vote in your favor instead of a two to one vote against you be that if there was a true to one vote that was the end of the issue that the guild didn't have the discretion to review that and make its determination considering that as well as a number of other factors and that finally that they demonstrated some either bias or violate of the rules by misinforming one of the arbitrators about what's the result of the business continuity examination when there are those factors the bases on which you say the union  the chain of writers on the story and therefore he shouldn't consider it just it shouldn't have had to go into a creative analysis but even assuming that they decided to do that then you go to the internal policies which we are here they b it's the one issue and it says that initially one reader is used for the same project determination if there's a question raised with a decision to additional three to additional readers may be used with the majority decision being controlling and they go through the department which then makes the decision right the decisions based on the three factors the third factor were contending was a vote in his favor that was actually slipped  and maybe where you're going with this is that there is a general policy that the hell he's raised in the briefs that allows it says if you have any questions you can go to cathy reed with any problems but argument wrong and they gave them the wrong information about the business factor and that the vote should have been counted your way the unions believed that they were right in telling them to delete the paragraph and the vote should go the other way so there's a disagreement about what the two to one vote is that that kind of disagreement why is that kind of a disagreement sufficient to say point worth that he was not to consider the business continuity he's only to consider the creative issue well that's not exactly true because the cover letter that was sent to mr clegg or so is that he's a fellow of to consider creative issues as well as any of is a ministerial act and therefore it's going to be arbitrary standard this wasn't a first of a kind situation where the gilberts faced with i don't know what to do we never been in this position before there were and relied on the majority decision to try mr early scream and the problem with the guilt of addition is that they change their position on appeal and complicated but i mean ministerial means you just look at something and it's automatic it's clear and this whole process if you look at it is a good mental process whether it's  investigation in which they may have made some mistakes and maybe they discretion involved in the what the union had to judge the determination i had to make now on the pulse he says send it to a reader and their decision control she didn't she did not have to look at what the what the what the experts should look at the conclusion and she was just to tally them up and she says that's all i did i just tally them up it was only a summary judgment or she came back and said well you know there was a lot of factors involved that i well look i should i should really make sure i follow the policy in this case given the shot as the district court said you know he should have a ticket to the to the creditor those considerations were made in this upon which to make an assessment and our point is that yes the ultimate make it made a decision but that doesn't mean that the only bad taste entered applies you have to look at what took place  that decision making process and in our in our situation there was a failure to follow the policies and there was the law that was told to the initial reader who was told that if you consider any other relevant factor contract was very specific and it's not in dispute here the guilt was doing this investigation to determine whether or not to file a grievance to bring the first four writers on the earlier project as participating writers it's undisputed is a matter of contract interpretation that we didn't have the unilateral authority to designate who the participating writers were we arbitrat that case in the days of thunder case in one nine hundred ninety and in fact in that arbitration we took the position if we did that that was a matter within our soul determination and the arbitrator ruled against us so since hundred ninety that has been a binding interpretation of our collective bargaining agreement so this is not a case of vocality and we are not functionaries who are simply tallying up the votes readers we conducted a very thorough and very painstaking five month investigation that had many facets it involved talking to all of the writers on both projects  what happens frequently under a collective bargaining agreement there was a flurry of arbitration decisions about this issue of the first case was days of thunder and that's the case that really sad that the question of you follow certain procedures right and that analysis if i may is informed by the four arbitration decisions became like clockwork in one thousand nine hundred ninety ninety one ninety two ninety three where would you look if you want to know you and rules in some sort of description of how this works the unions procedures the union publishes something called the credit survival guide and that's that that's the sort of most user friendly member directed explanation of how it works and there's a section in there and i had minutes not very detailed there's a section in there that says we sometimes past conduct participating right or invest and in those investigations we sometimes use expert readers now in terms of things readily available to the membership at large vast it now internally what we've done over the years is in the wake of the correct correct there are actually three different documents these are internal documents they start in the record at excerpts of record for eighteen and go on for six or seven pages that those are for the internal use of the credits department and i will say that they are by nature pretty general because there are a lot of different factual variations in participating writer cases and one size doesn't fit all you know as we've said one type of participating writer investigation involved you know whether a later movie is a remake sometimes there are cases like this where there was one project and then there was a long period of time six years and another project starts up about the same subject matter so the procedures that we've developed and you know and the internal version of  in the record have to be flexible but they're all in the context of trying to help the credits department conduct investigations so that ultimately a decision can be made about whether to press garner simmons who was another writer but was also copied to mr adie the plaintiffs in this case and there she really she lays it out as three factors the first factor wasn't in dispute but sometimes is the first factor is that the writers trying to get in and work under the jurisdiction of the guilds contract so we flew past that one the second one is business continuity and what she said about business continuity is that the factors here were mixed and in fact if you look at the arbitration awards very dainty numerate a factors of business continuity and i was looking at them this morning and if you run through those we had met in this case about four of a and what kathy said was well we think there's enough business continuity here to warrant sending it to readers there's enough where we could make a color argument about business continuity in arbitration so we started to read it it's now no no here's where we get to the allegations that we stuffed the ballot box and we  process what if the readers are just wrong about something internal review in a participating writer investigation well we  have this is an investigation it's not an adjudication we do have as we did here the option if we think there's any question