mystery for ski you accepted this case an appointment of the court and the court thanks you for your service to your client and the court this lawsuit but there are a few things that are crystal clear first the purpose of retro pay is to compensate employees for working at under market rates or new contract is being negotiated second that is not what happened here excluded the largest pay gain for purposes of calculating the pilot instructor's retro pay and replaced it with the same pay provision from a bankruptcy contract from a decade earlier third alpa knew exactly what it was doing the remicade the ramifications of excluding that paper vision were explained to the subcommittee that was tasked with allocating the retro pay and they were warned of the gross inequities that would result if they went that route but they did it anyways and then they lied about why they did so lasley numbers don't lie as a result of this decision the line pilots who make up the majority of the union recover thirty percent of their last retro pay wages whereas our clients the pilot instructors a minority group of the union recovered only fifteen percent of their retro pay losses  in no way reflects the proportion of harm suffered by our clients as a result of the three year delay and negotiating this new contract how do you calculate the thirty eight percent of the fifteen percent the thirty eight and fifteen percent were based on what each group would have received had the contract been entered into as a be amenable date do the two thousand and twelve the new contract have the kinds of detailed rate schedules in it  that are part of literature remove twenty four for the years two thousand and nine through two thousand and twelve the two thousand and twelve agreement did not have pay rates for those years they had pay rate starting as of the date the contract recife so what's your baseline for figuring thirty eight percent and fifteen percent that's just primus on had contract that's that that's premised on what what would i call the traditional way of calculating retro pay that is take what someone would have or had the contract been entered into timely last what they actually are under the old contract but how do you figure that out if the new contract doesn't have innocence retroactive schedules these rates from year to year that's true and ultimately it all ends up being equal anyways because these rates you're right maybe these rates in two thousand the two thousand and twelve rate which would be the first rate in the new contract maybe that wouldn't have been the actual rate in two thousand and ten when the contract became available but that's true for both the pilot instructors and the pilots right but i'm pretty it will be let me just raise my my broader concern here is in essence you seem to be taking the approach while denying that there is one right way to do this and i don't know what the baseline use for calculating the fairness issues here in a zero sum game yeah well there isn't there isn't one way i could spend my entire fifteen minutes coming up with all sorts of different ways of how this could have happened and we wouldn't be here today but really the crux of it is and sure the numbers are one thing that that's that just provide provides context to what happened here but what really happened is that there was the largest component of the pilot instructor's pay was simply excluded and they used a bankruptcy contract from ten years earlier and the point being is that ok we use the delta contract right for the hourly rates to calculate retro pay and insists that that's fair and equal because we use our leads for everyone well using their stated purpose for using that contract proves the inequities because their stated purpose for using the delta hourly rates was they wanted to use the industry leading benchmark during those years what were other pilots in these positions being paid during those years ok fair enough they did that to the line pilots but they didn't do it for the pilot instructors because they didn't use the pay structure the structure of political to pilot instructors under the delta contract they replaced that they took that out and they were placed it with the same pay structure under the bankruptcy contract so all the line pilots their retro pay was calculated based on a market rate compared or during those three years the pilot instructors were included a provision in the letter agreement saying we are going for the for the pay formula for pilot instructors we're not going to use the pay formula in the delta contract we are going to use the pay formula set forth in the two thousand and three from the two thousand and three big strike so that's where what i call the fallacy that alba has pushed in this lawsuit that everyone is treated equally because they keep pointing to the pack that all we did was we use the hourly rates and the delta contract for everyone with that ignores there's there's definitions of what retro pay is and i cited a handful of them from a variety of different sources in our briefs stating exactly what that is and it's exactly what i said it was now i'm not necessarily faulting and i'm not in it i'm not necessarily  them for doing it differently the fact that they use the delta contract as a market rate compared or in and of itself is not a complaint the problem is they didn't use it consistently they didn't take the delta contract and say ok this is what pilot instructors are being paid at delta for this three year period time and that's what we're going to look at they did not do that they did that for the line pilots but for the pilot instructors they said we're not going to use this pay structure even though that was the market rate according to alcoa during the three period time punched this was a judgment on the pleadings it's essentially a failure to state a claim we couldn't even get our