of subject matter jurisdiction over plaintiff's claims against his former employer the district court here in holding that it has subject matter jurisdiction pursuant to section three zero one of the labor management relations act section three zero one does grant the federal courts subject matter jurisdiction over cases arising out of collective bargaining agreements but in this case section three zero one doesn't apply pursuant to an exception carved out by this co was a non union employee who lacked access to the union grievance procedure but even if the district court had properly exercised subject matter jurisdiction it aired and in the saying in dismissing plaintiff's complaint and his motion to reconsider as a pro se complaint as a pro se plaintiff mr batna ghar should have been given notice and an opportunity to amend his complaint before it was dismissed for failure to sta collective bargaining agreement in order to determine who doesn't that doesn't the resolution of this case of stanley depend upon interpretation of the agreement i would say that certain parts so that parts of  of contract claim certainly depend on on portions of the collective bargaining agreement but because the plaintiff here effectively did not have access to the union bargaining that the union grievance procedure that was built into the collective bargaining agreement the union and the employer could effectively prevent the plaintiff from invoking any of the rights under the collective bargaining agreement and so in removing  state court jurisdiction and placing the squarely in the subject matter jurisdiction of the federal court the employer in the union could effectively prevent plaintiff from accessing any state right claims couldn't he have a failing so from the grievance procedure if you wanted to so the record here is unfortunately not not great on this issue the collective bargaining agreement that was in effect at the time that plaintiff was fired specifically reserves to the union any right to invoke the grievance procedure for terminations proceedings the collective bargaining agreement that was in effect prior to current collective bargaining agreement gave that right to the employee it says the employee may invoke that procedure but the one in effect at the time of the firing doesn't appear to give the employe appears to give it only to the union but this isn't a situation where he requested ability to grieve under the collective bargaining agreement and was refused to do that as that's not clear from the record i'm not aware of anywhere in the record that it says that he requested it our claim is based on the collective bargaining agreements vesting of that right solely in the union so richard clarke a bargaining agreement you contend was in play here the two thousand and seven or two thousand and eleven one so i thought that he was hired under a nine hundred ninety seven collective bargaining agreement i believe and that the subsequent collective bargaining agreement went into effect in two thousand and one we think i would argue first that the collective bargaining agreement that he was hired under was the only collective bargaining agreement that he ever agreed to and so that it should apply but this court has held that section three one does not preempt claims brought under expired collective bargaining agreements so if that collective bargaining agreement is the one that applies i think section three a one pretty this claim in any event it sounds to me like you have conceded that regardless of which agreement it was that you're breach of contract claim your client's breach of contract claim is dependent upon that collective bargaining agreement it's dependent only to the extent that it is the contract that was breached right so yes i would but but again without access to the union grievance procedure the plaintiff here didn't have any rights to assert claims under the collective bargaining agreement but for an ability to bring a breach of contract claim in state court well this is why i'm confused you're saying absent access those are my words to the collective bargaining agreement which collective bargaining agreement are you referring to because you drew a distinction between a couple of them one where the employee could trigger a grievance one where the union triggered a grievance which ones are you referring to i'm not talking i think to me it looks like we're dealing with a two thousand and seven collective bargaining agreement and that's the one under which  union has the power to invoke the grievance procedures so i mean i guess there's two arguments if we're looking at the two thousand and seven agreement and then the union was the only one that had the opportunity to invoke it and if we're looking at the earlier one then section three one doesn't apply because it's an expired collective bargaining agreement counsel had a question for you there's language in your brief on page two on page fifteen along the following lines and i'm quoting now from page t page two the grievance process was thus not open to bottom a gar either because the union only filed grievances on behalf of its own members i understand that but then there's this next part of the sentence or because he reasonably believed that the griev process was not open to nonunion members reasonably believe standard i didn't see any case citations for that standard and my law clerk who is very good couldn't find any either so i'm just kind of curious where is that  court to adopt is that from a case so i think the difficulty here is the possibly of a record here below because because plaintiff was pro se raise some arguments but but i don't think fully develop below and so because going back to the question about whether he actually sought to invoke the union grievance procedure because we don't know sort of what happened i think the  reasonably believed standard i'm i'm not it's not that i'm asking the court to necessarily adopt that it's just that because of the lack of record we don't know what happened fair enough but there's no i want