appellant's who are all former employees of the guide corp who had were subject of to an agreement to flow into g m if anything ever happened to guide the substance of the case is not before the court it's  procedural matter on whether or not they properly exhausted their internal remedies and therefore were or were not timely in getting the actual lawsuit filed  i'd like to try to divvy my arguments up into three sections one sort of a micro view of the specifics of the letter writing back and forth and then i'd like to take a step back and look at the the macro view more of a policy issue of how the u constitution fits into the whole scheme of labor law and then i'd like to also touch on the the state law fraud issue in the preemption that the district court ruled so regarding the the specifics  were based sensually a statue of limitations problem correct correct and it's sort of inner twined with the question of exhaustion because what my clients did was they attempted to exhaust further then the court ultimately ruled that they were entitled to and what the u a w thought they were entitled to so they had they had gone through this grievance process in their local and then they appealed up to the international they did make the distinction between the international executive board  president and they were given a hearing which an appeals hearing which sort of veers off into one direction under the constitution but then the president sort of took it another direction and said i've overruled it you're done now my clients didn't understand that when he said you're done and they made a specific reference to a section in the constitution that that triggered their six months and they should've gone right to court their view was well i've still got to go to the public review board and so what mr flat for did was he wrote a letter saying i want to appeal it to the public review board sent to the you would like to take it they were unrepresented throughout this correct they were they had been represented you after all this and hung on and when it honor because the whole process up to that point had been run through a whole other area of the constitution and and i think if you look at there's a an ace just a circuit court of appeals case i just found when i was preparing for this i think is  is interesting because it touches on some the same issues stafford vs foreboded company eight thirty five f second twelve twenty seven and they actually said that the trial court had been too  with interpret the constitution they said the international the internal u a w appeals procedures set forth in article thirty three of the constitution are hardly a model of clarity and then they go on to talk about the difference between an appeal of  a grievance versus an interpretation of a contract and i think what what is supposed to happen is you got laid people who are challenging the unions decisions and lay people looking at the language of this article thirty three along with all the other articles in there can get confused as can the u a w itself the public review board as i pointed out my brief hedged on whether or not the president had properly run it through to be instead of to a because it had been through the appellate process so i think what happened with mr flack for it was he he didn't recognize because it had already gone through southern part of the process he thought in his mind i know i have to go to the public review board i know the next step is a public review board and if you look at the language of the original letter from the president sure and in hindsight it's easy to say well that should have been his to his his known or should have known that he was triggering his six months but but if you look at other and kind of morphing our my net my macro argument here if you look at other areas of of statutory law where there are administrative requirements such as a risk or title seven when you have an administrative process when that process is done the agency has to state very clearly here's what's happened here's where you are in the process and here's your next step of appeal and here's your deadline and what the u a w does if the union dead tell you this is the deadline under this rule then you can go ahead proceed through the steps right well so i think it would be better if they did it their way i'm nuts and i think that if this court signaled that that there was some leeway that there was some responsibility on the part of union officials to make it clearer to their members how to proceed as opposed to confusing the process when the union president all of a sudden says you know after after he'd been through this appeals panel process which steers you toward the public review board all of a sudden he says in the last line of a letter you know this process is closed well does that mean that the process is closed as far as i'm concerned and you now have to go to the next level of appeal in other words a sort of a final appeal of a ruling language or is it you're done go to court the average lay person should be expected as a matter of course as a matter of law to amend it says what he said assume that that it goes to the next step and the public review board which officially had no role in this they were there the ultimate appellate level they said if it's article thirty three section two b then you're done but you got to go back and find out so you went back and found out and the president then reiterated yes that's what i meant i have to agree with the public review board but intermingled in all that which is further confusing is the fact that mr flack for h filed an appeal letter but the u a w lost it this november seventh letter that he wrote no warning knowledge they got it even though you know the phrase though this matter is closed in that letter that that could mean it's closed go to court which is what we now know in hindsight they meant but it also could mean it's closed take your next level of appeal which is how he took it and clearly it's when you're when the when one also to my policy argument what the union is supposed to be representing it's members there's another area of the constitution that says that so clearly there's an area where they part company where you're challenging one of their decisions you're parting company you have to go through this sort of adversarial process but if you're the process seems to be designed to discourage and confuse the members as to what they're there they're avenues are and especially if they're not represented by counsel and if they if if if they are you know sort of i characterize that as of hijacking the process you know the president had had this process started which is supposed to go through the