morning hours may please the court my name is chris harrison and i represent the appellant's fight options flex jet and the related carriers in this case this case is about the union trying to use the judicial system to leverage their negotiations rather than using the dispute resolution processes that are there in the rail the railway labor act the district court overstepped its bounds by engaging in getting involved in the parties labor dispute and trying to  micromanage their labor relations now the primary issue here is the bargaining that was going on for the two thousand and ten collective bargaining agreement and what amendments were going to happen with that agreement now there were essentially two kinds of negotiations that were taking place with regard to the two thousand and ten agreement in november of two thousand and fourteen the parties opened up what's called section six negotiations and under the railway labor act wh contract in the end the airline industry in it doesn't terminate it just continues on until it becomes amendable and then it just continues into the parties modified so throughout all these negotiations we're talking about we're talking about the same contract essentially it just gets modified in different ways so the party started off in two thousand and fourteen in section six negotiations met for a couple of times and then essentially put off negotiations and didn't meet for almost a year while there were some organizing activity going on so acquires another carrier jet which triggers a provision in the contract that says if you are another carrier you go through this process to negotiate for what provisions  sense as it grows in all negotiations or have you accomplished merging of the pilots yet we're almost there actually we did continue to negotiate and it's been exclusively really under one point five c for by mutual agreement of the parties so we're actually agreement of the parties so you can if you complete the negotiation to integrate the pilots then you can see that section six negotiations would begin correct they would begin at that point however the judge wins finding in the injunction that's in place is not moot because we're sitting out there with an injunction against us and a finding of bad faith negotiations which we disagree with and are asking this court to review that's the primary piece of our case so what that does to us is having an injunction over you and a finding of bad fa when the union we get into section six negotiations and the union doesn't like what's happening they come to court not filing a petition for bad faith in an injunction they follow a motion for contempt and then things up can you explain to me in this language from one point five c four until such time as a holy merged agreement is reached either through bargaining or arbitration the surviving air carrier may continue to operate the two carriers separately  so what would he mean by until such time as a fully merged agreement is reached so right now flex jet and flight options are really operating is two completely separate airlines and so there are a number of steps that have to take place before the merger happens you have to have an integrated seniority list you have to complete is done no that actually was that was all appeal the decision came back and the decision of the court of appeals in that panel was either accept this it not done close to being done so how many other groups you have to address in that seniority scheme ok so it's just two groups of pilots there are a number of issues that i think are still open with the integrated seniority list such as does it cause a system flush does it does it require you know does it there's some things in the contract that actually are conditions of it and that was one of the issues we raised as judge quinn said you have to just accept the list and we think that was a minor dispute that that he erred in sort of weighing in on it weighing the language of the computer if you could you start out by saying the union by pushing the section six approach is leveraging their efforts to you know unfairly when it comes to these negotiations if you could take out the possibility of anyone being accused of bad faith take out the law for a second minor major just forget all that stuff why as a matter of fairness to make a difference with the star in one place first is the other it's a good question so the one point five c four process when we got into that it in and the one point five c four merge process ins in addition to arbitration so you're simply you know these are complex contracts with pilots it's not little pamphlet these are three hundred page contracts that are very complex when you go through any negotiation if it is an interest arbitration you put your entire company in the hands of the interest arbitrator so we thought that was pretty narrow the union when the union came to court they were arguing there are two tracks and you ought to be doing both they said they were asking judge when to interpret the contract and they they argued in their december twenty third brief that we waived section six altogether and that we had we  someone fair about starting with sex and six to forget forget allegations of bad faith just pretend to take that off the table what someone fair about starting with section six so if you if you if you do section six what do you do with the language in the contract that says you have nine months to get arbitration you have that hanging out there and it's done in less than nine months so we tried it but the problem with the negotiations was the union was making section six proposals they said this is section six has made it a lot harder to just talk about what the new deal is going to be written that really irritates me as a judge since we're the ones who helped interpret this law and it seems like it's getting in the way rather than facilitating so  i think it's just it's the the contract sort of what we say is a minor dispute it's a meet it's what does this contract mean when you go through a merger and you're in the middle of section six negotiations what do you do we actually said why don't we i mean we can we sat down and tried to come up with a proposal on how to resolve this the first thing we said is let's arbitrate this issue on the front end so we know what the scope of