much time on greetings but was it four years ago come april fourteenth that we were here last time so it's good to see everybody made it back after the second second round i like to start off by by saying absolutely  this same type of case where if you're going to go forward with collusion you have to prove all of the elements you'd have about what is what is where does the where is the court of collusion against i'm an employer come from becomes from i they had a collusion case in there but they only had to an allegation and i'm like i'm i have to say counsel i'm really confused i'm trying to figure out where the cause of action comes from i don't see it in the statute the supreme court seventy eighty years ago implied or read into the statute a cause of action against the union i'm trying to figure out where the cause of action against the employer comes from now i know what the seventh circuit said in the united airlines case is that your principal case that's the principal cases there are not very many situation that is that that a met that that an employer has to account for the possibility that the person that they're negotiating with is not going to treat the members of their union correctly we're not saying that they have to account for it we're saying coming out of this ca addington to judge sober said if you're going into this negotiation and they come and the union wants to come forward and do something other than the nick allow you have to make sure that they have a legitimate basis for doing does why does why does america have to have to verify the duties that are being conducted by the person by the party they're negotiating with because the they they have an obligation to make sure that they went into addington to asking for guidance from judge silver what happens if we don't we do something other than nikolaus they got the guidance that they asked for the guidance that they got from the judge was you better make darn sure that there's a legitimate union purpose if you're going use something other than the nicolo they were told to do that that was an obligation that they had going into these negotiations and they did not do that i still trying to figure out where that duty arises to it and if the who does the duty who does the duty run to the duty runs to whom in this issue asian it ran it runs to the the benefits to the pilots to the pilots so that you're saying that american airlines owes a duty to the pilot to make sure that their union represents them fairly and they're not that and they're not sort of helping the union out in this unique situation and we've had a unique situation from the very beginning based upon what was asked for and what was given to american addington to yes they assumed an additional responsibility to make sure that then that that the product of the negotiations if it changed to nick allow there was a substantial  alleged occurred in two thousand and thirteen if i'm not mistaken why isn't this action too late and in view of the three year statute of limitations if it is not too late because we we have learned from our activity here in the ninth circuit is that you have to wait until the case is right when we left here in june of seventeen fifteen with  the opinion we had an ending to three we were given an opportunity to try to convince the panel to use the nickel we did not know from the time we left here in june of fifteen until september cause of action against the union became right i'm sorry your honor i couldn't hear what they say then to claim against the employer become ripe in the statutes to ronnie at least when it became ripe against the that the first case that we brought against union was for an injunction to try to encourage junction for a violation of the dia far right for injunction not to use something other than the nick allow in the negotiations we the second cases for damages and we did not know the pilots did not know that they were actually damaged until the panel came down and said we use something other than the nec allow to compute sr that was contemplated in our order in addington three we contemplate was that look at that it's not at all clear at this point that the nickel out ward is going to survive it would have to be approved by both east and west pilots and we let it go and we let it go forward so if if we weren't willing at that point to say you had to follow nec allow and we didn't order it then how could how can there be a violation you didn't order to you because there was no transition agreement in place that would have required them to use the nikolaus that had been taken out when the ammo you with paragraph ten age right then why didn't you cause of action run from from when when you signed when tender age was signed because we didn't know what the panel is going to do with ten h until we actually found out that they decided it was it was a block to them from using nikolaus because it took out the transition agreement which was the legal basis for the panel to use the to use the nicolo i'm down to two minutes is a possible for me to reserve you answer anything else or have you certainly may do  that good morning your honour's robert siegel of a melbourne myers for american airlines at the first of all on that direct question to the supplemental inquiry from the panel there is absolutely no  there is no case law that has ever upheld a what what the court referred to was a stand alone collusion claim against the carrier then you know stand alone might have been a little there is no cause of action in the railway labor act for collusion by a carrier in the in a d a far there are a limited number of there's no there's no claim in that for the if our claim against  in this case it's the stand alone claim is sequential because there was a prior claim i agree with with your honor on that but the but the overall question of whether the courts recognize a stand alone claim that is one that is not brought simultaneously with the d a far breach claim against the union the answer to the to the court question is that no case is ever authorised that type of claim possible do we even have to decide that because part of your argument is that the allegations in the complaint are highly speculative and even assuming that there is such a coin do we really have to decide that your honor and i don't think you have to in the district court we argued that the judge to the point that the court asked on supplemental briefing that there was no precedent for a standalone claim otherwise but fundamentally this case can be decided on the grounds that the district court decided first of all there are no plausible allegations of act collusion in the d of far by america and whether it can be brought sequence will be or stand alone or not you still have to meet the requirements for a that have been recognized by a small number of courts a small number of courts for possible collusion by a carrier in