weisbrauch, what you were just referring to were items 14, 15, and 16 on page 2187, correct?

[00:06:56] Speaker 00:
uh... yeah okay okay i'm sorry I just have to keep track and I want to make sure I understood what you're referring to and I apologize though for interrupting what you were saying

[00:07:12] Speaker 02:
Well, I'm going to interrupt again, Mr. Weissbach.

[00:07:15] Speaker 02:
I think maybe I'm missing something.

[00:07:17] Speaker 02:
But it seems to me there may be a little bit of an elephant in this room.

[00:07:20] Speaker 02:
And I hate to go beyond what the parties are arguing about.

[00:07:23] Speaker 02:
Maybe I missed it in the briefs.

[00:07:26] Speaker 02:
But as Judge Shaw laid out initially, on the prejudice for the undue delay, the arbitrator at A75

[00:07:36] Speaker 02:
I think what he calls out is the fact that some witnesses had left the agency, presumably and might not be available to testify, or that because four years had passed, recollections fail.

[00:07:51] Speaker 02:
We have the benefit here, though, of a hearing on the merits.

[00:07:55] Speaker 02:
So there was a hearing on the merits before the arbitrator, was there not?

[00:08:00] Speaker 02:
Yes, Your Honor.

[00:08:01] Speaker 02:
What happened at that hearing?

[00:08:03] Speaker 02:
Did any of the witnesses who were supposed to show up feel to come because they no longer worked at the agency?

[00:08:09] Speaker 02:
And or did, most important to me, are the person that issued the notice of the proposed dismissal notice and then the deciding official.

[00:08:23] Speaker 02:
And those guys left.

[00:08:24] Speaker 02:
And the arbitrator pointed that out, that they were no longer at the agency.

[00:08:27] Speaker 02:
Did they show up?

[00:08:29] Speaker 02:
And more importantly, did they

[00:08:32] Speaker 02:
Were they not able to answer some of the questions posed because they said, so much time has elapsed that we can't remember this?

[00:08:41] Speaker 01:
Yes, Your Honor.

[00:08:42] Speaker 01:
So I'll try to answer all of those questions.

[00:08:45] Speaker 01:
First, what I will say is this court in Hoover addressed the same defense prejudice argument that the agency made, and that is the witness unavailability.

[00:08:54] Speaker 01:
And in that regard, PTO did not establish that witnesses were unavailable.

[00:08:58] Speaker 01:
It's not sufficient to just say, oh, they're no longer with PTO.

[00:09:02] Speaker 01:
And that's essentially what PTO did.

[00:09:05] Speaker 01:
I'll note, too, the arbitrator did not actually make a finding as the president.

[00:09:08] Speaker 01:
He recites what the agency asserts as to witness unavailability.

[00:09:13] Speaker 01:
But he doesn't actually make a finding as to any prejudice.

[00:09:16] Speaker 02:
But what happened at the hearing?

[00:09:18] Speaker 02:
Did the proposing official and deciding official testify or not?

[00:09:22] Speaker 01:
So yes, Your Honor, so the deciding official testified.

[00:09:26] Speaker 01:
The proposing official, PTO, had indicated was available and was willing to cooperate.

[00:09:32] Speaker 01:
PTO decided not to call the proposing official during the hearing.

[00:09:35] Speaker 01:
And with regard to your question about whether or not there was any evidence of witness memory, PTO done great in their reply brief that this one witness, the deciding official, did allegedly have some witness memory issues.

[00:09:50] Speaker 01:
They cite the nine instances.

[00:09:52] Speaker 01:
Seven of those nine were across contamination.

[00:09:54] Speaker 01:
A number of them were corrected via a reference to documents.

[00:09:58] Speaker 01:
The witness was able to refresh his memory.

[00:10:01] Speaker 01:
The witness was able to testify about

[00:10:03] Speaker 01:
various details and aspects of the case.

[00:10:06] Speaker 01:
It went into significant detail of his reasoning for his decision, talked about individual assignments that Robinson was given during the fifth period.

[00:10:14] Speaker 01:
So I think any contention that there was truly a witness memory concern during the hearing is overblown and not supported by the record.

[00:10:23] Speaker 01:
But again, the arbitrator did not address that.

[00:10:25] Speaker 01:
That was not the basis for the arbitrator's ruling.

[00:10:27] Speaker 01:
The arbitrator made his ruling on mere delet

[00:10:31] Speaker 01:
not even what this court standard would be under CORDETTA, which is that there must be an unreasonable delay and that that delay is unexcused.

[00:10:41] Speaker 01:
He merely addresses mere delay based on some arbitration cases that PTO had cited to him.

[00:10:47] Speaker 00:
Mr. Weisbrandt, let me ask you this.

[00:10:49] Speaker 00:
If under the rubric in which we're operating here, if we were to

[00:10:56] Speaker 00:
agree with the arbitrator that there was unreasonable delay here, then we would have to look to the question of prejudice, correct?

[00:11:07] Speaker 01:
Yes, Your Honor.

[00:11:08] Speaker 01:
That's the standard in Hoover.

[00:11:09] Speaker 01:
Correct.

[00:11:10] Speaker 00:
But if, assume for the moment, we felt that unreasonable delay had not been established, then we don't look at the prejudice issue.

[00:11:21] Speaker 00:
Is that correct?

[00:11:22] Speaker 01:
That's correct.

[00:11:23] Speaker 01:
That ends your inquiry if there's no unreasonable delay.

[00:11:25] Speaker 01:
And again, that includes unexcused delay.

[00:11:28] Speaker 01:
Every delay in this case was approved and excused by the arbitrator and nor by PCS.

[00:11:35] Speaker 02:
Well, let me ask you about that.

[00:11:36] Speaker 02:
On A76, the arbitrator says,

[00:11:40] Speaker 02:
During the delay is listed above the agency and or the arbitrator.

