of material fact in that case on or should obtain a jury trial on that this case is a case about to a union worker key saunders we have a lot going on in this case the first issue is he still work at the company he's still working at the company i talked to him yesterday he is back in the brooks hospital for stress and anxiety and the litigation and other workplace issues continue to exasperate his conditions we have continued to reach out to ford trying to get this resolved trying to get him back home in minnesota where he needs to be with his family so that's his current situation and he will continue to be employed there for the next seventeen years unless we can reach an agreement in the near future i'm afraid the only way to do that is a reversal on remand in a jury trial three days five days let a unanimous jury decide whether he was discriminated for fallen workers comp claim whether he was discriminated by having his arm astroid by a machine that ford had in their plant back in two thousand and one these are the type of the issues that we believe a jury should hear now to get to that we have to address the labor management relations act and whether there was a breach of the collective bargaining agreement c b a whether he was placed on no work available in w a improperly whether that  o agreement was breached when he tried to be gainfully employed in an area which they had a duty under collective bargaining agreement to place him to the next component of that would be whether the union failed him in some way clear that we did not have to sue both the union and ford motor company to bring a claim under those acts and if you start looking at the procedural history you'll notice that the keys on his first try to get this case out of the federal courts we tried to appeal to kentucky employment discrimination cases we find that usually they go up on a rule twelve motion to dismiss you have this new plausibility standard and so for you know every action there's an equal and opposite reaction you start getting fifty page complaints you start having  yes against a union well it was against ford and we did not see the union we tried to use this union toward vantage by having them on our side explaining to them that this would be in the benefit of the union if we get key saunters a jury trial what the union did arbitrary bad faith me what exact what's your best point on that front is that it was against a legitimate union objectives by not filing his grievance within five months letting it letting the police have an argument that that it was time barred that they did not have a legitimate union objective to do that they let it sit from december twenty third team told may two thousand and fourteen before they file the agreements which the record reflect testimony just make sure i'm not losing track of a case is just the one where they they've already pursued a couple levels and then didn't pursue it any more well there were union the grievances filed that did make it to to believe two levels and he keeps on or said to you two grievances in this case obviously i can i guess the point i'm making is that doesn't sound like a union that's discriminating against someone or acting arbitrarily they're they're pursuing it just because you start pursuing something doesn't mean you have to pursue it all the way to the end right i mean sometimes people shouldn't appeal because it's just not a strong claim sure and to that in i would suggest to the court that the grievance in question that did not make it past a level two was for a variety of people a variety of employees that were no work available it was not key saunders alone that was in that grievance so what does that just explain what that means why how does that help you how does it help us it helps us because for example perhaps there was other no work available employees that had in place in what for call to drive program maybe there was no need to take the grievance any further simply for ok now piece owners had a second grievance in december twenty third team his sole and only grievance which was for key saunders alone that set dormitory empty for from december until may twenty fourth when they thought they'd be resigning as the union filed for mr saunders over the course of his career how many park at roughly ballpark i believe that it's under ten i did i came in the case in the year two thousand and fourteen you know he's been working there since two not use non meritorious and not pursue it on that basis i don't believe so i believe that any any person that pays a union dues that has a problem or a grievance is entitled to file a grievance in that it is mandatory that the union does something with it and not put in their desk drawer and wait five months i do believe that because saunders is a union member he pays his duties and he i don't know that you're answering  question i think what she's saying is doesn't the union you know has an obligation every time they hear from a member that there's a problem they're being discriminated against whatever to investigate and if it's colorable pursue it but isn't the implication of that that they have the right from time to time to say ok we hear what you're saying but we really don't think you the c b a gives you a viable cause of action they can do that sometimes right well i abstract not as to this case but in the abstract they can do that right so a local level bargain or can make that determination i would disagree with that i believe that they have a duty to file the grievance and if it gets dismissed by a border what if it's just foolish and what if it's a crazy complaint they stuff the fi yes i believe so he's going to member comes in and says a martian just landed on my work site made me do something that and he says file a complaint about the martian they have to do that i believe they have to do that in they should  in this in and get him some medical treatment under his rights under the collective bargaining agreement which paid into that supports your position i believe the case law accords the union the responsibility of representing the entire unit but that they are members of the union or not and pursuing those things that that have some wouldn't that also be because a union member has a right under the union constitution to challenge a unions refusal to process his grievance and he does the bat through through complaint internal union remedies did your client pursue any of his internal union remedies yes he tried to pursue his union remit is we do have to grievances that we're in i don't know if it's it's a confusing a understand but there are contractual remedies with the employer and the union those are grievances that gets filed there are internal union remedies between a union member and his or her own