number fourteen do if it's three zero perry hollingsworth versus ford motor company and u a w local six hundred argument not to exceed fifteen minutes for the plaintiff and fifteen minutes to be shared by the defendant mr  you know just to get one thing out of the way here on the issue of  consider that issue either way though forfeited because there was no developed argumentation about that in the brief what do you what do you have to say about that your honor the timeliness of the instant it was brought before the district court previously during up ford motor company initial motion for judgment the pleadings which was then converted to a motion for summary judgment and the district court did find that there was a genuine issue material fact regarding when our client istra hollingsworth would have or did reasonably become aware that u a w local six hundred was not going to commit any further investigations or file a grievance on his behalf regarding the sums and issue and that was put in the district courts december thirtieth opinions i do believe that  i ask you a question about so there was you're saying that there is a material issue of fact as to whether he knew or hid of now that he should have filed a claim sooner correct that is simplify it  and does that come down under the cloak of bargaining agreement to whether he asked for a grievance to be filed honest be happy and if so does that also go to the duty of representation they are related issues your honor what it does come down to is as far as the statue of haitians go it's not just his request that you would be local six hundred file a with repeatedly represented to mr allen is worth that he was looking into the matter and trying to find a solution as to why ford made the deductions that it did and during this time mr hollingsworth had requested that agreements be filed received the third check the third and final check was not received until april sixth of two thousand and eleven the right after he received did he ask that agreements be filed on his behalf yes because i looked at that deposition testimony and it was a little i'm clear but if that's the case and he asked and that a grievance be potholed then why wouldn't he be on notice under the collective bargaining agreement and this court's precedent in robinson that he should have followed a lawsuit within six months of that and if the flipside is true and he didn't ask that a grievance be filed then how could you a w violate their duty of fair representation in other words if it goes back doesn't he lose one way or the other is that question makes sense i believe does your honor and i'll try to answer that to the best i can the issue with the statue of limitations isn't just when did mr hollingsworth request that a grievance be filed it also goes to when would he have been on notice that one was not going to be filed and during this one and a half year period in between his first request and when the lawsuit was actually filed mr hollingsworth was continuously in contact with anthony richard who repeatedly advised him he was still investigating he was still trying to follow up with ford on why the deductions were made and at no point did anthony richard advise mr hollingsworth that a grievance would not be filed wasn't that wasn't there a time limit for when an ad to be filed no on of the bargaining agreement there is a time limit as to when the grievance needs to be filed and that then if the if that's the case and if it had to be filed by a certain date under the under the or by a certain time under the c b s then why would the failure to file it by that time trigger the statue of limitations well and that is when we find the breach by u a w local six hundred of that duty of fair representation their failure to file their grievance their failure to advise mr hollingsworth of this deadline in their container representation of they're going to look into this are going to do something about to be on notice of what the deadlines are in the coming to an environment in the c a i'm not aware the mr hollingsworth directly knew when those deadline was my question shouldn't he be aware i mean shouldn't he be attributed to know what's in the c b a i believe mr hollingsworth can deadline it's under the president of this court and maybe every circuit in the country and the robinson cases in particular isn't he tasked with knowing in other words to judge rogers question don't we presume he knows  under this court's precedent so that he's back now and by that is that question makes it does your honor i believe the ultimate question though isn't as far as the statue of limitations for this claim at issue goes it's not just when should advising mr hollingsworth that he is continuing his investigation and looking into why these deductions were made over this one and a half year period what is there a time limit in the c b s as to when you can file in other words to dead riders question is there you get six months from that incident or can you file it forever in other words he's saying he's looking into it is there some time limit that the let's assume they were representing him how soon after the grievance do they have to file after the incident do they the statute of limitation and that's where it was left at the district court and then on appeal to the of the parties and of course we're not bound by that we could proceed to rule on the statue of limitations issue of dress the issue and not address the issue where were you coming out on that an argument which is it's not been raised by either defendant in the past is not been raised at the district court level and so what argument i'm sorry i that's right it was raised at the district court we just went over that but it wasn't briefed here other than u a w i think in page twenty nine of their brief saying the statute of limitations and so judge place question is should we address it when the parties haven't even spent the time to brief it for us in other words i threw the robinson case at you where you had no notice from the other side that that is correct your honor and i do believe it is the the pallies burden to carry their