[00:11:45] Speaker 02:
So the arbitrator is kind of a fact witness here for delay.

[00:11:48] Speaker 02:
And I don't want to question his credibility.

[00:11:51] Speaker 02:
So it says, and or the arbitrator repeatedly requested the union to propose or confirm dates for the arbitration hearings, which resulted in no response on several occasions and requests for delay on many additional occasions.

[00:12:06] Speaker 02:
While they may have been valid reasons for some, the arbitrator finds that cumulatively the delays were unreasonable and excessive.

[00:12:15] Speaker 02:
How do we undo that?

[00:12:17] Speaker 02:
I mean, these are findings that are unassailable by the arbitrator.

[00:12:23] Speaker 02:
And is that not a fair base?

[00:12:25] Speaker 02:
So if we accept this as correct, why is that not sufficient to say that there was prejudice or there was unreasonable, at least there was unreasonable delay?

[00:12:35] Speaker 01:
Sure, Your Honor, but I think to the point you just made, it doesn't establish prejudice, and there has to be prejudice.

[00:12:40] Speaker 01:
But I don't think those facts are unassailable.

[00:12:42] Speaker 01:
I think the record establishes that that's not the case, that there were not excessive delays, repeated delays, that, again, all of those delays were approved and agreed upon.

[00:12:56] Speaker 01:
And I'll point out, too, that this delay is not unprecedented.

[00:13:00] Speaker 01:
This court in Bakken addressed a six-year delay and reversed the decision

[00:13:05] Speaker 01:
similar to this, and if not, this court addressed the seven year delay and reverse.

[00:13:11] Speaker 01:
So the four year cumulative time period that the arbitrator addresses, it's not even clear that that would be so excessive

[00:13:20] Speaker 01:
that this court would have to find that that is unreasonable.

[00:13:23] Speaker 02:
Well, in this context, we do a lot of employment issues here.

[00:13:27] Speaker 02:
I mean, it's your client that was discharged.

[00:13:30] Speaker 02:
So the assumption is they do move pretty quickly, presumably because usually, because your client is no longer employed, there's a need to move these proceedings expeditiously so that if your client was illegally unemployed, he or he can get her job back.

[00:13:48] Speaker 02:
Is there still, actually, is that still on the table or is there anything in the record to indicate whether you are requesting reinstatement or just sort of back pay damages?

[00:13:59] Speaker 01:
Well, yes, Your Honor.

[00:14:00] Speaker 01:
I think if the matter tried to be addressed on remand, which is what we're asking for, then all the damages allowable by law, including the reinstatement and the back pay damages, would be something the arbitrator would have to address.

[00:14:15] Speaker 01:
I would like to address a point that I think was raised in one of the first questions, and that is waiver.

[00:14:20] Speaker 01:
Under GUN, this court has held that a party cannot sit back and wait and just file their brief, or in this case, their motion to dismiss, late in the process.

[00:14:32] Speaker 01:
They can't keep silent and wait to raise this non-jurisdictional matter.

[00:14:36] Speaker 01:
In this case, PTO filed their brief two weeks before the hearing.

[00:14:40] Speaker 01:
So the majority, on the fall of the delay, had already occurred.

[00:14:46] Speaker 01:
And they filed their brief for dismissal.

[00:14:48] Speaker 02:
Can you just tell me, just so I can evaluate what you're saying, when did the parties agree to the date?

[00:14:54] Speaker 02:
And then what was that date?

[00:14:56] Speaker 02:
So how much?

[00:14:59] Speaker 01:
So I believe the parties agreed to the initial date.

[00:15:01] Speaker 01:
Again, that was in December 2017 to January 2018.

[00:15:04] Speaker 01:
They agreed to that initial date.

[00:15:07] Speaker 01:
Sometime, I believe, in the summer of 2017.

[00:15:11] Speaker 01:
And then there was the postponement in November of 2017.

[00:15:15] Speaker 01:
And that was due to the family mental emergency.

[00:15:18] Speaker 01:
And that postponed the hearing until April and May of 2018.

[00:15:24] Speaker 02:
So what are you suggesting that they should have done reasonably?

[00:15:28] Speaker 02:
When should they have filed this motion for summary judgment?

[00:15:32] Speaker 01:
Well, at the time they had filed it,

[00:15:35] Speaker 02:
At the time the hearing was scheduled?

[00:15:41] Speaker 01:
Sure, or even earlier if they felt that there were delays that warranted dismissal based on the Hoover standard of this court prior.

[00:15:50] Speaker 01:
But they didn't.

[00:15:52] Speaker 02:
What are we to do with that?

[00:15:53] Speaker 02:
Even if you're right about that, what are we to do with that?

[00:15:56] Speaker 02:
I mean, are there any cases where we say, because they sat on their rights and they only filed the motion for summary judgment on the eve of the trial, that somehow they've waived their right to do it?

[00:16:08] Speaker 01:
Well, God had an 11-month delay constituted a waiver.

[00:16:13] Speaker 01:
This is well over an 11-month delay, depending on exactly what time period you look at.

[00:16:18] Speaker 01:
Yes, Your Honor, I think you find it's a waiver, because this is a procedural matter scheduling a hearing.

[00:16:24] Speaker 01:
This isn't a case initiation.

[00:16:27] Speaker 01:
This isn't a true jurisdictional issue.

[00:16:29] Speaker 01:
It's a procedural matter.

[00:16:30] Speaker 01:
And the contract with Simon has to do it.

[00:16:32] Speaker 01:
That's addressed in Mueller.

[00:16:35] Speaker 01:
This court case in Mueller that we cited, the statute of Simon as to the standard for scheduling a hearing and the contract with Simon as to the timeline for scheduling a hearing.

[00:16:45] Speaker 01:
So I think the court needs to apply this court's standards and general MSPB standards.

