and now i'll call the next case of justin altman's versus international longship shore men's association mobile and checkers union and others he would be assigned to deccan dogman work just briefly be the deccan dogman work on the decks of ships and on the docks next to the ship they are doing clerical work organizing and keeping who meticulous track of where the containers are where they should be getting them moved to the proper place and the checkers or offsite land b started so the case is filed under a section three a one of the labor and management relations act mister old man's needs to plead a breach of contract against the employer which is the georgia stevedores proposed amended complaint so the but the question again boils down to whether his asst proposed nd minute complaint sufficiently alleges facts underlying each of these claims the breach of contract and the breach of the duty but it also incorporated here is evidence of record which is important in explaining some of his allegations in the complaint and the defendants mister coleman says submitted evidence of record as an attachment to the point of the original complaint and also the defendants have submitted a lot of evidence of record explaining mister altman's allegations so the central question underlined both of these  whether he should be granted seniority according to that plan the seniority plan is a part of the contract as part of that collective bargaining agreement the other stuff you little bit there that you'll read it discuss whatever you're about to discuss but i can you could focus on that for me that would be very helpful i will move in that direction right now and i'm always speaking for myself not sure i can zip back to the breach of contract right away in just a nd i'll turn to the breach of duty of fair representation which i think is the more transparent claim and the one more supported in the record as having plan issue and ours can arbitrarily ignore or give only preferred functor be reviewed the union cannot employ fraud to see dishonest conduct and the floor in the union cannot be discriminatory and there was never a formal decision explaining to him the rationale of their decision they tell except for the fact that it was not being considered further it was tabled because of the pending believing there was litigation but in fact it was not it's number one and then the nd thing is how do we then make that link that the grievance committee who made that call is separate and apart from the union which was supposed to represent  made the decision to table but they were the ones in control in other words how do we not know when i was not plausible that the union members were screaming up and down hey don't table this thing don't do this and we're either out voted or shut down or whatever there are two members from the union on the seniority board or the committee there are two members of the corporation the company the employer on the committee it could not have been tabled without consent of the union so the grievance committee that was addressing his claim right apparently the employer says no it was the seniority board will accept that for the purposes of the motion in this appeal our senior our standard of review is based on the complaint and you're right the attachments to the complaint some instances and i do argue your honor that the standard of review is based on not only the complaint but the evidence of record and all the evidence of record we didn't put in the the plant complaint was not drafted with the much of the evidence of record that the employer placed in the record placed the se factual allegations of deception or if you use the word to see so where's the possible factual factual allegations not just legal conclusions that this was not an honest mistake or a belief that the union had but in fact was a tabled due to pending litigation thirty two there was no pending litigation regarding this matter right right there's no doubt that that's that there wasn't but that we take that as a given but i guess my question is what evidence is there that there was that was deceptive or they did not actually believe or they knew there was no pending litigation and yet tabled eleven of minutes is that the defendants have not denied it and they could have come forward with an answer and did not it but they did forty answer yes it is it's a very strategic decision by the defendants not to file an answer and have to deny that but or admit it but the other  what i'm relying on mister holmes is relying on his is the court construing the evidence in a manner in his favor he has alleged that a statement was made to him as the reason for tabling and not considering his evidence is the clerk's checkers local representing workers who do that work in the port of savannah georgia and just just ripped right off the ballot will just  that heard the grievance it wasn't fair it's the seniority and that's that's consistent with the documents which we're attached to the to our response to the properly played and they have the employer bleached some part of the collective bargaining agreement in the union somehow breached the duty of share representation and we believe the district so in the context of a discrimination claim there should be one with expects factual allegations that mister a woman's was treated differently than other individuals because perhaps might not have been arrested right so if assuming without allegation that that the union knew that was not true when it said how can we say that that's an irrational decision i guess my question i don't think  your your your opposing counsel cites the transportation and communication employees union case from the supreme court i mean which the supreme court interestingly described a collective bargaining agreement is not an ordinary contract but in set and other words as a general code to govern a mire of cases which the traffic draftsman cannot only anticipate essentially call that a new common law between the union and its workers and said quote in order to interpret such an agreement it is necessary to consider the scope of other related click departing