filed papers and argued this is a lot of paper lot of trees the thing i'd like to really focus on this morning riders is to go back to shore line but let's go back to the analysis that actually is required here to determine whether there was indeed a status quo violation in the first place this is a case where although the company the carriers actually identified or reported to identify dozens of examples of actual  kind of behavior is a call that violated a what they called the status quo they never really got around to finding any discernible way with the status quo was this isn't a case that the carriers conceded that there is no violation of the collective agreement there was no they didn't proceed on the basis that there was any violation of all of the plec of agreement or even there for the best practices under that they instead at trial they claimed that this is only an hour away section two first therefore implied status quo case that does not negate or eliminate their obligation to point out to the court what precisely is the status quo that they're saying was changed in this case they hinge their status quo claims simply on claims of changing behavior behavior alone does  make a r l a practice or condition under the shoreline decision the shoreline decision we're still requires that even in a case where you can see that there is no violation of a specific term the collective agreement you still have to find a practice for working condition that actual and it has to be of actual objective conditions such that they are deemed to be an implied term as if they're part of the collective agreement to be a status therefore to be an  think it's quite bluntly we think it was an absurd claim even that that could ever cost to the status quo contractually we have a responsibility to show up on and work and report for duty and to fly anywhere and in fact to the contrary in the company's policy manuals they actually have a requirement that you cannot depart really are than the estimated estimated time of departure and he earlier than fifteen minutes from that and so carrier that i'm aware of that has a loaded and ready policy procedure and certainly here there is never ever any metric and certainly they could rise ever to the level of a status quo practice even that there's such behavior could actually be enjoined now that we're iran i'm sorry what does that mean i think ironically that gets the congress to be true we shouldn't walk out on time i mean that that's really how bizarre that i think that entire claim was issued to our behavior was that the  discretion that it's part of their job you see is pilots licensed pilots have discretion to determine when it's safe when it's appropriate and when there are indeed ready to fly but they're also submit to the restrictions of you know the fifteen minute restriction like i said before to say simply because they left let's say twenty minutes earlier than the second six or ten now they're required to do it never instance or risk content now that there's an injunction issued i think it's a worrisome prospect for my client for my client pilots and circumstances that have and he changed the statistical analysis if i'm understanding you correctly does not incorporate an understanding or an attempt to digest the change in what's being offered that's correct and i think that the use of statistical analysis ne the state of the court and it's up it's no less in the same thing the warning was not mean a thing if what you pilots are being offered yeah is not the same as it was and indeed as i am i right with respect to the over time that what you saw was actually you know from our perspective as to what took place here that the statistics that were used in order that turn it persuaded judge mosques were not consistently even applied and they took they were frankly dealt with wholly new made up the first pacifically for this the kind of harm message going between union leadership and members is if the suggestion that we've got some leverage here i'm really not sure what to do with the new law because i don't know that they're making the case from the communications that you know are in the record your honor and we don't know but we do think that those communications were taken clearly out of context and used for the wrong reason to let you know  very detailed statistical analysis from the from the carriers expert pose down to what care is it described as a on average six minutes and eighteen seconds worth of departure door that's why we're here what is wrong where we left less early this is same as when they talk about in the communications of shopping it does remind me very much of kafka or horrible how is it that i'm subject now to contempt with an injunction hanging over my clients had if we could we you know we didn't we didn't anyway that is because he had he should have taken a can contrary to the context in which all of that arose that those programs was communications dealt with something that had been agreed of the both parties knew as early as january of two thousand and fifteen long before we fall the section six knows that dealt with a what kept her shirt had called a bilateral policy of strict compliance and on both sides because it dealt with the carrier or the union's concerns that the carrier brought against this case there again there's no metric pearlescent sic law nor is there any communication even in this record or anywhere else that says that you must wait until the last second to call a sick what was instead litigated in the beginning through his complaint was that the pilots ha sick calls period and then and then they made up they call it abuse and this and then they waited to the west second with the examples of abuses we discussed which edwards were each and every one refuted in the company recognized and conceded that so it was a made up matter because they try to show a case that doesn't exist legally because there was no status of the reality in the district courts judge wright and district court determined there was a link between the call to action and this con right and how are we to review that fine i would say clear right now i don't because i think it has to go back to the abuse of discretion because of in this application of the shoreline that he the judge made the judge's findings were based today's collective agreement there are so many repeated that the whole tapestry of one thousand one effort to put that case together before the drop it on has been an emergency hearing it was very cleverly done but it also very cleverly conceal the fact that they didn't have a status quo to start with that was only one of many problems there were