america argument not to exceed fifteen minutes for the plaintiff morning your honor is like to reserve four minutes my name is ken meyers i'm here in behalf of the plaintiffs appellants who are one hundred and fifty six current and former workers of both g m and company a spinoff company six and what happened in a sort of broad scale in this case is that over the years well i hate to interrupt you but did you say to me and i miss it how much time you want to dress four minutes thank you i'm sorry it's ok  anyway you were saying over the years right g m in the u a w built in protections in a series of contracts over the years they would protect these particular workers there's two categories of them one of the older ones the ones who work for g m were known as the red dots i don't even know how that came about but that's what they were called and then the group that started with a c c but had a similar but a little lower level of protection that were known then what other than the two thousand and nine sap what else was g m a party to that would give them blow back right to be's of b g m only the two thousand and four transportation agreement between g m and a c c which officially but they were overlooking it they approved it the local chairman said that you know courts can go behind agreements and see how involved the union and is in protecting its workers to determine if freo one line can be brought i think in this case i mean this case is sort of unusual because you have any authority for that proposition that courts can dive into agreements and see how involved the union is in protecting its workers will other then the basic principle that we're a contract is is  ambiguous you can use parole evidence but it's not ambiguous as to the parties are it seems pretty clear to me well on the on the face of that's correct but then the u a w steps in and says what if this is what we did for you and if it's clear on the face i'm sorry how do we and i'm sorry to keep interrupting you but how do we die in ambiguity if it's clear on its face i thought that the then well i think it would have been except that when the u a w steps in and says takes credit for and says we we were doing this we were involved we want signatories to it and this is what we got to we got to five years of that's what the u a w should be doing even we don't want to discourage the u a w from doing what they should even when they're not signatories they should be involved that's can get it all and not sign the agreement and so add it let's say you get a bunch of commitments but there's nothing that you have to reciprocate on it seems like the best of all worlds well it turns out it wasn't because they then turn around said sort of plausible deniability you know we didn't now they're saying it isn't a labor agreement because we didn't sign it at the time they were they were inserting themselves in and saying yes we were but let's assume even though that you're correct it wasn't that the two thousand and four agreement wasn't a labor agreement the yellow dots judge duggan said that what they had looked like flow back rights but that term is and big us so i won't leave belabor what it's meant by that what they had was guide and delphi as the spin off companies that had return rights basically only had not worked there before they they basically said here's the here's the pecking order in which we we bring people in and the yellow dots were considered laid off employees unbroken a c c seniority so basically the red dots had a superior position and they should have been amongst the st to be hired in two thousand and nine but the yellow dots had some level  ten of my rd brief and which is part of the record below simply lays out this this hierarchy and the red dots are almost at the top of it because they were former g m employees they had this closed plant agreement which gave them an enhan so once the rehiring was going on in two thousand and nine bringing people back the red dot should have been way up at the top the yellow dot should have been mingled in with all these other delphi and  employees pursuant to two appendix a of a two thousand and seven c b s so you have all these protections built in contractually in fact my grimes the vice president u a w testified in his deposition but he added that's relevant to our case is two thousand and seven the same the same one but anyway mr grimes testified that he added that to protect the the a c c employees especially the yellow dots and so when two thousand and nine came around and you know i think that the basic premise was that g m was trying to shed debt during the auto crisis so they want to get rid of this twenty five million dollars subsidy to a c c and so that affected all of all of these plaintiffs but the but the point is they should have just gotten rid of them they should have brought them into g m ahead of some of the other people they were retiring at a huge pace you know thirteen thousand dollars within a year and a half of the bankruptcy two thousand and nine s a p which they asked everyone to sign which didn't include any provisions for either flowing back for the red dots or for coming back in their pecking order under the kind of say for the yellow dots so so there are several contracts that were violated and this this case took a kind of weird procedural path because different defendants in different plans were kind of shed at various times over the over the years under both dismissal and summary judgment and then another summary judgment and again i think that the obviously i think the bred dogs have a better claim because they they had specific contractual flowback rights and they were told during the critical period two thousand and nine a you don't have flow back rights be you have to retire or else you'll lose everything and see  you'll never see the inside of a g m plant so there's no sense in trying to get back to g m because there's no jobs and so those are that's not the claim against g m then you're moving to the claim is that you are a direct well the claimant in your pressure on the claim against g m is that they were supposed