Petition for Writ of Certiorari — Addington v. US Airline Pilots Ass'n
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Supreme Court, U.S.
FILED
VL 10-463 oi 5- 2010
No. 10-9 FFiGe OF THE CLERK
In The
Supreme Court of The United States
DON ADDINGTON, JO! OSTIC, MARK BURMAN,
AFSHIN IRANPOUR, ROGER VELEZ, and STEVE
WARGOCKI, individually and representing a class of
persons similarly situated,
Petitioners,
v.
US AIRLINE PILOTS ASSOCIATION,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuut
PETITION FOR WRIF OF CERTIORARI
Marty Harper
MHarper@polsmelli.com
Counsel of Record
Kelly J. Flood
Andrew S. Jacob
Katherine V. Brown
POLSINELLI SHUGHART, P.-C.
One East Washington Street,
Suite 1200
Phoenix, AZ 85004-2568
Ph. (602) 650 2000
Counsel for Petittoners
October 4, 2010
QUESTION PRESENTED
US Airways and America West merged in 2005
The airlines and their pilots agreed that a final and
binding arbitration would determine how — to
bly integrate the pilots’ semiority lists. That
arbitration was completed in May 2007. ‘The airline
has been willing to implement the arbitrated
seniority list since December 2007. Nearly three
years later, the pilots’ union steadfastly refuses to
do so. Petitioners, at a cost of $1.8 million in legal
fees, obtained an order from the district court that
the union must make all reasonable efforts to
implement the arbitration award. In light of the
federal policy favoring prompt resolution of divisive
internal union disputes that affect collective
bargaining, is Petitioners’ claim to enforce
compliance with the arbitration award ripe?
RULE 29.6 STATEMENT
No petitioners are corporations
-}11-
TABLE OF CONTENTS
Question Presented ....... REIS tile aR ROP RE Rae Ba
Rule 29.6 Statement...... oS Pe oor eee een eee 11
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Petition for a Writ of Certiorart...... ae as eaten eae
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DCRLUTONY PYOVIGION TMVORVEG ©....6.0.0.0ccccesscccscacessaces: Z
Statement of the Case....................... Re Ree en pee 2
Reasons for Granting the Petition..... Re aay /
| The Ninth Circuit decided an important
federal question in conflict with this Court’s
5 CRETE Met es Rens fe Rat titi er APS a SEER ery despot Ae Ra 8
A. The Ninth Circuit disregarded a strong
federal interest in prompt resolution of
internal union disputes that affect
COLTOCE IVS TOPS ooo oiiclnns nckcssccvsscctesscscvees 8
B. The federal interest 1n prompt resolution
of internal union disputes that affect
collective bargaining 1s_ particularly
strong where the dispute concerns
seniority integration after an _ airline
NN a oes caves brs hs rect tk vce eee race eee 1]
Cc. The Ninth Circuit disregarded Clayton's
admonition that delayed adjudication of
an internal union dispute must not
merely exhaust an aggrieved worker.......... 13
ll. The Ninth Circuit misapplied prudential
PATIO. cssicissdsnincs cacscsvedousscsissevesecenceissanssssentexsds 15
A. The duty of fair representation applies at
all stages of union representation.............-. 15
B. This matter is ripe because the
hardships of postponing adjudication are
ereat and there are no corresponding
EAD EO IR RE ALTE BMRA LAS 16
ER Se ur uavecaiaaucesiiaanncnssotadernuniee 19
APPENDIX
Appendix A: Ninth Circuit opinion, dated June 4,
NY 57 1 2s 5 aoeayansenesavactyeanessedeammisaeneiieeapereraaen la
Appendix B: District Court order, dated July 17,
I ince da csksimekesixususkssstashasisibecneantsuateeeenere 34a
Appendix C: McCaskill-Bond Amendment, 121
Stat. 2383, Div. K, Title I, § 117 (Dec. 26,
NE cikcccovcasntacnasduiedsssveecextoisasinbarsieinenreieee 106a
Appendix D: Allegheny-Mohawk Labor
Protective Provisions, §§ 3, 13....... EECA F 109a
TABLE OF AUTHORITIES
CASES
Abbott Laboratories v. Gardner, 387 U.S. 136
“5 aS 2a ES ee Breras aenaneenes Ceancuuta 16
Addington v. US Airline Pilots Ass’n, 2009 WL
2169164 (D. Ariz. July 17, 2OO9)............cccccscsccsess l
Addington v. US Airline Pilots Ass’n, 606 F.3d
nS oss savscdecnscvavcnsasebectsstsgedss l
Adler uv. Bd. of Educ., 342 U.S. 485 (1952)............ 17
Aur Wisconsin Pilots Protection Com. v.
