ORDER DENYING MOTION FOR RECONSIDERATION

RICHARD SEEBORG, District Judge.

The motion for summary judgment brought by defendant Allied Pilots Association ("APA") was granted with respect to all matters alleged in the complaint other than those relating to "Letter G" of the 2015 collective bargaining agreement. As to the determination that the so-called "Letter G" claims could go forward, APA seeks reconsideration on the sole ground that, in its view, plaintiffs did not meet their burden to show a triable issue of fact as to causation. Specifically, APS argues that plaintiffs presented no direct evidence that American Airlines would have agreed to extend "LOS credits" to them, even had APA negotiated for such a benefit, and that the Court failed adequately to take into account the unusually high burden for establishing causation reflected in Acri v. International Assoc. of Machinists & Aerospace Workers, 781 F.2d 1393 (9th Cir. 1986) and Ackley v. Western Conference of Teamsters, 958 F.2d 1463 (9th Cir. 1992).

In response, plaintiffs argue, among other things, that Acri and Ackley are inapplicable here as neither involved alleged discriminatory conduct by the union. As noted in Bishop v. Air Line Pilots Ass'n, Int'l, 1998 WL 474076, at *17 (N.D. Cal. Aug. 4, 1998) that distinction is not dispositive. Id. ("While Acri and Ackley involved an alleged misrepresentation and an alleged nondisclosure, respectively, nothing in those decisions suggests that the causation requirement stated therein was limited to misrepresentation cases.") That said, the concurring opinion in Acri pointed out that the plaintiffs in that case were arguing the union could have achieved a better result than the agreement it reached with management to end a strike. "Determining what would have happened had a strike continued is far different from determining what would have occurred had a matter been submitted to arbitration, or even what the result of good faith bargaining might have been." Acri, 781 F.2 at 1399 (Rheinhardt, J., concurring).

Furthermore, the concurrence explained the Acri decision would preclude most claims of the type before that court because,

Id.

Moreover, in Acri, "counsel for plaintiffs frankly acknowledged he would be unable to offer such proof." Id. This case, in contrast, does not involve a strike, or speculation that management might have offered better terms had a strike continued. See, id., ("[i]t will almost always be far too speculative to attempt to show that an employer who has agreed to a particular collective bargaining agreement following a strike would have granted one or more specific additional benefits had the strike continued for a while longer.") Rather, here the question is what the result of good faith bargaining might have been, on behalf of a subset of union members who are claiming the agreement discriminates against them without adequate justification. Plaintiffs certainly have not conceded they will be unable to prove their case.

As acknowledged in the summary judgment order, plaintiffs undoubtedly "face an uphill battle to show that American would have agreed to extend LOS credit to them had the Union pursued it." It is also true that plaintiffs offered no direct evidence that American would have acceded to such demands. Both sides, however, essentially relied on arguments as to what inferences could reasonably be drawn from all the circumstances. While APA proffered compelling explanations as to why pilots in the position of plaintiffs had never received LOS credit in the past and therefore likely would not have been given it in this instance, plaintiffs showed how arguments could have been made that extending LOS credit to them under the circumstances here would have been equitable and appropriate. Although the question was close, the record did not permit a determination as a matter of law that plaintiffs cannot meet their burden to show causation. There has not been a showing that standards for reconsideration of that conclusion have been satisfied.1

Accordingly, the motion for reconsideration is denied. APA's letter brief request for a discovery protective order pending reconsideration is denied as moot, however the parties are expected to cooperate in stipulating to a reasonable extension of time for APA to provide discovery responses, should it be necessary. Within 20 days of the date of this order, the parties shall provide an updated joint proposal for providing notice to the class and otherwise managing further proceedings in this litigation.

IT IS SO ORDERED.