DAVID BISHOP and ERIC LISH v. Air Line Pilots Association International

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1034
DAVID BISHOP and ERIC LISH ,
Plaintiffs-Appellants,
v.
A IR LINE PILOTS A SSOCIATION
I NTERNATIONAL,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cv-06243 — Gary Feinerman, Judge.
____________________
A RGUED M AY 21, 2021 — DECIDED J ULY 15, 2021
____________________
Before S YKES , Chief Judge, and R IPPLE and HAMILTON , Cir-
cuit Judges.
R IPPLE, Circuit Judge. The plaintiffs, pilot instructors for
United Airlines, brought this class action against the Air
Line Pilots Association, International (“ALPA”), their recog-
nized agent for the purpose of collective bargaining. In their
complaint, they alleged that ALPA had violated its duty of
fair representation under the Railway Labor Act, 45 U.S.C.

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2 No. 21-1034
§ 151 et seq., by adopting a retroactive pay provision that dis-
criminated against pilot instructors. The district court initial-
ly dismissed the complaint; however, on appeal, we re-
versed the district court’s judgment and allowed the action
to go forward. See Bishop v. Air Line Pilots Ass’n, Int’l, 900
F.3d 388 (7th Cir. 2018).
Following discovery, ALPA moved for summary judg-
ment. It maintained that the plaintiffs had not come forward
with evidence that its sole motive in adopting the retroactive
pay provision was to discriminate against the pilot instruc-
tors. The district court agreed and granted ALPA’s motion.
We now affirm. To establish a violation of the duty of fair
representation under the circumstances presented here, the
plaintiffs were required to come forward with evidence from
which a jury could conclude that ALPA’s sole motive in
adopting the retroactive pay provision was an illicit one. The
plaintiffs did not meet that burden; consequently, the district
court correctly entered summary judgment on behalf of
ALPA.
I
BACKGROUND
We presume familiarity with our prior opinion and re-
count here only those facts critical to our analysis.
A.1
1Many background facts are not disputed, and we borrow generously
from the district court’s recitation of those facts in its summary judgment
order. See R.375.

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No. 21-1034 3
“Most United pilots are ‘line pilots,’ who … fly[] passen-
gers from one location to another. Pilot instructors, by con-
trast, train other pilots and work in a single location at Unit-
ed’s training center in Denver,” Colorado.2 There are just
over 100 pilot instructors, a “small fraction of all United pi-
lots.”3 Although pilot instructors may return to line pilot po-
sitions whenever they wish, the reverse is not the case; line
pilots must apply to become a pilot instructor.
ALPA represents all United pilots for the purpose of col-
lective bargaining. In 2003, while United was in bankruptcy,
United and ALPA negotiated a collective bargaining agree-
ment (“2003 UPA”) that imposed significant cuts in wages
and benefits on United pilots. The parties began to negotiate
a new agreement in 2010, when the 2003 UPA became
amendable; United pilots continued to work under the 2003
UPA during the negotiations, a process that took nearly
three years. While negotiations were ongoing, United
merged with Continental Airlines. Because ALPA was the
certified representative of pre-merger Continental pilots as
well, it continued negotiations on behalf of both groups of
pilots. In 2012, United and ALPA reached a new agreement
(“2012 UPA”).
“Under both the 2003 and 2012 UPAs, line pilots were
paid by the hour, with each pilot assigned an hourly wage
rate based on” (1) the type of aircraft flown (“fleet”); (2) the
pilot’s rank in that aircraft (“seat”); and (3) the length of the
2 Id. at 3 (citations omitted).
3 Id.

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4 No. 21-1034
pilot’s service with the airline (“longevity”).4 “Both UPAs set
an hourly rate for each fleet-seat-longevity combination …[.]
[L]ine pilots were paid at that rate for the number of hours
they were credited,” and several “work rules” governed the
calculation of credit hours for line pilots.5 For example, both
the 2003 and 2012 UPAs established a minimum number of
“pay credit” hours a line pilot would receive per month, and
both accounted for various schedule changes in calculating
the number of credit hours.
“Pilot instructors’ compensation under the 2003 and 2012
UPAs was more akin to a salary,”6 but that salary also de-
pended in part on the fleet-seat-longevity schedule used for
line pilots. “Under the 2003 UPA, pilot instructors were paid
as if they were first officers in a 757/767 class aircraft, with
six years of longevity,” who worked eighty-nine hours per
month.7 “Under the 2012 UPA, pilot instructors are paid as if
they were first officers in a 777/787 class aircraft, with nine
years of longevity,” who work ninety hours per month.8 Due
to the increased pay cap, pilot instructors received “by far
4 Id.
5 Id. at 3–4.
6 Id. at 5.
7 Id.
8 Id.

