the morning and i had reserved five minutes for rebuttal good morning this is a case and i know that there is an outstanding question from the court about a neutral's power or the lack of power on a system board for an airline with its union to act unilaterally within the framework of a statutorily and contractually mandated tripartite body where decisions are made by a majority as a matter of both contract and statute the question from the hundred one says and i believe that question was addressed in footnote four of the america jet case which we had cited which looks to the international association of machinists first the central airlines  hundred sixty three supreme court case and justice white's opinion this was an action to enforce a majority award in the airline industry and justice white discussed the railway labor  applied to air carriers opining that section one eighty five of the railway labor act invision a national air transat or much like a national railroad adjustment board that's never come to fruition and justice white noted that under section one eighty four of the railway labor act procedures on the composition of the board  notice and hearing and breaking deadlocks worth and finality of war of awards are to be judge according to the railway labor act taken as a whole and that there was no hiatus from the statutory scheme when congress post spoke on the establishment of the national air transport adjustment board one just one quick question just to make sure this makes a difference potentially or not could maybe it doesn't if the statute didn't apply to this case hypothetically i think both sides would agree that means the c b a applies right yes c b a refers to decisions so we'll be back to kind of the same place would you be making the same argument either way we would we would be making the same or similar argument it's just proceeding on the track of two sources for the obligation to decide by majority so waiving any we do raise that in the brief on the overall majority requirement of system board decision making as and for authority we cite to the jones case of course i guess my question is or does not apply in this case we say it does apply we say that it does apply and the u p s case edwards vs u p s also look to the majority requirement but that looked principly to the that one of the members of the just might board would not would be retired or something would have happened so that they're no longer an active employee of the airline and that you run into this problem very frequently and so there needs to be some commonsense sort of remedy for this so that you don't get this kind of situation where they can never or seldom render an opinion or frequently you'll have this kind of problem your honor i think you would run into this problem less than you would imagine and and part of that stems from the peculiar language of this particular collective bargaining agreement which says that members of the system or the partisan members must be full time spirit employees in in my own anecdotal experience in representing airlines and system board matters working under elp agreements this language is actually fairly rare and and somewhat unique to this contract there was no majority there was no requirement of being a current employee for example in the aloha airlines case that on which we rely i want to go back  as you have it breached that issue i want to make sure i understand your position now if the statute doesn't apply are the in the collective bargaining agreement and there is no not argue that they could contractually or couldn't contractually agree to have the statute apply but it it circles back to section one fifty three of the act and the standards for review one of them of course is that the system board and i say board not individual acting alone acted in violation of the railway labor act but the other is acted outside their jurisdiction and jurisdiction is vested by the terms of the collective bargaining agreement and at least under that reasoning the parties could agree that the statute does apply and in fact the parties did agree that  section one eighty four of the railway labor act will apply to this which in one eighty four references the procedures in section one fifty three the one practical point to me and my first take on the language which majority votes for awards suggest you're talking about the final decision mean that's my first take in the language but maybe i'm wrong about that but just as a practical matter if you're right you have to have majority votes about who properly is in the decision making process it's very very complicated right because if you take this case you're not going to have you would want the person of the union side person participating in that majority vote so now you have to what you're not going to allow the neutral to decide as one person so now you're going to do what create a whole new panel to vote every time there's a debate about want whether someone can vote in the process eligibility whereas whereas if you say to the neutral who's the neutral after all no no no just as you the neutral can decide what date the hearing is and these kinds of plenary matters the neutral it's fine to have the neutral decide whether someone can remain on the panel and because otherwise it's very complicated you understand why it's complicated i understand i understand the complication to it this is a fairly rare instance again using fairly rare contractual lay your answer is to a new three member board to vote on this decision of who can vote on the decision that's in front of them who have decided the separate minor disputes on the context of arbitration which is designed to be fast and efficient well we've been in the it makes it look federal court look you know really efficient we've been in litigation for years on this and had a timely grievance been filed on the eligibility matter which in the first spirit f a vs spirit case judge duggan held that it the question of eligibility was a minor dispute under the railway labor act there's only one way to resolve a minor dispute and that's via a grievance being filed selection of a system board the hearing and the decision by the tripartite board the result natural consequence of the argument mag if you really there's no way in which single person can resign even of any kind of  procedurally that would be that would be correct under the guise of the roadway labor act and the collective bargaining agreement every procedural issue you're taking a position like what they'd be hearing is it's generally a result by consensus and it's i don't i don't know of any instance when it's been challenge that but when it's challenged every little thing the date of the hearing who goes first on the evidence can we have someone do it by videotape all that stuff has to be by majority vote there is a i a decision one way or another about this health care problem there's nothing that i could find that would indicate substance you know of a big problem this is in terms of money granted it's not a basis for our challenge but in candor the economic impact of this stems from the  health insurance provisions and the contribution provisions of the collective bargaining agreement where the carrier very very heavily subsidizes the members health insurance and and the health insurance of their  their spouse or in this case domestic partner so it would be adding on substantially i think we estimated a cost of approximately half a million dollars a year just erring on the premium cost folks differently