limitations that undercuts the entire purpose of the statute point over to the standards stated in bass and united rubber as we refer to them can be synthesized to produce a consistent rule which in turn requires dismissal of the case the is an issue of procedure or build a best left for an arbiter not a court and that's an accurate statement of what this court has said and what the united states supreme court has said in fact they got even more words time limits notices latches a stop with other conditions precedent to an obligation to arbitrate or for arbiters decide that's how some dean reynolds is the supreme court's words and once i started reading that stuff i thought we don't even get to your arguments really well you're on a a number of cases and twelve thirteen of their brief and in every single one of those cases the court emphasizes statue limitations substantive issue it's for the district court to decide we're not arguing that the grievance itself was on timely we're not arguing issues about latches or some sort of waiver but in this case to decide the question we have to take a deep look at the c b a and isn't that contrary to the supreme court wiley case well your honor it is true that we do need to look into the  determine when a grievance is timely that's an issue for an arbitrator we're not making that argument we agree with that proposition if the issue is procedural arbiter ability is the grievance timely yes that is for the arbitrator to decide however if the question is is the motion to begin such limitations i'm sure islam is the is the suit to compel arbitration is that timely that is a question for the district court before the union can get or any aggrieved party can get to arbitration if it brings start here though when the grievance was and when the refusal farber tracing was why you do that under your scenario when you have to do it under their scenario you say it's automatic at a certain time and they say it's real or a certain time but doesn't that get you into procedural arbet ability procedural issues immediately we are that leads directly to my second point there are two standards we're looking at here one it is clear refusal to arbitrate and yes the district court may be required to make a factual determination when that occurred that's what happens and happen in best when bass is remanded the district court was required to conduct an evidentiary hearing to figure out when this occurred so the district court is not cannot avoid at least some you refuse and things happen here we've got stuff to look at and that's for the arbitrator look at first well and i appreciate that point your honor i would say that the district court frequently engages in this type of analysis whenever a district court needs to patients in the context of a breach of contract the court needs to do exactly what we're asking them to do here they need to look at the terms of the contract they need to figure out when the breach occurs this isn't a complicated it at least from our perspective this isn't a complicated  recorded somehow and capable of doing that only the arbitrator is is required to do and further i want to emphasize we're not asking the court to engage in this far reaching interpretation the c b a it is only on the very narrow issue of  hoping that's what would occur in one of those situations but to rely on the arbitrator some sort of a failsafe to avoid these types of situation ignores the purpose of the statue limitations in the first place if the case was stated there isn't a special imitations it all goes to the arbitrator the arbitrator the district court has jurisdiction to decide whether it's timely now i've knowledge that united rubber and cook chemical are hybrid cases but if you look at cook chemical you have this odd sophisticated you know presumably i don't know the man but employee that brings a case against the union and the employer and the court says it's untimely i want to read just a short section from cook chemical because i think it's very relevant to the argument we're making here and that is not this is it is twelve forty its hands and waited and it was more than a year after the grievance the courier that they actually brought a demand for arbitration and then about another five months before they brought their case what the union wants to do is to be given this ability to say this is when the  did recognize that there are two different standards and in fact the court stated importing from them the court finds that the two is circuit rule or not necessarily intention and that's on thirteen twenty two so courts have looked at this they recognize that there is these two rules out here that they're completely rejected the type of argument we're making here and right in the rest of the cases cited by the union on pages twelve and thirteen of the brief i was not able to find a single situation where the district court or a part court said this theory does not apply in th the collective bargaining agreement provide that arbitration must be instituted within a specific time period the expiration of this period combined with employer failure to take any position with respect arbitration or it constitutes employers unequivocal refusal to arbitrate th case if you didn't have that if your chronology was accurate and you had not refused the demand for arbitration if you just sit on your hands and not refused would you have a case where your rule might apply well and that's part of the problem with the standard of the unions pushing for you to directly answer your question it would be a better case if our client had never responded right we would be in a better position if we just ignore the man that doesn't seem like the kind of real you subject an unfair labor practice so if you do and the employer should come to a clear determination as to what's going to happen because of facts the employees that are working during that point begin when the union when when you tell them we're not going to that that's the place to look at well thank you for bringing me back to that the what the union is saying here is that we can decide when the statute of limitations starts here's how it works we can wait and wait and wait we can wait months we can wait years there would have been any reason to wait if there