this time we'll hear smith versus the metropolitan museum of art and we also believe that the dismissal of the case was premature considering that the union did not have a chance to appear answer or submit any paperwork with regards to the motion into the lower court and a lot of the answers that we still don't have questions to at least we have believed as to the answers but we not we don't have them in the record or in the hands of the union there was other another aspect of the motion to dismiss which the lower court did not address the union member of the employee in this case after the grievous was filed the union did appear indeed in degree events they took it throughout the steps one two or three days in one and so forth and eventually they appealed to arbitration just before betray  not have told him that the museum was not notified well i'll people i wouldn't if the deal is that is correct but there could also be just a mistake or violation of the agreement or something else does not necessarily jump to the conclusion that the union did not do what they were supposed to do in fact in the in a declaration submitted by the museum from voss she does state you know first declaration that you did not receive any notification from the plaintiff directly she don't say that they never received anything from the music from the union and i think that's an important distinction in this case because we still don't know whether the union did in fact defy the museum on behalf of the plaintiff and i don't think the reading of the agreement to some agreement specifically requires the plaintiff personally to do it as long as his legal representative or his you represent the ditch on his behalf said that they did not get the notice they said specifically they did not get it from the plaintiff they never said they did not get it from the union in their in their paperwork let let's parse this out it's not th you would have come from the attorney for your client which is what i mean did the attorney or somebody union on behalf of you think it's possible that the museum was slicing things very thin in that they never heard from your client because the only person they heard from is your client's counsel possible i cannot answer that question on that we have a possible that was a phone conversation directly for my client to musing which does museum which does not corresponds directly from plaintiffs to the museum the first time that i thought the first time that mr smith could have been become aware of the breach alleged bridge of the museum is when they specifically said so in their papers saying that we don't have anything we don't receive anything that was the trigger which caused us to bring into music the union into the case and we did it within a roughly about thirty days after we got the service of the papers so we believe that the six should have acted on behalf of the plaintiff as his representative that i was specifically denied i don't specifically address it the other key point in this case is not the agreement before i say that the museum alleges that the only person the should have become aware that sh be have received notice excuse me of the revocation was ms voss but the agreement that my client signed does not say that in fact it doesn't even say to whom where he should send any notification if we're going to consider that it was only him and just him morning your honour's may please the court my name is clifford atlas with the law from jackson lewis p c representing the apple the metropolitan museum of art and the doe employees and corporation as well as the museum of the said that it  revocation it said it did not receive from plaintiff whether that's from plaintiff or anybody on behalf of plaintiff we didn't parse that but plaintiff did not have counsel at that time plaintiffs the attorney for the union was representing the union at the arbitration and the obligation of the union is set forth in our brief i thought the union assigned counsel to the to this point do not believe that that counsel was representing the pla f personally the counsel was there representing unions interests is my understanding of the way that worked so serious so if the plaintive told the lawyer for the union that he wished to revoke please tell the museum and he did then the union then the museum could still say and perhaps does say we never heard from the plaintive he himself to be clear it's the you it's the museums position that nobody ever conveyed a revenue that's your position but is that is that is that the evidence the evidence that we have at this time is the plaintiff admits that he was required to notify the museum he admits that he did not know if i don't say he was pro se during the period of time in which that no should have been given if you wish to if you wish to revoke he had to notify the museum he managed to call sharon caught the general counsel of the museum according to the plaintiff number we're just taking the allegations in the complaint he could have at any time notify the museum in writing it's not a complicated thing to do and it's not an abnormal requirement in a release to say ok the revocation is to go to the party that's involved in the agreement me and he did that so far as the museum is concerned would not have been an effective revocation that would not have been an effective revocation but that's not what happened here and in fact there's no allegation that happened here the oral argument the parents attorney stated that he's not aware of any evidence to be able to search or to allege that the union actually contacted the museum and so then i'll geisha is missing from the complaint so the hypothetical frankly is inappropriate attorney so the agreement anticipates that he'll have an attorney separate and apart of his own choosing a taking place that would seem to imply to me it could be any attorney he chooses to speak with i doesn't make the representation that the union is represent would have been effective and we the union believe that that would not have been effective because the tri part of agreement between among the union mr smith and the museum specifically said that mr smith has to do this for himself in writing and furthermore their dream and said that any modification of these obligations under the agreement would have to be in writing so if the agreement says  that was prematurely dismissed because the union had not appeared in the action well that is not correct for two reasons the union did appear in the action the union file a notice for parents and the union  the circuit that both entities the union and the employer don't have to appear in order for the court to consider the hybrid three a one claim they plaintive just has to plead both parties and the claim against both parties have to be considered the museum the heavy lifting on this case for the union the museum brought all the defensive because it had to defend a hybrid three a one cla and said brought all the defenses that the union would have a certainty to get this claim dismissed and that was proper for the for the dis record to to consider the museum's motion to dismiss on the highway three a one claim without representation on that issue for the union now this records dismissal of this complaint against the union itself was correct for at least didn't do that and he got notice when he got payment this settlement the settlement check that the museum sent to mrs smith was notice and though revocation had hasn't cashed the check you know it does not it does not it isn't comment on him to have revoked their release within seven days in writing and once and once he doesn't release it the settlement is valid and in full force and effect and what he wants to do with the money that's his business now with respect to the substantive aspect of this claim this circuit has held several times over that says nothing we're says i'll do it and then doesn't do it what does it mean that that's that's that is being advanced as a possible scenario food happened here and you're  there's no you know there would be no basis for claiming that anything that the union did were in some untoward oh we're saying that the union had an obligation to do it but even if the union internal bit i mean there's even if they you're on an internet you can argue that you have no obligation to tell somebody is code is on fire if he says i want to revoke and and and please do it and you don't say anything you're really putting somebody in a bad position so even even if mrs smith told the union that and the union didn't do it mr smith was on notice as often late as of late october two thousand and fifty that no revocation had occurred when you get into late i'm sorry was it then too seems to be going forward with what the subtle it requires he's on notice that if if he's had if the unions some of stuck it to him or violated their duty of fair representation his claim is crystallized on october twenty ninth which is the date of a scots letter to him and the six months ran because he never filed until august which had been two months two months or four miles away right well he never filed on don't like understand that i'm saying that your only dismissal of the case i think we should have had a little bit at least a little bit amount of discovery to find the answer to these questions as far as the representation of the employee as i mentioned earlier in my argument several cases and i under the agreement that's page twenty two of the sentence that's the position right so so the union whatever the union could or couldn't do smith was the only one who could devolve but my argument and the and and the  either was smith was the only person who could unplug this agreement right that's the language site word for word from the agreement as i might my argument is a little bit battle today to say that the union is benefits i mean it's not in the record but it would be if it went back as well but it he was was good health care and he was also supposed to be continued in the retirement system you know if you require acquired additional retirement credits with regard to the payments that were made to prop provision was that they were to provide him with continued health care and i don't think he had to do anything at the just kept him it seemed to me from the agreement they keep insisting that he went into the doctor and he used the health care that he had from them that he