one point five c four is and we can go for to negotiate and they refused to do that they said no we insist on negotiating and they made proposals like free health care with no deductible but i don't i guess i don't see what's so unreasonable about them saying let's not get the courts involved let's not get arbitrators involved let's just sit down and work this out so i  think it's the mechanism of the two i mean i get the understanding that the two mechanisms are kind of odd but they are two different mechanisms and there they end in two different ways section six for a new contract  right well i'll have that leopard's they'll still be able to do that won't they i mean if they want to do section six first and i'm saying even if they do it second even if you follow your sequence why don't why can't they make the same demands at that point they can make they can make any demands using the same leverage you think they have i think the issue is if if the parties have a common understanding of what one point five c four is we could have possibly reached agreement because what's the arbitrator actually said this is the scope of one point five c four we need most of the sections of the contract and got it will down significantly but that issue was an impediment into what we're negotiating with a different sort of a threshold back in question now that you've got it here  cord for us looking at this what's the stand that we ought to be using because of sounds like you've talked about questions of law and then when you get into your pleadings you're asking us to actually go back and look at and parse some of this certainly not asking this court to interpret language of a contract what i'm saying is judge we are the way dia on what our biter disputes he also imposed on us and an obligation under section six because judge quinn read it and said he did something that neither side asked him to do he said review what he didn't know i'm sorry we review what he did a no it is because it's an answer to the question it is it is it's a question of law one of the big issues here is he completely ignored and the union completely ignored the norse the cardiac the union has to come in and establish a couple of different things when they come in to bring and seek an injunction or a labor relations issue and out of the door somebody acting have to show they have clean hands that they've exerted every reasonable effort to resolve this and that they've used all the mechanisms available to do that essentially this this got brought in for an injunction when those dozer had bad faith and those kinds of injunctions happened at the end when the parties have been in direct they've been to the inn and be there at the very very into their rope they had they never asked for the intervention of the national mediation board if they didn't like how section six was going your next step is to go to the national mediation board not to go to a federal judge and say intervene in this and start finding things about how the carrier is not doing what we want them to do so the norse the wadi act we say is a jurisdictional issue it says that in the language of the statute itself we think the nor the union did not plead any facts that established they satisfied moral authority and judge when made zero no findings at all in fact i think it's telling he didn't even address the bond issue until we raised it after the fact so i think the north the guardian present think your honor me please quote my name's james petro for the international brotherhood of teamsters in teamsters eleven await the pilots union here i think the central issue in the case is that the company make every reasonable effort to settle the contract with with the union in the answer to that is no instead it just wanted to go to arbitration and that's all they ever proposed to do instead of bargaining is required by the expressed language of section two first of the  they use that language every reasonable effort to settle the case settle the contract with the union sit down that's what the statute says what's it matter to you whether you do section six after you've integrated and handled the merger first what would what's it matter to you in terms of fairness for it forget the leverage that this or that law gives you just as a matter of fairness involves of reaching agreement we have always one of the implored to deal with us sit down and deal with us that that has to happen and integrating them section six right now i know i get it but i'm trying to figure out what's unfair about the sequence they're prefer and i asked them what was unfair about the sequence you prefer ng now i want to hear what you say is unfair about the sequence they're proposing the cornerstone of the national or the railway labor act as bargaining with the union face to face and having good faith bargain on a fairness is not following the statutes the way you think they they work well sitting as equals at the table and then having our members under section six being able to ratify and vote on the contract under their scenario you know if they go to arbitration i'm sorry no go ahead they go to arbitration in our members don't ratify the contract we have our pilots have a voice in the workplace all we wanted to do was settle the contract which is absolutely a pillar of the railway labor act it's what we're here for about it again it would go back to judge sutton's question just follow up what they're proposing as i understand it and tell me if i'm wrong is le integrate all the pilots before we negotiate the terms versus half the pilots here and a half the pilots there and so i understand what you're saying and i i don't disagree with you i mean the first thing they set up is let's said is let's go arbitrate and i agree with you you two should sit and hammer this out as a practical and just the normal human being matter but what's wrong with putting all the pilots under the agreement before you negotiate pay health care all those other things  as a practical matter we want to we can settle all that issue in section six to go she asians it's not something that the contract requires us to stave off section six to go she asians and try to settle the  contract and have this integration agreement first it's not required i want to say something but section one point five does talk about merger