both the company breached its collective bargaining agreement and the union reached its duty of fair representation we think on the record although i think i know that the others disagree we think on the record that the company clearly breached the collective bargaining agreement and that i have to address it because they want to remedy the way basically the agreement in section nine point four of that document which we in the union and the company spells out that the only time that the company can terminate or otherwise disciplined in this case he was suspended an employee is for just cause and and the sentence after that just because also really relates only to matters that happen in the workplace in this case what transpired was and began before you get into that could you just spen response to essentially six continuing grievances filed by the union march ninth of two thousand and twelve the issue oh and so we filed our eye because i first became involved in th case on august twenty eighth of two thousand and twelve and i call the court's attention to exhibit b which is a full which is contained in the second amended complaint all of our exhibits a contain the second  the company the wrist sixth response to the union's grievances essentially spells out not though it does spell out exactly what the company wanted and they wanted mr lewis to explain what what transpired on from the record in the criminal case we find basically had just come out of prison for armed robbery and mr lewis was rightfully afraid that day it was the first day of school and he is the guardian of his granddaughter and he was he just taken his granddaughter to school and she was in the back seat and he just stopped at his home use the drug backing into the car and this gentleman mr connor who's the one who shot one and to get into the car mr lewis warned him three times actually two times in the affidavit and and in the criminal record it shows three times not to come closer the man continued to come closer and shot he didn't know that he killed him it turned out he did mr lewis immediately went to the police station and period there's no question about the six month period your honor however more importantly with regard to the six month period just to it so answer your question so you agree that he knew he had knowledge of he the ultimate question is whether the union breached the studio fair representation that's the question before this court i started to say that the company clearly breached the collective bargaining agreement because they they  acted as set forth in that march ninth letter what they wanted to know what nothing to do with what occurred on the job they thought i don't know for curiosity reasons or otherwise they just insist that in every one these grievances that it is that mr lewis was was kept on suspension because he didn't explain the details of what transpired when he shot mr connor that day and why he was indicted for two counts of murder in the statement of mr lewis who to minutely was not signed and then i'll fortunately apparently were not initially included but it was included subsequently so which is part of the record mr lu is clearly in that sworn statement answer every one of the requests of the company in the march nine letter so basically the company knew throughout from from that point forward exactly what was involved and the purpose of the august twenty eighth letter was to obtain his reinstateme immediately that's what the union tried to do the the the company the the company in their letter and their position simply calls that a settlement letter was not just a settlement letter yes we offered to settle but as part of that letter we also offered to produce mr lewis to come in and so they could examine him the company makes much of the fact that the affidavit was in sworn to well mr lewis had in his deposition sworn that he was told by his criminal lawyer who did a great job in representing him but that that he could not involve himself in these proceedings until the criminal trial for fear of a person in premonition under the fifth amendment or whatever and where he couldn't do that he missed two days that's all he did yeah the company is alleging he was gone for two weeks they are not three weeks that the union in theirs and they're stuck in that cross motion in the grievance procedure makes it very clear sworn statement that he was really only gone three days so he was back to work and after two days you know he couldn't go back to work he was suspended he was suspended that day there was a meeting first of all the first correspondence with mr lewis which was the august twentieth no we which which the after he was out august twenty second when it went well he was on vacation so the company sent him a letter dated september second in which they told him he had to appear so they could examine him and talk to the company subsequently changed that date till september twenty second of twenty eleven and mr lewis appeared at that meeting the union's was present for the first time mr lewis never told not to do that but what we did it curiously and guy think correctly in the letter of august twenty eighth which is exhibit b to our second amended complaint we gave the company everything they needed to know and wanted to know in the march nin response which was the last response of the grievance procedure the company the union then sent a copy of that march night and response to mr lewis in a letter dated march nineteenth importantly in the letter dated march nineteen of twenty twelve the union also said they volunteered this if they would continue to monitor this case well that question before this court is what does that mean monitor we saved means we got to pay attention they can't cause their ice article letter of august twenty eighth that we said we quoted they say a sworn statement from the criminal court judge me for whom mr lewis was to be tried saying he was safe to be returned to work sworn to your honors for the time this case gets to this point we also attached in the third amended complaint exhibit i which is the transcript of the criminal case he said exactly the same thing under oath  was absolved and in july just before the fourth of july on twenty thirty of murder of a two counts of murder in the first degree judge light we moved before judge line and whether the company tried to strike every one of our complaints judge land where were ruled on august fourteenth two thousand and thirteen denying their motion to strike the third amended complaint and also in the at the same time in response we moved to sta or toll the statute of limitations judge williams so that the fact is that from august for from august fourteenth which is after he was convicted in fact the statute of limitations had been told by judge line and whatever which means that they will that the company continues to argue this case is time bar but