about the decision of an expert reader we go to more expert readers and that's what we did here we gave mr adie and the three other writers the benefit of the doubt here and it's now you know i can go to the issue that somehow we exerted improper to make that judgement or is it then automatic when she received a report no nothing nothing is automatic when you're deciding whether or not you had sufficient evidence to wait a minute there's no violation of the duty of fair representation if she says go ahead and we're going to represent you of in your honor that's absolutely not true and that's an important part of escape mindset violation of the duty if she says we're going to represent you in the ar because we would have been exposed to liability to the first writer of the on the second project in this case a man named john logan who thought that he was the first writer who had ever read the earlier scripts whose decisions have to not be in bad faith if we had that if you then you're saying she is bound by what what three writers to determine no i'm saying that she is bound to making good faith decision business determination for her time to memory as you say they're not entirely sure she has to report on those factors she says well that may be enough to go ahead she then get rick's reports from the three readers and even there they may not be absolutely each one hundred percent sure but two of them say well we think there's enough and one says i don't think can she make a judgment that's different from the two to one vote and she said i'm looking at the business factors and looking with all three very and my judgment is in good faith considering all these things i do or don't think we should go to her because she has the department had has discretion she in practice consults with the general counsel because it's fundamentally a legal  unions do in much more traditional labor management context in deciding whether to take a case to arbitration and i want to i want to diffuse put the lie to a red herring here which is the idea that somehow kathy really changed her story and and said she was exercising judgment only once we got to court if you look at the very end of the letter that she wrote to the writers on october fifteenth two thousand and three her conclusion said quote the guilt determined that we did not have enough evidence to me our burden of proof to establish in a legal proceeding under the n b a or otherwise that the writers the writers from the first project were participating writers clearly our position all along is that we are making a judgment about whether there is sufficient evidence to file an arbitration claim against warner brothers and go to sharing now  with your blessings i would like finally to get to the point that i want to make about the readers reports the idea somehow that we flipped the word that's been used here this morning the vote of mr clatter is simply in kind of definitively belied by the record mr and all you have to do really to understand why we didn't take this case to arbitration is to read the reader reports and yes mr clutter was asked to take certain material that apply the wrong standard out of his initial report and he issued its report appellate courts know something about adjudicators applying the wrong standard but the essence of his opinion about substantial similarity remained the same from the first decision  i'm reading now from excerpt of record four fifty three this is the very first decision before any of the alleged meddling took pla material overwhelm any superficial similarity of studying character so i can say with confidence that the writers of the yellow material the first material make no credit worthy substantive contribution to the blue material now that's that's his first report and that's why at that point we had grave misgivings about our ability to go into arbitration and under the standards of the days of thunder arbitration prevail we gave the writers the benefit of the doubt we sent it to two more readers  and i think all you have to do is to read the conclusion of one of those readers mr frohman who writes in his conclusion quote if the writers of the elements cereal were to be granted some credit for the blue material it would be a can to give in the first writer of a civil war movie credit for all succeeding civil war movies are the first writer of a western to be given credit for all succeeding westerns now these two guys were going to be our expert witnesses our expert readers in the arbitration if we had chosen to file it a minimum it would been discoverable that we had these reports and that we knew of their opinions that the substance that's the real core of the reason why we made a very rational judgment not to proceed to arbitration i think you've answered this implicitly but just to be clear in the hypothetical case you hire two readers one of them says yes there should be credit the other one is disparaging in that regard you can use the first reader if you go to arbitration to support your claim but the opinions of that second reader are available to the movie studio the production company the opposite side to you that would it's it's related to a question that i've already had answered about whether we reflect that there is our position was and it's very clear from the letter that we send to the readers and to all three of them are in evidence they're just form letters that our position is we don't want the readers in this situation to consider business continuity me didn't give them false information i think the record evidence is somewhat muddle sally burmistrov testimony in deposition and it's in the record was that she told him not to consider it richard twitter didn't face the important part of his analysis is not about business continuity business continuity it's complex and of the people who are our readers are not professionals and just talk and just referred to hiring readers we should say these are professional screenwriters who are volunteering their time the whole premise of the credit determination process it's like retaining an expert well about except these guys don't get paid they're volunteering their time because they believe that ultimately it's in the best interest of all writers to have writers determining who gets credit thank you thank you so interrelated with interpretation of the collective bargaining agreement and the decision of whether or not these were the same project was was one covered by the collective bargaining agreement and therefore they were preempted but that claim was of that position i'm thank you very much contributions to the script well let's think about that credit where the contributions would matter in a credit arbitration we're just trying to get to a legal arbitration to determine participating writer status so it didn't matter whether any meet credit worthy contributions because as the first writer he would have automatically received credit so long as he was a participating there is no review process in the participating writer investigation as just writer is aware from the jacobs decision that the investigation is sort of haphazard we sort of we do want to do there's no review that's why c wasn't applied that case i think it's also important to look at the arbitration decisions in the twenty ninth street case in the winter case and both of those decisions create a continuity was not an issue the only thing that w little bit of a concession that well kathy really sort of has some authority to overrule if it's a two to one decision but there's really no rational explanation as to why or how that happens the policy says majority decision you're trolling that's what she did that's what it means and that's what stated in her letter if it wasn't based on what the experts actually said in the records she just counted off the votes and as we said before the vote was flipped because of some false information that was told to one of the readers