[00:00:03] Speaker 03:
Our first case for argument this morning is 153032 Muller versus GPO.

[00:00:09] Speaker 03:
Mr. Landon, whenever you're ready, sir.

[00:00:20] Speaker 01:
Good morning, your honor.

[00:00:26] Speaker 01:
We believe that the issue that the court must consider is simply that

[00:00:33] Speaker 01:
The government failed to make a timely objection to the data of the arbitration and did not notify FMCS or the arbitrator that a provision in the contract was to be relied upon by the government and simply allowed the time to pass

[00:01:04] Speaker 01:
of four months after invoking arbitration.

[00:01:10] Speaker 01:
Sorry.

[00:01:11] Speaker 03:
What is it in the contract that would compel the government to do what you say it should have done and did not do?

[00:01:19] Speaker 01:
It's compelled the government to notify the arbitrator FMCS?

[00:01:22] Speaker 01:
Yes.

[00:01:24] Speaker 01:
There is nothing explicit in the contract that compels the government.

[00:01:29] Speaker 01:
But if you examine the joint appendix

[00:01:35] Speaker 01:
At 845, notice was given to both parties.

[00:01:42] Speaker 01:
If there were any action required by FMCS or the arbitrator, they were supposed to let them know.

[00:01:54] Speaker 00:
How long do these arbitrations take?

[00:01:56] Speaker 00:
Are you familiar with the arbitrations themselves?

[00:01:59] Speaker 00:
Have you participated in them?

[00:02:01] Speaker 00:
How long do these arbitrations take, typically?

[00:02:04] Speaker 00:
Does the hearing of one day matter?

[00:02:06] Speaker 00:
How long does it take to have them?

[00:02:08] Speaker 01:
The hearing can go one day, two days, three days, four days.

[00:02:13] Speaker 04:
How long do you think arbitration would have taken place in this case?

[00:02:17] Speaker 01:
At least two days.

[00:02:19] Speaker 00:
So the arbitrator had the case.

[00:02:22] Speaker 00:
a notify, was notified that he was the arbitrator three weeks before the deadline and he didn't do anything to move the case forward.

[00:02:32] Speaker 00:
Do we know why he didn't do anything?

[00:02:34] Speaker 00:
Was he too busy?

[00:02:35] Speaker 00:
What was the problem?

[00:02:37] Speaker 01:
Well, I think under the regulations he has 14 days to notify the parties that he's been appointed.

[00:02:47] Speaker 01:
The problem here is that he had no knowledge

[00:02:51] Speaker 01:
of the provision in the contract at step four, that if the hearing did not occur within four months, that he would have to address the issue.

[00:03:08] Speaker 00:
Doesn't the arbitrator get a copy of the arbitration agreement?

[00:03:11] Speaker 00:
He must.

[00:03:12] Speaker 01:
Not initially.

[00:03:14] Speaker 01:
That's generally going to be the case once he sets the hearing.

[00:03:19] Speaker 01:
And the parties appear.

[00:03:23] Speaker 00:
The parties appear and provide him with a copy of the agreement?

[00:03:26] Speaker 01:
Exactly.

[00:03:31] Speaker 01:
Because he generally would ask for a submission.

[00:03:35] Speaker 01:
And if it's a contractual issue, the contract, of course, would have to be presented to the arbitrator.

[00:03:45] Speaker 00:
Is this particular arbitrator arbitrated other grievances under this collective bargaining agreement?

[00:03:52] Speaker 01:
Not to my knowledge.

[00:03:58] Speaker 03:
No, how do you understand?

[00:04:00] Speaker 03:
I mean, the agreement says four months.

[00:04:04] Speaker 03:
Is it your understanding of the agreement if the agency, if the government just sat on its hands and didn't do any striking of the arbitration list?

[00:04:14] Speaker 03:
and exceeded, it seems to me like a very, very unusual provision.

[00:04:19] Speaker 03:
Because in theory, not suggesting that the government would necessarily act in bad faith, but it seems like there are numerous circumstances in which we would exceed four months here.

[00:04:30] Speaker 03:
And if it's true that if you exceed four months, you lose your right to go to arbitration, that seems pretty draconian.

[00:04:37] Speaker 01:
Well, the government takes the position that

[00:04:43] Speaker 01:
If the hearing does not occur within four months, they're no longer bound to proceed to a hearing on the merits.

[00:04:51] Speaker 03:
And what is your position?