to both offer the jobs and we're supposed to have a communication plan to tell the employees how they were supposed to  when you move to the union i mean at the time the union made that statement was it wholly irrational i mean wasn't g m going through bankruptcy didn't we all have to bail them out i mean it seems like but bob look at it at that time i'm thinkin there is no way you're seeing the inside of a g m plant well st of all i don't i don't know that that's the union's place to tell them the unions places to tell them here's here's what your your rights on the and be candid with them right and if they think he's the fools they are and because g m has gone through bankruptcy and we're not going to get people jobs are laying people off not bringing people in well except that that wasn't true and if we found out when we finally got the spreadsheets to show they were doing massive hiring and rehiring now they'll argue they have argued that well we're not hiring anyone new but they were bringing back people with what they would have seniority anyway they would that's that's part of the whole point is the re had that they wouldn't have seen your i'm sorry to interrupt you but am i wrong in thinking that layoffs at g m would have seniority over red no because the red dots were considered layoffs from g m under the under the two thousand and seven appendix a but they also had enough another enhancement which was this close plant status if you have a if you're dealing to come from a close plant you are deemed to have a higher level of priority to get back to the red d by virtue of the employees they just laid off yes yes because the plant it wasn't just that they lay them off it's that the plant closed under him and so arthur schwartz the labor guy wrote this this this this memo that said we're giving the red dots a boost basically we're considering that they come from a close plant so they should have a higher priority meantime unions telling them no no no you got to retire when that when they knew or should have known that they had almost top priority for  rehire a g m and the g m was hiring like crazy or retiring like crazy and you were here but let me ask you this what is your burden on that claim do you have to prove that these individuals essentially would have received some day i mean is that they they would they would have been told the right things would have applied would have been gotten the right priority would have and then would have gotten a i guess there's a damages pony to it but it seems to me it has to be a causation well that the question of when and where they would have gotten the job so in other words if they're only waiting a week as opposed to a month then that's a damages issue but it's clear their point there they right and they've all signed most of them signed affidavits which the district judge kind of disregarded as as foreign but their evidence and these guys the ones that the did give depositions testified that they were ready to retire and that they were they were scared into retiring some one of them whatever who i would have taken the huge break remained in place for like a week and then whatever would have happened right appen it eventually i would have got it they probably would have even gone to the plant at the lower rate wage because the other thing we've argued is that several sort of favored individuals did walk right into a plant at the higher wage level but you didn't take but the took their retirement but they still walked into the plant because they knew somebody that knew somebody now before you start can you let me know how you're splitting your time yes i'm i'm representing g m i'm going to take five minutes to address the contract issue and the motion to amend the rd to write a complaint motion and we think is important to understand here is that for purposes of liability and a hybrid through one case you have to have a collective bargaining agreement and there has to be a demonstration that the employer is breached that collective bargaining agreement is your questioning and suggested there's really only two collective bargaining agreements here is found by the judges below there's the one thousand nine hundred and six memorandum of understanding that was entered into after g m and a c c set up their new arrangement that collective bargaining agreement did give the red dots the people who were going to be moving from g m to a c c employment did give them a one year period of time where they could flow back to g m keep in mind the a c c employees are truck drivers and they'd be flowing back into factory jobs so no one applied to to do that flow back and then ultimately with the crisis that occurred with g m the financial crisis there was negotiated the the s a p in two thousand and nine which  appendix a has a very complicated formula for determining who goes where you have tens of thousands of employees who are being let go plants are closing and then you have dozens and dozens of plant so how do we match up these people that are being let go but the vacancies that exist they set up a system where the employees who are being impacted by whatever's going on have to file an application indicating where that they're interested  in relocating what plant they're interested in relocating to and then once those applications are in the system the people who are doing your traffic control on all of this movement of personnel determine where they fall in this very complicated regime and placement it's important overarching for this case none of the plaintiffs filed any applications except for i think fourteen red dots so all the yellow dots no applications the vast majority of the red dots no application now mr meyers argues that that's a technicality in the gym's playing gotcha and that it's a red herring the fact the matter is that's a fundamental requirement for them to be considered for pulling back and until they another three or four were in it doesn't need an area that they couldn't demonstrate that they had it doesn't that seem i mean it seems like a little bit of gotcha like they filed these things under the two