treatments as well as the practice usage and custom pertaining to all such agreements given that do we not look into interpret this contract no facts planted then conclusory allegation if there's a quote he must practice well when what's it what were the circumstances what is the impact of the intervening twenty please the court i'm tracy o'connell on behalf of george david or association or g s a and and i'll pick up where mister goodman left off and try to respond to your question your honor i don't disagree that court practice or practice or custom and usage can be used to ensure permit the collective bargaining agreement but what we're talking about here is you're saying there is some unwritten undefined as mister goodman said not lead sufficiently practice that was breached there wasn't a written agreement they were trying to interpret and apply it it's some unwritten oral practice out there that the employers apparently breached and that i don't believe is deficient in this context of a hybrid claim we needed to have been put on notice and the mister omens needed to have said this is the exact thing that the employer knew and breached knowingly  breached and they can't do that here you know the three agreements that are part of the record are very separate and distinct agreements the clerk and checker c v a and the clerk and checker seniority plan has nothing to do with what it made specific reference that it is modifying the clerk at checkers t b a so these three agreements none of them contain any information whatsoever about crossover hours which is what mister oldman ultimately wants so i think f to be to the allegation in paragraph thirteen of the proposed nd amended complaint quote passport practice has been that when a person makes their hours as a deck undocking those hours are transferable to clerk and checkers in regard to sen classification what morse what more specifications could you possibly need at the pleading stage i'm not talking about a summary judgment of a trial but the pleading stage how is that not a custom and usage that interprets the excedrin at the end of the that that particular provision of the contract or at least the memorandum which refers to seniority but doesn't appear to have a specific plan of what that seniority is going to be or any number of things that are out there in these three agreements i think what needed to have been set forth in the memorandum of understanding it specifically has no seniority and has a totally different dispatch so i think they needed to have said or made clear that these court practices are these instances when typically said seven hundred hours under this agreement the clerk and checker agreement so i do think they needed to provide more ways or more information as to what has been relevant not just for his hours but for anybody else that this suppose y happened to you after twenty just what would what would caseload you have that we read complaints that parsimoniously especially will review it in the light most favorable to the nonmoving part well i agree it has to be red in the face in his favor but again simply just saying there's a poor practice out there if that's the new standard there will never be an ability for an employer to move to dismiss because they would always be in effect question if an employee just as well there was a port practice but i'm not going to say anything beyond that it robs the employer of the ability to to answer the complaint and know what they're being charged with the know it's a stipulate they did wrong so i do think that there isn't enough in the document and if this is a standard going forward they need he he did not because there is nothing there to say i create that mister old man's can see that there is no specific provision anywhere and so his response was basically there's this generic practice it's not eight to dismiss it under twenty six dollars and and that's where the focus of the the briefing is that in fact the pleading standards were met and therefore the case should not have been dismissed the port agreements committee and those represent acting in bad faith because nonexistent litigation was used as a pretext to set aside his grievance the court itself recognize that the pleading  plausible it might be a thin slice to offer but it's there he alleges that false statement was made and because of the and based on the false statement is gr was terminated and not considered further i think it's entirely reasonable for the court to assume that that false statement was intentional and not haphazard opposing counsel mister goodman  conjectures that the that the the the committee of the seniority board could have done this they could have met that well that's not the judge that's not the standard on which this pleading just the judge the the stand the pleading stands for itself it doesn't matter what the the what conjecture mister goodman might apply to the seniority board of what could or could not happen quite of puts it out there and it's a strong allegation it should be construed as intentional now further in discovery of the case and explore you know what exactly was meant but at this stage plaintiff construed it is intentional in the st place he knew there was no pending litigation they knew when they were coming at him that it was false and he knew when it come they were coming and that it was intentionally false but i think the pleadings more importantly can be construed to get there and i urge the cour the there is no question that the on the breach of contract issue i think i can move to that that the g s a knew what was going on in response to the pleadings on the reach of contract issue contractual underpinning of the case they knew it was a breach of contract issue they knew the seniority plan was the focus in this and they laid out the seniority plan the local district plan and the local plan in the district plan as they the framework in which they were going to have this case analyzed they knew it was a breach of contract that was being alleged they didn't know the details excuse me a minute over so let me hand it back to the court all right thank you for the