it does but but your honor i have i have to make a couple appellate practice arguments for you because you really need to know this with respect to this argument because this was raised some of these issues have been raised in the last we haven't had an opportunity to respond in the deal with waiver of the arguments that they're contract had a minor is a minor dispute because they had an implied right under one point five c four which is what you're talking about that argument there was never raised in the trial court and therefore they forfeited that on appeal that's a their argument as to a minor dispute in the trial court if you they they argued for makes i'm getting something you say you're responding to an argument they raise for the first time yes or a reply brief on appeal  yes on the last sentence of the reply reply brief and also in their supplemental letter what is that argument i'm not following ok at the trial court the court said that the company argued that they had bargained in good faith under section six and that they did bargain under section six the only thing that they did do was they prioritized this because we didn't have enough time in five months to negotiate which is a factual type of question and they said the thing that complicated negotiations was the scope dispute that you have here under one point five c four the union thought that one point five c would be for we could do a lot of different issues in there and the company said no there was only six issues ok that was their argument there they never raised as a minor dispute that there's an implied term in the contract and implied term in one point five c four that the union has waived its right to bargain you see and that they and that it could just section setting the stakes of what you're saying the main point here is which one you know how you sequence this if they're right that you sequence by starting with the one point five why does the point you're making matter well it's absolutely critical and it ties into your m spoiler analysis that you talked about before in the supplemental letter brief if they fail to raise this issue on an implied section of the contract then it's waived on appeal em sweller says this is not a matter of such it matters to action so if you raise a minor dispute argument you can't it is subject matter jurisdiction to waive you could raise any time you could he could my colleague could stand up here and well you have another theory about miners but that's not the case in this court has said that you have to consider a minor dispute that the court has federal jurisdiction over the minor dispute and to look at the peak at the merits and that's what judge when did as as they asked him they never made the argument that they're making here to in their reply brief in their supplemental brief never did never cited a b ex a year so that's a waiver the other thing we'd ask you to as a matter of practice is for the court they are citing an arbitration transcript with respect to their corrected letter brief and twenty seven one twenty seven two that's a matter of the record on appeal and it should not be considered at all and we don't think the arbitrator's ambiguous comments can prove anything in this case with respect to this is another appellate practice type issue which is the idea of mediation that you have to go to the national mediation board  which my colleague has just raised that was raised i believe for the first time in the supplemental when a brief that you asked for can i go back to just up i'm still not following and  i what is the harm and excuse me if you i apologize if you can answer this but what is the harm in integrating all the pilots before you get to section six what is the harm to you well certainly there are we could have done that in section six integrating all the pilot said in the contract the harm to us and in going to negotiation one of the big things here is absolute tremendous delay and as we have gone through both of these appeals we've got two federal court injunctions against the company for trying to delay first they tried to do it just see i'm getting this point the the answer is that if you do it under section six there's less risk of delay than if you do it under section one point five if you're making that the theory under section six is that the company and the union both come together in good faith and try to reach an agreement i thought i thought they said that they only have nine mines under one point five so would seem to be a quicker timeline sir but then i don't understand your answer to just the parts question i'm stuck his question was what's the harm of integrating first under section one point five and  immigration immigration first versus you know having section six later with the way that the union has always felt is that the arbitration process that they had proposed and wanted to avoid that again we wanted to avoid it so that our members could vote on the contract and so the company could not delay to have a long and arduous the arbitration would all be about the integration correct right that's it right and so what you're saying is that under one point five of the terms of the contract that we want and they have to bargain in good faith with us try to reach an agreement the process for section six is we go to mediation if you don't have a dispute you have a president pathetically do the section one point five integration first and there's six things on the table five of them you get just what you want and one you're you're really unhappy about ok now we move to section six under section six aren't you about to get that one thing you didn't like in the section one point five nine gauche asians or integration revisited in the section six process that's that's true ok so i think what are we doing ok so here with respect to it were for a refusal to bargain charge which is all about the leverage then it's all about where you are in terms of what the different statutes do in terms of giving one side a little more leverage than the other that must be what it's about no no no it is what this is about your honor is negotiating under section six they have the obligation of good faith but you know you know what they don't if they do what they did which is a factual question sit there and not propose a single article of the contract