foot in the courtroom door so even though you did suggest that this will be at least not the traditional way of doing what was missing from specifically for the pilot instructors and the retroactive adjustment and it looks like for any month during your p p an e p is a pilot instructor is much higher than that again these pilots structures these these are in terms of the seat and yes yes drastically higher what about the hours the hours i do not recall and for who he has as i could i could provide the core that of at me when i sit down i can look through but it in general the overall pay structure for delta pilots was significantly higher and remember these guys aren't newbies islands truckers they train these are good guys who train the people who fly us from point a to point b so they're all more experienced guys if they get there at least twelve years or more senior yet the new contract just uses a nine year tracking already right so i confess i'm as an outsider i was a little surprised i would have thought the pilot instructors would be among the very highest paid practically well the thing is ultimately whether it's nine years or six years or the or some fifty seven range or zero or a first officer a captain are the union has told us is describe the stakes as infinitesimal for wind pilots what are the stakes for your clients and what remedy you want the stakes for our clients are are quite large i mean i think we have had an opportunity to to get to discovery to create damage and all of these people should have been stood in line to get tens of thousands if not substantially more per class number in russia pay than what they did so i think we ran some numbers for some of these class numbers based on the limited information we had and there might have been discrepancies in the range of fifty thousand dollars or more so that's a big chunk of money if you do if you equal if you equalize thirty eight percent and fifteen percent  somewhere much closer to thirty eight percent because of the numbers how much money is it for the group would need to move on to answer that question to the overall amount of retro pa succeeded in the other one were iran and the second one between what i call the middle manipulation of those two groups they were able to increase the line pilot share up to adult thirty eight percent account in adjusting distributional fairness in the union they should your honor and i think the fact that i think both elbows logic and the district courts logic on that issue is looking at a backwards during that three year period of time they were harmed the most because they were denied that significant paying crease so it's backwards to look at that by saying they should just be happy that they got the largest paying crease what they should be saying is they were harming the most for this delay your point is that the  crease had nothing to do with retroactive prospective time well the paying crease has i understand your point but it does have it does have a bearing on retro pay because that's how much someone was harmed break if you if you're if you're working these guys got clipped the worst in the bankruptcy they were going to depress wages for a long long period time they stood in line the most to gain by this new contract so the fact that they did arguing and united meeting their pay for word from two thousand and twelve has some kind of a component built in it to give them you know it should be looked at as what they hollered how much more they harmed by this delay and the fact that they were working the furthest under market value cuts in our favor here's here's the problem though at least and maybe you can help me with this it's hard for me to see that there is one correct baseline to whether it's the bankruptcy contract whether it's the contract before the bankruptcy the two thousand and twelve contract delta contract and when a union is facing these sorts of intramural zero sum distributional decisions i'm concerned that if we say this should go to trial we're going to be second guessing union distributional decisions without limit well there's two things that will alleviate that concern the first is is that this wasn't something where they took into consideration their pace their increased pay formula and they maybe did halfway or a third some some other formula that didn't quite account for the entire increase that's not the case they just didn't consider it all together and they refused to consider it was dead on arrival the local chairman for pilot instructor sat on that subcommittee up he warned them that that this paid half was important and they said we don't care we're not going to consider it at all they just inconsiderate it out so the fact that they didn't consider it all and then the fact that they lied about it on the backend to me it differentiates this case then the myriad of other decisions that could have been made but weren't in the situation i know a lot of time  complaint same standards applied and that is whether plaintiffs come forward with two plaintiffs have come forward with sufficient plausible statements in their complaint and anything else thereafter that would show that with the union did was either arbitrary discriminatory or in bad faith and therefore hurt hurt them what was the situation cunningham's triggered your own situation cunningham was eight was a decision about how to how much longevity t grant to pilots based upon the years of furlough that they had had and the dispute came about because the plaintiffs said that they were not given the full longevity in order to favor the continental pilots so it was a similar kind of allocation claim and what the court said was that on its face that's not arbitrary and it is not possible anymore than it is here that the union was simply out to get a whole group of pilots in that process in that process first of all as the court said