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No. 21-1034 5
the largest percentage pay increase in the 2012 UPA” com-
pared to other United pilots.9
The pilots had hoped that, in addition to other favorable
terms, ALPA would be able to secure approximately $1 bil-
lion in retroactive pay for the three years during which ne-
gotiations were taking place. ALPA, however, was able to
negotiate only $400 million for retroactive pay, $225 million
of which was allocated to pre-merger United pilots.10 This
was significantly less than what was necessary to provide
United pilots retroactive pay according to the newly adopted
pay schedules. Consequently, the United Master Executive
Council (“MEC”), the United pilots’ elected leadership, as-
signed to one of its subcommittees, Subcommittee 2, the task
of developing a formula for allocating the $225 million.
Subcommittee 2 had five members: Robert Fox, a line pi-
lot and subcommittee chair; Mark Arellano, a pilot instruc-
tor; Steve Lynch, a line pilot; and two other line pilots. Arel-
lano “served as the elected representative of pilot instruc-
tors’ interests within ALPA during negotiations over the
2012 UPA and the retroactive pay formula. Another pilot in-
structor, Thomas Brinton, participated in Subcommittee 2’s
deliberations as a non-voting member.”11
9 Id.
10 Pilots generally were dissatisfied with the total amount of retroactive
pay that ALPA secured, and several voiced their discontentment to
ALPA.
11 R.375 at 6 (citations omitted).

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6 No. 21-1034
Subcommittee 2 ultimately proposed a retroactive pay
formula based on the combination of the 2003 UPA and the
hourly rates set forth in the Delta pilots’ 2010 collective bar-
gaining agreement (“2010 Delta CBA”). The 2010 Delta CBA
was used because Delta and United were competitors that
had both gone through bankruptcy; consequently, Delta’s
hourly rates from 2010 through 2012 provided an appropri-
ate benchmark for determining United pilots’ pay rates dur-
ing the time negotiations were ongoing. Subcommittee 2’s
proposal was simple: for purposes of calculating retroactive
pay for an individual pilot, it would employ the terms of the
2003 UPA, but substitute the 2010 Delta CBA hourly rates.
Thus, pilot instructors’ retroactive pay was determined ac-
cording to the 2003 UPA’s pay cap—a first officer on a
757/767 with six years’ longevity—but with the 2010 Delta
CBA hourly rate attendant to that fleet-seat-longevity com-
bination.
In general, the pilot instructors were dissatisfied with the
retroactive pay formula because, they believed, it substan-
tially disadvantaged pilot instructors compared to line pi-
lots.12 Indeed, Arellano, the pilot instructor representative on
Subcommittee 2, initially had advocated for a different allo-
12 According to the pilot instructors, they would have received a larger
share of the $225 million had the 2010 Delta CBA’s non-hourly rate pay
provision for pilot instructors, rather than the 2003 UPA’s pay cap, been
used to calculate their retroactive pay. Although ALPA disputes the ex-
act figures, the pilot instructors maintain that the adopted formula re-
sulted in the line pilots receiving thirty-eight percent of their actual ret-
roactive pay whereas pilot instructors received approximately fifteen
percent of their actual retroactive pay.

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No. 21-1034 7
cation formula for pilot instructors that used the increased
pay cap in the 2012 UPA as a basis. Arellano explained to
Subcommittee 2 that, because pilot instructor pay is tied so
closely to the pay cap, “using the 2003 UPA pay cap would
not accurately represent the pilot instructors’ retro pay.”13
Subcommittee 2’s discussions on the formula apparently
were heated at times. Arellano told John Barton, a line pilot
and MEC member, that one Subcommittee 2 member, John
Lynch, had made comments during committee meetings “to
the effect that pilot instructors should get less in retro pay
because they were ‘not real pilots’ and made a lot of money
for ‘working at home.’”14
Nevertheless, Arellano ultimately spoke in favor of and
voted for Subcommittee 2’s proposal because “it would
stand the test of time” and prevent “lawsuits.”15 In a record-
ed telephone call with a fellow pilot instructor, as well as in
his later deposition testimony, Arellano explained that Sub-
committee 2 was trying to achieve a formula that was “as
simple as possible,”16 and that the “whole point” was to
have an allocation that was “simplistic and fair and equita-
ble without disparate treatment.”17 Overall, Arellano be-
13 R.359-1 at 17 (Arellano Dep. 169).
14 R.353-1 at 99 (Barton Decl. ¶ 4).
15 R.359-1 at 5 (Arellano Dep. 17).
16 R.353-1 at 26 (Recorded Conversation at 3); see also id. at 27, 39, 62
(Recorded Conversation at 4, 16, 39).
17 R.359-1 at 4 (Arellano Dep. 12).

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8 No. 21-1034
lieved that the combination of the 2012 UPA and the retroac-
tive pay formula “was a great and fantastic agreement for
the [pilot] instructors.”18
After “[t]he MEC reviewed and approved Subcommittee
2’s proposal, … ALPA’s membership ratified the formula
alongside the 2012 UPA.”19 “Most of the United pilot instruc-
tors challenged the retroactive pay allocation formula
through ALPA’s dispute resolution process. The ALPA Ex-
ecutive Council—a central governing body with representa-
tives from all ALPA-represented carriers—rejected the chal-
lenges,”20 and the pilot instructors appealed to an arbitrator.
During the arbitration, Subcommittee 2 Chairman Fox
testified accordingly about the development of the retroac-
tive pay formula:
Q. Okay. And how did your committee de-
cide—what did your committee decide to do
regarding the pilot instructors?
A. The committee, like I said before, had—
Mark Arellano was part of the committee. …
Mark was an intimate member of the com-
mittee and explained exactly how pilot instruc-
tors get paid. And so I believe we relied heavi-
ly on Mark’s advice.
18 Id. at 6 (Arellano Dep. 19).
19 R.375 at 8.
20 Id. at 8–9 (citations omitted).