thousand and nine sap i think g m had communication obligations rants close call whether they are up for fail that requirement and just and i mean they they file these things wash and g m asked that question like where are you what plan i don't think we had a contractual obligation to reach out to employees to do that to to make that make that inquiry the fact of the matter is that two individuals in the redoubt category made proper applications and then were moved back into vacancies they were allowed to flow back so it shows the g m was following the system that it would have been put in place if they did it right are they the highest priority you know there's a whole hierarchy in the yellow should be able to jump the line ahead of people that proper applications in and were higher ranking under the appendix a protocol so that in fact because g m too violated the contractual rights of those people who had proper applications  he had any claims because remember this is not a class action these are individual claims by individuals they have to they have to designate or inquire not somebody who got preferential treatment ahead of them and he's not done that also pertains to the good morning andrew niccol hop on behalf of the u a w international union and its local six hundred and fifty nine i need to correct a mischaracterization of the record by the appellants council  there was in two thousand and seven collective bargaining agreement between g m and the u a w didn't cover a c c and that continued forward appendix a which had been in contracts for years which was this order of precedence of slade out on page nineteen of our brief then is it true that yellow dots were the equivalent of hires off the street or were they did they get some kind of preferential treatment hires up they did at the th hour and the th minute at that time g m and it was unilaterally said and it was it it was from arthur schwartz who was their labor relations director in an e mail i wasn't a negotiated agreement it was sort of a you know a gratuity from g m said we'll give them late laid off a c c employees or c employees close plant status under this close plant status is not the highest status but it's relatively higher it's better than what they would have had which would have been at the bottom of th memorandum of understanding and section five day of that document said the transferred employees that is g m people who went over to ac seeing it right the red dots could come back to the mothership through a flow back in accordance if they file them and there was a deadline which may or may not have actually applied i think it was loosened but only in accordance with appendix a in other words they wouldn't jump over other so why don't we g m employees read have a legitimate fair wrap present ation why don't the red dots well it depends i mean the duty  context and it has to be viewed in the context of of what was going on at the time to determine whether a union was acting totally irrationally which is a standard of the big i think they were the group for adults maybe i'm butchering map but they they filled out an application they specify a plan that plants end up hiring right and they had at least high priority for those plants so it seems to me it least they should satisfy the causal chain that would at least bring your claim past where they're at now and and that's addressed in the record in other words we have evidence that determines whether those there were eight of them actually who designated plants some for them were area higher which was the highest priority not as and then another four were extended area which is outside of michigan basically or fifty miles ok so there are eight of them who did designate plans and could have flown back to g m if they had not retired and instead stayed with form affidavits but here's you go to a jury ok and the reason is because the u a w did our homework we we got the records from general motors and  o what were what openings were available at the plants that those eight red dots named in their applications and would there have been jobs that they would have qualified for and the answer in every single case plan i'll take the right and you're saying we pull the records and they wouldn't have been mean not at that point what about a year from then or six lives or what if they say i would have hung out for a year and waited and  that's a reasonable question and we tried to do the reasonable thing so we looked at openings in the g m data from june of two thousand and nine at the time they were electing whether to stay or go all the way through the end of two thousand and ten so mr meyer says well they would have gotten jobs at g m in a couple of weeks or a couple of days or a couple of months we looked all the way through the next year and  dots the plants that they designated and whether there were openings in those plants that they would have qualified for under appendix a and the answer in every single case was no we did the home and in in response to that all that the plaintiffs can say is well there was this mass hiring spree and there were all these people and there were fourteen thousand new hires all of which is unsupported in the record and has nothing to do with these eight individual plaintiffs each of whom individually must make the case that they were injured in some manner even assuming that the u a w bridged its duty of fair presentation which of course we dispute have been put into the record in this case and the only argument and the only basis that the plaintiffs have is a this kind of smoke and mirrors allegation that there were all these openings and b these form affidavits which were totally self serving and filed years after the case commenced saying oh no i would have you know i would have opted to designate a plant where there was an opening i would have you know i would have been an area hire understand that at that time in all of that chaos surrounding general motors they had just filed for chapter eleven bankruptcy a month earlier they were not telling anyone the u a w or anyone else which plants had openings and where