dismissal by the trial court over in houston what happened procedurally we had a very early motion for dismissal filed by the defendants which led to some limited discovery and that turned into a motion for seniority list integration that occurred when united and continental merged back in two thousand and ten and i like to take a moment to kind of explain the framework of the unions it's just to help court i'm a bit here but we have the airline pilots association which has a national and international organization and then under that you have each of the individual airlines and they have what's called an n b c master executive council so united in this case had one of them have been in this court for problems with mergers and over the years they've evolved and developed a set of policies and procedures that attempt to follow the laws on their face look look neutral and if they are actually followed they probably do crave fairly level playing ground what happens though in a lot of these airline mergers is you have a larger pilot group and a smaller public group and one of the things that al has experienced over the years is a larger pilot group getting upset about the way merger and seniority list integration went and then maybe leaving out of this losing a lot of days revenues fact there's evidence in the record where they've talked about those concerns in fact their policy the merger policy is a product of their concerns  that one of the things that also is important for the court may be understand about seniority of the pilots as it said lifeblood to terms when they upgrade to captain what equipment they fly with they get christmas off what kind of schedule that they might get to be able fly on weekends versus the week things like that so it's very very important what we had here was a couple of situations where album in our view did not follow their own policies and they they set up represented both both united and continental pilots and they were caught in the middle of the merger and your allegation is that they there was bad faith on the part of the union because they favored one pilots if they didn't get what they considered a good seniority list integration they would break away like the u s air pilots did back in two thousand and eight and if we looked at all of these cases would we be likely to find the reason what you're complaining about and that is that in all or most cases now sided in favor of the surviving larger group i think if you were to review the cases you would find examples for that to occur you will also find examples or alba his success has been sued for money damages and seniority scenary listen gratian is the probably the most notable one in recent history wrote the union play in deciding the final merger mean there is a separate arbitration mediation group that did decided not the union so how did the union get involved in the decision to cause it to go against your group that's that that's exactly correct in that that's the whole point here the the we believe that the union and alpa nationals sen against berg a lawyer in to a hearing that was occurring there was a don't want to i want explain one real quick thing and i can answer your question they make it clear they set up of an arbitration panel of three arbitrators which was agreed upon and then they also had a separate arbitrator who was going to rule on discovery disputes the continental pilots wanted certain data from the united pilots because they want to make certain arguments that they felt were relevant to this in your to list issues and get to those in a second and alpa sent betty ginsburg a lawyer from alpa national their main office to that hearing and we believe that based on some of the e mails that are in the you know in the evidence and everything that it does show that she helped steer that towards the united policy i pods were denied i'm sorry the continental pilots were denied the evidence they needed for their merger argument their seniority list and gratian argument and the united pilots were granted so  doing the pre arbitration discovery issues rule for united ruled against continental then there was a separate hearing a little bit later where the continental pilots wanted certain things and alpa didn't send any assistance for them and continental lost out one so we think that's one example of where alpha national in effect steered it or engaged in bad faith there's we have some stuff on the record about some discussions with the arbitrator and some of the things there are witnesses that were there said that arbitrator was leaning towards them until miss week ginsburg showed up she knew mr javits and we believe that was one example that fate so the continental pilots were deprived some information they needed that they wanted to present to the arbitration panel and that information related to wage data and the reason that was important is because when you merged airline security lis you you have a career expectations as one of the attributes to look at will united because it had so much financial trouble even though it was a bigger carrier their pilots salaries had declined rapidly whereas continental pilots have been making more money on smaller equipment so they want to see that wage gap is show that they're correct spectators were actually better at the time of merger than the united pilots and were that were that's also important is the the way this new order list integrations work a lot of times it is they take the type of airplanes are flying the seats are in their longevity and they have the list of factors but career expectations is one of the important factors since the united pilots were making less money even though they might be fine bigger airplanes that was very very relevant information and would likely lead to the panel considering that information which it in fact did when you read their