union and the constitution the law suggests that if a member is unhappy with the union's refusal to further process his grievance then he or she has the responsibility to raise that issue and i thought the record said that mr saunders had met with the union representative about the end klein but that he had never again followed up with the union representative concerning that complaint isn't that what the record reflects i believe the key saunders testimony reflected that he continued to try to talk to union members and he continued to try to work with ford directly so in his day to day employment his his number one question is does the record reflect mr saunders testimony that after he met with the union representative about the  potential grievance that he never again spoke with a union representative about that grievance minder standing is that what the record reflects and if it's my understanding is that in december twenty look at to the context where he was was in medical treatment he very well could be this this case is yeah but but your answer is there's nothing in the record the reflecting checked with his union representative in that five month period well i would believe my answer to that your honor is that the very well is information in the record that he did follow up i believe that is testimony would be that he continued to call in ask around and continue to stop at the the local union shop which is close to the plants the money would be used are you referring to what you think he would say in the are you referring to what he actually has said so far here and his deposition testimony was however many pages you know whether whether that's that specific line is in there i do know that the record so he hasn't yet said this in his deposition he didn't say  sit and listen to the facts and determine for themselves whether you know this person he saunters was discriminated against or retaliated against and so forth and so on but whether he followed up in this timeframe my answer that is yes that he did follow up in this timeframe and that he did continue to stop by the union office regularly to talk to them about to about union issues and grievances if the deposition in fact shows that he says he didn't do that you might have trouble with that six month statute of limitations right so if his testimony said that he did not i guess you know my retort to that would be were there it was a compound question or whether it could have been construed in different ways you know if if his testimony at his deposition is that he he he knows that he did not follow up with anyone about that well we would have to put a microscope on of that and go back a few pages go forward a few pages and essentially look at the complete to position transcript and find out exactly what he said and what he meant by what he said you know in the end those are questions those are factual issues for a jury decide you know on it and in the end that is the you know under the case all that we had in front of us is the way that it would continue to pursue think next month he's put on and a briton and you're saying that sort of the calls olenka all about putting them on and in august of two thousand and thirteen was in retaliation for him reopening his workers comp claim the month but then the fumes got him he says no i can't work there even got his own doctors private certificates i don't put my own saunders in the paint department that's what he was put on the end so i mean isn't that the reason he was put it wasn't because in retaliation for his workers comp claim reopen the month before but because he couldn't work in the paint department that ford tried to put it on them but he's also well qualified specter that they brought him in in jumped in two lines of seniority and kept them there for year why are they placed in this man who has advanced knowledge to train other people in the paint to portman where he is continually complained about issues with his with his help and what he can and cannot do it's jack to go into the paint partner at the outset at the outset done that only two times therefore the material facts fall into three narrow categories facts about the two thousand and thirteen grievance the plaintiff relies on facts about the two thousand and fourteen grievance that plaintiff relies on and facts that post date his motion to reopen his worker's agrees he's got to show both a breach of the duty of fair representation by the union and a breach of the collective bargaining agreement and he has pointed to no facts to create a question of fact for a jury for either grievance the two thousand and thirteen grievance that was filed by bergen or hibs alleging that individuals are no work available leave should have been used for a temporary drive position plaintiff has abandoned any claim based on that grievance his only reference to the two thousand is quick as far as initiating it from the initial oral discussion in advance here to a unit committee but there are several appeal processes and steps along the way there was some delay in getting the list positions for medically you know the challenge employees is only available for permanent jobs not temporary so that ford's position that's correct what basis on the record is there for the meets once a week so it's not an instant kenyan instantaneous process and then there's testimony in the record that shows you are doctoress to go out and evaluate the jobs and that can take several days so when you have a very temporary job and in this case we've got discretion felt it was most appropriate to use of vailable assemblers that are already there to fill these temporary needs and it can do that within its discretion under the collective bargaining agreement article in section twenty seven which where the collective bargaining individual could grieve on behalf of other people in the unit and that wasn't expressed expressly stated in the in the collective bargaining agreement that the court then turned to extrinsic evidence and here we have a lot of that first of all plaintiffs in his own test money says his understanding of medical placement is a permanent job and actually he complains about a job that he was removed from that he thought all this was a medical placement and so it should be permanent you've also got testimony by geoffrey margin where he fourteen when he approached burger willard burger willard filed a grievance the exact same day stated may sixteenth two thousand and fourteen on the exact same day that the plaintiff approached him now he was out on no work available  medical leave but he admits in his deposition bad there was nothing that prevented him from calling labor relations he just didn't he just didn't call but he did call the medical department so he was capable of