[00:04:53] Speaker 03:
What is the import of that deadline?

[00:04:57] Speaker 03:
What are the consequences of not following the four-month deadline?

[00:05:01] Speaker 01:
That deadline, in our opinion, was nothing more than a goal.

[00:05:07] Speaker 01:
Analogous to the Merit Systems Protection Board,

[00:05:11] Speaker 01:
goal, which also appears in our brief, of a 120-day period that the board says it will adjudicate a particular case.

[00:05:27] Speaker 01:
But it recognizes that it's a goal.

[00:05:30] Speaker 01:
And for good cause, it has extended that period.

[00:05:38] Speaker 00:
Right.

[00:05:38] Speaker 00:
And nobody has ever suggested that the failure of the Merit System Protection Board to comply with the 120-day deadline would result in the employee losing, right?

[00:05:50] Speaker 01:
I think one case, I think an issue was raised early on, I think back in the late 80s or the 90s.

[00:06:01] Speaker 01:
But it tells you in the judge's handbook that it's simply a goal.

[00:06:08] Speaker 01:
And for good cause, that time period can be extended.

[00:06:12] Speaker 00:
Well, there are plenty of Supreme Court and Court of Appeals cases, including cases from this court, that suggest that agency deadlines like that are housekeeping matters and that the agency doesn't lose the authority to act once the time runs.

[00:06:28] Speaker 00:
So that would support your suggestion that it's a goal rather than a requirement.

[00:06:36] Speaker 00:
Is there any indication that this

[00:06:38] Speaker 00:
arbitration provision for a month was modeled after the 120 day provision in the statute for the MSP.

[00:06:47] Speaker 01:
I'm not familiar with the negotiations that led to this particular provision.

[00:06:58] Speaker 01:
The first thing that came to my mind when I observed it was that it was patterned after the NLRB.

[00:07:05] Speaker 01:
I'm sorry.

[00:07:06] Speaker 01:
counteracting the MSBB.

[00:07:10] Speaker 03:
The difficulty with that is that you mentioned that under the MSPB provision, there's a manual or something that describes this as being a goal, right?

[00:07:21] Speaker 01:
Exactly.

[00:07:22] Speaker 03:
And here, we have none of that.

[00:07:24] Speaker 03:
But what we do have is an arbitrator.

[00:07:27] Speaker 03:
I mean, there's no question that he has the jurisdiction right to decide questions of arbitrability.

[00:07:33] Speaker 03:
Exactly.

[00:07:33] Speaker 03:
So here, we have an arbitrator who the parties have agreed to be the one charged with interpreting

[00:07:41] Speaker 03:
And so don't we have to give a substantial amount of deference to his interpretation?

[00:07:47] Speaker 01:
Deference on procedural questions are generally accorded to the arbitrator by this court and others.

[00:07:57] Speaker 01:
However, that deference has to be viewed in the light, I believe, of fundamental fairness.

[00:08:08] Speaker 01:
The arbitrator, by regulation,

[00:08:11] Speaker 01:
has the authority to conduct the hearing.

[00:08:17] Speaker 01:
And that's FMCS regulation.

[00:08:20] Speaker 01:
So when the parties negotiated this particular provision and consented to take their disputes at the fourth step to FMCS for the appointment of an arbitrator,

[00:08:38] Speaker 01:
The parties knew at that time that they had no control over being able to enforce that particular provision of four months.

[00:08:51] Speaker 00:
Once it went to the arbitrary.

[00:08:53] Speaker 01:
Exactly.

[00:08:54] Speaker 04:
Is the question of the interpretation of the contract a question of law or a question of fact?

[00:09:02] Speaker 01:
I think it could be a mixed question.

[00:09:07] Speaker 01:
As it relates to the interpretation of that particular provision, I think the arbitrator probably treated it as a mixed question.

[00:09:22] Speaker 04:
Under section 11E of the agreement, it says that the arbitrator has to decide the case within 30 days of the hearing.

[00:09:30] Speaker 04:
Are you aware of any consequences as a result of that not occurring?

[00:09:36] Speaker 01:
As a matter of practice,

[00:09:38] Speaker 01:
There are no consequences.

[00:09:41] Speaker 01:
You can complain to FMCS that the arbitrator has not rendered a decision within 30 days, and FMCS will have to decide what sanction will be imposed against the arbitrator.