had been an ongoing discussion of potential resolution of this well we would argue that there wasn't an ongoing discussion at a certain point if there's evidence you're hearing occurred or where they were definitely occurred when he said no and that seemed to be w well there was a definite point where there was a refusal and the refusal curd when the union made a formal demand for arbitration there are some cases where employers preemptively refuse that was the unit source case where they preemptively refused arbitration but that is the problem with what the union is arguing here is that we can trigger the refusal whenever we want so let's say we wait years and then we ask for it as soon as the employer refuses boom the statute starts there but this is what it does undermine the entire purpose of the national bring the lawsuit in a timely fashion instead of waiting month statute of limitations period in the us circuit in literally every other circuit in the nation the rule that applies in a section three a one action to compel arbitration like this is that the statute of limitations period begins running when the employer out at the appendix page two twenty and the employers clear refusal occurred on june twenty fourth twenty fifteen you can find that at page sixty six of the appendix this suit was then filed on october second twenty fifteen less than four months later well within the six month statute of limitations period you agree though that if they had not refused you on june twenty four you'd be under different rule and you'd be long past time although those are the facts or dealing with years i don't think the court has to go there but  undermine your position i don't agree so even if we use their standard we say ok without a refusal you have to look at the contract to determine the last date that arbitration could have been requested were still within the time period because the grievance was filed and the demand for arbitration was made on june eleventh even if they hadn't responded you still look at the contract to say after a grievance is filed how much time does the union have to demand arbitration here it's a ten day period so that still would have been in june of two thousand and fifteen now their response is yeah but your grievance should have been filed back in may have been fourteen now we've gone beyond the jurisdiction of this court and what we should be analyzing now we're looking at timeliness of the grievance which is and this is where it's critical to understand the difference between the statute of limitations analysis and the that is a procedural are rich or ability legal conclusion it is not a fact that should not be made in an action to compel arbitration and if they truly thought the grievance was untimely they can tell that to the arbitrator so even under their united rubber analysis i would  that we're timely in this case now rather than applying at the bast dander the clear bastard easy to apply clear facts the appellant's urge the court to create and utilize a brand new standard never before adopted courts could not determine the statute of limitations in a section three a one action to compel or betray sion without determining the last date to request arbitration and this is where it's critical again to understand procedural are richer ability that's a good question your honor now the pellets did not raise the fact in their argument that we are betrayed of this case back in may and we put all these facts we are richard we had a full day hearing on this timeliness issue and the arbitrator found in fact may ninth twenty fourteen was not the last day that this grievance could have been filed due to many other factors that the arbitrator found essentially on a stop all grounds but they couldn't raise that argument and i'm happy to submit the arbitration or the received in this case finding that the grievance was timely timely file so this timeline and this is were you know if we're going to apply the appellant's proffered standard here we're going to have to look at what is the nature of the grievance you're going to have to determine that because there are different timelines in the contract depending on the type of grievance we have if it's a grievance about you've waited forty five years and brought this case to judge and he'd thrown you out i mean the companies change names and your unions change and i don't have to tell you would you be here i would be here or you would be here we bring a grievance forty five years later i would presume there's a good reason maybe the employer concealed evidence you know i'm sort of hypothesizing here yeah i bet you are go if if it's if it's a terrible case and i'm giving my union client bad advice to take it to arbitration i would presume the employer would come in and dunk the ball on us and we would lose that case but as judge said in his in his decision making that argument in the proper forum is not absurd it may be absurd to file a forty five year old grievance but make that argument to the arbitrator don't force it into the courts where then the courts have to sandy and arbitration are just wasting time so to answer the question on a forty five year old grievance i still think judge schultz would have gotten the result correct on this ruling as it go tell it to the arbitrator that i think is the essence of judge schultz award and i think it's exactly right and so doesn't your position create sort of a perverse incentive for employers just to ignore requests for arbitration possibly again those facts aren't on this case i would argue that in the case where an employer in bad faith just goes silent they wouldn't get the benefit of a more favorable statute limitations rule contrary either going silent which would you notice there's a scenario leaves out there or a refusal to demand or doing it immediately or about the employer doing that immediately immediately refusing yeah i me bring it within six months of the refusing it real early we bring a real early we bring within six months of the refusal but again the this case we have a clear demand and a clear refusal and if you look at opponents brief their entire statute limitations argument is built on this chronology that they've made and so on page six you see judge benton you pointed this out and