[00:16:53] Speaker 01:
I can't tell, but it looks like I may be running into my rebuttal time.

[00:16:56] Speaker 01:
So unless there's other questions, I may reserve, if that's okay.

[00:17:01] Speaker 04:
Okay.

[00:17:01] Speaker 04:
We'll save you rebuttal time.

[00:17:03] Speaker 04:
Let's hear from the government.

[00:17:26] Speaker 04:
When you're ready, Mr. Maker.

[00:17:37] Speaker 05:
Say it, Mr. Maker.

[00:17:38] Speaker 03:
Since you don't have the screens, would you prefer I continue to wear my mask, or?

[00:17:43] Speaker 04:
No, I didn't hear you, but I did remove your mask.

[00:17:45] Speaker 03:
We'll hear you better.

[00:17:46] Speaker 03:
I was asking if you'd prefer I keep my mask on.

[00:17:49] Speaker 03:
So that answers my question, Your Honor.

[00:17:51] Speaker 03:
Thank you very much.

[00:17:53] Speaker 03:
May it please the court

[00:17:55] Speaker 03:
In this case, the arbitrator is correct to dismiss this Robertson challenge.

[00:18:01] Speaker 00:
Let me ask you, and I apologize for sort of jumping right into the middle of your first sentence yourself, but the time does go quickly.

[00:18:09] Speaker 00:
I just want to get a couple of points addressed if I could.

[00:18:14] Speaker 00:
The arbitrator had what?

[00:18:19] Speaker 00:
The standard review is, did the arbitrator abuse his or her discretion in granting the motion to dismiss for failure to prosecute, correct?

[00:18:29] Speaker 03:
We would agree, yes.

[00:18:30] Speaker 00:
OK.

[00:18:31] Speaker 00:
And that discretion, or that exercise of discretion, has to take place, I would think, on the basis of what the arbitrator had before him.

[00:18:42] Speaker 00:
Now, in this case, what the arbitrator had before him was, first of all, the PTO's motion to dismiss

[00:18:50] Speaker 00:
Right?

[00:18:51] Speaker 00:
Secondly, the union's opposition to the motion to dismiss.

[00:18:56] Speaker 00:
And third, the agency's CTO's reply to the opposition.

[00:19:02] Speaker 00:
That was the three things.

[00:19:04] Speaker 00:
Plus, the record is the parties argued it.

[00:19:06] Speaker 00:
Now, in its opposition, and I'm looking here at appendix 2184 through 2187, going on to 2188, I guess.

[00:19:20] Speaker 00:
The union lays out its view as to why there was no unreasonable delay here.

[00:19:30] Speaker 00:
It goes through a litany of points, various items, which I won't get into.

[00:19:36] Speaker 00:
But then in his decision, it strikes me that the arbitrator didn't really come to grips with these points.

[00:19:46] Speaker 00:
He has a very general statement, some of which was alluded to by Judge Prost in her discussion with Mr. Weisbrot.

[00:19:56] Speaker 00:
But he doesn't really come to grips with some very key points here about timelines and dates and so forth.

[00:20:04] Speaker 00:
And we have the law, I think, which says,

[00:20:07] Speaker 00:
Okay, you can exercise discretion, but a reviewing court has to see how that discretion was exercised.

[00:20:14] Speaker 00:
And what concerns me a bit here is it seems to me that in the face of some very salient and relevant points, the arbitrator doesn't say anything.

[00:20:24] Speaker 03:
Well, I think the arbitrator does very early in his decision note that EEOC matters are separate.

[00:20:31] Speaker 03:
So I think the arbitrator did view the EEOC matters as tangential as the agency had provided in its reply.

[00:20:40] Speaker 03:
And they were not relevant to whether or not

[00:20:42] Speaker 03:
they should have proceeded with arbitration.

[00:20:44] Speaker 03:
Arbitration, it's worth noting, is different because an arbitrator doesn't have the same authorities as a court or the MSPB.

[00:20:51] Speaker 03:
He doesn't have the power to issue subpoenas.

[00:20:53] Speaker 03:
So if a witness is unavailable, that witness, unless they're still working for the government, will remain unavailable.

[00:20:58] Speaker 03:
The arbitrator can't force a witness to come into the arbitration.

[00:21:02] Speaker 03:
It deals with the cooperation of parties.

[00:21:07] Speaker 03:
Ms.

[00:21:07] Speaker 03:
Robinson herself, in her reply brief, notes that the arbitrator couldn't force the date.

[00:21:12] Speaker 03:
The arbitrator could schedule dates, but if Ms.

[00:21:14] Speaker 03:
Robinson chose to ignore the dates or chose to not come into the arbitration or wanted another date, the arbitrator was put in a difficult position.

[00:21:24] Speaker 03:
So I do think the arbitrator does focus on the delays that have hurt the arbitration.

[00:21:31] Speaker 00:
They're making some points here, and he has a general statement, but he doesn't really address what the union said was happening.

[00:21:39] Speaker 00:
Now let me ask you one other thing.

[00:21:42] Speaker 00:
I looked at this record, and it seems to me the arbitrary said there's four years of delay, unreasonable delay.

[00:21:48] Speaker 00:
I looked at it in two kind of big chunks.

[00:21:51] Speaker 00:
First of all, up to June 5th of 2015, it didn't seem to me there was anything untoward happening.

[00:21:58] Speaker 00:
the parties seem to be functioning and going about their business.

[00:22:02] Speaker 00:
Then you have the period from June 5th of 2015 to April of 2017.

[00:22:10] Speaker 00:
And it's in April of 2017 that the parties have a conference call after the so-called completion of the EEOC proceedings.

[00:22:22] Speaker 00:
I don't know.

[00:22:22] Speaker 00:
I'm left with the statement here.