[00:09:58] Speaker 01:
But as a matter of practice, they do basically whatever they feel like doing when they want to do it.

[00:10:05] Speaker 00:
These past practice cases that the government relies on, are those all cases in which the case never got to an arbitrator within the four month period?

[00:10:15] Speaker 01:
Absolutely.

[00:10:16] Speaker 01:
And we state that in our brief as we examine each particular case that the government relies upon.

[00:10:24] Speaker 01:
Not one of those cases involve an arbitration.

[00:10:31] Speaker 01:
In fact,

[00:10:33] Speaker 01:
Only one of the cases involved an issue about selecting an arbitrator.

[00:10:43] Speaker 01:
But never has the government ever relied upon that provision to stop an arbitration once the arbitrator had been selected.

[00:11:02] Speaker 03:
OK, you're into your rebuttal time.

[00:11:04] Speaker 03:
Why don't we hear from the government and we'll preserve the remainder of your time.

[00:11:08] Speaker 03:
I'm sorry?

[00:11:08] Speaker 03:
You're into your rebuttal time, so why don't we hear from the government and we'll save the remainder of your time.

[00:11:14] Speaker 01:
All right.

[00:11:14] Speaker 01:
Thank you.

[00:11:22] Speaker 02:
May it please the court?

[00:11:24] Speaker 00:
Does the government agree that if this four-month provision

[00:11:29] Speaker 00:
were in a statute governing agency procedures that the failure to decide within the four-month period would have no consequence?

[00:11:37] Speaker 02:
It would be an extremely different case because... No, but answer my question.

[00:11:41] Speaker 00:
Do you agree that if we were dealing with an agency and a hearing deadline and the agency let the deadline go past, that that would not have any consequence?

[00:11:50] Speaker 02:
Certainly.

[00:11:51] Speaker 02:
If this were analogous to the board requirement for the policy, which is what the board says,

[00:11:57] Speaker 02:
rendering a decision within 120 days, that would not be down to the detriment of the parties.

[00:12:05] Speaker 00:
Okay, so why shouldn't the same rule apply here since the statute provides that the same standard of review will apply to arbitrator decisions as to agency decisions?

[00:12:16] Speaker 02:
Because the parties agreed on the four-month deadline and the context and structure of the collective bargaining agreement demonstrates that this is a mandatory requirement

[00:12:26] Speaker 02:
And the facts of this case demonstrate... What are they supposed to do?

[00:12:29] Speaker 00:
I suppose the arbitrator had the case three months before the end of the deadline.

[00:12:34] Speaker 00:
And he's busy and he doesn't do anything.

[00:12:36] Speaker 00:
And so the hearing is not held within the four months.

[00:12:39] Speaker 00:
Are you suggesting that under those circumstances that the employee would lose?

[00:12:44] Speaker 02:
No, Your Honor.

[00:12:45] Speaker 02:
There is flexibility built into the four-month deadline.

[00:12:48] Speaker 02:
It states that the parties can mutually agree to extend the deadline.

[00:12:53] Speaker 00:
Well, suppose the government refuses to agree.

[00:12:56] Speaker 00:
and the deadline goes.

[00:12:58] Speaker 00:
The way this arbitrator's decision reads, it doesn't make any difference what the cause of exceeding the four-month period is.

[00:13:06] Speaker 00:
The employee loses.

[00:13:08] Speaker 02:
Well, if this were ever a situation where the union had acted with due diligence, had circumstances beyond the union's control, prevented the matter from going to a hearing within four months, and the union had

[00:13:21] Speaker 02:
requested an extension but been denied, the union could certainly argue to the arbitrator that the agency had unreasonably or arbitrarily refused consent.

[00:13:32] Speaker 02:
And that would be a matter for the arbitrator to decide and for this court to review.

[00:13:36] Speaker 00:
Well, it's not just for the arbitrator.

[00:13:37] Speaker 00:
It's the arbitrator's own fault under those circumstances.

[00:13:41] Speaker 00:
Even under the Federal Arbitration Act, one of the provisions for setting aside an arbitrable award is that the arbitrator didn't do what he was supposed to do.

[00:13:51] Speaker 00:
And under my hypothetical, we have a situation in which the arbitrator didn't do what he was supposed to do.

[00:13:57] Speaker 00:
And can it really be that the arbitrator's failure results in the employees losing?

[00:14:03] Speaker 02:
Your Honor, that would be a situation where the union would have to argue, assuming that the agency would refuse consent in that situation, which

[00:14:11] Speaker 02:
Hopefully the agency would not refuse consent in that situation.