several others as we point out in their papers but the but the a one other one i get is at the back end of that analysis again even if you made both those connections the end of the day were there was no discernible harm this term status quo the status quo under the railway labor act take into account what we used to call the law of the shah and in other words you go to any plant any manufacturing facility any service facility or whatever and the certain practices that grow up over time and they're not stalled out in the collective bargaining agreement there's tacit approval sometimes there's explicit for approval and eventually the law of the shop that those the railway labor act take that into account as status quo it does but the operative term in your question was certain best practices not all past practices i think this court is often eastern only as pointed out and as the believe the eighth circuit elaine we were dealing with section two first we're again not dealing with this of a claim of those of a specific term of the collective agreement and that is where you're going i believe you're on a towards a past practice if the practice or condition about which we're discussing is  a and so your honor that we have but again it's i'm no i really see it in the my sorry for that with our time i've had i would still if it's possible like to reserve two minutes that's up to the courts discretion one quick one other point whatever you know violence case that would therefore have triggered section seventy if you read the case more carefully i thought the forty one decision from greene and i think it's on page fifty three you'll find that the alleged violence that was being discussed there was violence that took place for years collective bargaining the district court correctly determined that when a union issues a call the orders for pilots to change their behavior in a manner that slows down and it sounds impressive but there's more to it if there is a call to action to act with the in permissible lawful limits and the call for actions to do something that's not inconsistent with a known ridiculous to me be very honest with you on the overtime because the circumstance completely changed you can't measure my role in numbers but in any event i don't understand your argument to go as far as it has to go to deal with they acted within permissible limits there was nothing that they did that was inconsistent with contractual legal limits and there's nothing to show that what they did was inconsistent with the status quo your honor i disagree if i might please first of all the controlling authorities in this case are many over the last quarter century this is fact these facts in this case are not unique not even a reprimand only about the status quo all right i wil if i might your honor that i want to reference the cases under section two first and then i'll discuss out of school what relevant or not pardon me is the status quo wrong with that what what is relevant is the implied status quo under the under two first of the if i might that is different from section six status quo discussed in the shoreline case the mr gleason just cited to you shoreline did not involve a slowdown in disruption of operations in violation of two first the question there was whether a employer may change work assignments consistent with the section six status quo against her to have ploy or changing terms and conditions of employment without the section six process honor i agree that the status quo under section two first has been a demo fide and has been described by the seventh circuit in tooth two cases in the last few years one is united v i am and one is united versus out but it's been described in great detail by b eleventh circuit in delta versus out but it's been decided in recent years in the district court in in charlotte and in fort lauderdale recently where there was a refuse spirit airlines for pilots to accept open time and it caused twenty thousand passengers to be grounded and the court had no problem in st all these courts said the same thing consistently that what you do with is look at the point of whether or not there has been a change in pre sold dam behavior a change before the union issue it call to arms that's what the status quo is the courts have regularly looked to see if there has been a change in behavior the that violates two first which says you are to make and maintain  you know what the exceptions were under the existing practice to know whether or not those exceptions came into play here so i don't understand them well first i would probably specter did words i'm not in in my view requirement in the contract about whether you go early or not it is grounded on the right so let me let me let me put it this way in the evidence in the record the other side introduced evidence among other things that they took into account war folks sitting in the cockpit what their time requirements for and whether leaving at a certain time would inversely affect them was that taken into account didn't just ask they directed pilots to stop to shop stop helping out purchase stop your normal behavior to tend to book which is to block out only on time these were changes in we're going to put notice out that you're scab if you don't do what we set because and indeed they do one of the suv judges they say and we want you to do this because we want you to bring that company to its knees at the negotiat versus outputs of it's a it's addressed by the eleventh circuit in and dealt to versus out but it's a justice recently in the district court in fort lauderdale in spirit versus out but here's what they d the airlines have a system whereby a certain percentage of the flights are covered by what they call open tipline the unions like it they bargain for it because they get premium pet right the airline staff the operations accordingly this is all discussed in the eleven third circuit opinion and i recommended decision to you know what they say is you have a status quo that involves an arrangement whereby ace it's there's a normal pattern company's change what they were offering in terms of movement i mean the evidence yet very strong you know you can't use the numbers to measure the i there were two different scenario like the comp the unions are argument  evidence here is very compelling that the reason there was a drop let me tell you the two pieces of evidence that were least compelling to me when i looked at them the reason you had a drop and it wasn't consistently a drop is it went down came back up again and then it waived so there was no consistent drop but the problem was starting out what the company was offering in terms