their their award the other thing that's important with respect to that issue is many of the united pilots were furloughed from united and continental show that with bad faith on the part of the union that the union got involved in caused this unfair result eddie ginsburg coming in helping with that discovery dispute on what information they would be allowed to get to present to the to the actual three pinal arbitrators that were dishonest in arguing their list integration and then the other item that we feel is an example of bad faith is against al post written policies they hired a delta pilot name horrible hood and he helped build a model for the united pilot and pilots that was actually the model used and there's evidence in there of harwood sending e mails saying you know we put the harwood gets there he actually gets very involved with with everybody he helps advocate a position he has about one hundred pages of testimony in the arbitration record describing his model and all that and then post  hearing while they're submitting the briefs he's pumping out e mail saying we united are winning even though he's a delta pilot and by alpa rules he was not supposed to be there but  he got he debt he did get paid by alpha national there's no question he's sending e mails of the smoking guns a bit not in of themselves i what i'm saying is that one of the problems with bad takes a subject test i mean it's kind of hard and it's true but facially at least from what i read from the briefs the fact that the delta pilot was involved in and of itself didn't seem to be problematic because as i understood which in the early is not as well as you do not atypical for someone not involved with the two airlines in question you know to be in a road out and out of i follow what you're saying in terms of well representation he was going to crunch faith but here you alluded a couple of times to e mails where he's saying we're women and that kind of thing so that's why i'm asking yes is subjective but that he is that you're if i'm otherwise skeptical about the band faith claim you have i'm just asking him i'm going to need to dig into the e mails to get past what facially looks ok as a neutral person to figure out that he was more than that that's all i'm asking and the answer your question i a it's our summary judging motion always side to those things but but i want to i want to answer your question also a little further by reminding the court that as this court has said in many other parts of said that because of the nature  being such a subjective thing it's not something that's ripe for summary judgment and you can have something that on its face looks facially neutral and you can have things and that's really no big deal but in tell you get in there and get in a trial where you can put the evidence on you can let the jury eyeball the witnesses and get deeply into some of these issues which we didn't get to do because we didn't have limited discovery you sometimes can't fully prove your bad faith case so i would i would say that as this court's right be true but it's also true in the they are entitled to judgment presumably the trial judge had the same thing you're saying but in doing and didn't view them to be is potent as you're representing is that a fair way of putting well i think i have great respect dead rosenthal but i i'd think that if you read her opinion she tends to focus more on the fact that alpha has a policy and procedures to do these arbitrations that is fair and they follow that policy and i don't think she looked at some of the things in there some places in the opinion particularly page twenty four later work if you look at some of the the points that she cites to there there is controverted the evidence that actually be an advocate for the united pilots so yes there was an objection what procedurally went on at the arbitration maybe a little different in some of the things that were happening outside the arbitration president to chairman which they're not limited jut the plaintiffs had the opportunity to take every deposition that they asked for they were given that opportunity they took several depositions they got a lot of documents judge rosenthal wrote a very extensive opinion in which she not only dealt with the fact that the process itself was fair but that it was applied fairly she didn't limit herself the way counsel says one point to before i wade into a number of these other points the fifth circuit in o'neil immerses al from the united states supreme court granted summary judgment to alpha in a bad faith claim and it did so because the evidence of bad faith that has to come to the court has to be that i sufficiently egregious and so intentionally misleading as to be invidious and it has to in this case where you're dealing with an arbitration seriously undermined the integrity of the process arbitration process and lead to an end the ronis reason outcome as the supreme court said in the hines case now this is a heavy burden but let's put this in context as to why in this case it's in particular because the burden for the plaintiffs and it is first that alpa oversees a process it's set up a process it's set up by by vote of all of the representatives and modify from time to time because different pilot groups have different sizes and different characteristics not just sizes on a paid more some are paid less some have more longevity some have less some have bigger equipment some have smaller equipment many differences go into airlines which merge and the seniority process is complicated so the process was set up to take power out of it and to in the hands of the pilots themselves at each airline and that's what was done in this case and the law of congress in mccaskill bond said this is what supposed to happen you're supposed to follow your internal union policies so in this case each group had