then is applies here to that rules on discrimination applied to a prohibited characteristic being a flight instructor a pilot instructor is not a prohibited characteristic as the courts call it or you might call it a protected characteristic under d a far law that's a position through which pilots pass they choose to go into it they choose to stay into it stay in it and they come out of it there they are lined pilots who fulfill that position for a period of time some of them longer than others just like a line pilot can fill a position as a seven forty seven first officer or as a seven twenty seven captain so no longer seven twenty seven but it is a captain on another piece of equipment so the it's not is not a it's not race it's not even put a politically disfavored group that the pope point about the  be analyzed in light of the union's extremely broad discretion and the reason it has a broad discretion is this as this discussion illustrates here's why i have my problem with yes it's maybe you could help yes if you used a formula have but you know you can use a formula to get a bad result it's a result that smells bad used each to whistle for is a good formula and has a bad smell to it ok here you used a formula that one was not a formula that was drawn from the two thousand and twelve contract you would but you are trying to make good on what had happened in those past years instead you used a formula was known to be in firm secondly according to the allegations of the complaint you you favored the group that's got the votes for help so if you're a district judge why do you boot this thing and rule rule twelve all right your honor first the the formula that was adopted which mr zona does not correlate with which was to use the delta contract as as the base why was the delta contract used because that was the those were the rates of pay in effect during that the retro period and there had been a tremendous movement in pilots from what was going on in twenty time secondly that the delta contract was was what the the union used to convince management and the national mediation board to provide this retro fund it was less than what the union hoped to get but it's what fact did not smell and why it was not arbitrary and it wasn't discriminatory and i'll talk about this back faith claim in just a minute it shows for all pilots one parameter from the delta contract which was the rate of pay to the positions that they occupied under the united contract during the relevant period yes they could have with respect to the delta instructor with respect to the united a structure said well we're also going to boot up a new set up for longevity i think they could have done that that would not have been improper had they done that for the delta force uni for the united flight instructors however us delta longevity then what about longevity changes that made were made in two thousand and twelve for anybody else if they change the longevity they didn't do that they were pilots as we know from cunningham whose longevity was adjusted in tw that contract that that adjustment was not recognized in in this new contract there were differences in the ways in which rates of pay were raised under the united agreement compared to the delta agreement some pilots did better using the differential under the delta contract than they would have done if you'd use the united pilots rates again nobody got anything any special preferential treatment in that respect seniority was adjusted in the two thousand and twelve agreement as a result of the merger there was new seniority list none of that was taken into account different hours people flew different hours under the united pilot agreement that they would have flown under the delta agreement had that been in effect in fact because of the pay raises and twelve agreement some pilots would have flown a lot more under that agreement they'd than they did fly under the much reduced rates that everybody was under in two thousand and twelve two thousand and ten eleven and twelve when everybody was flying under a two thousand and three bankruptcy agreement everybody and none of that was taken into account now yes the union could have done all of these different things and just like they could change different rates of pay for for captains and copilot they could have more vacation they could have more retirement there are thousand decisions that go into a collective bargaining agreement at least a thousand there constant decisions that you have to make that the union is charged with the responsibility of making people select a union and it's in and charge them with the responsibility it is not it's not governed by the same rules as the equal protection clause in the sense of saying that because something bad happened to you therefore you automatically get to go to court every agreement has in it dozens of decisions that somebody could say that was bad i didn't like it that hurt me i should have done better and there's a political process for doing that this process was used here the the pilot instructor representative on the m e c according to the plaintiff and there's a dispute about what was said when but just taking their allegation he made this argument to the committee and they said no we don't agree with you and in the record in their own filings is the statement from that individual from the chairman of the committee who said who sued news a statement from their own individual mr cossey i know who said that was done according to the union because it was simple and it and it was simple but more than being simple it avoided all the disputes that could have been here today from somebody else other that mr is although perhaps wasn't going to be representing to say you did something that i didn't like and we could have been here for that purpose as well all of these things your honour's are that's why the duty of fair