case here and to provide their own and i don't know what the laws in this i don't know if you do that no matter what if there is a scenario under which no matter what you lose in other words there's a material issue a fact is the statue of limitations and there's a material issue a fact as to the duty of fair representation and if you ask them to file a grievance then you violate been you lose under the statute of limitations any if you did it then you lose under the duty of fair or presentation b does that question make sense it does make sense your honor and i think the best way i also need to look to the representation is made by u a w local six hundred and i believe there can be some argument there that their continued representation would at the very least toll the statute of limitations and to will it becomes clear that he's made aware that a grievance is not being filed the periods right if you accept the robinson case the published precedent of this court then it's not relevant whether they made him aware right just except for the sake of argument i know you haven't had a fair chance to look at it but except for the sake of argument that he hat he is vested with knowing the contents of the clock the bargaining agreement then at their respective what they told him if he asked agreement to be filed you raised some substantial arguments on the on the as to why the district court may have been wrong for the reasons it gave right off oftentimes when there is an alternative way to appeal to affirm we have it within our jurisdiction to affirm on alternative grounds so long as they've been presented below sometimes maybe if they haven't but here it was presented  if if we were inclined to consider doing that and i correct that you would prefer to have the chance to brief that issue before we did so that that is correct your honor thank you my name is james there and terry and i represent u a w local six hundred the circumstances that bring this case before you today and i think you highlighted  significant issue that all that although recognized in the district court's opinion as one of the bases that we sought a motion for summary disposition was never discussed in your breaks in our brief that came before were why didn't you wave it we were dealing with requesting that this court affirmed the decision without the necessity of even getting to the time bar issues that we raise ok so let's say we don't get if we don't if if we don't feel like we can a far cry absent the statute of limitations shall we do so on that ground where you haven't even breached it given the other side notice cited any cases develop the argument or done anything i think they're well aware of the well aware of the time but issue they have they have i think you posed the best question that could be posed and judge rogers and you can affirm an alternate basis and taking notice of the facts would we prefer to have briefed yes where we seeking a strategic position to say it didn't  that position was the choice that we would have probably wanted to brief that we had hoped that maybe the district court would have at least have some discussion yes and that the district court it discussion as your opponent pointed out the district court denied it and said there was a material issue of fact that was that was right after there was right after the case had been filed before any type of discovery had taken place the representation made by opposing counsel is not accurate explain that to me so was it briefed in the district court was that your limitations question was was briefed in the district court at the time we filed our motion for summary disposition and did the district court to deny summary judgment and say there was a material  not when we filed our brief in motion for summary disposition that was ford motor company motion on the pleadings alone that it was time bar we then entered into discovery and after considerable discovery clothing expens to sound as though the judge initially ruled upon the issue and then forward filed a motion addressing the issue and that motion then was my my recollection is that the motion was strictly on the issue of the pleadings the pleadings standing alone would have been time bar and at that point the judge basically did not rule on the issue and allowed the matter to can continue through  the rather large determination was whether it was a hybrid case of whether to preempt the state issues that was that was pretty much what the judge was ealing with that at that first motion on the what is the time limit under which the plaintiff would have had to file a grievance is there a time limit say this first the there is no provision in the collective bargaining agreement that allows for a retiree to file a grievance as far as a time limit for an action that would violate the collective bargaining agreement there's a fifteen day limitation on acts of betting that a person know there's a thirty day policy grievance a time limit for good that has to be filed all of which in this particular case was never it was never filed and one thing i want to make clear tony richard said clearly in this testimony and we cited in our brief he was never asked the file a grievance remember the gentleman mr hollingsworth would see him come to the local regularly for retiree meetings and i think that's an issue a factor i could hollingsworth says he did in his deposition clearly and i know you cite some testimony where he's equivocal but at one point he says he did i agree but i don't think it's a question of fact he's charged with the responsibility as you say to robinson to know what the time limits are he did nothing in writing we know that and i asked him those questions on several occasions he did nothing in writing his charge with that responsibility and i don't think there's a circuit in the country that doesn't adhere to that rule your honor to the grievance for us there are cases that allow for where you see the union has filed a lawsuit involving retiring benefits or in  case of a new ities that were supposed to be supplied by a company and lure of retirement benefits that's where litigation took