people should designate designate for flow back or recall or anything like app for communications i mean didn't they have to communicate this is a little unfair it seems to me to say well the employees didn't doubt their i's and cross their t s when chaos is gone well they did communicate in the sense that the letter that employees got explaining the sap gave a lot of information what they couldn't give is you know you should designate the lancing axle plant words and they didn't do they they they did i believe that they didn't know on a table day basis where openings were at that time because it was chaotic and they were shedding subsidiaries left and right they were moving you know  plants people who didn't specify so not this group but didn't specify day but they don't even no one knows where the openings are at this point seems a little harsh to me i i can understand that but on the other hand if you put liability on the u a w for not being omniscient or knowing something that no one else knew at the time maybe not even g m day to day that doesn't seem fair either so in some ways these employees could have taken the gamble and they could have stayed at a c c they would have given up the twenty thousand dollars in cash that would have given up a twenty five thousand dollars car out or they would have given up a general motors pension and lifetime health insurance benefits if they had done that and there's a lot of testimony from those red dots no way i was going to do that i was going to take a sure thing gamble that yes that is right but having said that they can't what we can't do is unscramble the egg in other words they could say that but what plant specifically would day have designated and they could go back now with hindsight and with the data in terms of where the openings were and what employees were taken in and say oh yeah sure i would have designated that plant that would have been my designation but that's not fair either you can't rewrite history and standards that's absolutely right i mean there is not a malpractise standard for unions for good reason that there are there are a union can do a lousy job and i have to be or at least so arbitrary that it can't be defended nothing like that happened here but everyone was trying to stay afloat as best they could right time's up thank you honour's to answer judge guy's question it is a fairly the duty of fair representation standards do give the union a fair amount of discretion but they can't do is they can't lie and they can't ignore valid claims and the there's evidence on the record that the chairman of the local recall though didn't even know what appendix a was he had and he didn't even know some basic concepts of union leadership or of contract negotiation to be able to help these people he didn't do anything for them so so i would argue that when you come in and you tell someone the exact opposite of what's happening and you don't know how to protect them because you don't know the basic contractual mechanisms that violates the duty of fair representation mr nickel off said that they did their homework and they checked to see that none of the red dots would have been hired they didn't do that until this lawsuit they never did it at the time in fact the two thousand  p s i pointed out says the red dots have flow back rights but it didn't but it didn't give them an option to flow back none of the three options including flowback and no one told them how do we access the flowback rights all they were told was you better retire so they thought maybe i could take option while i see you're saying i mean they knew that they hang it up in the right they knew it by retiring that they were losing their full records but they were told specifically they asked the question what about our flowback rights and we're told you don't have  they don't exist so so so that was and then later he turned depositions i think it was my grimes again or hell raps on one of the other vice president said oh yeah they still had flowback rights but no one told how to get them and the and the idea that that they they filed these incompetence over there was something that areas well i think i think i think it was bordered on both because maybe it started as incompetence but then when some of the union leadership started grabbing the jobs that supposedly didn't exist you know walking into these jobs in lansing for jobs that they were the didn't exist you know mr nicholas says that they didn't know that these jobs were out there but they're holding the the plaintiff to the standard of filling out any application where they where they want to go and where a job exists when the union is claiming it didn't know what the union has to know what a certain point because they have to sort of at least for informational purposes know who's being hired where where their members are and some of them may have been new members so i think there's you know certainly questions of fact at least as to the as to the red dots because a lot of it revolves around what were they told at the time in two thousand and nine and what would they have done had they not been told these things and i think those are those are jury questions the other thing i would want to raise as far as what  specifically says it's forward looking ploys will be given the opportunity to designate from among those plants within the area higher and then it says an employee will be allowed to change the plant so designated any time prior to a bonafide on so these things weren't meant to be you know it's in stone where you fill out one application one location and you're bound by it it was intended to be a flexible procedure where they could they could fill in where the jobs were and they were even told when they filled out their initial application some of the red dots just put a placeholder just put like arizona because you can change it later which is absolutely true so in conclusion i just ask the court to case and reverse and remand on the issues and raise thank you thank you counsel thank you all for your arguments the case will be submitted we appreciate your thoughtful arguments