presentation is necessarily extremely broad in proving discretion to the union and that's why it's appropriate as this court has repeatedly observed to grant it or bad faith meaning ite not only did i legit lee lied to you but i allegedly lied to you in such a way that induced you to take action that you relied on if i put out a statement saying i'm going to file grievance for you and i didn't intend to do it and i don't do it if i put out a statement in a contract ratification that says well you're going to be getting an eighty dollars pay increase but instead you're only getting sixty dollars you vote for it on that basis that's what's meant and thirteen of four months after the contract was ratified and six to eight months after this letter of agreement was worked on and and reach the the chairman of the subcommittee said to an arbitrator that mr ariano supported this outcome and mr cossey i know came into that same arbitration and said mr ariano told me that he did not support it and here is his e mail to show that that's the same e mail that that that the plaintiffs relied on here that had nothing to do with the ratification vote it had nothing to do with the n b c s decision making it was in an arbitration that took place months later and it does not show anybody relying on anything that would affect the outcome of of this case so if i may just to sum it up if you don't have an allegation that shows or something is arbitrary you can't show that it's discriminatory because it's not a protected group and by the way this infinitesimal point is not that the union intentionally said well because you're getting a big raise you don't get this much money the point of it is that it shows that the union was not hostile to the instructors that's what that's why we made that point and that's what the court below basically said how can you say the union was hostile to the instructors when they got the biggest race of all and the fact that mr ariana was part of that negotiation doesn't mean that it wasn't the biggest raise or that the union didn't supported it and thirdly the amount of money that maybe more for these individuals of whom there's a total of one hundred thirty that amount of money each one of them may have gotten might be significant to them but on the whole it doesn't matter very much at all to the to the six thousand line palace's it's infinitesimal as the plaintiffs have said in their own in their own papers and address the thirty eight percent versus fifteen percent calculation and sort of the overall stakes here ok the the overall stakes here are as i understand it about and i think in my right in thinking it's two to two three million dollars is the maximum amount of damages that claim for that little bit more within that range the single digits total amount of damages that they would have the third but that's on the basis of thirty eight to fifty percent calculation that there is no basis there is no traditional retro way there is no one way of doing retro black's law dictionary may call retro something that we're talking about collective bargaining involving three years  changes the union is not bound to follow black's law dictionary it's the union they say they're bound to come up with something that makes sense for them and the members and thirty eight percent is based upon what would have was in effect anywhere during that three year period of time and the fifteen percent is based upon the same proposition for the flight instructors the pilot instructors who did not get that same i'm not disagreeing that and get that same percentage whatever it would be whatever the correct amount was because the formula said we're going to apply to what you did and the job you had at united airlines not a job at delta a job at united airlines will apply the same formula to everybody of taking that delta hourly rate and that's the only difference for him to look at and that's why you get to that to a difference like that if you're provisions you have to distinguish those from the actual paper visions and hear those service provisions were applied equally to everyone blind pilots and pilot instructors alike so if someone's lying djibouti may have increased because of these service provisions that would apply equally to both the line pilots and the pilot instructors we're not talking about those provisions we're talking about a pay formula pay formula for the pilot instructors that's different than service requirements and those pay formulas the seat fleet longevity combination and the hours are completely untethered to reality they have nothing to do with someone's actual sea fleet month devotee how many hours someone works it's just an x y z formula to get to a sum of money to pay these people a monthly rate and they move those up and down to get those people parries it's plain and simple is that the other thing is and captain fox that kind of clutter the dialogue at the arbitration this wasn't just us saying you know he supported it and you know he didn't really support us that's the big lie here the big lie here is that they lied about the decision making process itself when captain fo why did you do this when you knew it was going to harm us so much he played dumb i don't i'm not a pilot instructor we relied heavily on mr ariano who is and we accepted his advice he told us this would be fair and the way to go that's a lie he lie people don't lie for no reason they lie to cover up for something that they knew was wrong and they knew it was wrong because mr ion ariano told them that this would result in a gross inequity so in this case we're looking at a duty of fair representation whether something was arbitrary or in bad faith need to look at the results of the decision and the why it was done that way the results patently skewed allocation no dispute there and the why well we don't really know yet but we do know that the reason