place not a grievance procedure litigation where the union filed a lawsuit based upon a breach of as to the other two checks he's a retired so when he's a discharged employee in other words he negotiated through the union a discharge correct a grievance and he got the twenty thousand for that one payment of twenty thousand dollars this was filed requesting among other things reinstatement which did not occur and i think i should be able to give you the setting of that well they reinstated him i thought for the limited basis of letting him retire know to qualify for the sri a k special retirement and set a program that was initiated the previous spring not to retire he had the opportunity but under republican steele doesn't the union have an obligation to represent a discharged employee that negotiates a negotiate a settlement this case is exactly what i'm curious to know your yes or no answer to that  republic steel i don't think it's what we did in this particular case with consistent with us what's the answer then yes or no i don't think i have a yes or no for that maybe i misunderstood the question  ch stated again yes again a yes or no answer to under republic steel does the union have an obligation to represent a discharged employee versus a retiree in that negotiation you're asking me if the proposition as it relates to this particular case or whether the republic stands for that proposition i agree the republic stands for a prop as that proposition you do yes and so when he negotiated the twenty thousand dollar grievance that had nothing to do with his status as a retiree and if they breached that why don't why doesn't the union have a duty to represent him on that he didn't breach it that's the issue who really did breach it well they took his credit card payments out of it the he took the fact and i think we have to take pick note of the fact that when he came to that point in time of august when this resolution there's that was overwhelming facts th justify terminations that he would not get his job back because of the fast that was invoke a and so there was a settlement that that right they seemed you were grievance issue was settled in the exhibit that was posed or that the document that reflects that and it says this settles all issues this is a dispute that you're describing over the scope of the settlement you say the settlement said one thing and they said the settlement said something else all of the settlement said about at the time that this resolution occurred we were completely unaware that there was any check os that he was paying back forward for money he owed them previously completely unaware and any and he even know it until they started taking money because the settlement agreement didn't make clear that those deductions would be may know what it does inform a complete settlement of this grievance that's all it talks about is this green with but if there were deductions going to be made from the gross amounts pursuant to the settlement agreement those were not delineated in those settlement in the settlement agreement papers because they were to be the directions from the settlement amounts and could of those they that in the settlement agreement not when we're deciding on whether or not to member who's going to get his job back versus negotiating a deal that put sixty thousand dollars in his pocket that allowed him to be reinstated for the singular purpose of qualifying for the special retirement incentives that occurred during the spring and the the actual agreement i agree with judge clay hold on if there is an it you're saying he was fired let's just use the word fired fired for that right and part of the theft was the credit card correct art of it yet and so he says i'm negotiate a full incomplete settlement you let me go reinstate me obviously for retirement let me go and you pay me twenty thousand dollars right if they were going to take if they were counting for the theft why not deduct that from the twenty thousand why give him the twenty thousand then take it back and go up like i'm going to let ford discuss that part of it but i do want to answer this and in this context that the issue as it relates to the settlement and the settlement amount was the go shade of the in his best interest in terms of the duty in the responsibilities we had to do and the fact of the matter is is that he had received the word technical issues that occurred in the county he had received payments when he should have received payments he was place of an active status when he was already there with a credit card debt right i understand what you're talking about with regards to his children and things like that with regards to the credit card debt that is the exact thing that was ed issue when he was let go and they negotiated a full and complete settlement of that if we can't figure it out because it could go either way isn't that a question for the jury we don't need to figure out the answer we just need to if we can't figure it out isn't it a jury question i think it's an issue between mr hollingsworth and ford motor company in terms of money that he took that he they wanted to get reimbursement for i think that says his  cause of action if there is a cause of action is between him and ford motor co and if we find you had a duty to represent him on that and didn't then he's got you in the crosshairs too right he's had some of the cross hairs and but there's no basis for discharge oh i said if we find you have a duty of representation and there's a material issue of fact then you're in it is well it's true ok thank you thank you the credit card that was not the reason for his terminations the reason for his terminations was that an audit found that in the last two years but he was at the s thomas plant assigned as a quality rob he submitted over ten thousand dollars in fraudulent duplicate cash receipts that's entirely separate from the credit card debt the credit card that an employee with a credit card which he denied he had other he did submit some visa receipt but the credit card when an employee has to forward credit card they have an agreement with the credit