it please the court your honors i'm michael a body and we have the secretary of labor and i would like to reserve three minutes for rattle your honour's the district court erred in this case when it dismissed the secretary's action for lack of jurisdiction contrary to what the held there is nothing in the transportation workers union constitution that either requires a union member to bring a nomination challenge prior to the election or importantly there is nothing that forbids him union member from bringing a post election challenge when they have previously filed a pre election challenge in essence the union constitution is silent on this question and case law from this court and from the supreme court is very clear that any ambiguity is in a union constitution liberally construed in favor of the rank and file individual member the district court failed to do that in this case instead it credited an interpretation of the union constitution that the union never asserted until the district court in this case this is not a case where the court was asked to defer to a longstanding interpretation of the union's constitution mr johnson was never told at any point in this case that the union believed it was only permitted one challenge in fact the secretary of labor when investigating the complaint talked to the union and was never told that the union's view was that this was an exclusive one in one challenge only provision that that is why those statements are quoted in our brief that can't be what one what's your what's yours our response is that's not our position what we're talking about here i think is a default rule in a case like this where the union constitution is silent and the default rule that we're asking for is a pretty clear one it's that where it's not forbidden one post election challenge is entirely proper we're not arguing that johnson should be allowed to bring two three four five say johnson should be there argument to be turn try to make an argument of the sort that mr johnson is making is there a flaw in their reasoning well i mean there are a couple first of all i think the rule that we are asking for here concerns mr johnson and only mr johnson as to challenges by you know other members of the slate they may well have challenges that they could have brought prior to or after the election the union has it in its power to control th they could do what the union did in local thirty and in district nineteen and put a provision in their constitution or their bylaws or even their election rules saying you must bring this sort of challenge prior to election they didn't do that if you look at the union constitution here there is no time requirement whatsoever for these sorts of challenges none in local thirty and that constitution was the teamsters constitution and there's a forty eight hour provision in the teamsters constitution there is they do argue that there is clear that you ask what would be reasonable rank and file member do in the circumstances they're not lawyers they're not represented by counsel they're writing letters to their local executive board and i will know in this case it's the local executive board that makes the decision disqualifying only competitor sleep of candidates because of an interpretation of one rule that the international admits on this record had been in consistently applied over time and was within the discretion of the local and the local executive board then applies  disqualify one candidate and consequently the entire slate and refuses to allow substitution of candidates and thereby ensures their continued reelection you know the secretary's view that was a pretty substantial violation of the act here and that that should be pursued in district  also note the inaction of the union when johnson came forward on october ninth and files his post election complaint the union did not see to him as had been done in i believe it was the district nineteen case your your rights here have already been exhausted and they have done so we may not be here today because well one of two things could have happened either johnson may have just submitted the same letter to the secretary within the next ten days and everybody concedes that would be timely or possibly if the union had said even then to him hey you know in our view you don't you don't get a second so can buy it as they would call it well you know the secretary may well have determined that it would have been only reasonable for it was still in time to for to timely file from the earlier decision that had been if it had been rejected if the second test had been rejected had it been immediately rejected yes i mean then days till a ten days later yes within that ten day window johnson could have gone but the union again did did this court case law has actually said that silence can amount to acquiescence and waiver in local one twenty six this court said that so that's an important point but as i said at the outset here the union not until the district court in this case has ever offered the interpretation that this was you know a one by only provision and so johnson's activities must be judged from that standard of reasonableness survey have to look or should we look maybe it's just maybe it's just in terms of equity  or something that the purpose of the statue was the statute that it was inactive to protect the rights in the interests of the employees so if a protest as a second protest was filed and they had reason to believe they could the union that they could not file it or or or the what's the second level of the i c a believe they couldn't file it as on lamely she may have said something to protect the boy we will have time to file and absolutely the secretary thinks they should have if i can expand upon that i think there are actually two competing statutory goals here both of which point in favor of our argument there is as you have said protecting the rank and file member who is not a lawyer and is proceeding you know through these regulations as best they can based on what they say but there's also the goal of preventing interference with ongoing union elections the rule that is  proposed by the local and the international in this case would require a union member to go immediately and complain upon the denial of a pre election protest because of the sixty day timeline that injects that the secretary has for investigating such complaints that injects the secretary and their investigation in the middle of an ongoing union election because the secretary has a limited window to investigate so it may be in this in this instance you had a dispute about being on the ballot that may well not be cured but in another case you could have a dispute interpretation i don't think anything in this case ultimately turns on that your honor i think it's clear that he was denied access to the ballot in our view is that the second protest was valid even from the first action and therefore we don't think that it makes no differen was saying to george gordon earlier in the argument we actually didn't get back to this point because i think there was a multi part question they are different as you pointed out the second challenge is a little broader in scope it challenges not merely the application but the rules themselves we don't think that that matters from the standpoint of the rule that we have proposed here we think the sensible rule is where it's in big us or silent to you know one post election challenge is permitted but if this court disagrees with that rule it should take notice of what you pointed out the second challenge  johnson lays out in the record is in fact broader it goes to the