Oh, its there. Just in flowery language.

As a final note, this case presents compelling, unique factual circumstances that further
support integrating furloughed pilots into the active list – the fact that most of the furloughs can
be traced to management decisions aimed at accomplishing the merger itself. As the United
Committee will show, events between 2008, when the first merger discussions between United
and Continental were terminated, and the MAD in 2010 demonstrate that United’s trajectory, its
aircraft ordering, and its route decisions – and the resulting furloughs – were driven by
something other than management of the airline for a standalone future. We will not elaborate
here, but as the case proceeds, we will show that United was preparing the airline for a future
merger with a domestic-focused airline, either Continental or US Airways. These decisions
resulted in a smaller narrowbody fleet than United would have had if management were not
pressing for a merger, and more and lengthier furloughs as a result. Cf. Alaska-Jet America at 13
(criticizing one aspect of the Alaska pilots’ proposal, which took into account reduced Jet
America flying, as “improperly attribut[ing] to Jet America pilots [post-merger] decisions that
were solely at the discretion of Alaska management”). Stated differently, the United furloughees
paid for the merger even before it happened.