card company and that agreement says that they're responsible for any personal charges that they are obligated to pay any personal charges they have an agreement with the credit card company they sign an agreement it's with the credit card companies it in is it a ford credit card company or someone else it's it's citibank or ok so why isn't this dispute then why are you taking money for citibank why isn't citibank going after him because citibank goes after ford when the employee doesn't pay but but it's not on their ford credit card are not discharged for that they're given the opportunity to repay it they're expect to repay it and under the agreement they're required to repay it so he wasn't discharged because he made personal charges on the credit card he was discharged for the fraudulent duplicate cash receipts and he talked about the cash receipts in the grievance that's what the grievance said i didn't misuse company funds because i submitted all my travel expense reports my ters and i have submitted all my cash receipts and so and my supervisor approve them his supervisor was also discharged so it's incorrect to say that that's what the grievance was about the grievance the terminations was based on his fraudulent submission of duplicate cash receipts but he challenged whether there were such that there was such a project submission duplicate cash receipts etc right you did and if he was right he probably which you would say wasn't right but if he was right they wouldn't have been able to take that money back from him right they didn't take the money back for the new put that receipt the money was only for the credit card with only the credit card  man did a couple of things yes it resolved the discharge grievance and it at as a result of it it not only said he would receive twenty thousand the plaintiff with back payments for things that should have been settled for the lease that's what he would claim because you had a full and complete settlement for the pertaining to the  you could do that how do you respond to that part of the agreement in addition to negotiating the fact that he would ultimately receive sixty thousand that's correct he back dated the releases that entitled him to the other forty thousand dollars because that was the period of time that settlement package was offered back in the spring of two thousand and ten so he had t releases to i think sometime in may of two thousand and ten because that's when the package had been made available it was no longer available at the time he signed actually signed the documents ok ok so so for its position is that the settlement the grievance settlement incorporates the other documents at references which certainly the reason for the quote that part of the deduction in the third check was not supported in the in the grievance right it's related to credit card debt and the and the grievance related to whether he had done something else it was financially correct and the right you are right that the grievance supplement itself without incorporating in the other documents that he signed in order to receive forty thousand additional dollars  i guess what i want to ask is let's say you enter into a a an agreement that says you are get twenty thousand dollars all right and then go away all right and for some reason that relates to that doesn't relate to the grievance that doesn't relate to retirement benefits that's just out of the blue wrong they don't include five thousand dollars in the check it's not wrong because of something in the grievance it's just wrong it's alice in wonderland wrong ok why is that why is a grievance with respect to that failure to pay the amount that you settled for not part of the settlement aspect and not related and instead not related to retirement benefits doesn't have anything to do with retirement benefits right it just has to do with whether he's getting his settlement what does it matter what reason they claim he's not getting a settlement money he says you didn't give me my settlement money that settlement money i want my settlement money under these cases i don't see why that's why that's something the union should represent in my union negotiated this settlement he's claims he's not getting it for whatever reason that relates to whether he's getting a similar money or  not mr hollingsworth did not hesitate to call ford motor company more than a year after he received the last of his tax and say to them i lost my third check would you reassure that's what ford would have expected him to do they would have expected him to call them they got he's retiring now they've got departments dedicated to dealing with retirees i guess i don't see how that's answering my question let me make it an hypothetical question ok you settle you say i'll quit pay me twenty thousand dollars that's the agreement it settles whatever it settles ok that's negotiated by the union right ok ok in my hypothetical now when they get the check it only has fifteen thousand in it with a with an asterisk this is been removed because it's it's mother's day ok now that that because that happens after he's retired he can't get the union to represent him and claim no you didn't pay me what you settled or yes you can get the union to go in and say you didn't pay what you negotiated for in that hypothetical i believe the union could you could you what's the difference i mean because in my hypothetical mother's day had nothing to do with the settlement it was just a wrongness but then but in this case severance payments that he agreed could be deducted i'm not talking about the severance payments i'm talking about the credit card the credit card you say is not relevant to the settlement in my hypothetical mother's day was not written relevant to the so much but you said in that circumstance the union should should go in and saying we we want them money mother's day has nothing to do with this it's not the union in this case it's forward going in and saying you as this money i told to take it by virtue of what he signed in connection with his severance are you are you saying look irrespective of what the union did or didn't do