limitations issue arises a key question always is when did the cause of action accrue and for a hybrid claim a cause of action accrues when the employee receives notice from the union that they will no longer prosecutors claim in your client say's expressly that he was waving a hybrid claim my client did not say that his counsel said that ok with that one in the same for where this court referred to i was going to quote from it on a question of applying the facts to the law a stipulation by counsel as to the interpretation of the law as applied to those facts is not binding on this court vs miller i have a right here this court quoted from justice brandeis if the stipulation is to be treated as an agreement concerning the legal effect of admitted facts it is obviously in operative since the court cannot be controlled by agreement of counsel of counsel i frankly am not familiar with the miller cases sounds like a criminal case but what you're saying cannot possibly be true in the context that we're talking about  we have cases all the time where counsel stipulate to something they tell us something or you are right there and we take them for what they say and they bind their clients is miller a criminal case  miller is a criminal case and how long ago was it decided it was decided in one nine hundred eighty seven and as long as we're on this topic of concessions i would like to point to cork to the transcript where the trial court judge invited the concession and he said if it's a hybrid claim you know that you lose on the statute of limitations so you will concede is not a hybrid claim won't you and trial counsel said well yes you just told me i'm going to lose if i don't concede that it's not i recline so he made that concession there was a mistake he should not have made a concession but he did and then the court turned around and said ok now that you've conceded is not a hybrid claim going to rule against you as it directly because there's no exhaust so the trial court essentially trapped trial counsel into making a concession that had not been made in any papers that was not made into consideration that was not made except in the exit of the moment at world argument where the trial court had told counsel if you don't make this concession i'm ruling against you ok well for our purposes here let's that you can do this and you just going on i reclaim your you are agreeing that the other one is god right i am not making that concession i there is one possible circumstances in which there could be a direct claim and i'll tell you what that circumstance is right now and i could find no authority on it so if this court wants to reach that issue it can if a union timely requests arbitration but then later decides it does not want to proceed does the employee have an opportunity within a reasonable period of time to pick up the arbitration himself that's the open question if an employee does have that right and again i could find this nowhere in the law one way or the other and it does not mention a collective bargaining agreement if an employee at the right i thought it had it and through the union know the collective bargaining agreement is silent on the issue what the collective bargaining agreement says is that the and so that's the issue and what the employee tried to do here was pick up the arbitration himself and if he had that right then this is not need to be a hybrid claim because if he had that right then he could pursue a direct claim because the employer beller mart refused to respond to his requests for arbitration therefore waived it therefore the exhaustion doctrine would not apply and if the exhaustion doctrine does not apply then the employee can pursue his rights without requiring application of the collective bargaining agreement other than as a breach of contract you can do it directly with any case law that backs up what you're saying i said that i could find  stuff i could find no case either way i'll tell you why because the law doesn't permit that but there is no case the system law does not permit that and it's it's an interesting question i think if and if the union says our resources are better spent elsewhere we do not want to pursue this not that they are settling it not that they're taking the lower payment not that they're exercising their fiduciary obligation to do what they think is in the employee's best interest but if they say we're not going to do it do you agree counsel that read this language any employee claiming whatever shall make his claim therefore through the union as only requiring him to commence a claim through the union as opposed to making the claim and and arbitrating at through the union is at your argument that's close but not exactly my argument i am relying on section eighteen point one of the collective bargaining agreement which is the dispute resolution provision now i should be noted the d n did represent the employee did present his claim did go through the first stage and then it said that they had no intent of going forward which may or may not be the correct exact language to just push to use but that's what the letter said and so section eighteen point one says the moving party and parties are defined in this agreement so that the parties are either the union or bell or more if there's an impasse the moving party shall communicate in writing to the other party within twenty days their desire to arbitrate that was done  and so the union did present his case the union did notice the arbitration and in the union said it did not intend to go further and he tried to do it himself now he's not allowed to do that