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No. 21-1034 9
Q. And did he make any proposals himself
about how instructors should be treated?
A. Yes. In explaining the process on what
the language says in the collective bargaining
agreement, the pilot instructors accept the job
as a pilot instructor and they get paid based on
their longevity up to a point; and then they’re
capped.
And once they hit the cap, they’re basically
paid for six-year 767/57 first officer pay rate.
Q. And was this a proposal from Mr. Mark
Arellano?
A. Yes.21
At the arbitration, counsel for the pilot instructors
cross-examined Fox at length, but did not specifically in-
quire regarding Arellano’s involvement in creating the for-
mula. In his deposition in this litigation, Fox clarified that
the proposal did not originate with Arellano, but that Arel-
lano “at the end of the day … agreed to use this [methodolo-
gy].”22 The arbitrator rejected the pilot instructors’ claim.
B.
The pilot instructors filed this action alleging that ALPA
breached its duty of fair representation under the Railway
Labor Act because it adopted the retroactive pay formula for
21 R.354-1 at 149 (Arbitration Tr. 59–60).
22 R.349-2 at 14 (Fox Dep. 117).

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10 No. 21-1034
the purpose of benefitting line pilots at the expense of pilot
instructors. Specifically, the pilot instructors alleged that
ALPA breached that duty “by discriminating against, ex-
pressing hostility and acting with animosity towards [the
pilot instructors] and arbitrarily choosing to disregard their
interests in favor of the interests of the stronger, more politi-
cally favored majority ... in its misallocation of the retro
pay.”23 ALPA moved to dismiss the complaint, and the dis-
trict court granted ALPA’s motion. See Barnes v. Air Line Pi-
lots Ass’n, Int’l, 141 F. Supp. 3d 836 (N.D. Ill. 2015). We re-
versed that judgment on appeal. See Bishop, 900 F.3d 388.
On remand, the district court granted the plaintiffs’ mo-
tion for class certification,24 the parties conducted discovery,
and ALPA moved for summary judgment. In its motion,
ALPA argued that, to establish a violation of the duty of fair
representation, it was not enough for the pilot instructors to
show that “the lump sum benefitted some pilots (or sub-
group(s) of pilots) more than others.”25 Instead, the pilot in-
structors had to show that ALPA had made the decision
“solely for the benefit of a stronger, more politically favored
group over a minority group.”26 However, ALPA continued,
23 R.29 ¶ 79.
24 The district court defined the class as “[a]ll United pilots who, during
any part of the period from January 1, 2010, and through December 18,
2012, worked as a United pilot instructor.” R.311.
25 R.347 at 22.
26 Id. (quoting Bishop v. Air Line Pilots Ass’n, Int’l, 900 F.3d 388, 399 (7th
Cir. 2018)).

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No. 21-1034 11
the pilot instructors could not meet that burden. According
to ALPA, “the allocation rationally applied the same rule to
all United pilots” in that it employed the hourly rate set
forth in the 2010 Delta CBA, but employed all other provi-
sions of the 2003 UPA.27 Additionally, it continued, there
was “no evidence” of illicit animus because “Arellano con-
firmed that neither line pilots in Subcommittee 2 nor the
United MEC manifested any hostility towards pilot instruc-
tors or a desire to benefit line pilots at their expense.”28
ALPA maintained that, in addition to not being able to
establish an improper motive, the pilot instructors also could
not establish causation. Specifically, plaintiffs could not
show that “but for ALPA’s alleged animus, the union would
have adopted another allocation method that would have
benefitted them.”29 Because there was no evidence that
ALPA would have adopted any of the methodologies that
the pilot instructors had proposed, any alleged harm that
they suffered was merely “speculative.”30
The plaintiffs opposed the motion. They claimed that
Subcommittee 2’s retroactive pay formula was not
even-handed because “the ‘rule’ that was supposedly ap-
plied ‘uniformly’ was based solely on the hourly rates under
the Delta contract, the only component of a line pilot’s pay,”
27 Id. at 23 (capitalization removed).
28 Id.
29 Id. at 32.
30 Id. at 32–33.

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12 No. 21-1034
but pilot instructors were paid a salary.31 Moreover, the pilot
instructors continued, the formula resulted in a “gross dis-
parity—38% v. 15%—in the distribution of retro pay.”32 Ad-
ditionally, Subcommittee 2 knew that its approach “would
result in inequitable treatment” and had intended such a re-
sult.33 The plaintiffs pointed to the alleged statements by
Subcommittee 2 members to the effect that pilot instructors
should get less in retroactive pay because they are “not real
pilots” and make a lot of money for “working at home.”34
Finally, the pilot instructors claimed that ALPA’s argu-
ment regarding causation was “nonsensical”:
The evidence shows that Subcommittee 2 de-
liberately sought to reduce the pilot instruc-
tors’ retro pay and accomplished that task by
refusing to account for the most significant
component of their pay raise, the increase to
their pay cap, in calculating their retro pay de-
spite being warned of the inequities that would
result. That decision caused a drastic reduc-
tion—$ 6.2 Million—to pilot instructors’ retro
pay.35
31 R.355 at 18.
32 Id. at 19.
33 Id. at 20.
34 See R.353-1 at 99 (Barton Decl. ¶ 4).
35 R.355 at 30.