Sanderson, 909 F.2d 213 (7th Cir. 1990)........... 11
Alleghany-Mohawk Merger Case, 59 C.A.B. 22
Ne oir Fasc Waasiaen dann vannd peed oceans secs 12
Bernard v. Atr Line Pilots Ass'n, Int'l, 873 F.2d
naan a eda yceuibanedcaeasehaxs 1]
Burlington N. R.R. v. Bhd. of Maint. of Way
Employees, 481 U.S. 429 (1987) ...................eeee 11
Chauffeurs, Teamsters & Helpers Loc. No. 391
v. Terry, 494 U.S. 558 (1990)....................cecccseeee 15
Chavez v. Director, OWCP, 961 F.2d 1409 (9th
eee oe aA a cape cgana dey asdeniies 16
Clayton v. Intl Union, United Auto., Aerospace,
& Agr. Implement Workers of America, 451
eo ss cuxncnaduxbaansenavedences 8, 13, 14
-V1-
Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976) .................... 17
Consol. Coai Co. v. Fed. Mine Safety & Heaiih
Rev. Comm’n, 824 F.2d 1071 (D.C. Cir. 1987)... 16
Cummings v. John Morrell & Co.,
36 F.3d 499 (6th Cir. 1994)................... zeae ka tapas 19
Czosek v. O’Mara, 397 U.S. 25 (1970).................. 18
DelCostello v. Teamsters, 462 U.S. 151 (1983) ..... 10
Frandsen v. Bhd. of Ry., Airline & S.S. Clerks,
Freight Handlers, Exp. & Station Employees,
oP me Eyl deg Ce Bl > Serererrrerrrerrr rs 14
Laborers & Hod Carriers, Loc. No. 341 v.
NLRB, 564 F.2d 834 (9th Cir. 1977).................. 15
NLRB v. Marine Workers Local 22, 391 U.S.
Re CR eh dec nach catcicccsssunsserseccesacess ee eA ae on, 14
Panetti v. Quarterman, 551 U.S. 930 (2007) ......... 17
Rakestraw v. United Airlines, 981 F.2d 1524
OPE CP ROI ove cc non ccncsascssececerssasunsctacnarevexsayss 11
Reed v. United Transportation Union, 488 U.S.
319 (1989) .occccccccscscsecesvsseseeveseseeeesvesesesesteseees 7, 8,9
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43
CII canis cadvusscexcvenes-cusensscsgieatisnnreusinannsaueisenseatenies 16
Steele v. Louisville & Nashville R.R. Co., 323
CFs Ae 0 A cine cekccccvavetvsdiasicsenseiuieshsoicensses 13, 15
Vii-
United Parcel Service, Inc. v. Mitchell, 451 U.S
I e acesiaven
Williamson County Regional Planning Comm'n
v. Hamilton Bank, 473 U.S. 172 (1985) ...
Yahoo! v. La Ligue Contre Le Racisme,
433 F.3d 1199 (9th Cir. 2006)..... ;
STATUTES
28 U.S.C. § 1254(1). eoeeee tees
ee eT, Oe osc cocina Steg dnahsagkneinedneawes
McCaskill-Bond Amendment, 121 Stat. 2383,
Div. K, Title I, § 117 (Dec. 26, 2007).......... pa
Railway Labor Act, 45 U.S.C. §§ 151 et seq11, L
ee
PETITION FOR A WRIT OF CERTIORARI
Petitioners respectfully pray that a writ of
certiorart be issued to review the judgment of the
United States Court of Appeals for the Ninth
Circuit.
OPINIONS BELOW
The decision of the court of appeals (Case No
09-16564) (9th Cir. June 4, 2010) is reported at GOG
F.3d 1174 (9th Cir. 2010). Appendix (“App.”) A, la-
33a. Petitioners’ motion for rehearing en banc was
denied by the court of appeals on July 8, 2010, in
an unpublished order. The relevant U.S. District
Court, District of Arizona, order is Addington v. US
Airline Pilots Ass’n, which is unofficially reported
at 2009 WL 2169164 (D. Ariz. July 17, 2009). App.
B, 34a-105a.
JURISDICTION
The judgment of the U.S. Court of Appeals for
the Ninth Circuit sought to be reviewed was
entered on June 4, 2010, and the order denying the
motion for rehearing en banc was entered on July
8, 2010. This petition is timely under 28 U.S.C.
§ 2101(c) because it is being filed within 90 days of
the entry of the order denying rehearing en banc.
This Court has jurisdiction to review the judgment
of the U.S. Court of Appeals for the Ninth Circuit
pursuant to 28 U.S.C. § 1254(1).