[00:22:24] Speaker 00:
We see the email that says, now that we have the summary judgment decision in the EOC case, the EOC case, we need to move forward for scheduling.

[00:22:34] Speaker 00:
So they schedule a conference.

[00:22:36] Speaker 00:
That seems to take up a big chunk of time.

[00:22:41] Speaker 00:
We're up to April of 2017 now and the hearings in April of 2018.

[00:22:46] Speaker 00:
And then we have the four months delay because of everyone agreeing to illness of counsel's family or something.

[00:22:55] Speaker 00:
So you're down to about eight months.

[00:22:57] Speaker 00:
And this may or may not be right, but it seemed to me to be points that the arbitrator should have really come to grips with and addressed, but he didn't.

[00:23:05] Speaker 00:
And then there also, just to close, there's the point that I think Judge Prost brought up.

[00:23:10] Speaker 00:
What about the issue of prejudice?

[00:23:13] Speaker 00:
If you do accept unreasonable delay, what about prejudice here?

[00:23:16] Speaker 00:
Because there's this big unknown.

[00:23:18] Speaker 00:
As she said, the elephant in the room, there was a hearing and testimony.

[00:23:23] Speaker 03:
I actually can address the prejudice point, but I'll turn to that in a minute if you don't mind.

[00:23:28] Speaker 03:
I mean, as to the first point, the arbitrator felt, again, that the EEOC proceedings were collateral and that the majority of the delay could be late at the feet of the union.

[00:23:41] Speaker 03:
And that is a reasonable determination supported by substantial evidence that it is our decision, this court should not second guess.

[00:23:50] Speaker 03:
I understand that the arbitrator could have been more than equations in addressing every point, but I'm not aware of any

[00:23:57] Speaker 03:
particular requirement to make findings of fact on every argument that council raises.

[00:24:03] Speaker 03:
Instead the arbitrator focused on what they felt was important in this case.

[00:24:07] Speaker 03:
If reasonable minds may differ and may feel that the EEOC proceedings were

[00:24:12] Speaker 03:
were not just simply tangential as Ms.

[00:24:19] Speaker 03:
Robinson's counsels argued, but the arbitrator disagreed and the PTO disagreed about the impact that that had on the schedule.

[00:24:30] Speaker 00:
With regards to... Unless you have a situation where assume the EEOC proceedings are tangential, but yet the parties, for whatever reason, seem to be engaging in those proceedings, even if erroneously.

[00:24:48] Speaker 00:
And that engagement takes up time.

[00:24:51] Speaker 03:
If there's an agreement of the parties, that would be a different situation, because then the arbitrator wouldn't be putting the delay at the feet of one party or the other.

[00:25:01] Speaker 03:
It would be both of the parties.

[00:25:04] Speaker 02:
And presumably, the arbitrator... Well, just on that small point, I hate to interrupt your thought, but on number 11, this is the union's response, they say,

[00:25:12] Speaker 02:
The party, it's talking about the EEOC.

[00:25:14] Speaker 02:
Look at number 11 on 2186.

[00:25:16] Speaker 02:
They do say that the parties formally agreed, I'm not sure what this means, to resolve the issue of outstanding arbitration information requests through the discovery process of the EEOC case.

[00:25:29] Speaker 02:
Is that disputed or is that correct?

[00:25:31] Speaker 03:
No, I mean, again, there are, and the arbitrator himself acknowledges, there are some small areas where, you know, the arbitrator views some of the delay as excusable.

[00:25:42] Speaker 03:
The perfect example being the four-month delay.

[00:25:44] Speaker 02:
You know, while they cite to it, you know, that four-month delay... This issue of EEOC stuff and discovery lasted well over a year.

[00:25:52] Speaker 02:
I mean, this paragraph says,

[00:25:54] Speaker 02:
from fall of 2015 to the summer of 2016.

[00:25:57] Speaker 02:
That's less than a year.

[00:25:58] Speaker 02:
And your friend this morning, in response to my question, suggested that it lasted well over a year young.

[00:26:05] Speaker 03:
I think that's significantly overextending it.

[00:26:07] Speaker 03:
And the union took the position, or rather, excuse me, the PTO took the position in the arbitration specifically that they had met all of their discovery obligations much earlier than that.

[00:26:20] Speaker 03:
So the record reflects that the agency informed the petitioner that it believed all of its discovery obligations were complete.

[00:26:35] Speaker 03:
Do we know what date that was?

[00:26:38] Speaker 02:
I would have to check three minutes.

[00:26:39] Speaker 02:
I saw that coming out.

[00:26:40] Speaker 02:
OK, I'm sorry to waylay.

[00:26:41] Speaker 02:
I can see it.

[00:26:42] Speaker 03:
No, no, no.

[00:26:44] Speaker 03:
With regards to the prejudice issue and the fact that there was a hearing, I actually think that helps underscore ultimately the question of prejudice.

[00:26:53] Speaker 03:
Because in this case, the arbitrator wasn't simply saying there were three witnesses who left the agency and who were not going to be available for hearing.

[00:27:04] Speaker 03:
And the deciding official and the proposing official were no longer available.

[00:27:07] Speaker 03:
The arbitrator held the motion to dismiss in abeyance until there was a hearing.

[00:27:14] Speaker 03:
So the arbitrator put themselves in a position where they could determine if a witness backed memory.

[00:27:19] Speaker 03:
They could determine who showed up at the hearing.

[00:27:22] Speaker 03:
You know, did the proposing official end up showing up at the hearing?

[00:27:26] Speaker 02:
He doesn't deal with any of that stuff in his opinion.

[00:27:31] Speaker 03:
I think that's one of the difficulties in the opinion.

[00:27:36] Speaker 03:
While it's clear from the record, they don't specifically mention who didn't show up or what exactly happened at the hearing.