rules about partial sleeps it goes to the rules about substitution of candidates and it goes to the historically inconsistent application of the rule about submitting these these two nomination forms and we think that this court could well find if it disagrees with the rule that that's still a reason for reversing the district court there are plenty of opportunities for o reserve the rest of the time for good afternoon mia please the court my name is bob baer and i represent transport would you look to thirty four i think there's two issues that i want to focus on one is to to to to review a little bit the legal precedents that set the framework for evaluating the decision of the district court below in this case and both of these cases a third circuit cases the decision in one nine hundred seventy two involving steelworkers district the nineteen and  ninety three a similar decision by this court involving local thirty at these two decisions of very a watershed decisions with respect to the very high statutory put provisions  and s to be interpreted by this court and that were interpreted by just judge davis prior to these decision apprized in one nine hundred seventy two decisions have been a number of district court decisions that relying upon some very general principles that was set forth in calhoun a supreme court decision which largely focused on the fact that title four of the elem r b a provides post election remedies and  about back title four allows that the secretary to file suit against the union in connection with an election only after the election has taken place the district court decision that proceeded hodgson and the  nineteen conclude from that that we election protests were of no consequence with respect to the statutory requirements which are mandatory as preconditions final decision and then the thirty day window in which to file with the department of labor this court held that in the circumstances of those two constitutions that deal lection protest guess i was the first one of your your opponents say the position that's being taken here now was never taken by the union before judge davis says this is a this is a brand new that you at the union thinking that's the way the ellen is but i'd like you to run for the union for the transfer workers union this was a case of first impression the local for sure had never thought with a circumstance like this and from the internationals amis brief they had not either so while the law was out there and the statute was out there the in this particular unit had never dealt with it concretely and if in a specific case it would bring someone there to know what to do a member could ask what to do well a member did ask in this case in the sense that the member filed a post election protests that was taken and nobody ever said hey you had one bite you're done well it was just said ok thanks and then the time clicked the way and then and then he's told by the invalid because under local bar i was a challenge to the certification of an election which is part of the record is not permitted to be for i would the local union must be filed with the international committee on appeals so that's right there in the bar i was the member should be able to read the by laws and realize that if they want to follow a post election protest they don't follow it to the local union that happen october ninth but it's time if the complaint was far to the international in november the time period for following with the secretary had already elapse i guess that i guess this raises the question that i hear your opponents are about they pushing or pressing upon us that is how are we supposed to be approaching this case or case law seems to say we're supposed to approach it in a way and interpret this that in a way that is sort of gives every break every reasonable presumption that can possibly be given to the rank and file number your discussion seems to be taken a slightly different slant on that which is if you didn't send a piece of paper to the right group you lose and not all of you lose on that petition but you lose any right to go to the district court because you should have known that your time was running and therefore your you don't get to go or turn to the secretary or to the the are you putting us in a position where we have to ignore our president that talks about giving every reasonable presumption to the rank and file number no i think every reasonable presumption should be given to the rank of a member so long as the presumption is a reasonable i mean here we had a pre election contest that was taken to the local executive board it was then appeal to the international committee on appeals in the mean time the the the  johnson people went into federal court with its with counsel and they had counseled this in their innocence our time and challenged what it occurred we gardened their disqualification as candidates had a full hearing before the district court then got a decision from the international institute ember were given opportunity for provide additional information this will fax to challenge the factual basis of that decision provided something but it did not satisfy the international and their and their their complaint was rejected their appeal was rejected it was clear is day on the nineteenth the september that the international had rejected their arguments for be in put on the ballot in this particular election no question about that the the question that's occupying us though is whether the wording of article fifteen is such that it was totally unreasonable for mr johnson's going in there to think my constitution gives me the opportunity to complain again after the allied that's that's the real question right not whether he could have gone after the first but whether he could reasonably of thought i can still go in this record by if i want to by filing this post election isn't that a question we got to answer perhaps  one question but i don't see how it's reasonable to conclude after you've basically contested the very issue that you sought to contest and got an answer no way from the local but from the international that you've been a after the election fall that's basically the word to him they acquiesced to what we're talking about so you the problem is he would talk about a local which i represent and as a party in this case the international was not named as a party the international is who purportedly the department of labor interview and is entered into this record hearsay evidence about what the international general council said ok and that lets explicit sumant that those are hearsay and will put them  acquiesced in is it was not rejected the local did rejected leader national they were international women nothing happened for it until the time until the time had run for them to file a complaint with the secretary on the first for all i would say actually that's not really the case because with respect to the pre election complaint after the election and around the time that the second protest was filed they appealed to the international convention the decision of september nineteenth that was made by the international committee on appeals so by virtue of making that appeal they still had a remedy available an internal remedy available which would have to the been decided upon at the next international kjartan chows intent that occurred this p s there is no no  you're both parties have now agreed that that two thousand and is issue is moot or you're not really an issue for that well what i'm saying is that the time that they filed the second complaint they also fought this appeal ok so they didn't act literally