india far but when those cards have recognized the cause of action they have they have regularly for the last quarter century and i was starting with a fairly lead case rake straw versus united airlines in about one thousand nine hundred ninety one have help that it is that the coup if there is to be a collusion claim against a carrier regarding bargaining with a with the union there have to be plausible allegations that the carrier has acted with discrimination or with bad faith or with hostility toward the plaintiffs i e the same standard that is applied to the union it is not enough to allege that a company accepted a union proposal in the course of reaching agreement on a collective bargain group effect the courts have said we don't want that we do not want to ask carriers to police the union at the bargaining table regarding whether or not their proposals or unlawful are not under do d a far stand so it is not enough to say that the carrier accepted the union proposal it's not even  that the carrier was aware that there was animosity between the union and the plaintiff group that was exactly the issue that was addressed in the reg straw case where there was in fact animosity and that was a seniority  dispute case as well instead the courts that have recognized this action have said we will allow a collusion claim to be implied against the carrier only in the very limited situation where the where the the the allegations indicate that there was a shared discriminatory hostile intent to the l a geisha is in this complaint do not come anywhere close to that standard they do not in fact have the facts in this case are pretty well recognize the carrier in there surely refuse the union's demand that there be a date of hire list that would put the  pilots at the bottom the carrier then when it when we finally began the merger between us airways and american the carrier took the side of these plaintiffs these appellants it said that these appellant should have a right at the mccaskill bond hearing to advocate for nikolaus separately with the real merger representatives the union said no we should represent east and west pilots in that macaskill mon arbitration said the company sided with the appellants and said they should have a right and fact we argued that to judge silver in the district court she actually rejected that argument but then there was a  panel and we were aligned with the appellants arguing that that the west pilot should have their own referee actually have mr harper to be able to advocate for nicollette that is not collusion with the union those facts do not constitute collusion the most naval alleged is that ten h of the m o u was negotiated they say in secret by lawyers that doesn't satisfy the standard for collusion would you turn your but it is it's playing to us that the cause of action for collusion in the dia far became ripe when the cause of action for the dia far became ripe and here's why the they they they said directly to this court in their for in their first in their first brief that the grab them in of the case was just that and they said that they said that the d a far claim  was and the obligation to implement nikolaus occurred they said in february twenty third team when the m o u was ratified there's another date that's possible which is when it became affective on the merger date which would be in december thirteenth but the grab them in of the dia far clan was that was that at that moment there the nicolelis should be implemented to to integrate the east west pilots in the u s air ways operation recall the u s air race operation continued in separately until twenty sixteen so the idea that if there is there was a dia far breach it occurred in it at that time this court so ruled that that the far breach occurred when the when ten h was inserted but the alleged damages is that they did not get the benefit of the nicolelis war being implemented in the us airways operation in twenty thirteen when the a m a you became effective which they called the single agreement that was required under the transition agreement to implicate the requirement him to to for the nickel out war so their damages started to run for certain when the breach occurred in two thousand and thirteen because they were not and joined the nickel out list in the us airways operations the only issue that came up in twenty sixteen at the mccaskill bond hearing was whether or not those damages would be cut off or not that is to say they were given the right to advocate to the mccaskill bond panel that the that the nicolelis should be used for integration with american pilots if that had occurred if they had succeeded with that argument with the panel then the damages that had been running since two thousand and thirteen would have been cut off by the panel but they didn't start in two thousand and sixteen that makes no sense thank you council ok thank you very much harper you reserved some time you your honor with respect to damages starting to run in two thousand and thirteen that is it's absolutely wrong because at that particular point in time you there would have had an m o you with ten age which would have delayed the implementation of the nec allow list until mccaskill beyond that is one scenario or you would have had an ammo you with out ten age and it would not have been applicable against either the east and the west pilots they would have continued to go forward under their respective collective bargaining agreements and there would have been no damages at that particular point in time and remember the fact that we were as deceived as the lawyers  for their pilots about the this information campaign by you stop and no word by american airlines as to what happened as or what was to happen as a result of ten h we did not know about the collusion until deep said that you learned about collusion in the fall of two thousand and thirteen you know this action was filed in two thousand and seventeen so why isn't that still to the possibility of collusion came out in  discovery in addington threat ok i understand what you just said but you just said you learned about it in the fall of two thousand and thirteen this action was filed in twenty seven we didn't know that there were going to be any damages associated with that because we were trying to block the implementation is it isn't it pretty much a recognized principle of statute of limitations that once you know of an injury even if you don't know the extent of damage and the statute of limitations begins to run not in this case we didn't think because we didn't know that they were is an actual breach we didn't have a d f far as the primary part of the proof that we needed to do to make until we came here in two thousand and fifteen so we didn't have the primary part of the cause of action which is to be a far until we had that the collusion doesn't kick in as part of the cause of action and that did