they also go through the narrative fashion on page twenty five of their brief where they say that february twenty first twenty fifteen was the date that the statue of limitations expired in this case the only way they get to the date is by first concluding they set forth this procedural arbiter of realty legal conclusion as an undisputed fact in this is critical to understand when  that may ninth two thousand and fourteen was quote the last possible date that the alleged violation could have occurred that's not an undisputed fact that goes to statute limitations that is a procedural are rich ability legal conclusion for the arbitrator to make and so they build their chronology from there they say because this is the case this is a grievance for accrued vacation personal holiday the ninety days statute of limitations a player grievance filing period applies under the contract and so they say for may ninth twenty fourteen that takes us to august seventh twenty fourteen again the procedural are rich ability legal conclusion as the deadline that applies and by the way the arbitrator disagreed with them on map to the arbitrator concluded  a demand to engage in effect bargaining when the stores closed about the effect on the workers in the store closing that was the charges filed had nothing to do with arbitration that came much later and by the way there were ongoing discussions throughout two thousand and fourteen about this case where the employer made requested information information yeah information about them the amount of know that you're going to see a failure to bargain no no the first i believe the first charge was failure bargain and the amendment was failure to provide them and that information was later provided there were meeting down the line about the money that was owed to the employees again all of this is outside the realm of the suit we have here which was simply an action to compel arbitration agreements getting back to the timeline every point in that chronology that they conclude is undisputed was overruled by the arbitrator the arbitrator found this case to be time and i'm happy to probably mean their backs happened you know i gree they happened right with what i'm talking about them when they say that august seventh twenty the grievances untimely therefore the lawsuit must be untimely too and those are two very distinct and different arguments to make now with the statute of limitations analysis where there is a demand and a refusal the law throughout the nation is that the six month period the claim accrues when that refusal takes place that's the facts we have here there's clearly a political law from the circuit from the u s supreme court that applies and this is an easy case with an easy outcome i just want to touch on the united rubber case which opposing counsel relies very heavily on it's true that in the united rubber case the court engaged in an analysis of the contract that's true i'm not going to deny that the only reason they did it in that case and this is very explicit in their decision in fact i'll just read it the quote from the court is what age were paid your honor what behead note or how do you do it this is on page one eighty five of the court's decision going they said a reference to the terms of the c v a they go on was unavoidable because the record contains no clear demand for refusal of arbitration from which to calculate the limitations period for this cause of action unquote no no demand nor fusil so the court said well we have to look at something and so they engaged in a limited analysis of the collective bargaining agreement to come up with the date that arbitration could have been demanded the implication and i think the holding in the bass case is that you don't do that we don't have to and if you read the john the u s supreme court's john wiley decision the court is very clear that courts are not to be engaging in interpretation of collective bargaining agreements as it relates to proceed or rich ability issues where they don't have to once that's the bread and butter of arbitrators and those kinds of issues come up all the time and so here to use appellants rule again getting back to the time when the court have to determine the nature of the grievance because there are different deadlines depending on the nature of the grievance second the court would have to determine as the arbitrator did when did the violation occur now that can be affected by things like the continuing violation doctrine it can be it can be complicated by you know employer efforts to conceal their violation there may be a question of when the union had notice all that's going to have to get resolved in the courts just to determine when the statue limitations started running under the appellant's rule and potentially in a jury trial just to determine stature limitations any time that question gets raised where we have a clear rule in bass that if you have a demand and your refusal that's when the claim accrues that's when the statute of limitations starts running you think united rubber is correct united rubber is the law of the circuit now that was a different i ask a different question i believe it's correct that when there is no demand in refusal the court has to look at something and in that case the court looked at the contract in a limited fashion to determine one of the last eight arbitration could have been requested but the court was clear in that case that that analysis was unavoidable and it also cites the language about engaging in limited interpretation of the contract and how that type of interpretation of collective bargaining agreements appellants are asking you to do it in every case and if you must there are questions i run a time and all the libraries required to open the contract to look at it a united robbery yes was in a situation where there had not been a clear refusal but the purpose of that and the promise underlying you know a robber is that eventually there needs to be a stop point there eventually needs to be a point and according to the c v a mischler is mentioned the arbitrator's decision probably comes as no surprise i disagree with the arbitrator's decision decision relied on a lot of arbitration common law but the arbitration decision really has no bearing on the