based on whether they have a domestic partner or spouse versus a spouse yes and that was the basis of the underlying gri i think we're ready to go to runyon such requirements are applicable to the system board of adjustment complied with the requirements of the railway labor act third there is no suggestion here fraud or corruption and finally despite its efforts to couch  arguments in jurisdictional terms spirits appeal is reality an attempt to get a proverbial second bite at the apple let's turn first to the question of the adjustment this statute applying what's your take on that issue but you know this would potentially help you this is an argument you didn't make what do you think about the argument at this point i mean we might decide the arguments forfeited but we're also stuck considering the statute and when you can string the statute not just for you but for other people we sometimes like to get to the right answer i agree your honor in and we did raise the argument below but we agree that we did not raise it in our briefs in this court i do think  that it's clear from the language of the statute and there's a decision of the eighth circuit that you're probably aware of the martin verse american airlines case which says that section one fifty three including one fifty three in does not apply in the airline industry but we don't believe that's dispositive here even if section one fifty three does apply we we believe that the majority vote requirement was satisfied and it does if the statute doesn't apply then you would say look to the c b s for how this works well i believe that the collective bargaining agreement contains a similar requirement in response to judge givens question we do i don't think you'll find anything in the collective bargaining agreement where we obviously one of the criteria that you have to apply in deciding whether or not to enforce a system board is whether complies with the railway labor act you know it there isn't any requirement that you look to see whether or not the system board's decision in terms of construing the contract was absolutely correct just like in other industries and in your decision in michigan family resources where you said that the arbitrator was seriously wrong i believe the same standards applies here just because the system board might be wrong in construing the requirement of the contract with respect to a majority vote requirement that's not a basis or set aside the system boards award we believe that the system board here took a look at that requirement and decided that because the system board was appropriately constituted at the outset that joe the union representative didn't lose her ability to continue to serve as a member of their board simply because her status changed during the remainder of the case question i mean i think we get the point you just might but i think judge the question goes more to the underlying reasoning of why you know why awards are in the same page bricked ok so we're now back to the question of just decisions encompass a preliminary question about who can sit on the board and who can be a decision maker and so one way of thinking about it is it really doesn't change our analysis that much we're still stuck with this problem of what happens to preliminary issues that they have to be decided by a majority vote or can the neutral decide them that's the essence of the question so in other words maybe this really doesn't matter that much and we just ought to put to the side assume for the sake of argument the statute applies even though it may not because at the end of the day we're still stuck with this question of who can make decisions about the composition of the board well and we're trying to answer your question better than i have before but first of all i think if you step back and take a look at the big picture where the requirement comes from whether it's in the statute or in the contract makes a difference because i think you know we're dealing here with with a level of review which the courts have said is among the nearest anywhere in the law is what they said there's three requirements is there just to make sure i'm getting your point your point is that's where you're relying on michigan family services which does not apply to statutory the statutory regime because the statute lays out the grounds of review and it does not have this incredibly deferential standard where is that everything is coming out of  the michigan family resources does apply and then even wrong decisions are affirmed so that's how you're saying it would make a difference well i think that the only under that is this narrow review under the  substantial difference in the outcome of the case whether you're considering the language of the correct the collective bargaining agreement or the like which of the statute as far as awards versus decisions or whatever is not a substantial difference there but in your there is a difference in the standard of review correct and i don't think that a violation of the majority vote and to the extent that is contained in in the collective bargaining agreement rises to the same level is is a violation of the provisions of section one fifty three if otherwise the course of said if you show either a issue here that would best facilitate the decision making process of deciding these god speeds absolutely since there is absolutely and you've already had a with mr parrish about the difficulties of of having a majority decision on every little issue that arises during the course of these things and there is a as a policy matter or as you've got a lot of experience here what what is the best interpretation to facilitate the efficient resolution of these guns i hope this answers your question one thing i will tell you is i don't think mr parish has found a single case that suggested that the that the system board proceedings regarding the underlying dispute should be held in abeyance when we fall a whole separate grievance and pick an arbitrator and multiply the proceedings by having a whole separate grievance proceeding over the question as to whether what i mean when tell me how but this is maybe a more direct answer to judge the merits question but you know this area tell me why this answer doesn't work why is that the most efficient way to think about this whole thing at the end of the day you have a majority voted award i want to greece in this case that brown and land signed the final war that's two out of three that's a majority that not only reflects majority support for the final disposition that necessarily shows majority support for every minor procedural dispute that led up to it why isn't that the answer dutch merits question is the simplest way to resolve this i agree with that judge duggan agreed with that and that is that way you don't have to deal with the distinction that judge duggan got into between awards and orders which as you pointed out doesn't flow out of the contract because contract talks about decisions would judge duggan said which i think is absolutely correct this ultimately unlike the jones case unlike aloha case we have the three arbitrators sign the award who are out to hearing who heard the evidence that distinguishes this case from all the other we have a majority award here and that i dian mother and so forth the neutral arbitrator here issued her decision within two months of the hearing it was only because of spirit's intransigence that we were you know we can give a final decision until january of two thousand and fourteen spirit engineer