their own master executive council that they elected and that council elected their own merger committee so that each had their committee those committees were the parties to the arbitration help itself is not a party it's the committee they're paid for the they pyar their own lawyers they choose their own lawyers and those lawyers are paid for by the pilots of those respective groups out of assessments that they impose on themselves for that purpose now the committed the plaintiffs here make no claim that their committee was was corrupt or that their committee the continental pilots who represented them or their counsel did anything except an exemplary job of representing their their interests those committees selected the arbitrators alp it did not yes it was a list that al provided but the parties agreed that alpa should provide that list questions to interpret all the merger policy terms crucial to their decisions to interpret them fair and equitable which is the main point career expectations longevity and status and category all those terms came into the decision the parties agreed that the arbitrator's had the power to interpret those words each side had the same ability to offer evidence each side had the same ability to hire experts and consultants they had the same ability to object and it is not true that the continental pilots committee objected to captain harwood's testimony there was no such objection they were present for the entire testimony they they knew what he was testifying to they knew what he was testifying about and they did not object to that any more than they did to most other aspects of the proceedings the they were fully aware of all the proceedings that counsel complains about including the proceeding before arbitrator job as concerning the w t data that went into the arbitration and they were aware of the defined benefit plan doubted dispute and they were aware of everything that happened in the arbitration meaning the merger committees in their council and all the arguments and the transcripts briefs in this proceeding were posted every day on the internet for all the members from both continental and united to read and review every day and it was over captain pearce who's the chairman of the continental pilot said to his membership he never received any objection from any complaint from anybody about the proceeding and that included about the fairness of the proceeding and that included the merger committing themselves no complaint to peers that the process was flawed or merger policy that says that the merger committees have complete autonomy in the matter of integrating the lists and complete autonomy in selecting whoever they want to work for them they have that that power now in this asked by mr harwood captain harwood from delta one of what about the police will it be political problems if i do work for the united pilots i've been asked to do work for them because captain harwood was a computer expert he'd done work like this and he knew they knew how to handle all the seniority gratian issues and kept a moat check with captain peers and came back and said no there's no political problem that was not giving him permission because captain milk did not have the authority to give him permission your honor  he the merger committees of cells had had complete had complete autonomy and for that reason also represent delta pilot yes or it's us it represents most of the pilots in the country except currently for a couple pilot groups and wants to represent pilot groups because that's what the pilots want to have a strong national union that that therefore alcoa must be biased towards one group or the other as i said earlier in every merger there's going to be a larger group and a smaller group and that's why they set up this policy so as to take those issues off the table that there it's one thing to conjecture that because alpo wouldn't want to lose a particle and therefore it would put his thumb on the scales that's fine you can conjecture that all you like but in a in a case like this with a very high bar you have to have evidence and that's what the union intended to do here and the plaintiffs took  positions all over the place and did not come up with one shred of evidence that that is what the union intended to do here that they had that motive here and tried to bring about a result here now so let's talk about some of the specifics of the the process that not alpha would be required to as chief to seek that data from the united airlines and under what circumstances she didn't have to say anything she didn't appear to the arbitrator worked it all out there is no evidence that attempted to interfere or influence that there is speculation on the part of the plaintiffs but there's no evidence that she did that and she denied that she did such a thing and furthermore and most important of all the story that i've heard over and over from the plaintiffs that there is that there committee did not have a chance to use this important wage data is simply i've apologized your honor it is not true the the arbitrator ordered alp with complied with the order to secure from united airlines individual personal wage data for every united pilot in order to provide that information to the continental merger committee person by person without names without names to protect their confidentiality without their employee numbers to protect the confidentiality that the united continental pilots wanted that data in order to show that continental pilots person for person were paid more for the same kind of flying and even from them for lesser flying than united pilots and this was part of their case they made that case they made that case and show it in great detail so they had every opportunity what happened is that the arbitrator's and this was their job to make this decision the arbitrators said well