international executive board is supposed to end at the public review board then he writes this letter out of the so out of the blue after a hearing saying of taking this other direction so so the average person looking at that so well what if he's wrong what if he if you he ran into the wrong process now do i take him at face value even though he's procedurally wrong he's misinterpret his own constitution do i take my chances and go to court knowing that they might say you failed to exhaust the district court said it doesn't matter if the u a e if you don't use wrong and i think that's a recipe for disaster because if that's the case if the u a w doesn't have the same at least the same obligation to be procedurally right that the plaintiffs have then the u a w can say whatever it wants because because let's take the same scenario you  president says you're done planes go to court and then he says well but i was wrong i ringing through the wrong the wrong section you should've just in your appeals and in the district court says it doesn't matter  w is wrong it's up to the member to interpret the thing is that the burdens on the so called plaintiff here right well all the burden and i think i think that's where it gets in a policy matter is is is shouldn't the burden be somewhat distributed to the people who are who are supposed to know what their contract says who are supposed to interpret who wrote it and who still have an ongoing obligation to continue to represent their members you have a case that says that they need to say this is a final decision and your own recourse is to file suit in federal court or something like that no no i'm suggesting your honor that that it would be it would certainly avoid a lot of confusion venice from being here in cases like this because that are for all the members of the union because i get that letter because there's also cases and i and i litigated memories cases that are in the pipeline where the exact opposite happens were a member  case i think your honor if you look at it from a strictly contractual standpoint and you look at the concept of third parties beneficiary there's clearly a procedure set forth in these laws and in the not a negotiated document it's strictly within the u a w and the in the companies have agreed to abide by those procedures but part of this relates that memorandum of understanding that's in it which is a negotiated document concluded in the union was going to do nothing further here but if we did but if we determined that president king lacked the authority of a close the appellate internally union appeal then what result  would present king didn't like the authority to to do that the unrebutted affidavit of mr isaacson is that the process was appropriately followed in the into the constitution was appropriately applied as this court is held in mill right local in the long case which we cited in our brief this court is not to substitute in the courts or not substitute its judgment for that of the union in the interpretation of the contract unless the interpretation is not reasonable or unfair well if the procedure is set out in the constitution is council didn't use the word ambiguous but doesn't provide clarity to those who are covered by that then what it's it isn't it isn't and it isn't ambiguous your honor because he says that when he says it's it's closed for the for the appellant it's uncertain whether that means it's closed to this level and you have to go to the to the board or whether you go to court i understand if you look at the present king specifically references that he is denying a contract interpretation by a national department which is the g m department and he's denying the appeal with respect to that matter and he refers to article thirty three section b article thirty three to be says that that is the president's decision of the euro to be constitution that is the president's decision to decide interpretations of contracts involving the national department an interesting lee while plaintiffs quote article thirty three to be they leave out the reference to the fact that if you look at that and if you look at that provision it says there shall be no further appeal all they had to do is look at president king's letter look at article thirty three to be the only provision that applies in this scenario is the interpretation of a contract by a national department of the u a w and it says there should be no further appeal combined with the fact that he says the matter is closed that should be should have been the end of it that's when the statue starts to run that's what judge lightman ruled after extensive argument down below the union members thought there were still some review well obviously they did because they must be or they say that they did because they then they send a letter to the public review board which is not an avenue available because there's no further appeal the public review board then issued its letter on february twenty third saying there is no review there is no further appeal of the president's them that was february twenty third two thousand and thirteen they would have had to file by august they filed in october still they still missed us after exactly they still missed it so and that's what judge lightman says even even if you buy their argument that they were confused at that point time when the february twenty third letter any confusion should have been over the they the p r b says look you don't get an appeal to me the president's decision is the last decision it's over then send another letter to p r b back to the president and that letter basically says as president king said as a p r b said you don't have any further appeal and as the courts as  that the matter is closed you've been told the unit is not going to do anything further that's the end of the appeal and at that point in time the statute starts to run and so even if you give them the benefit of the doubt of the extra time period between october and february they still missed the statue of limitations thank you but let me just ask you this if we didn't get a chance to get to these preemption arguments let me just ask you if the plaintiffs rely on the chemical ever since williams case of the preemption issue  this how does that case if we find that we're bound by that affect your position with respect to that preemption issue the preemption issue is really that's that of the state of the fraud claim that's the unions are getting i ws claim that claim is only brought against the union  interpretation to the g m u a w department and then that brings when king says this matter is closed pursuant to article thirty three section to be all you have to do is look at article thirty three