[00:27:42] Speaker 03:
The arbitrator does not summarize the results of the hearing.

[00:27:47] Speaker 03:
That's correct.

[00:27:48] Speaker 02:
But the transcript itself clearly has... Well, I guess I understand, you know, and you're trying very effectively to try to defend what's going on here.

[00:27:59] Speaker 02:
But do you agree that it's not just unreasonable delay that there has to be a finding of some prejudice?

[00:28:05] Speaker 02:
We agree that, yes, there has to be a finding of prejudice.

[00:28:08] Speaker 02:
Okay.

[00:28:09] Speaker 02:
Let me just ask a two-part question.

[00:28:10] Speaker 02:
One, there is no finding of prejudice that I could see in this opinion.

[00:28:14] Speaker 02:
The only reference that the judge, that the arbitrator makes to this

[00:28:18] Speaker 02:
Undue delay is a paragraph where he doesn't say what he thinks he just says this is what the agency asserts And I'm not seeing where he except for saying the delay was unreasonable He even makes a conclusion draws any conclusions for whether or not there was prejudice so that's one that they I don't see any findings or conclusions by the arbitrator and to

[00:28:42] Speaker 02:
Where is the prejudice?

[00:28:43] Speaker 02:
This one paragraph which he sets out that you were claiming would be a problem.

[00:28:48] Speaker 02:
Was there a problem in the hearing?

[00:28:50] Speaker 02:
The elephant in the room.

[00:28:51] Speaker 03:
Well, the first thing is, while the arbitrator doesn't use the word prejudice, and that's clear if you look throughout the opinion, that word does not appear at all in the arbitrator's decision, he does talk about the cumulative effect of the repeated delays.

[00:29:07] Speaker 02:
OK, we are rejecting.

[00:29:08] Speaker 03:
Show me.

[00:29:09] Speaker 03:
That would be on the final page of his opinion.

[00:29:12] Speaker 03:
And he mentions, when he talks about it, he refers to the cumulative effect

[00:29:19] Speaker 03:
The effect, he says, finds that cumulatively.

[00:29:25] Speaker 03:
I'm looking at one word cumulatively.

[00:29:26] Speaker 03:
Well, that was the argument, though.

[00:29:27] Speaker 03:
The union wasn't arguing that it was prejudiced by a single delay.

[00:29:31] Speaker 03:
You know, unlike Gunn, this isn't about a single delay.

[00:29:33] Speaker 02:
I don't understand.

[00:29:34] Speaker 02:
Show me where he references something.

[00:29:36] Speaker 02:
If he doesn't use the word prejudice, at least he makes a finding or makes a conclusion that there was an impact, that this delay had some impact.

[00:29:47] Speaker 02:
It's on the final.

[00:29:49] Speaker 03:
Here's the end of his opinion.

[00:29:51] Speaker 03:
Uh-huh.

[00:29:51] Speaker 00:
Appendix 76, you're saying will be there?

[00:29:53] Speaker 03:
Yeah, I'm trying to find it.

[00:30:04] Speaker 00:
It's at the top of 76.

[00:30:06] Speaker 00:
He says, in the arbitrary judgment, the cumulative effect of delay, it's in the first starts of the first line on Appendix 76.

[00:30:15] Speaker 02:
Thanks.

[00:30:16] Speaker 02:
That's right.

[00:30:17] Speaker 02:
That's what we're working on.

[00:30:18] Speaker 02:
And what he says is keep going.

[00:30:20] Speaker 02:
It says

[00:30:21] Speaker 02:
four years is excessive by any standard of reasonableness and warrant dismissal.

[00:30:27] Speaker 02:
So he finds unreasonable delay.

[00:30:28] Speaker 02:
That's not what I'm talking about.

[00:30:29] Speaker 03:
But he also talks about the cumulative effect of that unreasonable delay.

[00:30:34] Speaker 03:
Where?

[00:30:35] Speaker 03:
At very much at the beginning of that sentence.

[00:30:37] Speaker 03:
Because cumulative effect, I mean, what is the cumulative effect of that excessive delay?

[00:30:43] Speaker 03:
He finds there's an excessive delay, but the cumulative effect would be the prejudicial impact.

[00:30:48] Speaker 03:
He doesn't use the word prejudice.

[00:30:49] Speaker 02:
But he does talk about randomness.

[00:30:51] Speaker 02:
But what is it?

[00:30:52] Speaker 02:
Besides saying there's a cumulative effect, what is he pointing to?

[00:30:58] Speaker 03:
The only thing that he used to detail is the lack of the witnesses after the hearing, after he had held the matter in abeyance.

[00:31:04] Speaker 02:
OK, so that's what I wanted to... OK, so even though he doesn't embrace this paragraph, which is about... The only paragraph that I know of is on A75, and it's the paragraph that talks about the witnesses.

[00:31:16] Speaker 02:
And as I'm reading it, maybe I'm missing something.

[00:31:18] Speaker 02:
He calls this paragraph simply what the agency is asserting, not what he thinks, but what the agency is asserting.

[00:31:25] Speaker 02:
That's point one.

[00:31:26] Speaker 02:
But point two is, so what is the cumulative effect of this in terms of what actually happened?

[00:31:34] Speaker 02:
Why don't we go through this paragraph?

[00:31:36] Speaker 02:
Well, that paragraph, he doesn't provide further details.

[00:31:39] Speaker 02:
We can acknowledge that.

[00:31:40] Speaker 02:
OK.

[00:31:41] Speaker 02:
So if we went and combed the record and looked at the testimony and what everybody said, you want to tell us, I mean, I asked your friend, and he gave us some information that everybody the agency wanted to call, it was able to call.

[00:31:55] Speaker 02:
And while there was some reference in cross-examination to a problem with recollection, it wasn't meaningful.

[00:32:05] Speaker 03:
Well, we disagree substantially that it was meaningful.

