record indicates that my client mr stoner was a former air traffic control specialist at the new bern airport employed in which our refer to r b i in this argument he worked for them for fourteen years and the discharge notice discharged him after fourteen years of service because he did not lock a door he did not stop immediately after entering the airport parking lot he did not park in the employee designated employment found him to be fully successful in his job yet mr yeah our v a had accused him of not following policies and terminated his employment which you and j and thirteen it is further not disputed in it lacked jurisdiction because helen had not exhausted that that's correct so how how how is exhaustion jurisdictional i'm in i so i think you're stronger argument is exhaustion has nothing to do with jurisdiction the district court had jurisdiction here regardless of whether or not step forward have been the arbitration my client asked to take for the hakko to take it to arbitration it refused to do so according to the terms of terms of the collective bargain agreement factual practical question is it your understanding that that's pretty standard for c b s to make the last perpetrations earlier internal that's for c jersey yet shawn and that that is manner staining and of course it makes sense for judicial economy in the grievance procedure for the union who has exclusive representative of the employee to screen out raven says that are not meritorious and would not be successful in i mean there was one here i four stay a very classic example in found in many collective bargaining agreements and my client did everything he could looked at every you know looked to the employer to the u to first state that we are not here about any novel legal concept in one nine hundred sixty the supreme court issued what's referred to as the steel worker trilogy three cases involving united steel workers and from that point the supreme court has and as endorsed arbitration over litigation as the preferred means of resolving grievance grievances in the private sector labor management relations even in the most recent supreme court term in three cases that were consolidated the main case being epic systems core purses loise supreme court when even grievance process and he he he didn't do that even though he started the process and so we're get what was your answer again about how but i think that one of the things that i doing and i answer you pleading you would also i don't know i don't know that it was in the answer because the facts were not borne out until was in some way harmed by having to go through arbitration he actually started the process filed a demand for arbitration got resistance from our v a sought the unions approval to  because that's the process is that the the employee can go through the first three steps with or without the consent of the union but in order to go to arbitration they need the union's consensus so it's a right to be in to individual representation does not include the right of taking the matter to arbitration unless new reason to do so means just unless the union can say yes yes and the reason for that and i don't have the exact case number  but the the janice vs asked me decision which is a popular decision i believe it's on page sixteen justice alito discusses how the grievance procedure is  belongs to the employer and the union not the employees so that's why that language in article nineteen is fashioned the way that it is the union has the employees have the right to go through the process on their own but the union has the right to participate or supervise or or view what's going on and you'll note that in in article nineteen it says that if the employee is not represented by the union any adjustment of the grievance shall be consistent with the terms of the collective bargaining agreement and that's because they can't they can go alone but they can't get a remedy ivy's i think there's a way of reading less so that it applies to this is a shall have the option so this is really an election of remedies so mr starter had when he was fired he had a number of remedies first primary was to file a charge on fairly well practice charge with the n l r b he chose not to take that and he could have also decided to follow the grievance procedure he did so and so another arm to skip all the way up to arbitration but he decided to take all the steps when it got to arbitration it he had the right in it it reads in the last part of section six is that the he chose to do that he presented that grievance but when he when it got to our d n a when he was trying to find out who was going to be the arbitrator from the pinnacle it was provided by the service r v s position at the time was we don't read the contract is allowing you to require us to go to arbitration on your request and so then he stopped it's kind of like our state a section nine right that an employer hands the problem with that is if an employer just grievances without the union why our our position was along the lines that letters as with us are ever ready or if you didn't read it that way at the time were there other occasions where you had agreed to arbitrate against individuals who were arbitrati s position was it took a construction of the language that you can find in case law that he had the privilege to ask for it we had we had the discretion to consider it we'd actually not exercise her discretion not to accept it and then what was then what is exactly what we've heard before this fall motion to compel so that would have been the best remedy for him but he had other additional legal action to think to two responses that you're on first from the employer standpoint r b a it took a reasonable rational approach to the request from the employers because there is an alleged breach it has to be well above that it has to destroy the mechanism of the grievance process here remember our v a participated in steps one two three when it got to the point j a one thirty four is mr stoddard in his own words saying this is how i read the agreement and his question was now what let me ask that because i thought the district  it you have to go to court proceedings or i think you had multiple choices what the answer would be i don't know because when mr sawyer asked what now here's here's the  go to federal court instead of seeking a three zero one action file a motion to compel arbitration he could push the arbitration before the the the federal service to to get that decision he could also go a different route he could file a unfair labor practice saying that the employer breached the contract he could file unfair labor practice that the union didn't do that but in all these options the key thing is you're going to get to the issue of arbiter bill if you're going to get there now the good the irony is that we finally got to the issue of our ability but we got before the district judge in this hybrid real one suit the problem is that mr stonor got the answer he did not want to we reached that hurdle in the summary judgment motion that we should be allowed to proceed to a jury in this case and that is that the district court did have subject matter jurisdiction  not did not have to be completed because my client tempted under the long to exhaust proceed sure he was unable to do so because the union's break each of the duty of fair was with out just call's which showed that it was a terminations as i had stated in the facts in the record shows that it was a personal animus terminations by howard model and which shows it was an argu that would be very helpful for opposition of course because neither are vi nor is an affirmative defense in their answer and the first time we ever saw lack of a contingent of lack of subject matter jurisdiction