of over time change and it was not desirable now you that they are required to take  required to take any of it so you can't say there's a change in the status quo when what these pilots were being offered changed out your honor with all due respect that's a factual argument made at trial judge moss found that the explanation offered by the union was not credibly may be clearly erroneous because the evidence that was offered by the union let me make sure we're together on this because this one left me cold judge was did not say the so i recall that the union was wrong in saying that the offerings of overtime had changed he would he did not say that the other thing he did not say was that indeed the overtime figures went up and down in one month which was a high they did not go down so i don't know what you wind up with joyce moss did not side with you he simply a lot of the arguments that were made well your honor that what i'm from my perspective is on the issue of changing behavior on open time fine judge moss works well used the same analysis at the eleventh circuit in the relevant good news not the same circumstances your honor i again with all respect the union completely inconsistent with that well that the statistical report with again with all respect your honor dr lee's report show that there was a statistically significant change he uses a your honor if i can just say this from a practical matter as i have my dialogue with your with your honor this is a real world situation for the airlines what we are talking  whether or not and airlines operation and us commerce can under whatever arguments are being made here be destructive purposely and at the call of arms of a union argument is supposed to sit happened in there was no call to arms on the block that is in fact the numbers now you say went down there was no call to arms union official said nothing with the case  different first of what the actually because the case law says the union even if it doesn't instigate the slowdown has an absolute obligation to take effective steps to stop it so if it were instigated by a by a want the group this is at directly union affirmed in the seventh circuit the reason you're saying if we have the facts in this case we're blocking is there are no rules with regard to when you have to leave all of them on time two first that the union has as to serve five represented representative an obligation to take effective steps to stop an illegal slowdown disrupting operations i don't know what you mean by illegal that's the are no requirements with all due respect with all due respect jedward's i think that that is not the interpretation that is not the rule that has developed over the last quarter century in the cases they do not require that the people to understand that the that when the issue here including the open time issue which has been addressed to all the other prior cases doesn't fall off a situation where the where  february of two thousand and sixteen and there really was no change until september but but the but i don't know whether it's disputed that there was a change to the kurds from september wrong but it is the statistics indicate there was a dramatic change so the only question was whether the union was responsible for that change which is a factual question the judge must resolve in against the u n and said yes they were response yes that's correct your honor and when judge most did that he pointed out that when the section six no this is served it's it's not necessarily an automatic start button for all acted the union intensified it communication plan when the section six notice was served and and the and that you watched intensification of the communications and then you watched the intensification of the impact on the operation in the change of pipe behavior and he says there's furtherance of that question i want to go back and look at the numbers again my recollection is it's an exaggeration to say that was a dramatic change in the over time post september it went up and down and went back down late november it wasn't council wait this is an important fact you said the judge randall right there was a dramatic consistent dramatic change that's not correct that's what was demonstrated by dr lee's expert report what he does he's a regular i sexpert on the union do what this union did which is to issue a call the arms telling pilots to change their behavior in order to disrupt commerce in operations for the purpose of bringing  carrier to its knees in collective bargain and under two first congress has said it may not do so it may not take action in the making or maintaining of agreements designed to permitted under the terms of the congress under the terms of a collective bargain agreement conrail announces it's going to start a drug test and just think or benchley says conrail has an arguably justified reason for doing so first violations arises out of a major dispute but but and in most cases that's what happens because it occurs during collective bargaining but there are persuasive cases that have said even if the slowdown arises out of a minor dispute even if it would still be a violation of two first there's an excellent discussion of that subject in the seventh circuit at the pinion united versus disrupt operations to try to pressure the carrier whether it's a major dispute or might disappear it's just that most cases come up in a major dispute but to first says mate or maintain agreements without disruption they approved section two first and trunk sions even though there was an underlying minor dispute that was going to be sent to arbitration i think very much we have an argument which we still give you back three minutes you know i'll try to use the thirty three i know i used a substantial not before but i really wanted to come back up to discuss with your auditors are the cases that mr siegel cited sorry the cases that mr siegel cited really they came up in a different context courts were seeking that's not a situation where the there was a dispute as to what the status quo was that's markedly different than what we have here we disputed quite vigorously that the judge last did not make findings of any section two versus status quo practice that could be that arises that could be deemed to be the status quo and so i case that was i would ask us to read that that case arose not during the second six hundred there was a more recent decision oh my goodness it was i think decided election day a year maybe two years two years ago and also in the by judge black in cincinnati also within the six circuit of course dismissing a claims of violations of section two first status quo again i