[00:32:07] Speaker 03:
First of all, Mr. House was unavailable, who was definitively the agency's witness, and we do not contest that.

[00:32:17] Speaker 03:
Again, we had no power to subpoena him or get him to otherwise testify.

[00:32:22] Speaker 03:
The deciding official who is crucial here, I mean, it's worth remembering the context is the agency has the burden

[00:32:28] Speaker 03:
approving the elements of the Chapter 46 performance removal by substantial evidence.

[00:32:33] Speaker 03:
Is it Chapter 43 or Chapter 46?

[00:32:37] Speaker 03:
I thought it was 43.

[00:32:38] Speaker 03:
Excuse me.

[00:32:38] Speaker 03:
Thank you.

[00:32:41] Speaker 03:
But the agency has that burden.

[00:32:43] Speaker 03:
And the deciding official couldn't remember a number of things, many of which related to the union's argument that her performance evaluation plan was inconsistent with her precision description.

[00:32:55] Speaker 02:
And so using her, the union's own arguments, and you'll find... Mr. House couldn't come in, he was unavailable, or the agency wanted to bring him in and they couldn't.

[00:33:10] Speaker 02:
What about the proposing official?

[00:33:12] Speaker 03:
The proposing official was unavailable, so neither the agency nor Mr. Robinson called the proposing official in.

[00:33:25] Speaker 02:
He was unavailable?

[00:33:26] Speaker 02:
She was unavailable.

[00:33:27] Speaker 03:
Okay, so now we're into the deciding officials.

[00:33:33] Speaker 03:
The petitioner was in a position to elicit the testimony of an expert witness, Jeffrey Kane.

[00:33:41] Speaker 03:
They were able to make arguments using another witness, Robert Burdens, about the performance evaluation plan, the position description, mismatches that occurred.

[00:33:53] Speaker 03:
And one of the difficulties the petitioner

[00:33:57] Speaker 03:
the PTO had was that when asked questions about that, the deciding official couldn't remember.

[00:34:03] Speaker 03:
There were a lot of, I mean, throughout the transcript, the deciding official was listing how they don't remember.

[00:34:12] Speaker 03:
Even in their deposition earlier, they had not been able to remember significant portions of the transcript or significant portions of the proceedings involving the removal of Ms.

[00:34:24] Speaker 03:
Robinson.

[00:34:25] Speaker 03:
And so the agency was prejudiced by that lack of memory.

[00:34:31] Speaker 00:
Let me ask you though, assuming you're right in what you're saying, and you may or may not be, I don't know, because I haven't looked at the record of the arbitration proceeding, but it's the job of the arbitrator to tell us the prejudice, and he hasn't done that.

[00:34:49] Speaker 00:
As Judge Prost was pointing out, the paragraph that starts at the middle of page 75 of the appendix gives the agency's position.

[00:34:59] Speaker 00:
And then the paragraph that starts at the bottom about, I'll call the cumulative effect paragraph, that's entirely talking about the delay period.

[00:35:09] Speaker 00:
It's not talking about prejudice.

[00:35:11] Speaker 00:
It's talking about the cumulative effect of A and B and C was to come out to an unreasonable delay.

[00:35:19] Speaker 00:
We don't have anything, as seemed to me emerge from your response to Judge Pro's questions, we don't have anything from the arbitrator about prejudice.

[00:35:30] Speaker 00:
And that's what we have to have if we're judging the reasonableness of his decision as to whether it passes muster.

[00:35:38] Speaker 03:
And we would respectfully disagree with that.

[00:35:42] Speaker 03:
It would be our position that by mentioning cumulative effect and referring to the lack of witnesses put in the context of the hearing, that that was sufficient to constitute a final prejudice.

[00:35:51] Speaker 00:
But there has to be more than that.

[00:35:52] Speaker 00:
I mean, because the cumulative effect here, it's all in the paragraph.

[00:35:56] Speaker 00:
The cumulative effect of these was to amount to unreasonable delay.

[00:35:59] Speaker 03:
And if the cumulative effect only refers to delay and doesn't refer to prejudice, yes, that's good.

[00:36:05] Speaker 02:
The problem I'm having, I know you're trying your best.

[00:36:08] Speaker 02:
But to the key officials that we've been talking about today, the proposing official who you said was unavailable, and the deciding official who had a hard time recollecting,

[00:36:20] Speaker 02:
One, as Judge Peshaw points out, the arbitrary isn't saying this is his conclusion.

[00:36:24] Speaker 02:
He's just quoting what the agency says.

[00:36:26] Speaker 02:
And what he says about that, the only thing he says about that, as far as I know in the opinion, is the agency noted that both the proposing and the deciding officials are no longer employed by the agency.

[00:36:38] Speaker 02:
but are expected to cooperate.

[00:36:41] Speaker 02:
So not only does he not detail what you've detailed to us about poor recollection, unavailability, but he says the opposite, or nothing.

[00:36:51] Speaker 02:
What are we to do with that?

[00:36:53] Speaker 03:
Your Honor, the government's position would be that he ultimately does conclude that prejudice is an element.

[00:37:03] Speaker 02:
He doesn't make, not only does he make no reference, he says incorrectly that the agency said they were expected to cooperate.

[00:37:10] Speaker 02:
And now you're telling us that we ought to affirm him because

[00:37:15] Speaker 02:
One guy wasn't available, one woman wasn't available, and the other guy excessively quoted how he couldn't remember for a long time.

[00:37:25] Speaker 02:
The arbitrator gives us none of that.

[00:37:27] Speaker 03:
If the court determines that the arbitrator made no findings with regards to prejudice, that their opinion is insufficient, then the court should consider remanding to the arbitrator in order to either make those findings explicit or otherwise

[00:37:44] Speaker 03:
you know, proceed consistent with the court's opinion.