[00:14:14] Speaker 02:
But if the agency did, the union could argue to the arbitrator and then to this court that the agency unreasonably withheld consent, and thereby the four-month deadline would still be given effect, but there is this flexibility built into it.

[00:14:30] Speaker 00:
But take my hypothetical.

[00:14:33] Speaker 00:
The government doesn't agree to an extension, and the arbitrator just says, I'm busy, I can't get to it in the four months.

[00:14:40] Speaker 00:
Does the employee lose?

[00:14:42] Speaker 02:
No, the employee can appeal, can preserve the matter to the arbitrator and assuming the worst case scenario... Okay, so it comes up to us.

[00:14:48] Speaker 00:
What do we do?

[00:14:49] Speaker 00:
We say the employee loses or the employee wins?

[00:14:53] Speaker 02:
I think the question would be whether the facts at issue in the case evidence a situation where the agency, in order to ensure that both sides essentially get the benefit of the bargain, that the agency had to consent in that situation.

[00:15:07] Speaker 00:
Otherwise, it would be... So the employee wins under those facts?

[00:15:11] Speaker 02:
I can envision a situation, depending on the fact that issue, in which the employee might win in that case.

[00:15:17] Speaker 02:
But that's far from the case we have here.

[00:15:20] Speaker 00:
The arbitrator had three weeks to conduct the arbitration.

[00:15:23] Speaker 00:
Certainly that was enough time to hold the hearing within the four-month period, right?

[00:15:28] Speaker 02:
The arbitrator was notified by FNCS and notably... But wait, wait.

[00:15:34] Speaker 00:
Try answering my question.

[00:15:35] Speaker 00:
He had the case three weeks before the end of the deadline.

[00:15:38] Speaker 00:
That was enough time to hold the hearing, right?

[00:15:41] Speaker 02:
Yes, depending on the arbitrator's schedule and the union's schedule and the agency's schedule, perhaps it could be.

[00:15:48] Speaker 02:
But before the case even got to that point, the union waited first six weeks before even seeking the list of arbitrators.

[00:15:58] Speaker 00:
So that's one and a half months out of... There was three weeks.

[00:16:01] Speaker 00:
There was enough time to hold the hearing.

[00:16:03] Speaker 00:
I could understand.

[00:16:05] Speaker 00:
If the union failed to select an arbitrator, failed to meet deadlines, failed to act diligently and the arbitrator wasn't appointed in a timely way, I can understand your position in that case, but where the arbitrator has the case three weeks before the deadline and the deadline could have been met, why is the employee lose as a result of that?

[00:16:26] Speaker 00:
I'm having trouble understanding that.

[00:16:28] Speaker 02:
Well, the four-month deadline applies even after the arbitrator has been selected.

[00:16:32] Speaker 02:
The deadline doesn't say that the arbitrator shall be selected within four months.

[00:16:36] Speaker 02:
It says that the arbitration hearing will occur within four months.

[00:16:40] Speaker 02:
And the four-month deadline is located after the provisions addressing the selection of the arbitrator.

[00:16:47] Speaker 02:
So the structure of the agreement demonstrates that the four-month deadline is intended to apply even after the arbitrator has been selected.

[00:16:55] Speaker 03:
Let me ask you a question.

[00:16:57] Speaker 03:
two different questions.

[00:16:58] Speaker 03:
One is that you suggested upfront that you inserted that this was the union's fault, that the union somehow acted in a dilatory fashion.

[00:17:08] Speaker 03:
I read the arbitrator as saying, no, the contract is clear and unambiguous.

[00:17:13] Speaker 03:
I'm going to enforce this irrespective of whether the parties were diligent or not.

[00:17:19] Speaker 03:
Right?

[00:17:20] Speaker 03:
I mean, isn't that your reading of the arbitrator?

[00:17:22] Speaker 02:
The arbitrator said that, then the arbitrator went on to make a finding of fact that here, the union... Yeah, but isn't that odd?

[00:17:29] Speaker 03:
I mean, I agree with you.

[00:17:30] Speaker 03:
He seems to say the contract requires that the contract is an ambiguous end of story, and then he has this odd sentence which says more important.

[00:17:38] Speaker 03:
So it seems like he thought this was an important factor.

[00:17:41] Speaker 03:
There is ample evidence in the record, although none is required contractually.