if this court refuses to even reach that issue which i think it has to reach if it's going to deny on the hybrid part because then that's the open question and has to be answered well it isn't that since the collective bargaining agreement and this is a matter of contract an issue that the trial court ruled on but there was a factual showing in the trial court that he had not been terminated for just cause in the just cause was a requirement of the collective bargaining agreement so that he had a valid claim looking the conduct of the union have to be discriminatory were in bad faith it does and what's the record what's the evidence in the record that that was not an issue to death by the summary judgment motion so it's not in the record and again the summary the burden on a summary judgment motion is on the party moving for s issue of material fact on at issue correct because that issue was not raised it was not one of the issues that needed to be rebutted their papers were on two grounds on the motion for summary judgment statue limitations and there was just from those in counsel the morning may please the court my name is derek haynes i represent beller mark in this case plaintiff's counsels raised a variety of arguments i believe the most majority of them are addressed adequately in the papers but there's a few i want to highlight that counsel raise for the first time in the reply brief and here today that i did not get an opportunity to address the first pertains to the admissibility of evidence and i think that it's an important issue here that's the first ground on which the district  actually granted summary judgment finding there was no admissible evidence in opposition to the motion council did not challenge that ruling in his opening papers he waited to challenge it to the reply intil the reply brief as a result he's waived that argument that leaves him with a  and aside from that issue i think the argument pertains more to federal rules of evidence and no one is to the precludes the fact under that rule plaintiff has to submit some evidence on which the court can accept what he is stating or what he is proposing is in fact true or is what he claims it to be here plaintiff's count still submitted a declaration attaching a variety of documents that he had no personal knowledge to lay the foundation for or submit we also have plaintiff declaration here that is written entirely in english the first sentence of which states he does not read or understand english we have no evidence on which to to establish that what is written in that declaration are actually plaintiff's contentions plain a certain case at the same massood that suit a case to believe in his papers indicating that the decoration can be considered anyways even though it's written in a language other than one plaintiff understands however there's a distinction in that case in the record on the summary judgment there was plaintiff's deposition testimony where plaintiff testified that the contents of the declaration had been read to him and he understood them we don't have that here there is no evidence to indicate plaintiff read or understood the contents of his declaration but even putting admissibility of evidence aside i do want to address the nature of plaintiff's claim plaintiffs now place counsel just argue to this court that plaintiff only waived or indicated he was not pursuing the hybrid claim in the heat of the moment at the hearing on the motion on the motion for summary judgment and that simply is not true if you review the contents of his complaint first off it's played as a straightforward breach of contract claim then in opposition to the motion to dismiss file before the district court plaintiff's counsel wrote plaintiff claim is a straightforward breach of contract claim close quote later in that same document he goes on to write plaintiff is not asserting a hybrid claim because he does not include a claim of breach of duty of fair representation by his union then later in his written opposition to the motion for s he again writes plaintiff is pursuing a straightforward breach claim so the questions this court directed to plaintiff's counsel are on point plaintiff waived his right to bring a hybrid claim here but even assuming he had not waived it he makes an argument regarding the cruel of the causes of the statue of limitations he submits it can only accrue once he receives a letter from his union indicating that the union is not pursuing its case he relies on the grant case for that proposition but that misstates the opinion in that case certainly in that case the statue limitations accrued when plaintiff received such a letter but that's not the only way a statute of limitations of crews on a hybrid plane as the authorities in that grant case is stablished and years of ninth circuit precedent establish the statue limitations on a hybrid claim for is accrued in the same way it is for any other cause of action once plaintiff knew or should have known that the union was not pursuing its case and by the evidence in the record tells us  he certainly knew the union wasn't pursuing his case once he retained private counsel to pursue the case on his behalf in january of two thousand and twelve he certainly knew the union wasn't pursuing the case on his behalf when private counsel filed the underlying state court proceedings in this case in april  thousand and twelve and then lastly during the state court proceedings discovery was submitted to plaintiff where he again received another copy of the june two thousand and eleven union letter and on that point plaintiffs counsel actually