section two b there's only one thing in there it's a very obvious is a list of all these different type of matters but this there's only one that says for a matter of contract interpretation the whole as an incision is final the whole issue was that these workers felt that they were supposed to get some so now they're saying that the merits and when they get when they got back to work when most of them did get hired eventually but they were at a lower wage at the two year we had a certain right so i'd like to address the preemption argument very briefly the t touchstone of complete preemption doctrine is the supreme court's decision in chalmers or the court held that when resolution of a state law a claim is substantially dependent upon analysis of the terms of a collective bargaining agreement that claim must be treated as a three a one claim or dismissed as preempted by federal contract law in alice chalmers the supreme court said that in evaluating the state law claim is subject to complete preemption the court's analysis must focus on whether evaluation of the state law a claim is inextricably intertwined with consideration of the terms of the labor contract i would respectfully submit that you cannot get more inextricably intertwined in this case this is an easy case for preemption if you look at their complaint this is not a case where somebody tried to avoid federal court by artfully pleading and avoiding allegations of breach of contract this case they said that what they say was fraud they also say it was a breach of contract they say plans would have what is known as low back rates they were promised that at a meeting when they were ratifying a contract they had to vote that day on the contract the promises were not only made verbal at this meeting but also contained in the ammo you memorandum of understanding and also contained in the two thousand and three two thousand and seven two thousand and eleven so there's a whole bunch of collective bargaining agreements that they say give them this right and this promise the verbal promise saying that we the promise was fraud so that is inextricably intertwined the only way you can determine whether the represent the representation that they claim is a misrepresentation is true so you have to look at the contract if they say we promised flow back rights if you look at the contract if there were flowback rights in the contract then a representation is true but the only way you can tell by looking at the contract the point is if you must reference the contract yes well they i wouldn't say that that's the extent of preemption law but in this case it's very easy because they did reference the bigs precisely explicitly referenced in another point it's counsel raise a new case i would never usually do this because i don't want to surprise anybody  and that was october two thousand and fifteen case and i'm trying to find the sight of it in that case judge duggan found that because there was a duty of representation claim based on the same facts of the fraud claim in the end the allegations are almost exactly the same as in this case regarding flowback rights in a in a ratified plant closing agreement a contract that that is preempted by the duty of fair representation as well as by three o had no merit as a matter of law they did not appeal that so even if we lost everything else that point stands that under indiana law in this case yes sorry that that under indiana law there is no fraud cl because you can't base a prod claim on a breach of contract and that in any event the misrepresentation we didn't misrepresent it was true we sad that the contract had blowback rights and the contract did have to go back right after the complete s human touch on one or two things that posing counsel said that i'll try to get to my fraud argument briefly if you go back to the actual hearing that was held there was not august fourteenth two thousand letter and it's in the record from mr drury the administrative assistant to the president where he sets the schedule for the hearing and he says it's pursuant to article thirty three section four age so that that was those are the rules they're going under for that section says that a hearing held by the international executive board through its appeals committee or the international president shall be held close to locality so it's a choice they went through the appeals committee that's where this hearing was held the appeal of that was what mr flat for tried to perfect by going through the mechanism that he thought was the proper one if if if if the union president is wrong but i don't think that the plaintiff should be held responsible for that to the at the penalty of their whole case what do you what precisely are you pointing to as wrong is this reference to the sending of the letter referencing that section fo eight eight s though those are the rules that the union set for that hearing those that's the procedural rules the appeals committee that it just i mean i didn't see this but as you as you read it it sounds like the  purpose of that was to set the the venue the it just it was confirming it's in this location because we say it right there in that section right only about location no is it you want to bring more into it to well i say that it clouded the clouded the math i think it confirms what has what was stated elsewhere in the in the constitution and in these letters which is the procedure we're going under is the appeals appeals committee which is the international you say it's the it triggered appeals committee right well the u a w set it as an appeals committee they made that decision by virtue of citing this this section four h and by holding the hearing in that image in that way the whole procedure was a was a for each procedure and for age following your logic for once one is in for eight the whole business of to be goes by the bye for no it was in the letter age equates with to a which takes you to the to the public review board as opposed to two b which takes you to this president gets to make the whole decision and advice argument is in promise they they were induced to sign it or to vote on this plant closing agreement based on a promise of of keeping their jobs at g m and at the higher level that didn't happen regardless of whether the contract says and this was before the contract was even signed it was a reliance on caterpillar williams and along right so so you don't have to and it doesn't you can refer to the contract as long as you don't have to interpret the contract in order for there not to be preemption  your argument is thank you frank you're in the court and we will that are your matter carefully and issue an opinion in due course thank you