the judge liner a civic leader and explained why he told the statute of limitations so there's no statute of limitations in tonight's case at all but that's a that's a red herring  thanks please the court my name is william pokorny i represent dominic's finer foods in this case the district court properly granted summary judgment in favor of dominic's finer foods and we respectfully ask this court to affirm that judgment both for the reasons set forth in judge one and weber's opinion and for the additional reasons that are set forth in our briefs to this court the facts of this case are not in dispute as counsel has just indicated they've adopted our statement of facts in support of our summary judgment so we asked the court to confine its examination of the record in this case to the facts that are set forth in that statement and then in terms of the statute of limitations judge line in libera found that that letter that was sent with respect to settlement is aware of their claim as counsel has indicated mr lewis was in this case the statute of limitations is told only where the plaintiff is following additional internal union appeal procedures are required procedures the cases from this court indicate that where the plaintiff simply sends additional letters asking for assistance from the union or asking the union to reconsider its position that kind of letter doesn't toll the statute of limitations and in this case although the letter came from an attorney there's nothing in this court's case law suggesting that a letter from an attorney should be treated any differently than if mr lewis had simply continued calling the union and asking about his appeal but in addition to that your honor the fact that a letter was sent in august of two thousand and twelve doesn't excuse the fact that the case was not then filed until january of the a year or so even if the statute of the limitations was told it doesn't excuse plaintiff from taking clarify it for the court here is that you know counsel has repeatedly referred in his briefs to his client having been exonerated in the criminal trial plaintiff was convicted of second degree murder the district  court correctly found that those issues were never presented the facts underlying his claim were never presented to dominick's or the union but regardless of whether or not the affidavit that counsel referred to that was supposed to be attached to his august two thousand and twelve letter what was undisputedly admitted those specs were never before dominic's for the union and even if those facts were before dominic's or the union i'd asked the court you know if you are inclined to look at that affidavit to consider what it actually says it indicates that a man approach the plaintiff's car the plaintiff saw that his arm was b and saw that he couldn't see anything in his hand but was afraid and so he shot him that is not a valid excuse for not showing up for work for two weeks being convicted of second being arrested for shooting and killing a man and subsequently being convicted for second degree murder is not a valid excuse for not showing up for two weeks now the question before the court on the merits of point his claims leaving aside the statute of limitations issues is whether the union acted on reasonably in failing to do more than it did to pursue mr lewis his grievances and as the district court properly found and we submit to this court it acted more than reasonably it's zealously represented mr lewis the best of its ability but as counsel indicated mr lewis was advised by criminal counsel not to talk to the union or to the company about the circumstances that led to his arrest and the subsequent crime and what was its a level of grievances they filed wasn't it six seven seven including an additional grievance even after the aug twenty eighth letter but again the company made its position very clear in the union clearly informed mr lewis as of march two thousand and twelve that it did not feel it had the information it needed to advance those grievances and really the only thing the union could have done was take these grievances to arbitration or to advance them further the record of the undisputed facts in dominic's statement of material facts indicate that the union thought about whether to take these grievances arbitration it gave consideration to the issue now again the standard that plaintiff has to meet in this case is not whether the union in theory could have done something extra whether the union could have asked more questions or whether the union should have done something more or was right in the call that it made but the fact is that the union considered whether these grievances had merit it considered what an arbitrator was likely to do with these grievances if it brought them forward and it concluded that this was not a good use of the union's limited resources mr lewis had not provided any information that would exonerate him the what establish no i'm not guilty of the crimes that i'm charged with he didn't even respond to the request for information so under those circumstances the union really had no choice but to do what it did continue to represent mr lewis and continue to communicate with them they continued to follow up with the company but it acted more than reasonably and decided declining to advance these grievances to arbitration for all those reasons your honor unless there is further questions and for the reasons that are set forth in our briefs we ask this court to affirm the judgment of the district court thank you i'll give you another minute  us that the letter that was that the letter of august twenty eighth and which we which brought this to the floor was responsive to the to the march nineteen letter of the union and more well after he was already found not guilty furiously and judge lanham webber within a couple of weeks after that well that was that's that's my point there and so i i believe this is very important importantly your honor we we we we believe that the union breached the studio fair representation because they were on notice two different ways of the fact that mr lewis is i call it exoneration found not guilty of murder one he was only charged with murder one i sat through that trial i had nothing to do it but i sat there that's all he was charged with and he was found that could that seems to me that's that's important in our country and the union was on notice of that because the company in a reply brief and to strike them in response to a motion that they shouldn't strike the complaint put in a footnote which would serve the union they were still a party that he was found not guilty so the union should have come in that's our position and my position is under your cases which we arguing and which we set forth in paragraph thirty one of the complaint the third amended complaint which is that which is which is the count one against the