to make sure i'm not missing a case that says if a employe reasonably believed there was no grievance procedure when in fact there was some how he could get out of the requirement of the collective bargaining a great and i'm not aware of that any case that i think i was trying to be is as broad and money for nothing no and the nothing wrong with advocacy i just to make sure if this is new advocacy if there was a case that you were relying on i just wasn't familiar with that that's why if the court wants to make that this case would you like to reserve the rest of your time yes  exception well i guess first it would seem clear that the subject matter jurisdiction issue has been disposed of given that the petitioner has conceded that the at least the breach of contract claim depends substantially on an interpretation of a collective bargaining agreement removal was therefore proper in to the extent there were any other claims that weren't substantially depended upon the collective bargaining agreement supplemental jurisdiction would still be appropriate under thirteen sixty seven c with respect to the so called price exception you know first of all we don't believe that that exception is set forth in young anthony fish grados price is a one off case from a district court it's not binding  here second we don't believe that the facts are analogous to this case at all in price the employee or the plaintiff wasn't actually in a classification covered by the labor agreement bennett are was and third of all this price exception that that whether or not an employee is required or whether an employee's state law claims are preempted if those claims depend on the labor agreement depends on whether he's a dues paying member of the union would turn federal labor policy on its head the way labor policy works as you all know is that once a union becomes the representative of a group of employees under section nine a of the national labor relations act that's for evermore until the unions either decertified or the employer lawfully withdraws recognition from the union so anyone that comes after that to the district court mr batna gar received wage increases in accordance with the labor agreement mr batna ghar frequently invoked his right to union representation and acknowledge that fact on disciplinary forms that were submitted to the employer so there's  that depended upon whether or not the employee decided to pay dues or not it would mean it would create a tremendous amount of instability in the law it would mean that an employer the different members of the bargain unit may or may not be covered by the labor agreement or may or may not be required to arbitrate their claims depending on one year to the next because an employee elected pay dues one year and then at the end of that fall year he may withdraw not pay dues anymore and vice versa he could opt in opt out opt in opt out and that's not the way the labor labor policy works it's it's fundamentally fundamentally wrong conception of federal labor law which collective bargaining agreement are we dealing with we're dealing with the two thousand and seven to two thousand and ten agreement and i would notice i don't have the record site and i apologize for that but it is on page  the the the decision to submit a case to arbitration is the union's decision but that's always the case it's always the case that the union decides whether or not a grievance goes forward arbitration that's hornbook federal labor law and that's why claim hybrid claim under section three a one challenging the unions decision not to submit the case to arbitration and then also suing the employer for a breach of the labor agreement and his claim would ripen upon the union's decision not to take the case to arbitration but that's that's water under the bridge that's been federal labor law for forty years that the union owns the grievance and the and decides whether or not to utilize member resources and do is to take a case arbitration if you start a curiosity do you think the mr bhavna gars other claims for relief are similarly preempted yes the first claim is a wrongful is a breach of contract or wrongful termination claim whether the evidence is fraudulent or not is about a fraud claim because it doesn't involve a misrepresentation or an allegation that mr mitnik on that regard relied on them is for presentation the issue is whether the evidence was good and that's a just cause issue of the contract with that and we think the other arguments are set forth pretty clearly in our brief if you don't have any further questions i can conclude just gallant no questions thank you very much counsel thank you plain for which relief can be granted and if he wishes to argue that he was barred from the grievance procedure that he can make that argument there and that the district court can decide it and even if section three a one is a political that that could be a defense to the failure to exhaust remedies because as i as i read the order granting medicos motion to dismiss it was it's arguably only because of his of the plaintiff's failure to respond but if it was an order on the merits and it was granted because of plaintiff's failure to exhaust his remedies under the c so as a pro se plaintiff he should be given notice and the opportunity to amend his complaint to state a claim and i think that's certainly something that that he would want to raise that the defense that he was wasn't aware of the motion to dismiss he i think i'd believe he was aware of the motion to dismiss but he was under the impression that the motion to what was effectively his motion to re his responsibilities were and so as a pro se plaintiff again he should be given the benefit of the doubt and given the opportunity to at least have the district court hear those claims i believe in it thank you very much counsel thank you both for your argument and thank you mr ekdahl the believe you took this case pro bono thank you for your service in doing that we appreciate your argument and this case is now submitted will move on to the next