and will be fully involved of decision making in all cases and with that we are ready to hear arguments in the  proper statute of limitations to apply in a lawsuit between a labor union employer to compel labor arbitration the facts are stipulated to in this case are completely undisputed and soon you're familiar i want to spend too much time on them but in a nutshell the unions represent represented protective security officers in a bargaining unit those officers worked in various federal facilities in the salt lake city area mr reed the grievance was a member of the union early january two thousand and fourteen there's no dispute that he was terminated by the employers the union timely filed a grievance of that terminations under the just cause  employer's refusal and what what does your client want to compel arbitration yes your honor the relief request in this case has been to compel arbitration under the just cause provision of the collective bargaining important it was a was a hybrid case the hybrid is a duty of fair representation other words the employees in that case the grievance arbitration per procedure in that case had been exhausted with one of the two combined cases there had actually been an arbitration award the employees were upset they sued their union said you don't represent us fairly and they sued the employer saying you violated the contract with whatever you did so suit against both and tities correct that that is the hybrid case and that's what happened in that case unlike here so the court set out a two part test for determining where to take the statue limitations from it previously had applied a state statute limitations in what's called the hoosier cardinal case from the  s so this case was somewhat different because it had the hybrid element but the two elements were there were some federal rules limitations that provided a closer analogy than the state alternative and they have to both him and the federal policies at stake in the practicalities of litigation render the federal rule more suitable in the fall and the federal policy is at stake here for labor law policies arbitration is encouraged in labor policy so when we look more closely to the n l r b statute your honor i completely agree that the overriding federal policy when it comes to unions and employers is to encourage them to go to arbitrators and not to clog the courts with their disputes so the problem  s the plaintiffs in that case were seeking to reverse that that practice that that policy right they they were upset that there was an arbitration award already issued the grievance arbitration process had been done that the deal was done between the employer in the union and that case they were seeking to undo it by having a hybrid say think we don't we want you to set aside what happened here it's the opposite we want here we're seeking to just use the process nothing has been done there's been no arbitration award to overturn the deal between the parties the contractual deal is we should use arbitration correct isn't part of the reason you use arbitration so that you can get a speedy resolution your issue sometimes your honor i think there's there's there's different competing policies right i'll be asleep i don't dispute that that is one that is one aspect is you want to say well we just practically i mean this employee has been out of service and away from this job at least well even before tw fourteen did so the idea of bringing him in and those who might have some information about the situation why he was terminated for cause i mean that's a little stale by now isn't sometimes and the idea of bringing in a man and saying ok we were all wrong come back to work that's a little belated also so the timeliness is really important here in arbitration i mean that's you see that in all of the labor law cases but yes your honor of course i think that's an area but it's no different than a we have employment you might have an employment contract and you could still apply or the statue limitations of a contract you would because you would have a union in that case there's always inherent right nineteen seems to have narrowed that case that was a case involving a union members filing suit against their union for violating their free speech rights under the labor management relations in disclosure act elem r t a to have a cumbersome acronym in that drawn essentially from the n r a it's a statutory based claim and you had a breach of contract claim and it's completely impractical to have two different statute limitations they had to pick one and they noted also the supreme court that one of the reasons was the states actually limitations of believe it was new york was only ninety days and that simply wasn't long enough but that the longer statue of limitations the courts had was to go in read your honor in costello or and talk about a subsequent case where yeah so said six years would not be too long that was a war next case where it's it's regulated by a federal statute when a plant closes obviously there's a federal interest in mass displacement of workers and they said yes that's inherent in the we don't we focus on what the issue is here which is to compel arbitration yes your honor i think isn't six years an awfully long time wait before you compel arbitration to get a speedy resolution of your claim i don't think so your honor that just like an employment contract dispute that we wouldn't bat an eye most likely to say what do we look to we look to the state statute we look to the bridge it's a  duty of fair representation claim which is what the n r a is concerned is concerned with say the words collective bargaining agreement i really think federal policy labor law back into that arena again i mean it's this is not did the employer repudiate refused to use the grievance in arbitration provision and if they if they did so there's no concern with undoing the finality of labor arbitration that i think what garcia stands for is the what is the real federal policy at issue it's the finality of disputes the finality of private dispute resolution between a union and employer if we haven't even gotten in the door we're not seeking like in a stella to overturn the deal that's already been made we're just seeking  given access to the deal that's been made between the parties to use the private dispute resolution procedure not to clog the courts to come here before you i think the th circuit which has been cited in my brief the united paper case decided that after reed after reed appeared to honor yes what other sort are you're urging us to get this before the supreme court we could always be outstanding here certainly uniformity is a policy but also getting right what  what you think the supreme court would say about this and i think what the th circuit did after read they said yeah we've got all these other circuits who have done what the employers want to do and apply the short limitations but read really seems to have changed the game yes it was a intra union think cited read for that and then also when you have the nd case the north star steel case that the united states supreme court cited hoosier cardinal that's the old case saying six years is fine for a dispute and they cited that with approval of the united states supreme court in the north star steel case and again they said six years the supreme court has said in that case that it's probably dicta six years is not too long to frustrate this this country's national labor policies that north star steel was a war i'm reasoning by analogy but they specifically talked about del castello both those cases the employers came in and said well we've got some national policy here right we've got a federal aid policy you should just apply and i i would submit to you that the other circuits with respect to them sort of did a cursory alice and said well we've got a we've got a policy here it's grievance in arbitration so we should just apply the six months but the still really was concerned about the intertwining