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No. 21-1034 13
The district court granted ALPA’s motion. First, it ex-
plained that ALPA’s assessment of the disparity in retroac-
tive pay was not supported by the record. Turning to
ALPA’s intent, the court noted that at least some of the evi-
dence on which the plaintiffs relied was inadmissible. As for
the formula the subcommittee adopted, the evidence estab-
lished that Subcommittee 2 was looking for something
“simple,” without any “funky rules,” that would be easy to
explain and defend.36 Given that the plaintiffs had to show
that the retroactive pay provision had been adopted “solely
for the benefit of a stronger, more politically favored group
over a minority group,” “ALPA [wa]s entitled to summary
judgment.”37 The court explained:
True enough, the summary judgment record,
viewed in the light most favorable to Plaintiffs,
could be read to support the proposition that
ALPA’s adoption of the [retroactive pay] for-
mula was motivated in part by animus toward
the pilot instructor minority. …
…[T]he record indisputably shows that
A[LP]A also had a nondiscriminatory, good
faith justification for adopting the … formula:
the desire for a simple, facially neutral rule that
would be understood as equitable by ALPA’s
entire membership.38
36 See R.375 at 18 (internal quotation marks omitted); see also id. at 18–21.
37 Id. at 26, 28 (internal quotation marks omitted).
38 Id. at 28–29.

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14 No. 21-1034
Finally, the district court observed that granting sum-
mary judgment was not inconsistent with our prior decision.
The district court noted that, in holding that the pilot in-
structors’ complaint should not have been dismissed, we
had
highlighted the complaint’s allegations “that
pilot instructors make up a minority of ALPA’s
membership and that ALPA acted with the in-
tent to appease its majority membership, the
line pilots, after a lengthy and contentious CBA
negotiation.” Drawing reasonable inferences in
Plaintiffs’ favor, the complaint alleged that this
was the sole reason ALPA adopted the [retro-
active pay] formula.
The summary judgment record, however,
shows that ALPA had—either instead of or in
addition to a discriminatory motive—a neutral,
permissible motive for adopting the formula.
That defeats Plaintiffs’ duty of fair representa-
tion claim under the governing standard.39
The pilot instructors timely appealed.
II
DISCUSSION
A.
We review the district court’s grant of summary judg-
ment de novo. See, e.g., Johnson v. Rimmer, 936 F.3d 695, 705
39 Id. at 33–34 (quoting Bishop, 900 F.3d at 399) (citations omitted).

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No. 21-1034 15
(7th Cir. 2019). “Summary judgment is appropriate when,
construing the record in the light most favorable to the
nonmoving party, there is no genuine issue as to any materi-
al fact and the moving party is entitled to judgment as a mat-
ter of law.” United States v. Luce, 873 F.3d 999, 1005 (7th Cir.
2017) (citations omitted). In conducting our review, we “may
not make credibility determinations, weigh the evidence, or
decide which inferences to draw from the facts; these are
jobs for a factfinder.” Johnson, 936 F.3d at 705–06 (quoting
Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). “However,
we are ‘not required to draw every conceivable inference
from the record’ in favor of the nonmoving party, but ‘only
those inferences that are reasonable.’” Luce, 873 F.3d at 1005
(quoting Schwartz v. State Farm Mut. Auto. Ins. Co., 174 F.3d
875, 878 (7th Cir. 1999)). We also need not consider “infer-
ences ‘that are supported by only speculation or conjec-
ture,’” which cannot defeat summary judgment. Carmody v.
Bd. of Trs. of Univ. of Ill., 893 F.3d 397, 401 (7th Cir. 2018)
(quoting Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d
1093, 1099 (7th Cir. 2017)).
B.
Our task here is to determine whether the district court
properly granted summary judgment in favor of ALPA on
the plaintiffs’ duty of fair representation claim. The princi-
ples for determining whether a union has breached its duty
of fair representation are set forth in our initial opinion. As
we stated there, “[a] union breaches the duty of fair repre-
sentation” only “if its actions are (1) arbitrary, (2) discrimina-
tory, or (3) made in bad faith.” Bishop, 900 F.3d at 397 (citing
Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67 (1991)). A
plaintiff may succeed on a duty of fair representation by es-