that's his beef with the union but we were guards to ford we did everything we were obligated to do that in essence yes let's assume you didn't just for the sake of argument to judge rogers point it and i want to just twist it when with the statute of limitations or did he see you for breach of contract  time does he have six months right six months is the statute of limitations against you contingent on what happened with the union or does it run from the date he got the check  runs from the data gets the check and so it's just if you could explain to us why the district court what happened with your motion to dismiss on statute of limitations ground or judgement on the preempted right and dismissed that claim and he ruled that we had submitted and it's it's in the appendix but we submitted an affidavit that attached the provisions of the collective bargaining agreement that talked about how long a grievance how long how soon a grievance has to be filed and he said in the state of the record as it was which was as mr android pointed out it was the very beginning of the litigation he said he couldn't make a determination as to whether there was a statute of limitations issue and discovery should occur on that issue so he never ruled on it so he never ruled on it and history and barry on behalf of local six hundred made the argument and their subsequent motion for summary judgment he didn't rule on that issue either but he ruled in your favor for other grounds he he ruled in the end he ruled in your favor completely on other grounds on other grounds because you have a yes right yes deductions are for mr richard acknowledged that ever walked handed him printouts that identified the codes in the amounts some of the codes he recognizes sub pay i'm sorry right he didn't so the settlement had already been entered into when he was told what the actions would be right and he got the last of the three checks and that's when he says he went to mr richard and mr richard agrees yes he came to me was that he believed that if mr hollingsworth wanted more information he'd go to focus he never came to us and he never even he never even asked for it when he called over a year  need that check reissued he was talking to the person who could tell him but he didn't say it by the way what were the deductions for and that was more than a year after he received the check is it true that the deductions in the in the third check related to credit card which was not at issue in the grievance i believe the answer to that your honor would be yes based on the language in the grievance itself yes thank you thank you just a few points that i would like to make the first regarding the deductions and whether or not they are resolved by the reagan settlement under any circumstance the amounts that were d ducted particularly those amounts that were deducted from the third green selman check those are disputed ford did not provide any reasonable circumstance regardless knew in april two thousand and eleven that they took deductions when he received the three thousand dollars check or whatever was right that is correct why didn't the statue of limitations as to afford start running  the statue of limitations for the l m r a claim yes as to ford because of that point he was still pursuing the internal remedy through the union ok so  whole thing links to the union even for the company it links to the union correct it does your honor under the hybrid three a one claim the ok now the second point i would like to make in there is a large portion of the richards deposition testimony which is quoted in our brief on pages and i really want other question related to judge roger's question i'm sorry to interrupt you is the grievance settlement said this right i also understand that this payment will be reduced by my outstanding debts to the company i'm sorry ron are you referring to the grievance settlement or the special retirement incentive i thought it was the agreement settlement but cracked me if i'm wrong it's not it's just the settlement is there i do not believe the grievance settlement itself which is a one page document i do not believe that contains any provisions permitting a deduction for these amounts that are at issue here you have forged brief in front of you i do not have it in front of me i have to make my take is they said but hollingsworth ignores the actual words of the document which state in the third bullet on page is on page twenty one of their brief is i also understand that this payment will be reduced by my and then they say you are fifty one dash twelve which they say is the grievance settlement here you are now are exhibits don't quite match up so i'm not sure which page id number they're referring to i don't have that in front of me but it was page idea levon seventy five to seventy seven minutes with a side so that's what i looked up that's what i separate documents marked as page one of one and one of two and two of two are somehow incorporated into the one page selman itself now the green selman does not contain any language several there are even circumstances where he could have elected no special retirement incentive so i believe this conflation by ford of including the terms in the special retirement incentive and somehow applying those to the grievance settlement check which is completely separate that's inappropriate and can further reply that pages eleven and twelve our reply brief we do address that specifically and outline the specific terms communications with walk there's a large portion of anthony richard's deposition testimony which is quoted in our principal brief on pages thirty through thirty two which shows i can just go right through no question did eval walk in fact get you an answer answer no question did you ever receive an answer from level walk no i didn't were you updating this or hollingsworth during these conversations eventually he would call or i would see him in a social gathering but did you ever get this wrong for if an answer the answer is no whatever communications in three richard may or may not have had to have a walk this was not communicated to mr hollingsworth