STATUTORY PROVISION INVOLVED
The relevant statutory provision is_ the
McCaskill-Bond Amendment, 121 Stat. 2383, Div
K, Title I, § 117 (Dec. 26, 2007). App. C, 10Ga—108a
STATEMENT OF THE CASE
In 2005, the airlines US Airways and America
West entered into a merger agreement. App. B,
37a. More than three years have passed since the
pilots from these airlines completed what they (and
the airlines) agreed would be a final and binding
arbitration to determine how to equitably integrate
their two seniority lists. Jd. Yet, the pilots’ union,
which was formed and dominated by the larger
pilot group, steadfastly and emphatically refuses to
implement the seniority list awarded by that
arbitration
Petitioners sought relief in the district court. At
a cost of more than $1.8 million in legal fees, they
obtained a jury verdict that the union, U.S. Airline
Pilots Association (““USAPA”), is in breach of its
duty of fair representation. The district court
ordered USAPA to make all reasonable efforts to
implement the arbitration award
USAPA appealed and the Ninth Circuit
dismissed the action for lack of ripeness. In doing
so, it disregarded established rulings by this Court
as well as federal policy strongly favoring prompt
resolution of divisive internal union disputes that
affect collective bargaining, a policy that Congress
recognized in the specific context of airline merger:
—“~
when it passed the 2007 McCaskill-Bond
Amendment
The two pilot groups have diametrically
opposite positions on semiority list inteyzration, The
West Pilots’! position is that pilots who were
actively working at the time of the merger should
be put ahead of pilots who were on furlough. App
13, 40a. In contrast, the Kast Pilots’ position 1s that
the seniority list should be ordered strictly by date
of-hire, even though that order would place more
than a thousand [ast Pilots who were on furlough
in 2005 (and who had not worked for years) ahead
of West Pilots who were working. /d
ollowing procedures that were subsequently
codified into federal law by the McCaskill-Bond
Amendment, the two pilot’ groups agreed to use
binding arbitration to determine an equitable
method of integrating their seniority lists. App. B,
4la. The result of that arbitration, referred to as
the Nicolau Award, put 500 Kast Pilots at the top of
the seniority list and placed all East Pilots who
were on furlough in 2005 below West Pilots who
were working. /d
The Kast Pilots objected to the Nicolau Award
and vigorously prevented its implementation. App
B, 42a. For example, they refused to participate in
the collective bargaining of a new contract that
would be used to implement an integrated seniority
' The pilot groups from the pre omerger airlines are
referred to as West Pilots (America West) and Kast Pilots (US
Airways)
se
list. Id. They also withdrew support from the union
that was then representing both pilot groups,
causing it to be decertified. App. B, 43a. They
formed a new union, USAPA, that they elected to
represent the bargaining unit. App. B, 44a. USAPA
promised that, if elected to represent the merged
pilot groups, it would disregard the Nicolau Award
and would present the date-of-hire seniority list
favored by the East Pilots to the airline. Jd. This 1s
the same date-of-hire list that was rejected by the
arbitration because it put more than a thousand
East Pilots who had been on furlough in 2005
ahead of hundreds of West Pilots who had been
working.
Petitioners initiated an action to stop USAPA
from disregarding the Nicolau Award, arguing that
this puts it in breach of its duty of fair
representation. App. B, 48a. The district court
found this action was ripe, in part, because USAVPA
unequivocally repudiated any duty to implement
the Nicolau Award. App. B, 86a. It explained, for
example, that USAPA’s “constitution includes a
commitment ‘to maintain uniform principles of
seniority based on date of hire” and that “USAPA
officers have promised to ‘overturn’ the Nicolau
Award, and USAPA considers itself constitutionally
bound never to implement it.” App. B, 47a.
The district court held a jury trial to decide
USAPA’s liability. App. B, 50a. After a 10-day trial,
the jury found that USAPA was hable because its
sole objective was to benefit East Pilots, rather
than the bargaining union as a whole. /d. The
district court therefore permanently enjoined and
ordered USAPA to:
1. “make all reasonable efforts to negotiate and
implement a single [CBA] ... that will
implement the Nicolau Award seniority
proposal. . .”;
2. “fmlake all reasonable efforts to support and
defend the ... Nicolau Award in negotiations
with US Airways”; and
oe)
“InJot negotiate for separate collective
bargaining agreements for the separate pilot
”
groups....
App. A, 8a-9a.
Petitioners incurred attorneys’ fees and costs in
excess of $1.8 million in the district court litigation,
which entailed filing more than 600 documents and
a ten-day jury trial. Petitioners also lost wages as a
consequence of furloughs and missed promotions
that would not have occurred “[u]nder a single CBA
incorporating the Nicolau Award.” App. A, 8a.