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16 No. 21-1034
tablishing any of these three bases. See id. Thus, “[i]n order
to successfully defend against a motion for summary judg-
ment on a duty of fair representation claim, the plaintiff
must point the court to record evidence supporting any one
or all of these elements.” Griffin v. Air Line Pilots Ass’n, Int’l,
32 F.3d 1079, 1083 (7th Cir. 1994).
The arbitrary prong of the fair representation test is “very
deferential.” Id. In determining whether a union’s action is
arbitrary, “we employ ‘an objective inquiry.’” Bishop, 900
F.3d at 397 (quoting Rupcich v. United Food & Com. Workers
Int’l Union, 833 F.3d 847, 854 (7th Cir. 2016)). A union
breaches the duty of fair representation under the “arbitrary
prong” if the product of its bargaining efforts can “be fairly
characterized as so far outside a ‘wide range of reasonable-
ness’ that it is wholly ‘irrational.’” O’Neill, 499 U.S. at 78
(quoting Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)).
However, “[a] union’s reasoned decision to support the in-
terests of one group of employees over the competing inter-
ests of another group does not constitute arbitrary conduct.”
Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120, 129 (2d Cir.
1998).
“Whether or not a union’s actions are discriminatory or
in bad faith calls for a subjective inquiry and requires proof
that the union acted (or failed to act) due to an improper mo-
tive.” Neal v. Newspaper Holdings, Inc., 349 F.3d 363, 369 (7th
Cir. 2003). This inquiry must be undertaken with the under-
standing “that unions often must make decisions that distin-
guish among different categories of employees.” Bishop, 900
F.3d at 398. Thus,
a claim of discrimination or bad faith must rest
on more than a showing that a union’s actions

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No. 21-1034 17
treat different groups of employees differently.
A union member’s claim must be based on
more than the discriminatory impact of the un-
ion’s otherwise rational decision to compro-
mise. Instead, a claim of discrimination “re-
quires proof that the union acted (or failed to
act) due to an improper motive.”
Id. (quoting Neal, 349 F.3d at 369) (citation omitted).
To breach the duty of fair representation, discriminatory
conduct must be “intentional, severe, and unrelated to legit-
imate union objectives.” Amalgamated Ass’n of Street, Elec. Ry.
& Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274, 301
(1971); see also Merritt v. Int’l Ass’n of Machinists & Aerospace
Workers, 613 F.3d 609, 619 (6th Cir. 2010) (relying on same).
“Whether a bargaining representative has acted fairly, im-
partially, and without hostile discrimination depends on the
facts of each case.” Merritt, 613 F.3d at 621.
“The mere fact that plaintiffs [are] a minority group with-
in their union organization and that they were adversely af-
fected by the actions of the union [does] not establish that
the union acted with hostile or discriminatory intent.” Id.
(quoting Ratkosky v. United Transp. Union, 843 F.2d 869, 878–
79 (6th Cir. 1988)). Moreover, tension or competition be-
tween different union constituencies does not evidence an
improper motive. As one of our sister circuits has explained,
[r]ank and file members of a labor union invar-
iably have conflicting interests and thus form
multiple, and at times competing, constituen-
cies. Concessions and compromises are inevi-
table by-products of the bargaining process

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18 No. 21-1034
and any single bargaining decision may inure
to the benefit of some members while poten-
tially injuring others. Thus, union negotiators
often find their members divided over the rela-
tive merits of the components of a settlement
agreement.
Considine v. Newspaper Agency Corp., 43 F.3d 1349, 1357 (10th
Cir. 1994).
Instead, a union’s motive is improper if it is “obviously
irrelevant and invidious.” Steele v. Louisville & N.R. Co., 323
U.S. 192, 203 (1944). Thus, by way of example, a union may
not make distinctions on the basis of race, see id., or sex, see
Carter v. United Food & Com. Workers, Local No. 789, 963 F.2d
1078, 1082 (8th Cir. 1992).
A union acts in “bad faith” when “it acts with an im-
proper intent, purpose, or motive” “encompass[ing] fraud,
dishonesty, and other intentionally misleading conduct.”
Spellacy, 156 F.3d at 126 (citing Baxter v. United Paperworkers
Int’l Union, Local 7370, 140 F.3d 745, 747 (8th Cir. 1998)).
“‘Deceptive actions’ or ‘fraud’ can be relevant to whether a
union acted in bad faith.” Bishop, 900 F.3d at 398 (quoting
Yeftich v. Navistar, Inc., 722 F.3d 911, 916 (7th Cir. 2013)). “We
have said that ‘[a] union would act in bad faith if, for exam-
ple, it disfavored members who supported a losing candi-
date for union office,’” id. (quoting Cunningham v. Air Line
Pilots Ass’n Int’l, 769 F.3d 539, 542 (7th Cir. 2014)), or if it
made decisions “solely for the benefit of a stronger, more po-
litically favored group over a minority group,” Barton
Brands, Ltd. v. NLRB, 529 F.2d 793, 798–99 (7th Cir. 1976).

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No. 21-1034 19
With these principles in mind, we turn to the evidence
that the plaintiffs proffered in response to ALPA’s motion
for summary judgment.
C.
Before us, the plaintiffs maintain that “there is a disputed
question of fact as to whether ALPA acted arbitrarily, dis-
criminat[orily], or in bad faith when it excluded from the
calculation of retro pay the most significant component of
pilot instructors’ pay raises under the new collective bar-
gaining agreement.”40 More specifically, they maintain that
the evidence supports a finding that ALPA’s sole motive in
adopting the retroactive pay formula was to benefit a larger
and stronger portion of ALPA’s membership at the expense
of the pilot instructors. According to the plaintiffs, the criti-
cal evidence in support of this claim is: (1) the large disparity
between the percentage of retroactive pay received by line
pilots compared to pilot instructors; (2) “members of the
subcommittee tasked with allocating retro pay harbored an-
imosity toward pilot instructors and, therefore thought they
should get less in retro pay”; and (3) the chairman of the
same “subcommittee lied and claimed that [the committee]
adopted a formula proposed and advocated for by the pilot
instructor[]” representative on the subcommittee.41 We con-
clude that this evidence, taken individually and collectively,
does not raise a genuine issue of material fact as to whether
ALPA acted arbitrarily, discriminatorily, or in bad faith.
40 Appellant’s Br. 21.
41 Id.

