suppliers to flow into g m at a certain point and the issues in this case involve two separate groups of people there are six appellants that had formerly worked for g m and then there's thirty nine who had not they all ended up at g m in two thousand and nine and so we got sort of to pass here to the path for the six i think is were obvious because they had promises made to them as former g m employees and the question is they took a bite down to help delphi in two thousand and six try to get over its financial problems which of course were not successful today give the company in return for the three year payment i mean for their salaries were reduced is i mean are they in exchange for i think it's one hundred five thousand dollars isn't it correct that what they're giving the employer in return is reduction in status to tear to rather than tear one that's that's my argument that that is not the case your honor that the there's no document that says that there's there's no document that says what happens at the end of the three years are during the three years they they take the after the three years they at least what your position is they took a look then they go into a lower salary tear to know my position is they should've gone back go back to their original salary but why would why would any company ever do that the exchange was they took a lower salary was basically front end money for delphi to save money at the time to try to help them out which obviously didn't work but then when they moved to g m there's nothing they still had their seniority they still had g m seniority so so there's no document that says well we take our seniority employees we lower their wages in exchange get for an employee does that we we want to know is that convert to money part of it does part of their other aspect when you say they kept their seniority you mean with that with that seniority one gets tier one wages has to do with not only salary levels but but benefit levels and also the key thing is bumping rights is something sation and bumping right right ok right so  obvious it's so obvious that they're going to stay at the lower rate after the three years why would they why would they not put it in writing they write they write everything down to the t and there's these two large groups that are negotiating and there's is this this group of employees who are third parties beneficiaries to these contracts and they're kind of left hanging at the end of the three years that's your best argument i take it that it wasn't written  you know things like priority with respect bumping ry it's and you know or jobs probably other other things opportunities to be around other jobs but it didn't get you to tear one way to try and sell quack do you insist now that it would affect the way it is because there was no such thing as cheer one or two wages before two thousand and seven and if you were a full time employee of either g m or delphi prior two thousand and seven you got the one wage yeah but it wasn't based on seniority correct ok right so this so this but why would it be based on seniority nails because in two thousand and seven they wrote all these new rules that included grandfathering some people in and listing some people to say that the fact that they retained their seniority is more an argument that that show that it was meant to be temporary than an argument that some have seniority affect affects wages or did affect wages previously i'm a little unclear your honor well i just think i think you might have just said get retention of seniority in the wrong place in the analysis it seems to me you can't argue really getting perhaps that maybe you can but maybe they'll be more in the record a lighter but based on what you just tell me it doesn't seem like there's valuable argument that seniority affected wages so maybe the significance of routine chain of seniority is mole or that it has some tendency to suggest that the agreement was intended to kind of action you have to show in this case you would have to show not only that general motors breached the collective bargaining agreement or one of these agreements but also that the union breached its duty to represent your clients in good faith right right and so when and if you don't show both of those things you can't really you don't recover in a three a one action right right and to show that the union breached its duty as to you in this case you would have to show that the unions interpretation of these con contract provisions was are but i'm quoting from a case arbitrary discriminatory and or in bad faith is that is that fair that's that's the language and so i mean this is an unusual case of contractual interpretation in the sense that we don't sort of just look at it and try to figure out what is the best interpretation and stead we have we have to bring really a lot of deference to the unions interpretation and ask simply whether that was arbitrary so that that a fair characterization that's right i appreciate your straight answers that are and i and i understand coming in it's always got the numbers mixed up one thousand nine hundred fifty four to fifty nine that says that independent of the contract the union still has a duty of fair representation so that even if you were to rule that the contract either it wasn't breached or or it wasn't clear that they do you had a duty under that statute they were independent duty to treat their members fairly outside the context of the contract so i think i actually kind of get two bites at the apple against the janja but to try to climb that hill little bit for you your honor and let me just tell you what my concern is circle k and then and then please do whatever you want to do i mean you candidly agree in your brief that there is no specific contract language either way as to how your six year clients i think should have been treated and if there's no language either way how can we say that the unions interpretation of that silence was arbitrary because i think your honor that the union i mean if they take a step back here the unions job obviously is to represent all its members and they've got these group of people from delphi that are in a little different category than a lot of their of their members and i think that when when all was said and done all the smoke cleared from all these agreements in these supplements and everything they left these people hanging out there they just left them hanging out there and when the people complained and the delphi employees complained they just they just put them into this this appeal system which is an ending and it's ambiguous and it's it's controlled by the union and the first thing they're telling them you don't have a claim they're saying you do have a claim we're going to appeal it we're going to grieve it then we're not the need out of nowhere  dismiss it and four years later these people have no remedy and so i think part of it is goes to the general way these things are treated where where any time a group of people like these people who were in a different category complain there's this there's a there's the system is more geared toward putting them off and stalling them off their own investigators their claim there's no evidence that the union really ever did and he serious investigation their  start with addressing that equitable as a stop all argument absolutely your honor the to back up a little bit the law is clear on this it is a six month statue of limitations with respect to  the case is also clear they just triggered when the union makes the guard my question so much concerns the triggering that's been i think that there's pretty much agreement about the trigger and the question asks that you address the requirement that the appeal has some context that it is signed by the appellant and specifies the action that they are challenging limitations