of the two claims in overturning the deal that had already been struck the arbitration award was already issued in del costello and i think that this court after garcia also reaffirmed that in the morgan i was good the trustees of wyoming case that was decided it was interesting but the court really talked about breach of contract between an employer concerned that there would be an inconsistency in statutes of limitation in actions against an employer versus actions against the union because if we go with your way the union cause of action so there's not this concern with the finality of disputes you're just seeking to get in to use the private dispute resolution procedure is your argument dependent on whether the collective bargaining agreement has expired i don't think that's my best argument certainly i think it militates in favor of me because they're not looking to put someone back to work here and disrupt something there's no possibility here that does show we have more of just a contractual dispute but i think the better the better approach is to  say that we're not we're not undoing a deal that's been done between the two parties like in india far and if possible if you don't have any more questions i'd like to reserve the next minute and a half thank you for thank you very much before i went to law school i got bogged down a lot of this history looking at it was interesting to me to look at the evolution of these cases starting with the one thousand nine hundred and sixty nine tough partly act where they came out with the six month limitation period in the st place that the labor board what was the reason for that because they wanted to expedite these cases they want to resolve these these issues quickly because keeping people out of work for more than six months or or even twelve months is that it's difficult on an individual so this court adopted a ninety day statute of limitations following the state statute of limitations for appealing arbitration decisions under the colorado arbitration act whenever the  case that actually addressed that in part saying that well the states statue of limitations for contract breaches is too long and the the arbitration act statue limitations of labor act and we've never addressed this issue which is a pure right that's right here on in this court has not addressed it well let me it never addressed it in the context of a labor management relations act this court did address national labor relations act applies the court adopted the six month statue of limitations in a railway labor act case because like the national labor relations act like the labor management relations act rather  called the supreme court all that they would they would expect they would use the six month statute of limitations and that was a footnoted and i apologize i don't have it off my head i certainly should certainly in my briefing but no twelve twelve yes your honor thank you i mean now that i can use a little help so from my perspective from the perspective of the employers this is a simple application of the six month statute of limitations to maintain national uniformity with ten other circuit courts that have issued this ruling the th is the other circuit court that hasn't addressed this and i figure that this court in the th haven't addressed it because everybody's pretty much decided that this is slightly adopted a twelve month statute of limitations in one instance where they said well state statute imitation does only slightly longer than the federal standard but i only found one case where they did that more recently in two thousand and seventeen in the guy scase g u i c e three of my pronunciation i'm not good at names the the court actually used a six month statute of limitations in that case  i believe they were maybe more focused on on on federal rights because of the postal worker status i couldn't figure out how to reconcile the two cases honestly and it didn't look like the th circuit tried to do so but in wise alloy in alabama that was a steelworker case the th circuit adopted the six month statute of limitations and then they did again and georgia actually there are two cases in alabama where they did the six  month and one case in georgia where they they deem six months is the appropriate statue limitations it was only florida where they made the exception because of the twelve month rule and in florida well the appellant relies heavily on our garcia case what we do with that so garcia and i keep losing side of this but i'm glad i remembered it for right now it wasn't a motion for summary judgment and it was it was a motion to dismiss so the court was addressing the standard under a motion to dismiss standard and in that case you're dealing with a complete repudiation of the contract in the court repeatedly said complete repudiation of the contract i know the unions have tried to parse that out and say well in repudiating the contract they repudiated the arbitrate an agreement and indeed there is a line in that decision where the court says the the boy repudiated the upper trace an agreement i believe that was part and parcel of the repudiation of the entire contract and i think that was how the court intended it while it was trying to align and explain why the six months to auction limitations would not apply in this case so that  contract so there was no opportunity to to arbitrate or to even pursue the grievance process because in a sham sale they kept calling it a sham sale where the employer sold to an alter ego and they they said well we don't have any obligation to comply with any aspect of the contract well is the expiration of the collective bargaining agreement the same is repeated in an all agreement and it's not the same your honor in this case or why not the union and the companies negotiated a new contract that went until two thousand and eighteen so there wasn't an expiration during the time when this should have been heard but even if there was this is a what we call a nine a contract and it was a contract that was created because there is an obligation to bargain that's the tricky part by the national labor relations board because the union want an election that said you've got to bargain with the union and have a bargaining relationship so there was a  in salt lake city utah because the government terminated the company's contract in salt lake city utah however there is an ongoing bargaining relationship between the e p a s and paragon and away and many other jurisdictions in the country so there's there is a continuing nine a relationship not only stemming from the salt lake city contracts but also and other forms colorado instead of the six months in the courts and you didn't raise that below so we're not even to decide that issue in that case it was more again it was a it was a local union official seeking to undo an agreement that had been made between a larger union an international and a company so i think that's quite distinguishable in the courts and we just we're not going to deal with this right now and i think with that with regard to the dicta a footnote twelve i believe it is about well if we would probably apply this even if it was straight up union an employer you have to look at what the supreme court  it was ninety days and there's no there's no issue with degrading national labor policy because parties are simply seeking to get the benefit of the bargain they're not seeking to undo a deal with regard to national uniformity i do understand that issue that the court is sensitive to that but i think the court said well yes that that is an issue the national uniformity could be helpful however having different statute of limitations is just inherent in in the  rules of decision act itself which says we should borrow state statute a limitation should be the norm in the court said it should generally be the norm that we should part of the state's limitations but that my time's up thank you thank you thank you thank you both for your arguments this morning the case is submitted