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20 No. 21-1034
1.
The plaintiffs assert that they have raised a genuine issue
of fact that Subcommittee 2 knew both that its retroactive
pay formula was not uniform and that the retroactive pay
provision had a disparate impact on pilot instructors.42
However, as we and other circuits have made clear, that
some contractual provisions may inure to the benefit of a
discrete segment of the bargaining unit does not mean that
the provision discriminates against other members of the
bargaining unit or that it was adopted in bad faith. “[A]
claim of discrimination or bad faith must rest on more than a
showing that a union’s actions treat different groups of em-
ployees differently.” Bishop, 900 F.3d at 398; see also Con-
sidine, 43 F.3d at 1357 (“Concessions and compromises are
inevitable by-products of the bargaining process and any
single bargaining decision may inure to the benefit of some
members while potentially injuring others.”).
Moreover, the retroactive pay formula must be placed in
the greater context of negotiations for the 2012 UPA. See
Merritt, 613 F.3d at 621 (noting that whether a bargaining
agent “has acted fairly, impartially, and without hostile dis-
crimination depends on the facts of each case”). It is undis-
puted that, under the 2012 UPA, pilot instructors received
the largest pay raise of any subgroup of pilots. It is impossi-
ble to evaluate ALPA’s subjective intent toward the pilot in-
structors without considering the broader context of the 2012
42 See id. at 27–30.

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No. 21-1034 21
UPA negotiations, which, according to Arellano, resulted in
“a great and fantastic agreement for the [pilot] instructors.”43
In sum, the fact that ALPA’s retroactive pay formula may
have impacted pilot instructors more negatively than line
pilots—and that Subcommittee 2 knew of that negative im-
pact when it adopted the retroactive pay provision—does
not raise a genuine issue of material fact.
2.
Turning to evidence of illicit motive, the pilot instructors
rely primarily on the declaration of John Barton, a member
of the United MEC during the time that the retroactive pay
issue was being considered. According to Barton’s declara-
tion, Arellano told Barton that members of Subcommittee 2
stated that pilot instructors should get less in retroactive pay
because they were “not real pilots,” they received the largest
raises under the 2012 UPA, and they made a lot of money
“working at home.”44 The pilot instructors maintain that,
having produced evidence that members of the committee
had an illicit motive, the question of whether the illicit mo-
tive was Subcommittee 2’s sole motivation must go to the jury.
We disagree.
In his declaration, Barton states that he and Arellano
spoke frequently about the deliberations of Subcommittee 2.
Barton also describes some of those conversations:
43 R.359-1 at 6 (Arellano Dep. 19).
44 R.353-1 at 99–100 (Barton Decl. ¶¶ 4, 5).

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22 No. 21-1034
4) Among other things, Arellano told me that
during Subcommittee 2 meetings comments
were made to the effect that pilot instructors
should get less in retro pay because they were
“not real pilots” and made a lot of money
“working at home.” According to Arellano,
Steve Lynch, an ALPA Captain representative
based in Chicago, was one of the members of
Subcommittee 2 who made these comments.
5) Arellano also told me that the other members
of Subcommittee 2 were all trying to cut TK [i.e.,
pilot instructors] out of retro pay because they
received one of the biggest raises and were go-
ing to make a lot of money under the new con-
tract. Arellano told me that with pilot instructors
getting that much money under the new con-
tract there was no way they would be getting
their share of retro pay. Arellano told Barton he
did not agree with this, but that was the senti-
ments of Subcommittee 2.45
a.
As an initial matter, we must decide the admissibility of
the statements contained in paragraph five of Barton’s decla-
ration. In the district court, ALPA objected to this portion of
the declaration on the ground that “Arellano’s personal view
of the mental states or motivations of other individuals is
45 Id.

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No. 21-1034 23
inadmissible.”46 The district court agreed and did not con-
sider that paragraph of the declaration in disposing of
ALPA’s summary judgment motion.
The pilot instructors now maintain that the district court
should have considered this evidence. The district court’s
determination, however, was not an abuse of discretion. See
Yancick v. Hanna Steel Corp., 653 F.3d 532, 547 (7th Cir. 2011).
“Rule 701 of the Federal Rules of Evidence allows lay testi-
mony of mental state as long as it is (a) rationally based on
the perception of the witness; (b) helpful to a clear under-
standing of the witness’ testimony or the determination of a
fact in issue; and (c) not based on scientific, technical, or oth-
er specialized knowledge.” Id. Moreover, the proffering par-
ty has to establish the factual basis for the witness’s percep-
tion. See id. Barton’s declaration does not satisfy this founda-
tional requirement; it is silent on what Arellano perceived
that may have led him to reach his conclusions concerning
the motivations of “other members of Subcommittee 2.”47
The district court therefore did not abuse its discretion in re-
fusing to consider the allegations in paragraph 5.
b.
The plaintiffs, therefore, are left with the statement of one
subcommittee member, Lynch, who stated that pilot instruc-
tors should get less in retroactive pay because they were
46 R.357 at 13 n.13 (citing Butt v. Bd. of Trs. of E. Ill. Univ., 83 F. Supp. 2d
962, 973 (C.D. Ill. 1999)).
47 The declaration also is silent on which members’ actions provided the
basis for Arellano’s conclusions.