[00:17:48] Speaker 03:
So do you think the standard is you do the contract but it requires that you also, the contract is clear but it also requires a finding that the union acted in a debilatory fashion?

[00:18:02] Speaker 02:
I think the question is based on the language.

[00:18:07] Speaker 02:
The only reason to extend the deadline according to the party's own agreement is if the parties mutually consent.

[00:18:15] Speaker 02:
So that's an easy, straightforward question in a case like this one where there was no extension requested by the union.

[00:18:23] Speaker 02:
So that's not an issue here.

[00:18:24] Speaker 02:
So the mandatory language apply.

[00:18:25] Speaker 00:
But in a similar provision governing an agency, it wouldn't be more than a housekeeping rule.

[00:18:33] Speaker 00:
It would be merely a goal.

[00:18:36] Speaker 00:
as the handbook says, why should we construe this contract as having this draconian consequence that even though the arbitrator had the case in time to make a decision, the employee loses?

[00:18:48] Speaker 02:
The reason is that the hallmark of arbitration is that the parties can agree on what procedures will apply.

[00:18:54] Speaker 00:
But they didn't agree that the employee would lose after four months.

[00:18:58] Speaker 00:
It doesn't say that.

[00:18:59] Speaker 02:
They clearly intended for there to be a consequence for the failure to meet

[00:19:04] Speaker 02:
the four-month deadline because otherwise the agency would be in an extremely difficult position.

[00:19:10] Speaker 02:
If contrary to the agency's practice, since at least September 2008, if we're assuming that the four-month deadline does not require cancellation of the arbitration if it's not met, then the agency would be in the position

[00:19:26] Speaker 02:
of having to wait and divine or speculate how much of a delay is long enough before it can terminate an arbitration based on- Okay, so what are the consequences?

[00:19:36] Speaker 03:
If that's true, if that's correct, Judge Still pointed out that the contract, the parties also agreed that the arbitrator will issue his decision or her decision within 30 days.

[00:19:47] Speaker 03:
What are the consequences if the arbitrator does not meet that 30 day deadline?

[00:19:52] Speaker 03:
Is your view that the employee automatically loses?

[00:19:55] Speaker 03:
because the union contracted to have it come within 30 days?

[00:19:58] Speaker 03:
Who suffers from the breach of that provision?

[00:20:00] Speaker 02:
No, I think that Mr. Landon addressed that this could be a matter that could go up to FMCS.

[00:20:06] Speaker 02:
The arbitrator must essentially, in order to be paid for the arbitration, must hold the hearing.

[00:20:12] Speaker 02:
The arbitrator is paid for his or her services.

[00:20:14] Speaker 02:
It's also a different provision because there's no... The fact that the party's mutual agreement is required to extend the four-month deadline

[00:20:22] Speaker 02:
demonstrates that it is intended to have some meaning.

[00:20:26] Speaker 02:
By saying when the provision can be extended, impliedly, it otherwise cannot be extended.

[00:20:32] Speaker 00:
So is the answer the employee does not lose if the arbitrator takes more than 30 days?

[00:20:38] Speaker 02:
I think the answer would be in the 30-day provision that the arbitrator would not lose.

[00:20:42] Speaker 02:
So the employee would not lose.

[00:20:46] Speaker 03:
We still haven't gotten a firm answer, but let's assume that the factor

[00:20:51] Speaker 03:
of the arbitrators finding that the union was the primary and direct cause for the failure of the parties to meet the four month requirement is something that is important to the decision and even necessary.

[00:21:05] Speaker 03:
As you pointed out, I think, or somebody pointed out, the largest chunk of so-called delay in this instance was in the selection of the arbitrator, right?

[00:21:14] Speaker 03:
Is that the 42 days?

[00:21:15] Speaker 03:
What was the 42 days?

[00:21:17] Speaker 02:
Well, the six weeks was the initial period.

[00:21:20] Speaker 03:
Where the union requested and received a panel of arbitrators.

[00:21:23] Speaker 03:
So that's the largest portion we can appoint to where the union delays, right?

[00:21:28] Speaker 03:
Yes.

[00:21:29] Speaker 03:
But what bothers me about that is that the contract says

[00:21:34] Speaker 03:
that either the union or the director may submit a request to FMCS for a list of the arbitrators.

[00:21:41] Speaker 03:
So if that's the case, why isn't that delay equally attributable to the government as it is to the union?