to settle the contract which is their obligation under we can't negotiate this injunction makes them sit with us and try to bargain why can't you get the same injunction after you integrate and it's time to do the section six work well i want you to be in the sack same position then as you are now the only argument that they have made is kind of argument what you're saying raising your honor which is the union with the remedy for the union is to negotiate just keep negotiating in what judge quinn said in this case was they fail to negotiate they're just sitting there wasting your time and counsel i still and i'm actually waiting to hear the them to know yeah exact same thing after the section one point five integration it worked pretty well this time i want to work well next time only i would some even better for you he'll know what you last in the section one point five and you can revisit the dangling snubber six item you didn't like can get it fixed i would submit the only reason that we have ever reached any agreements with the employer is judge one's order this is the second time we've been you realize you kind of i mean right by the process laid out in increments if you didn't get the courts involved you could have by now arbitrated integrated and gotten to the section six we could be sitting here you've had two appeals you've been in the talk or twice you all could be well down the road we could be talking about a section six injunction at this point right we'd be reviewing which church crim had done and join in joining them department just what he did that last time but after you've done the integration in the in the context of this case what we've argued in judge quinn recognized this one piece seen eighty seven of his order or the transcript they can frustrate the bargain by it sounds like there's some evidence that the company is playing games with trying to no play this out to discern if i the union which apparently from past hearings it sounds like the company mistakenly believe that they're going to win the representation election somewhat akin to what this country has a as a whole thought before the november election but they lost that third and same ways like clinton they lose the election that they thought they'd win it is that the remedy of that that they buck up and live with it you know what you know what it sounds like to me it sounds like the company in union or ave ter fight at the pilot's expense because this could all be done it sounds like and you all just can't sit down and agree on anything i mean it doesn't matter the court can order you to sit together all you like but it's like two kids fighting and we're trying to pull your part and get you to do something you want either side and i mean i don't understand why you can't just integrate the politics and then move on to the sec set well i submit that if you simply say that because we have an arbitration clause in the contract regarding one thing that that automatically waives  section six right to bargain on the railway labor act that's a thunderbolt but why would it waive it it doesn't waive anything it just says here's an orderly process to do this then do this that's not waiver section six itself says that you file a request to bargain with the company a notice and they have an immediate obligation after thirty days to sit down and negotiate a contract over the entire contract and that's what we did and we tried to settle i haven't really so i actually did raise the minor dispute issue in the trial court it's on page seven hundred sixty six in the transcript so i raised that issue with judge quinn one of the interesting things i think is that the arbitrator's of the proposals we made in the fall of two that what your response to the point that ok we you when you quote when the sequencing is you do the section one point five integration first and they allowed it when it comes to section six renegotiations to refight some of those fights eps absolutely absolutely right so the in the but the issue we have in the reason we're here today is judge quinn issued an injunction with an underlying finding of bad faith against us so we will start in section six negotiations under an injunction at the beginning there's just the bad faith finding that you believe complicate this because once again with that finding it puts you and your parties at a disadvantage in the in the negotiations which is which which is not appropriate under the law because we didn't we didn't violate i mean we haven't gotten to that issue but we didn't violate to it section two first in the negotiations the interesting thing is so what judge know if we put you all in the sequence you want are you going to sit down and hammer this out are we going to see a third time so we're not asking you to put us in the sequence we want to say it's got to be any particular five integration is done it is at the very very end it's all the way almost all the way through and we negotiated in agreed on two thirds of the provisions of the contract we negotiated we agree we did what we were supposed to do in one point five c for the fault we have and judge when did not talk to us for bad faith negotiations almost awarded it's probably coming out within the next you know week or two so that's going to be done it will start in section six but what we're saying is we're kneecapped this initially by a ruling that we're under we've we've engaged in bad faith and what judge when made no factual findings that we did surface bargaining he made no factual findings that deal with the issue of bad faith itself his fault was that we prioritized one point five c four that we were arguing for a sequence that's the only fault he found and under that circumstance he said you're engaged in bad faith under to first which is absurd we had no choice because we had to get it what would he have said if he'd learned that the union was ok with doing section one point five first which is what i know happening when the have withdrawn the bad  but without too many dependent clauses the issue is we should not be under a bad faith injunction going you got that one six negotiator eilean appropriate thanks to both the you for the oral arguments thanks for answering our questions which we really appreciate thanks for your health help grease thanks so much the case will be submitted