[00:37:50] Speaker 00:
If we find a problem with the arbitrator's decision, can we remand to the arbitrator for, say, rule on the merits?

[00:37:59] Speaker 00:
I mean, this case has gone on, as you point out, for an awfully long time.

[00:38:06] Speaker 00:
If we disagree with your arguments on affirming the arbitrator's decision on the motion to dismiss, wouldn't the cleanest thing just be to, OK, rule on the merits?

[00:38:18] Speaker 03:
It depends on the basis of the court's opinion.

[00:38:21] Speaker 00:
If we say the arbitrator abused his discretion here.

[00:38:25] Speaker 03:
Even if the arbitrator abused their discretion, if the court were to find there's no description of prejudice, that wouldn't mean that this court should make a finding that there is no prejudice.

[00:38:36] Speaker 03:
That would go back to the arbitrator to make that decision.

[00:38:39] Speaker 03:
And while ultimately the arbitrator might decide there was no prejudice and rule on the merits of this case, that would be up to the arbitrator.

[00:38:46] Speaker 03:
This course should not be weighing those questions in the first instance.

[00:38:54] Speaker 04:
Any more questions?

[00:38:57] Speaker 03:
Anything else?

[00:38:58] Speaker 04:
All right.

[00:38:58] Speaker 04:
Thank you.

[00:39:20] Speaker 04:
OK, we see you, Mr. Westbrook.

[00:39:22] Speaker 04:
Can you hear us?

[00:39:24] Speaker 01:
Yes, I can hear you, Your Honor.

[00:39:26] Speaker 04:
OK, proceed.

[00:39:28] Speaker 01:
May I please support?

[00:39:29] Speaker 01:
I want to address the remand issue first.

[00:39:32] Speaker 01:
This matter should be remanded for a decision on the merits.

[00:39:35] Speaker 01:
A lot of times it's passed.

[00:39:37] Speaker 01:
The arbitrator took over a year to issue, I think over a year to issue his decision in which he just dismissed everything anyway, even after the briefing in this case.

[00:39:47] Speaker 01:
So there's really no reason to remand back on prejudice.

[00:39:50] Speaker 02:
Do we have, just on that point sir, do we have the authority do you think to tell the party, order the parties and the arbitrator to resolve this issue within a certain amount of time?

[00:40:04] Speaker 02:
Just because there are three players here.

[00:40:06] Speaker 02:
They're both sides and there's an argument at least that one of the sides delayed it.

[00:40:10] Speaker 02:
We don't want to relive the past here.

[00:40:12] Speaker 02:
with a remand.

[00:40:13] Speaker 02:
So do you think we have the authority to impose certain timelines on all parties with respect to proceeding on a remand?

[00:40:22] Speaker 01:
Well, I will say, Your Honor, the contract requires the arbitrator indicates that the arbitrator should issue a decision within 30 days.

[00:40:29] Speaker 01:
So I think the court can instruct the arbitrator to abide by the contract, the terms that the parties would agree to.

[00:40:38] Speaker 02:
OK, thank you.

[00:40:39] Speaker 01:
In terms of witness unavailability, again, under Hoover, PTO did not establish unavailability of witnesses.

[00:40:46] Speaker 01:
They merely said witnesses were no longer with the agency.

[00:40:49] Speaker 01:
One of the witnesses PTO cited to was House.

[00:40:53] Speaker 01:
He was a personnelist.

[00:40:54] Speaker 01:
Under Nutz, it's not even clear that he would establish defense prejudice because Nutz indicates

[00:41:05] Speaker 01:
that personalities who aren't really involved in the day-to-day for what this is a performance-based removal wouldn't really have critical testimony.

[00:41:16] Speaker 01:
Again, the proposing official was expected to cooperate.

[00:41:20] Speaker 01:
TTO just said a moment ago that she was unavailable.

[00:41:22] Speaker 01:
But there's no evidence of that in the record.

[00:41:24] Speaker 01:
The only evidence is she left the agency.

[00:41:28] Speaker 01:
And by the way, she left the agency within a month of the decision to remove in this case.

[00:41:35] Speaker 01:
She wouldn't have been unavailable any time the case was scheduled if you accept PTO's argument that leaving the agency means unavailability.

[00:41:45] Speaker 01:
And I'll note, too, the other two witnesses that even the arbitrator talks about on page 75 of the appendix, those two witnesses were witnesses that POPA had asked for that PTO had said didn't have relevant information.

[00:41:59] Speaker 01:
And PTO pointed out were unavailable because they had left the agency or were no longer with the agency.

[00:42:06] Speaker 01:
The defense president, the PTO, if anything, that would have prejudiced.

[00:42:13] Speaker 01:
The witness memory argument, you know, we addressed this, I think, pretty efficiently in the reply brief, stages 21 to 24.

[00:42:19] Speaker 01:
But I just want to point out that if you review the appendix records of those areas, again, the majority of them are on the cross.

[00:42:26] Speaker 01:
A number of them are not critical areas.

[00:42:29] Speaker 01:
I think in one case, Elliott didn't recall how many times he spoke to someone about a topic.

[00:42:34] Speaker 01:
It could have been two, it could have been three, I think.

[00:42:39] Speaker 01:
There were others that

[00:42:42] Speaker 01:
He said he didn't remember.

[00:42:44] Speaker 01:
But in part, he's not remembering because he wasn't really the integral person involved in that discussion or involved in that.

[00:42:52] Speaker 02:
Mr. Weissroth, this is Judge Prost.

[00:42:54] Speaker 02:
I take your point in everything you're saying.

[00:42:56] Speaker 02:
But in a way, it proves that we need a remand for the arbitrator.

[00:43:01] Speaker 02:
Because what you're suggesting, you may be right.

[00:43:03] Speaker 02:
You sound very persuasive in terms of what you're saying.