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24 No. 21-1034
“not real pilots” and made a lot of money “working at
home.” As we noted in Barton Brands, 529 F.2d at 798, it is
not necessarily appropriate to look at a single officer’s con-
duct to determine the reasons that the union acted because
the individual officer’s “motivations are not always the same
as the motivations of the union as a whole.” See also Spellacy,
156 F.3d at 129–30 (concluding that “the statement of a single
MEC executive” could not establish “that ALPA’s actions
arose from prejudice against the original Pan Am pilots”).
As we already have noted, “[r]ank and file members of a la-
bor union invariably have conflicting interests and thus form
multiple, and at times competing, constituencies.” Considine,
43 F.3d at 1357. Consequently, statements by negotiators that
are critical of a particular contingent of constituents often
will not be sufficient to establish an illicit motivation.48 That
certainly is the case here, where there is undisputed evi-
dence that at least one of the committee’s motivations in
choosing the retroactive pay formula was that it was simple,
straightforward, and defensible. As the district court noted,
Arellano, the representative of pilot instructors on Subcom-
48 See Griffin v. Air Line Pilots Ass’n, Int’l, 32 F.3d 1079, 1083 (7th Cir.
1994) (explaining that “statements by highly-placed union officials ex-
pressing distaste for pilots who did not join the union should surprise
nobody” and, in that factual context, “[could ]not support the inference
that the union leaders targeted the pilots who were not union mem-
bers”); cf. Merritt v. Int’l Ass’n of Machinists & Aerospace Workers, 613 F.3d
609, 622 (6th Cir. 2010) (explaining that negotiator’s comments that a
group of constituents was “a bunch of ‘whiners,’ … were ‘a lot of trou-
ble,’ and that he would ‘like to give them back’” “fail[ed] to support alle-
gations of intentional and severe discriminatory conduct sufficient to
support a claim for breach of duty of fair representation”).

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No. 21-1034 25
mittee 2, “was consistent on th[e] score” that the subcommit-
tee wanted to adopt a formula that was easy to explain and
not subject to criticism that there were “‘funky rules’” for
different subsets of pilots.49 Other members of Subcommittee
2 as well testified to trying to achieve a “transparent” and
“simpl[e]” allocation.50 When the record contains undisput-
ed evidence that the subcommittee members adopted a
measure for a legitimate purpose, the sole motivation stand-
ard has not been met.
3.
Finally, the pilot instructors point to evidence that ALPA
“lied about the reason it adopted the retro pay allocation
methodology.”51 They note that, in his testimony at the arbi-
49 See R.375 at 29–31 (collecting excerpts of Arellano’s recorded conver-
sation and deposition testimony).
The pilot instructors submit that their situation is akin to that in
Mansfield v. Air Line Pilots Association, International, No. 06-cv-6869, 2009
WL 2386281 (N.D. Ill. July 29, 2009). In that case, the pilots submitted
evidence that, “[i]f proven at trial, … would allow a reasonable jury to
find that the MEC had engaged in an elaborate show of soliciting expert
advice and pilot opinion on the fairness” of a proposal when the MEC
already had decided against a proposal that “would have placed all but
two of the MEC members in a financially worse position.” Id. at *3. There
is no evidence here of the kind of sham or ruse described in Mansfield.
50 See R.349-1 at 8 (Briton Dep. 50) (describing the difficulties that could
arise if there were not a straightforward calculation for retroactive pay);
see also R.349-2 at 16 (Fox Dep. 132) (explaining that the committee “tried
to come up with a fair and equitable distribution method”).
51 Appellant’s Br. 37.

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26 No. 21-1034
tration, Fox stated that Subcommittee 2 “relied heavily on
[Arellano’s] advice” and that Arellano had proposed the
methodology that the subcommittee eventually adopted.52
However, the pilot instructors continue, they have “present-
ed evidence that ALPA’s justification was a lie because Arel-
lano denied proposing the formula and actually advocated
against it.”53 “The only logical conclusion that can be drawn
from these facts,” the plaintiffs submit, “is that the ALPA
subcommittee intentionally and knowingly adopted an allo-
cation formula that ‘cut out’ pilot instructors from their fair
share of retro pay and lied about the reasons for doing so.”54
However, this specific misrepresentation is not evidence
that Subcommittee 2’s sole motivation in adopting its retroac-
tive pay formula was discriminatory or in bad faith.55 First,
52 R.354-1 at 149 (Arbitration Tr. 59–60).
53 Appellant’s Br. 37.
54 Id.
55 The plaintiffs submit that, in the Title VII context, evidence of such a
misrepresentation is sufficient to get to a jury, and the same result
should obtain here. See id. at 39–40. We have less confidence that Title VII
tests and standards have direct application to the duty of fair representa-
tion. See, e.g., Addington v. US Airline Pilots Ass’n, 791 F.3d 967, 983 (9th
Cir. 2015) (discussing some of the differences between Title VII and the
duty of fair representation). Nevertheless, assuming the applicability of
Title VII standards, we do not believe that Fox’s testimony, standing
alone, would be sufficient to establish that Subcommittee 2’s rationale for
adopting its retroactive pay formula was pretextual. In Rudin v. Lincoln
Land Community College, 420 F.3d 712 (7th Cir. 2005), on which the plain-
tiffs rely, see Appellants’ Br. 39, we noted that, “in order to survive a mo-
tion for summary judgment, an employee need only produce evidence
(continued … )