yes it's true and they agreed that that was true but the united pilots had a had better work rules and better non compensation not wage compensation so the arbitrator said on balance the compensation and working conditions of both groups were elevated by the rising tide of a new political parties and they basically said it's a wash and that was their job to make that decision it wasn't help us job and help i didn't try to make that for them so then there was the question of the defined benefit plan data that was used by either by the united side in order to deal with the question of when a continental pilot was working for continental in when he was working for some other in which was an important question for about one fourth of the pilot group because of the question of longevity and how longevity would be applied and that was up to the arbitrators to make that decision the the defined benefit plan data was not confidential because the question of whether somebody is working for continental or working someplace else is not confidential that's public information and it but the bottom line on that data too was that alpa didn't interfere with anything the parties agreed to merge or committees agreed with each other on how that data should be used and how it should be presented and with what degree of confidentiality that was not alpha's decision that was their decision the committee's decision so let me go back now to the question of captain harwood because in some ways what they're saying about captain harwood goes to the heart of the problem with their case and that is that they they say as we said earlier they have to show that the the award was somehow iranians in order to get to you at all and they they did not show that in the in the district court and they haven't shown it any differently here because they the their position on that is that as counsel put it the the panel gave the arbitration panel gave too much credit to the longevity of the united pilots and not enough to other factors for the continental pilots that was their job to make that decision what captain harwood did was simply to show them one way to count longevity they the panel decided to use longevity under alba's merger policy in the standards that alba had adopted longevity and after all the length of service seniority is not unusual to go together so that that was an important part of their decision not as much as the united pot wanted the the continental pilots did better under that prong of the outcome than the united pilots wanted them to so it was not an in unbalanced decision but from the they don't say in what way it would have been different would it have been better for them or worse for them but if there is a way in this is critical for to count longevity that was more favorable to the continental pilots than what the united committee put in continental merger committee did not present it they presented no method for counting longevity and plaintiffs have presented no such method as to how it would have come plaintiffs have to show that the bad faith produce an erroneous outcome for them and undermine the integrity of the process with an erroneous outcome and they have shown nothing about what mr harwood did that they would have done any different well but if they show that he was buddy buddy and chums with a united people that were involved then doesn't that make his computer expertise come under question no your honor because they his computer expertise he was cross examined he everything that he did was on the record the plaintiffs the complete merger committee for continental pilot's counsel had full opportunity to cross examine him to go into all of that heat there were some e mails from him after the hearings were over in which not surprisingly he showed that you know  he was he was internally among them rooting for the side that had hired him i mean that's not a surprising thing in a in an expert or a consultant but in no way did that impugn the integrity of what he said or did and all that he did was to show a method very simple method by which you could use longevity in putting together these two seniority lists the problem that the arbitrators faced with respect to longevity is exactly the one that the continental pilots themselves described after the hearing which is that there was there were variations in the longevity among the continental pilots between seniority and longevity because they were the product of several other mergers coming together at continental airlines over many years and the result of those mergers is you had a disparity between people's place on the list and how their length of service that had to be smoothed out so the continental merger committee themselves said that harm was method was used by the arbitrators as a way to smooth out the erratic longevity values that occurred on our seniority list so that that's all it that it it's a set up a way of doing that and the arbitrators said that was a sound way to do it and that's all that went on now the united merger committee through other witnesses said that we want to give half the value in this case to the longevity and half the value in this case to status and category meaning i'm a captain on a seven thirty seven or on a seven or in the first officer on a triple seven and the arbitrator said no that's not fair to the continental pilots we're going to give less weight to longevity and more weight to status in category and that improve the position of the continental pilots compared to what the united pilots had had wanted them to do now i've already mentioned that that the that alp us let me just say one of the thing about the test the evidence with respect to captain harwood he did not pay him for that testimony he was paid by the merger committee out of merger funds all of the checks that were produced in this case and plaintiffs never