where they were not cut off entirely from attaining a remedy within the context of the union by following the complaint with the secretary in january they basically for purposes of the statute their internal remedy are you suggesting the election results would not have been final until the convention decided the appeal in two thousand and the election results have been final insist sense that under the of the constitution of the union the elected offices would be in charge of the local but the international convention which occurred just last week by the way could have if they found in favor of mr johnson overturn the election i'm confused modern i apologize because i thought your argument was that he had exhausted his ministry remedies but he had not timely gone to the district board now i understand your argument he h which its own precedents have been reviewed by other courts which and including by the secretary and other cases where real action protests of the election procedures or election conduct has been deemed to be sufficient to set forth the statutory clock in motion is a seven circuit case right versus local three ninety nine in which the secretary remedy for a protest over a nomination in the seven circuit case i just referenced all it said in the archives it was no specific procedures in the constitution for protesting the election of offices at all the protests were made on some more general grounds that misconduct on the part of offices prior to the election the ninety days elapsed and the secretary argued that that pre election protest was suffici that doesn't seem to be speaking for the central point here i suppose everybody including to survive they would agree that if mr johnson had wanted to he could have filed something with respect to the pre election protests that made its way all the way through but that's not really the question we have to view with this simple question we have to deal with whether the union constitution itself open the possibility this rank and file member that i get i do get two bites at the apple this isn't like a court were raised to become a case in this is unions might have a perfectly good reason for wanting to take a second crack at it and they're giving me a second crack at it so i can go in and the clock does start again isn't that the the point that you have to speak to we have to wrestle with well i think the constitution is clear that there is that this permitted under that article a complaint may be filed a single vague than ours is right in other words more specifically could draft approve vision for your constitution that would obviate this happening again and be a model for other constitutions and future your honor i represent a local union you're speaking of an international constitution didn't mean you the local ok the local  nor the local is has the ability to do that with the and we all have to live under the framework of that international constitution i myself when i was a member of this local was before this court in the same predicament where we as members or even executive board members of the local habit the belief that the constitution meant one thing and when we came into court we were told by this court that know what you believe and even though you however reasonable your belief may be the international determines what the constitution means not the net out that's different but if the international as interpreted its own constitution but that's not the question we have before us well the international had never for his position since aren't they the ones we should look to as to how they interpret their constitution i mean their response following his says yeah we're here we have your complaint here but then they didn't as they said in their brief they just accepted the complaint as having been filed with the proper party which is the secretary treasurer of the international and then it was sent to the committee on appeals they would they never rented a decision about his his second protest and that was beyond the control of the local to have to influence seems to me under that set of circumstances that if you don't know what the constitution says this council that that union member would have thought have effectively protested this post election and least my claim still alive well it's not that i don't know it because i have my own opinions as well or as so does the member right but what i'm suggesting to you is is the international it's not the department of labor that gets to interpret the constitution of the transport workers union which is basically a lot of the awkward that's been made here by it sounds will that they have the correct interpretation  you're saying the the international now is starting to interpret this no the international before you said it didn't because the issue was it was never confronted with this particular issue so and then when it was faced with this case it produced the advocates brief to splay its interpretation while they mean while the argument was made that the the protests was untimely based on that the local made that address in response to what co counsel just said first of all there was a citation in the brief and here today at the podium to a other district court litigation about this election suggesting that the johnson slate had their claims heard that's not correct that was the title one a claim under title one private members can bring claims to try to join a union election but it's limited soley to whether or not the rules are being enforced in a discriminatory manner and all that the judge decided there was the rules are not were not being alleged to be enforced enforced in a discriminatory manner so it dismissed the suit and said this is properly the basis of a title for a suit to be filed later on by the secretary that's the suit we're trying to bring now so it is not correct to say this was litigated second of all judge mary i think you're exactly right if you look at the record that the international or the local never rejected the october ninth filing infected p g fifty five of the appendix johnson second letter notes explicitly hey i submitted this to the local and they took no action on it so it's not correct to say that they they immediately rejected it thereafter and finally i did not address those other two third circuit cases american ng argument but i'd just like to say very briefly that that our position today does not quarrel with them we agree with them teamsters local thirty was a very very different question than this one that question was if it's immediately clear that the union member had exhausted before the election there remedies should we make them go and file a post election complaint this court held no we don't believe you should that's a different question than this one which is the second complaint forbidden because the first one was made separate question and then we think district nineteen again does not control because there was an express requirement and the challenge to nomination procedures be made forty five days before the election it was improper to file a protest after the election in light of that rule  we don't contest the validity of such rules and we think that in the future unions like t w you should write those into their constitution if they believe that a protest need to be done beforehand the elem r t a is set up to favor post election challenge in this case the international it needed a believer's page forty six of the record that it was deciding the appeal in a hurried manner and didn't have all the facts before and i think that just speaks to the fact that this scheme works better if you can have considered time for