concedes he concedes that in the underlying proceedings he learned the union wasn't pursuing his case but this is where there's a misstatement of fact comes into play plaintiff's counsel summits that during this once he received that letter during the state court proceedings it still did not accrue the statue limitations because the statue limitations was told during the duration of the state court proceedings and he goes on to argue that given that tolling the federal lawsuit was time really but that's an error even if you were to accept all that is true even if you accept that all the plaintiffs evidence is admissible and that he's pursuing a hybrid claim and that the statue of limitations was told in the state court proceedings judgment was entered in the state court proceedings in december of two thousand and thirteen and then he waited another thirteen months to file the federal lawsuit in january of two thousand and fifteen so thirteen additional straightforward breach of contract claim and i want to take just a moment to address the points that plaintiff's counsel raised here it's undisputed that as a mandatory prerequisite to pursuing a straightforward breach claim you must exhaust the administrative remedies or the grievance process provided in the union collective bargaining agreement counsel now for the first time not in the district court not as my opening brief not in his reply brief argues it's a us v miller case which i'm not familiar with  and i know according to kate it's not familiar with to suggest that there's an open issue or i'm sorry he suggest there's an open issue regarding whether an employee can pursue arbitration on his own behalf again new argument not not raised before so or arguably it's wayfinder stannis court could still potentially considerate but what he's ignoring is what is actually stated in section three point three of the agreement i know this portion of this provision was read to him it it specifically reads that an employee or excuse me the employees of the right to discharge any employee for just cause any employee claiming unjust dismissal shall make his claim therefore through the union it's undisputed that the union didn't end it his claim after finding there was just cause for his terminations let's go one step further here as the collective bargaining agreement lays out there's actually a multi step process that's required to be followed first the dispute needs to go before the board of adjustment which is made up of a union representative and the employer representative an issue only that at the end of that board of adjustment hearing here the union and the employer took the matter under submission the union indicating it needed to do some further research into the claim to determine how it was going to proceed in the interim it did request arbitration however after digging into the case and seeing the evidence here it confirms that there was just cost so what actually happened is the result is the board of adjustment essentially the union as a member of the board just came back and said we're no longer pursuing arbitration we're submitting our response as finding there was just cause for the term an asian and as the next provision in the collective bargaining agreement provides the determination of the board of adjustment meaning the employer and the union of the arbitrator is final so for plaintiff to to now argue again for the first time that he the employee should be permitted to pursue the arbitration it's simply an error you agree with mr out will get it on the duty the breach of the duty of fair representation concede that we did not on and on the motion for summary judgment argue that there was no breach of the duty of fair representation we didn't argue that because plaintiff wasn't pursuing a hybrid claim and he made that abundantly clear throughout the record but we went on to argue just in case he is pursuing a hybrid claim it's part for other reasons aside from the duty of fair representation and its bar because of the six months natural imitations and the lack of admissible evidence to dispute that sachin imitation is argument so it i do agree the duty of fair representation was not a ground on which we sought some rejection  the lower court and therefore plaintiff did not have to oppose that issue lastly and i'll be brief here because i think it is set forth in pretty strong detail in the moving papers the district court entered summary judgment on three alternative grounds any one of which  could be dispositive but it went on to note that there was a fourth round raise in moving papers in the district court that it would have granted summary judgment on had it reached did or if it had to reach it and that's the just cause issue just cause to support plaintiffs germination just has to be a reasonable and good faith reason for terminations here plaintiff indisputed lee left his work station took the product off the store shelf and consumed it without paying for it the company has a clear is zero tolerance dalt zero tolerance policy that mandates terminations when that because because we have some question we would thirty seconds more but that's all you please jack cases that require certified translunar translator only a competent translator there's no indication that the translation was done here was not  competent the collective bargaining agreement references a claim in a way that makes it clear that that is the submission of the dispute the creation of what are the parameters of the speed not the prosecution of it that's clear from section eight hundred point one of the collective bargaining agreement