proceedings that that spirit refused to participate in it they made it you know very very difficult for her to try to get a final decision and she did it as quickly as she possibly could economic impact of these proceedings i don't think this is what congress had in mind that we would be fighting for as long as we have over the over an issue as to whether or not the system board  the neutral arbitrator i don't think this is what congress had in mind when it set up system boards who just wants to quickly resolve disputes and i think this is this is you know as somebody who is a member of the flying public i don't think this this serves the interest of either sp lines or its passengers i hope in answers your question my question is is is this appear to be reasonable that the economic cost of the airline is more or less  honor i think it's very very difficult to know exactly what the idea is they how do we know they have certain requirements in order to be a domestic partner you actually have to be a registered domestic partner in order to be entirely these  we have no idea i don't think really spirit has any idea how many of their flight attendants actually register with i don't know there is a requirement in the statute is you have to be a ready have to be a registered domestic partner  for i believe i'm i'm believe i've correct on that that in order to be you have to be you can't just come in and say oh we have a domestic partner you have to go through some kind of registration procedure if you want to claim these men if it's  the interesting thing is if you know mr shipley got benefits from spirit he was in one of the high falutin plans he had to give up in order to get his domestic partner any benefits at all he would have to give up the benefits that he and go into the you just a few points i would like to address first of all was the discussion on equating this situation which was the judge to be a separate minor dispute in the f a v spirit case in other words that one case the comparison to that and a preliminary issue such as an evidentiary issue that may arise in the course of a hearing the issue before us right now a decision on the contractual interpretation dispute on eligibility of system board members to vote and to continue serving is a far cry from an evidentiary issue that may arise during the course of a hearing or even an objection to whether to grieve and filed his or her grievance in a timely manner that is something that gets decided by the underlying system board that the timeliness matter in fact was raised in this issue and  addressed the but what about that at this point that you still had a final award with a two to one vote and so that assumes that they're proving not just of the final war but every single thing that led up to it including who can vote on it and that that was not solve your majority vote problem and if you still think the person's a knowledgeable pick a traditional way of challenging the award well the traditional way of challenging an award is to proceed under section one fifty three to challenge the viability of the word under the railway labor act or whether the board has jurisdiction but to address your question directly lynn a if a partisan member was only enabled to vote by virtue of a new troll's singular unilateral actions and first deciding that the matter was before and all currently voted the whole award so lynn obviously endorsed that it was it was not addressed in the final award lynn only signed on to the final of this is one thing that's true in all arbitrations whether it's controlled by statute or c b s you don't have to explain your decision you just give decisions i mean that's michigan family resources talks about that you don't have to lay out your reasoning that that your honor is correct however len did not we know it's undisputed that lynn if a's member did not participate in resolution of the separate minor dispute on board eligibility that was soley brown but he still signed the final award weiss and then an endorsement of everything only by virtue of brown acting unilaterally and not making a majority decision as required by both the c b i following the grievance procedures including the filing of a grievance selection of a board with eligible members and deciding by majority she was only there by virtue of brown's unilateral action ratification sufficient because lynn was not enabled with her eligibility in question and in fact having been replaced by the association on the board they purported to replace her with another individual who then stepped down herself she was unable to participate in a ruling on her own eligibility normally in a three judge court you know in the civil law system works with three judges normally in many countries but even in the united states you get three judge courts you go there and far as i know the norm is for the court to say on questions of evidence whether something is going to be allowed in for the court to decide in advance that the presiding judge will just decide those questions or if there is a difference of opinion the whole court simply calls for a majority to decide it doesn't create any exceptions for evidentiary rulings and it doesn't certainly doesn't create any exceptions for separate minor disputes which this was a judge separate minor dispute and i just just another way of putting it but i'm just afraid i'm missing something but just a practical point so you're a lot of argument about whether you can unilaterally make this primary decision what i'm trying to figure out is what's lost if we treat the final decision as majority in support of everything that happened but that doesn't deny you the right to say lynn was ineligible we just we just apply our normal rules we go back and look at whether it's the c b s the statute and that doesn't correct all of this earlier on procedural skirmishing first of all i wouldn't regard the decision on her eligibility as a preliminary issue within the within this young i don't use any of that ok end of the day we would stay if you think lynn should not have voted you can still say lynn should not have voted and we can still review that why wasn't it just correct all of this would have the court interpret ng the collective bargaining agreement which is the exclusive province of a system board and i say  know she will and that's the point at which lynn could have said well you know i don't think i should be city she could have said that just like the other board member did you said that it was silent out well that's the point that you still have the right to say lindzen eligible right or we have argued that she is yes under the current will review that will review that will decide whether that was in the range of reason and if it wasn't you're going to have a pretty good situation but otherwise it's a problem no other question here is it likely that they will take the position if you lose this if this is only one case and it does not establish any long range precedent and to require the airline and every case to pay the premium for the domestic partner that that that that you're not going to say you're going to end up saying that this is only one case and applies only to this domestic partner  other system board decisions but it's not binding precedent that the true issue here is whether susan brown had the authority under the statute in the collective bargaining agreement to act case is is how a system board must act and and rule and its on its power to act the on the underlying grievance that this could be a one off there's no law