[00:21:52] Speaker 03:
It's not the union who's primarily responsible for that.

[00:21:55] Speaker 03:
At least jointly, both the government and the union are responsible, right?

[00:21:59] Speaker 02:
The reason why the provision refers to both parties is that both parties may be

[00:22:04] Speaker 02:
may have initiated the arbitration.

[00:22:06] Speaker 02:
The longstanding practice is that it is the movement that is responsible for advancing the grievance through the arbitration process.

[00:22:15] Speaker 02:
That makes sense because many of these arbitrations are initiated by the union, perhaps in order to preserve rights, and may be ultimately abandoned.

[00:22:26] Speaker 02:
It would make little sense to require the agency to advance the union

[00:22:31] Speaker 02:
grievance through the steps of arbitration, it would essentially be requiring the agency to guess or speculate about whether the union isn't acting because they choose to abandon this matter or they're simply delaying.

[00:22:44] Speaker 04:
Where is that an agreement?

[00:22:45] Speaker 04:
Where is that an agreement that you're drawing that from?

[00:22:48] Speaker 04:
Because the agreement specifically says that either the agency or the union can take this step.

[00:22:53] Speaker 04:
So where is it that you're coming up with the argument that it's actually the grievance duty to do this?

[00:23:00] Speaker 02:
Well, I'm making an argument based on the party's past practice.

[00:23:06] Speaker 00:
How do we know that that's the past practice?

[00:23:08] Speaker 02:
Well, we see in the letters, the past letters from the agency in which when the union, as the movement, has failed to advance through the steps as required by the four-month deadline, the agency then invokes the four-month provision.

[00:23:22] Speaker 02:
And the union has apparently acquiesced in this practice.

[00:23:25] Speaker 02:
Certainly, there's nothing in this record to suggest to the contrary.

[00:23:28] Speaker 02:
And the arbitrator noted in his decision that if this were the reverse situation where it was an agency's grievance and the agency had failed to properly advance it, then the union would be able to benefit from the four-month provision in the same manner.

[00:23:46] Speaker 00:
None of these past cases, the eight or 10 of them, involved a situation where an arbitrator was appointed in time to hold the hearing, right?

[00:23:54] Speaker 02:
Yes, but in the material respects, according to the four-month deadline, they are the same because in each of these letters, the agency stated that the reason for terminating grievance was because the hearing had not occurred within the four-month deadline.

[00:24:08] Speaker 02:
And the same is true here.

[00:24:09] Speaker 02:
The hearing did not occur.

[00:24:10] Speaker 00:
And to say that, again, to say otherwise would essentially... But I don't know why we should necessarily interpret those cases as

[00:24:18] Speaker 00:
uh... applying that past practices applying the situation where an arbitrator was appointed in time to have a hearing because of the language of the party's agreement requires that and that mr muller's argument it doesn't require it unlike the the uh... the supreme court cases the supreme court has said again and again and again if there is a time limit unless the agreement unless the uh... statute specifically provides a consequence

[00:24:47] Speaker 00:
for the failure to meet the time limit, the time limit has no effect.

[00:24:53] Speaker 02:
But the past practice demonstrates that the parties have used the four-month deadline to terminate the grievance.

[00:25:04] Speaker 02:
So there's the consequence.

[00:25:05] Speaker 02:
And the problem with Mr. Mueller's argument that he provides no text-based reason why that same consequence should not apply when nearly one more incremental step has passed.

[00:25:15] Speaker 02:
But the material deadline, which is the hearing, has still not occurred.

[00:25:20] Speaker 02:
So the past practice is relevant for providing that very consequence to the extent that it's not clear based on the agreement.

[00:25:28] Speaker 02:
Notably, section nine of the arbitration

[00:25:32] Speaker 02:
The negotiated grievance procedure, which is at JA 42 and immediately precedes Section 10, provides that the consequences of failing to satisfy this.

[00:25:42] Speaker 02:
So if, I think my time is almost up.

[00:25:45] Speaker 02:
May I finish this thought?

[00:25:45] Speaker 04:
I have a question for you, which is the standard of, not the standard of review, but is this a question of law or a question of fact?

[00:25:50] Speaker 04:
How to interpret section four, section 10-4 of the rule?

[00:25:53] Speaker 02:
This court, in cases like Garcia and Applebury, has said that interpreting a collective bargaining agreement is a question of law.