reaching out to the company and did reach out to management but the avenue  which he needed to pursue was through the union and there's new evidence in the record just maybe i'm not getting your response a i thought the point was five months was too long a delay yes to this and i'm asking you where it was five months how was someone notified that if you wait that long i understand you're in trouble from someone know that ahead of time five months is in the time frame it's actually much shorter and so five months was just way past the deadline and if you look at the the klein he made a request of the union on december eighteenth of two thousand and thirteen to process that grievance there's no evidence in the record to that effect it's not stated in the grievance it's not in his deposition testimony he's asked about the timing problem in his deposition and what he says is i was on the outside looking in and then so there's follow up questions and it's well could you have called and he says you there's nothing that would  safe if it lays out this time rules does it have exceptions that say well if you miss the ten day one you have an exception for good cause as long as three months or so just sign it just says do this if this amount for this why any of this amount for that one and then is that how it works or does it actually have something that says if you wait later end of story or if you wait later ok as long ship good calls so there is no exception true i think that there probably would be you know exceptions that the union might make but there is no indication that any of those exceptions were pursued here for a delay months later the question is whether this implicates the duty of fair representation so the question is did he or did he not bring to a union representative in december of two thousand thirteen this klein because if he if he brings it to you and you step into the grievance procedure on at the oral stage then that's what the union is supposed to do it's supposed to represent him but your position is that the record reveals that he did not in fact bring it to the union on december eighteenth two thousand and thirteen that he brought it on may sixteenth two thousand and fourteen that in a parole ford offered him a job in scratch chip and scratch and he failed to report and in may they offered him a different door handle position that was held pending discussions is this is this the record you know you need to educate us on whether there is a dispute of material fact as to whether mr saunders raised any klein in december of two thousand and thirteen of course and i would say there's actually two components of it so he does have to show that he approached the union sooner ok in such a they could file a timely grievance but that still wouldn't get him all the way because that in and of itself doesn't show a different date in the court's opinion below so what does the record show about mr saunders complaint or discussions or action in december of two thousand and thirteen in december two thousand thirteen there was a conversation with bergen or willard and they met with a nurse and a committee person and the committee person didn't have any problem with what happened and it was left at that so the union chose not to pursue it having explored it with a company nurse correct and a committee person and a command person yes and so that would have been your initial oral discussion under the grievance procedures and then it would if if if plaintiff was inclined to pursue a grievance and assuming that a bargain or a thought that it had merit it would need to then be elevated within a matter of days to the next process and then to the next step and then again a matter of days to be submitted to referral to a unit committee and none of those steps happen ok and so then what you have under the collective bargaining agreement grievance procedure if a grievance is not processed it shall be considered of settled and then five months later we have testimony from plaintiffs that he approached by going to will again and ask him degree of the issue thousand and fourteen he said if he thought he had a claim of the breach of the duty of fair representation he his cause of action would have accrued yes that time prime and then but he didn't file suit in kentucky state court till july thirty of two thousand and fourteen correct then that was more than six months after his calls and actions of them that's exactly right your theory that is the theory one of them and it's not one that the trial court actually ruled on and there's every indication that the committee was meeting and was looking into all of these jobs and in fact he did medically place him in many jobs it's not an instant process the testimony from the bargain or is even reveals that a one hour restriction is a very difficult placement and plaintiff identifies only a few jobs he really can do an inspector job or driving jobs and those jobs are going that grievance august sixth within three months of that grievance he was placed in the final line inspection position that he still holds today yes that's correct he still holds that job and this is neither here nor there but in most cases isn't the union a party usually yes but there is no strategy to not be in the union in this in this instance but the burden whether or not you have filed a claim against the union the burden of showing the breach of the duty a fair representation is still exactly the same and there is simply no the plaintiffs to allege and establish alleging establish and point the court to the record evidence showing that and there's simply no evidence of that again it go for it and that saunders doesn't affect you does it and in that hypothetical i would say the company then would want to just pursue no breach of the collective bargaining agreement is a site that's what you would say there was no breach but he would have a claim against the jury trial for mr saunders we spent a lot of time today talking about the section three a one claim but one one thing that that all parties agree including the district court was that the key saunders worker's compensation claim falls outside of that so if the court to clean for the workers compensation retaliation falls outside of all the all the union business all the three zero one claims all the statute of limitations he filed his worker's comp claim he prosecuted all the way through the trial he obtained affidavits he obtained deposition transcript he served discovery in the pain materials he he made sure that he filed it in the record so that he could show a fair minded jury what was going on kentucky will still use the bare bones of the jury instructions thank you like thank you so much for your  argument we appreciate it case will be submitted the clerk may