said that we didn't produce everything all the checks are produced in this case with respect to that testimony came out of the merger fund the ten ninety nine stick captain harwood came written on behalf of the merger fund there was one piece of evidence that said that in l m two which is a federal form that you used file that said that alpa had paid that money is  thousand dollars that went to captain harwood in one year that happened to be that nine hundred thousand same amount that he was paid by the merger fund that tell him to was a mistake i'll put put in the testimony that that was a mistake that that was inconsistent with the checks and the ten ninety nine so there really is no evidence that alpha paid him anything for that testimony and now there are l m two that show that alba paid captain harwood flight pay last for time that he spent in the delta pilot working at the delta m e c that's something that's pretty routine but this case has an arbitration case that's right is a there's an extremely high bar in setting aside an arbitration award it is also the case that in a in a union case like this if the plaintiffs can show that the unions faith conduct interfered with the integrity or substantially undermined the integrity of the process that's a basis for review it's not the same as in every other case but it would be true i'm sure in any arbitration case that if if if one party could show that the other party had interfered then that would be the that would you know if it improperly bribed a witness that would be a basis for setting it aside so it's extremely limited and  it's highly limited in this case thank you your honors that you miss that and i'll just read you the quote siding with the united guys and then york gotten very angry he said katz is out of control this is all an e mail evidence york observer really not helping him self because alpa has funded a pretty nice lifestyle for him and one of the things i want to make sure the court understands if you look at who does all this work there's like a handful lawyers and a handful of arbitrators that do all this and everybody knows each other and sometimes they're representing one side and they're representing another s a fairly big deal when somebody like dan catsuit has made a very nice living off of doing these for different alpa carriers at different times right his career is going back to helping complaining you are steering this towards the united guys and so i think that's another piece of evidence of that that i didn't get a chance to get to earlier and i think it addresses some of the things that that mr abrams was talking about the other thing your case very senior help put fishel in his deposition he said stated goal is to be the only union for airline pilots in united states so there is some institutional bias and again we're getting into bad faith in subjectivity those are things that need to be explored and examined and sometimes can only be assessed  were not completely i'm involved in remember my clients are outside guys that are who seniority has been affected by what these other people are all doing and then one of the things i think is very important for the court to understand he talked about jeopardy which is a key issue in airline mergers disease database that continental airlines kept and was admittedly by i think all the witnesses agree it was a mess they couldn't figure out when guys who really hired they had some guys senior guys they were clearly not senior to you know which bunch it was that's a continental guys so that was another reason why they were trying to get away from using some of these more traditional methods and some of these discovery issues were so important because it created errors and the continental pilots complained and objected that they weren't getting all the evidence they needed pierce testified that he called look up and complained about that lemo being again alpa national president while this was happening in real time so we may have things happening in the arbitration that were on the record but we also have on on a national level the m e c chairman calling the president about the national and complaining about some of the conduct and things that were going on you're also can we look at the arbor to arbitration panel decision you can see in there or how this action panel i don't i don't i wouldn't say you can by just looking at it i think what it's going to take if we can get back in front of the judge is getting some experts to go in and pull that apart a little bit and we did not do that at this point and you know if that candidly sometimes when you find yourself with dismissal motions and then somewhat limited discovery you sometimes don't know where the court needs you to go to figure certain things out and that's one of the things of our current federal practice it's hard on us as lawyer sometimes i'm not asking for any slack for that but it is a reality here and that that would be something we would definitely aggressively get back to try the the other thing i want to talk about is there is a factual dispute on the alpa policy he's saying it's ok that they hired harwood were saying it's it's not if you look at the documents or in the record it's not if you look at what they did they kind of came up with this contorted declaration that says well it's ok he did it under these circumstances because the merger committee paid him not out the national well it's a disputed fact whether out the national paid in the one harlan's testimony is his own testimony puts that into in into dispute but more importantly the courts upheld including this court that when it comes to unions interpretation of its own rules you don't give it deference when they're changing it and there's an allegation that say that i think this court didn't really do anything wrong here all right thank you thank you with the s