period now i understand you know would you agree that we have in this appeal we have to decide this issue based on the pleadings yes and i mean don't they plead that that the w as a practical matter treated this as a group of people rather than an appeal just for those two persons not exactly your honor in that i believe the pla permitted because the g m would agree to let you double you grieve the issue as a group grievance was that we claim individual signature so the grievance procedure is governed by the collective bargaining agreement because it is a dispute between an employer and the union but here the court granted the dismissal of the forty three pellets based on the defense the affirmative defense filed by the company there it's very different the statue of limitations defense right so that there is a different standard when the court is granting on the affirmative defense is there not  that this correct has not your firm and overly shown yes your honor but i think in this case what we have here is that not only was there a physical requirement for the signatures but there's  everyone and you know big companies sort of acknowledged that this was filed on behalf of the group of plaintiffs for you and i think you're referring to the letter from the international union yes the company  that a tech i mean i know this was the disposition here was on a motion to dismiss but is it those things attached to the comply in some why do we documents that judge judge cook has been referring us there in the record as well your honor so we are to be able to look at what we have and determine whether you're accurate about b between the two procedures and what happened during each yes i believe your honor every i believe there are sufficient records for this court to make that determination and if i may go back to judge cook's question  nine in the turmoil it occurred in the auto industry in the early to thousands delphi ran into trouble as a consequence of that delphi was a supplier to g m delphi g m and the united auto workers entered into a down in which they moved from their tear one status into a supplemental status it was not a three year by down they moved their change their status to supplemental status in exchange for that they were paid one hundred five thousand dollars they gave up eight dollars an hour so eight dollars an hour times two thousand hours is sixteen thousand dollars a year times three years as forty eight thousand dollars it doesn't make sense if you be paid one hundred five thousand dollars for a forty eight thousand dollars benefit what was never any it is on page eight of the forty of the forty six page document in which it says effective october one two thousand and seven all traditional employees will become supplemental employ vast majority of the point of so in this case were already a tier two and delphi had never had to hear one benefits as another part of the restructuring agreement g m made a commitment to try to sell or find a buyer for the delphi flint east plant where the pla fs all work under the restructuring agreement if if a g m was unsuccessful in finding a buyer for that plant they agreed to enter into negotiations with the u a w to find a solution to that  as a consequence of not being able to find a buyer and then did enter into negotiations about what was going to happen to the flint east employees and they entered into a memorandum of understanding in february of two thousand  that memorandum of understanding said that g m will hire the delphi employees they will become g m employees on january five two thousand and nine and they would be given a g m seniority date of march two thousand  seniority for purposes of placement in for example the grid the second tier grid because it was a staged staged compensation system so it moved didn't they don't start at the bottom they start in the middle but they are at tier t the significance of being the march march two thousand and eight seniority date though was that a g m at that point in time that got you to your two wages so the even for the folks that took the buy down they were that they would suggest that they could do you miss salvaging their jobs and are going to pay them tear one wages when they are already a two tier two but there is the argument seems to be that as soon as that agreement said that you are that you are entitled to be treated like a former g m employee then there is a tier one compensation level that accompanies that that new status says return to g m well they returned the g m but there was never any commitment as to what their pay grade would be with respect to that that's something that had that's though she hated by the you know it's the leap that i think we're we're asked to take by the any contract they gave them titled one or tear one wages at best they can say the document is silent as to what would happen to the folks who took the buy down and as the district court properly ruled the absence of  create by throwing all these documents on the table and say somewhere in here we have the right to appear when wages is again the standard for what the union is judged against in terms of the do use fair representation the second prong of the test is they have to show that they acted arbitrarily or in bad faith or in a discriminatory way here the case is i think the case is clear there's no contractual right but even if there is ambiguity as to whether there's a contractual right or not that amended the effort to amend their can complaint the the yes the district court took care to look at all of the arguments that point us made in their original complaint and then looked at the amended complaint and the standard that to be judge there in looking at that amended complaint as to whether it it would be a futility and we believe that the court properly found that taking you know account all of the other documents  through one case and as such properly dismissed the claims in this case  on the statue of limitations issue  the union seems to want to have it both ways they want to say we should be entitled to deference to rely on the language of our constitution to interpret our own rules and then they want to say well but we we interpret it one way for purposes of internal appeal but we get the federal court we've got different lawyers and they can say something else they can raise issues that weren't raised for four years during the appeal process they accepted this group grievance which became a group appeal on behalf of all these people for four years and they want to come back to court and say well there's now we now we wrote into the new constitution which took place while this was happening in two thousand and ten this individual signature requirement i think that they've waived that and they've waited by the terms of their claim it's obviously not dispositive on this court but there's a case that's working its way up called cosa versus u a w where the judge did say there wasn't a three a one claim but he did allow an independent d f our claim to go forward  through to through past summary judgment so that next case actually getting ready for trial so there is from precedent for for that issue and involve a collective bargaining agreement hard that claim that went for i mean did that case involve a breach of a collective bargaining agreement yes what the judge ruled there was that independent of that the union misled them to the plaintiffs in terms of what their options were concern regarding some options and  would be the analog to that here in your view the analog here would be the union saying to the to the plaintiffs basically misleading them as to the status of the  the their their grievance which then ran out the clock presumably for stash limitations purposes they say you know either lol i'm into a false sense of security by saying the grievance still pending or or not then all of a