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No. 21-1034 27
Fox’s arbitration testimony was given after the 2012 UPA—
including the retroactive pay formula—was ratified. Thus,
this is not a situation where Fox’s misrepresentation duped
union members into voting for a different measure or lulled
them into inaction. Cf. Spellacy, 156 F.3d at 128–29 (conclud-
ing that side deals and “subsequent misrepresentations de-
signed to cover … tracks” did not amount to bad faith where
misrepresentations were uncovered in time for the pilots to
challenge the policy). Moreover, the identity of the subcom-
mittee member who originally proposed the formula has lit-
tle bearing on the ultimate question here: the subcommittee’s
motivation. Nothing about Fox’s testimony calls into ques-
tion the undisputed testimony of the committee members as
to why the committee adopted its retroactive pay formula.
Here, the summary judgment record does not raise a
genuine issue of material fact that requires us to send the
plaintiffs’ duty of fair representation claim to a jury.56 ALPA
( … continued)
from which a rational factfinder could infer that the company lied about
its proffered reasons for [her] dismissal.” Rudin, 420 F.3d at 726 (altera-
tion in original) (internal quotation marks omitted). Here, Fox did not lie
about Subcommittee 2’s proffered reasons for adopting its retroactive
pay formula; he lied about who proposed the formula that it ultimately
adopted.
56 The plaintiffs maintain that the critical evidence of bad faith, on which
they relied in opposing ALPA’s motion to dismiss, has not changed. See
Reply Br. 7. They believe that, on the basis of these lingering facts,
ALPA’s motion for summary judgment also should fail. However, at this
stage, we are evaluating the plaintiffs’ evidence through a much differ-
ent lens. In the prior appeal, the plaintiffs only had to allege “enough
facts to state a claim to relief that is plausible on its face”—that is,
enough to “nudge[] their claim[] across the line from conceivable to
(continued … )

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28 No. 21-1034
is the designated collective bargaining agent for all United
pilots, but United pilots are not a monolithic group. They
consist of “multiple, and at times competing, constituen-
cies,” Considine, 43 F.3d at 1357, one of which is the pilot in-
structors. The pilot instructors were on the winning end of
the pay provisions of the 2012 UPA; when it came to the ret-
roactive pay negotiations, their individual interests gave
way to a broader concern for a single, simple, defensible ap-
proach. The fact that discussions about these issues were
heated and that some pilot instructors were upset about the
retroactive pay provision is simply a byproduct of the nego-
tiation process.57
( … continued)
plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Our review
on summary judgment requires a different assessment. At this stage, the
question is not whether the pilot instructors’ allegations are plausible,
but whether they have come forward with sufficient evidence from
which a jury could conclude that ALPA’s sole motivation in adopting the
retroactive pay formula was illicit. In this case, the developed record has
allowed us to place isolated statements in context and to piece together a
far more complete picture of Subcommittee 2’s considerations and moti-
vations. The record before us simply does not supply sufficient evidence
of a sole, illicit motive to allow the plaintiffs to proceed to a jury. Indeed,
we anticipated this possibility in our prior opinion: “ALPA might well
be able to prove later in the litigation that, as a factual matter, it did not
act with the bad-faith motive that the plaintiffs have pleaded at this
stage.” Bishop, 900 F.3d at 400.
57 Because we conclude that the plaintiffs have not come forward with
evidence of a sole, illicit motive, it is not necessary for us to consider
ALPA’s alternative argument that the plaintiffs have not come forward
with sufficient evidence of causation.

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No. 21-1034 29
As the district court concluded, “the summary judgment
record, viewed in the light most favorable to Plaintiffs, could
be read to support the proposition that ALPA’s adoption of
the [retroactive pay] formula was motivated in part by ani-
mus toward the pilot instructor minority.”58 Nevertheless, as
the plaintiffs conceded at oral argument, the operative
standard is whether, taken in the light most favorable to the
pilot instructors, the evidence establishes that ALPA was
motivated solely by a desire to discriminate against pilot in-
structors in adopting the retroactive pay formula. Given the
substantial and undisputed evidence in the record that Sub-
committee 2 wanted a simple formula that could be easily
defended, the plaintiffs have not met their burden.
Conclusion
For the reasons set forth in this opinion, we affirm the
judgment of the district court.
AFFIRMED
58 R.375 at 28–29.

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