[00:43:06] Speaker 02:
The problem is you're asking us as an appellate court to do fact finding.

[00:43:12] Speaker 02:
without having anything to review in terms of the arbitrator's conclusions.

[00:43:16] Speaker 02:
So don't you think that suggests that a remand for the arbitrator to make those findings?

[00:43:23] Speaker 02:
We may be able to, if he reaches a conclusion opposite yours, we may be able to be able to reverse him on an abuse of discretion, but you're asking us to make fact finding in the first instance, right?

[00:43:35] Speaker 01:
Well, no, Your Honor.

[00:43:37] Speaker 01:
I guess I'm asking you to recognize and find that the arbitrator did not make a proper ruling under this court's precedent to establish the dismissal based on failure to prosecute or unreasonable delay.

[00:43:51] Speaker 01:
He didn't find prejudice.

[00:43:54] Speaker 01:
And in not finding prejudice, the dismissal has to be reversed.

[00:43:57] Speaker 01:
And this is de novo review.

[00:44:01] Speaker 01:
In terms of the failure to prosecute cases that PTO cites, I want to note that PTO did not cite to one federal circuit case where there was a dismissal for failure to prosecute merely via delay without an order, a court order, or a scheduling order.

[00:44:20] Speaker 01:
And in this case, the arbitrator never ordered the parties to schedule by a date certain, like in Mueller or anything like that.

[00:44:30] Speaker 01:
So again, I think that goes to not only the failure with regard to prejudice, but it's finding us unreasonable delay.

[00:44:37] Speaker 01:
And the last point I wanted to make is I just want to address this instruction.

[00:44:41] Speaker 01:
The instruction on remand is, we ask, is for the arbitrator to address the merit and to apply the correct law.

[00:44:48] Speaker 01:
He applied the incorrect law so many times with regard to so many issues, with regard to the same matter election of remedies issue.

[00:44:57] Speaker 01:
with regard to not considering prejudice and the mere delay finding that he applied for the failure of a prosecutor on reasonable delay.

[00:45:07] Speaker 01:
Even in his finding as to what he said on remand, he will or will not consider.

[00:45:12] Speaker 01:
He misapplied incorrect law.

[00:45:15] Speaker 01:
He applied non-precedential FLRA law that he says is controlling, even though it is clear it is not.

[00:45:21] Speaker 01:
It is important that when there is this remand that the arbitrator is instructed

[00:45:26] Speaker 01:
for uniformity, for consistency, that he must follow the MSPB substantive law, he must follow this court law, that he is down by that.

[00:45:38] Speaker 01:
Under Buckingham, under Cornelius, he must apply the correct law, and not just apply these non-presidential cases, these arbitration decisions, FLRA law, or other court laws.

[00:45:54] Speaker 02:
With the, this is Judge Proce.

[00:45:55] Speaker 02:
Can I ask you one quick question with the indulgence of the presiding office?

[00:45:59] Speaker 02:
Just back to the issue of, you repeated it a minute ago, de novo review.

[00:46:04] Speaker 02:
My recollection was in your brief, under the standard of review, you were advocating de novo review simply because this is a CBA interpretation, a contract interpretation, which involves de novo review.

[00:46:16] Speaker 02:
I haven't heard you repeat that today here, and it seems really off to me, frankly, that because

[00:46:23] Speaker 02:
This is a union grievance.

[00:46:25] Speaker 02:
We're interpreting the CBA.

[00:46:27] Speaker 02:
And therefore, there's de novo review of all these issues.

[00:46:30] Speaker 02:
So I just want to give you just a minute to respond to my view, my concern.

[00:46:34] Speaker 01:
Sure.

[00:46:35] Speaker 01:
Sure.

[00:46:36] Speaker 01:
So I think de novo review is supported by three critical cases.

[00:46:39] Speaker 01:
The first one is the interpretation of a requirement of a contract.

[00:46:44] Speaker 01:
The arbitrator knows that there is no requirement for scheduling of the arbitration here and here.

[00:46:49] Speaker 01:
This is a procedural matter, not a jurisdictional.

[00:46:51] Speaker 01:
So in exceeding his authority under the contract and applying a time period for having to schedule this hearing, he is interpreting the contract in a way.

[00:47:01] Speaker 02:
OK, so your argument on that is your first argument is he had no authority to do any of this irrespective of, OK, thank you.

[00:47:08] Speaker 02:
I take your point.

[00:47:10] Speaker 01:
OK.

[00:47:11] Speaker 01:
If I may just finish up the other two, if that's OK?

[00:47:14] Speaker 01:
Sure.

[00:47:14] Speaker 01:
Yes, please.

[00:47:16] Speaker 01:
So the other two is one I think I mentioned earlier

[00:47:19] Speaker 01:
To the extent that this is jurisdictional.

[00:47:21] Speaker 01:
He said he's precluded from hearing this because of the unreasonable delay.

[00:47:24] Speaker 01:
That's jurisdictional.

[00:47:25] Speaker 01:
Under Yates, there is de novo review for an arbitrator's jurisdiction.

[00:47:31] Speaker 01:
And then lastly, to the extent that this is a question of law, whether or not the arbitrator abused his discretion, whether or not his decision is not supported by substantial evidence, under Johnson, this is de novo review.

[00:47:43] Speaker 01:
So I think under any of those standards, this court can find that there is de novo review.

[00:47:48] Speaker 01:
And I think getting to what you were getting at, Your Honor, is that the remand should be to reverse the dismissal and remand for a decision on the merit.

[00:47:59] Speaker 04:
OK.

[00:47:59] Speaker 04:
Anything else on council?

[00:48:01] Speaker 04:
Thank you.

[00:48:02] Speaker 04:
Thanks to both councils.

[00:48:03] Speaker 04:
The case is taken under submission.