[00:26:02] Speaker 02:
I think that the question of if there were an ambiguity, that may be a different issue.

[00:26:07] Speaker 02:
But here, the arbitrator said that this was clear and ambiguous.

[00:26:12] Speaker 03:
The problem, let me just ask you one further question, which is the problem with section nine, which I understand.

[00:26:17] Speaker 03:
You look at section nine and you say your argument was going to be the parties agree they will handle stuff in an expeditious manner and abide by the time limits.

[00:26:26] Speaker 03:
Well, what about the second sentence of that section, which says if these time limits are not met, the grievance will move to the next step as provided in section 10 of this article.

[00:26:35] Speaker 03:
Doesn't that lend support to what Judge Dyke was saying was that

[00:26:40] Speaker 03:
This is an example where the parties articulated what the consequence of not meeting the timeframe is, which they failed to do with respect to the four months deadline.

[00:26:51] Speaker 02:
Well, actually, that's actually precisely the sentence I was hoping to address.

[00:26:58] Speaker 02:
This provision essentially says that the event associated with the time limit won't occur and the parties will instead move to the next step.

[00:27:06] Speaker 02:
of the procedure in section 10.

[00:27:08] Speaker 02:
So the four-month deadline appears in section 10.

[00:27:11] Speaker 02:
It's the terminal subsection of section 10.

[00:27:15] Speaker 02:
It's the final part of step four.

[00:27:18] Speaker 02:
So applying this sentence to the four-month deadline, when the four months passes without the hearing, the hearing can no longer occur.

[00:27:26] Speaker 02:
And because this is the last matter that can occur in the four-step process,

[00:27:32] Speaker 02:
Therefore, the arbitrator properly canceled the arbitration.

[00:27:36] Speaker 02:
There's no further step to proceed to.

[00:27:41] Speaker 02:
And indeed, the very next paragraph in section A of section 11 says that the arbitrator can decide arbitrability.

[00:27:49] Speaker 02:
So the arbitrator properly did so in this case, and we respectfully request that the court affirms his decision.

[00:27:55] Speaker 02:
Thank you.

[00:28:03] Speaker 03:
Mr. Landon, you have a few minutes remain.

[00:28:09] Speaker 01:
Yes.

[00:28:09] Speaker 01:
The facts are simple.

[00:28:12] Speaker 01:
FMCS was notified on May 9th.

[00:28:16] Speaker 01:
They did not inform the arbitrator of his appointment until May 29th.

[00:28:23] Speaker 01:
The arbitrator never contacted the parties until June the 9th.

[00:28:29] Speaker 01:
Within that period of time, I agreed

[00:28:32] Speaker 01:
It was his honor that a hearing could have been held.

[00:28:40] Speaker 01:
Additionally, some credence has to be given to the significance of the FMCS regulation that places the conduct of hearing

[00:29:03] Speaker 01:
within the province of the arbitrator.

[00:29:07] Speaker 01:
The arbitrator takes no responsibility for the delay.

[00:29:11] Speaker 01:
He says that FMCS is not responsible for the delay.

[00:29:16] Speaker 01:
But there was ample time to have a hearing.

[00:29:20] Speaker 01:
And he could have determined that there should be a hearing on the merits.

[00:29:28] Speaker 01:
I'd like to correct the record.

[00:29:32] Speaker 01:
In the brief for the respondent at Page 5, it says on April 24, 2014, the GPO followed up with the union, inquiring about the union's third strike.

[00:29:50] Speaker 01:
Council for the union quickly responded, noting he had an emergency that he attended to.

[00:29:59] Speaker 01:
That's totally incorrect, because

[00:30:02] Speaker 01:
They rely on appendix four.

[00:30:06] Speaker 01:
And if you examine appendix four, the arbitrator didn't say council.

[00:30:12] Speaker 01:
He said the union representative quickly responded.

[00:30:17] Speaker 01:
I've been the only council for the union over the last two and a half years.

[00:30:25] Speaker 01:
But I don't want to take credit for something that I did not do.

[00:30:31] Speaker 03:
Thank you.

[00:30:32] Speaker 03:
All right.

[00:30:33] Speaker 03:
Thank you.

[00:30:33] Speaker 03:
We thank both parties, and the case is submitted.

[00:30:36] Speaker 03:
We'll take a brief recess.

[00:30:39] Speaker 01:
All rise.

[00:30:41] Speaker 01:
The court will take a short recess.