Petitioners sought an award of their fees and costs
pursuant to common benefit doctrine and claimed
damages to remedy their lost wages. App. B, 49a-
50a. The district court. deferred addressing these
claims during the pendency of USAPA’s appeal to
the Ninth Circuit.
The Ninth Circuit did not decide the substantive
merits of USAPA’s appeal. Instead, in a divided
opinion, it found a lack of prudential ripeness and
ordered the action dismissed. In so doing, it gave no
weight to the “time, effort, and expense” incurred
by the parties, the district court or the jury and did
not recognize the strong federal policy favoring
prompt adjudication of internal union disputes that
-Ge
affect collective bargaining. App. A, 9a.
Notwithstanding that it found a lack of ripeness,
the Ninth Circuit cautioned USAPA that unless it
“bargain[ed] in good faith pursuant to its DFR,’
with the interests of all members—both East and
West—in mind,” there would be “an unquestionably
ripe DFR suit, once a contract 1s ratified.” App. A,
12a-l3a.
In a well-reasoned dissenting opinion, Judge
Bybee argued that the case was ripe:
Although a CBA would supply tangible
evidence of a violation of the DFR, in this
case, there is sufficient evidence to consider
the West Pilots’ complaint without the CBA.
The issues are concrete and were well
developed in district court proceedings that
included a jury trial (for damages) and a
bench trial (for equitable relief).
App. A, 24a.
As soon as the Ninth Circuit denied a petition
for rehearing en banc, USAPA reaffirmed its
unwavering commitment to disregard the Nicolau
Award and announced its intention to impose a
date-of-hire seniority list. A few days later, US
Airways filed a declaratory action — sceking
clarification of its duties and liabilities in regard to
this internal union seniority dispute. In_ that
declaratory action, US Airways states three claims
that primarily raise these two issues:
2“DFR” stands for duty of fair representation.
ty
1. If USAPA is in breach of its duty of fair
representation, is US Airways hable_ to
Petitioners if it acquiesces to USAPA’s
demand to disregard the Nicolau Award?
and
2. If USAPA is not in breach of the duty of fair
representation, is US Airways liable to
USAPA if it refuses to make every
reasonable effort to reach agreement on
USAPA’s demand to disregard the Nicolau
Award?
If the answer to both these questions is affirmative,
then, unless US Airways knows whether USAPA is
in breach of its duty of fair representation, it
cannot know what it must do to avoid habuility.
Hence, the very question that the Ninth Circuit
held was unripe when brought by Petitioners 1s
raised by US Airways’ declaratory action.
REASONS FOR GRANTING THE PETITION
Petitioners respectfully submit that this Court
should grant their petition for a writ of certiorari
because the Ninth Circuit Court of Appeals wrongly
decided an important federal question—the
ripeness of an action to enforce compliance with a
union seniority arbitration required to fully
implement an airline merger. It did so in conflict
with federal policy that strongly favors prompt
resolution of divisive internal union disputes that
affect collective bargaining. It did so in conflict also
with Reed v. United Transportation Union, 488
U.S. 319 (1989); Clayton v. Int'l Union, United
a.
Auto., Aerospace, & Agr. Implement Workers of
America, 451 U.S. 679 (1981); and the 2007
McCaskill-Bond Amendment.
1. THE NINTH CIRCUIT DECIDED AN
IMPORTANT FEDERAL QUESTION IN
CONFLICT WITH THIS COURT'S
RULINGS.
A. The Ninth Circuit disregarded a
strong federal interest in
prompt resolution of internal
union disputes that affect
collective bargaining.
Delaying adjudication of Petitioners’ claim
conflicts with a well-established federal interest in
prompt resolution of internal union disputes that
“directly relate in any way to collective bargaining
or dispute settlement under a collective-bargaining
agreement.” Reed, 488 U.S. at 330; see also United
Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 63
(1981) (same). In Reed, this Court explained this as
an interest in avoiding unfavorable consequences
that arise when such disputes are too long left
unresolved:
Internal union disputes, if allowed to fester,
may erode the confidence of union members
in their leaders and possibly cause 4
disaffection with the union, thus weakening
the union and its ability to bargain for its
members. Such prolonged disputes may also
distract union officials from their sole
purpose representation of union members
in their relations with their employer. These
probable effects of protracted disputes may
-9-
be destabilizing to labor-management
relations.
488 U.S. at 330.
Petitioners’ claim impacts the federal interest
addressed in Reed because it concerns a divisive
internal union dispute that affects collective
bargaining. Seniority disputes are by nature
divisive because one worker's gain is necessarily
another’s loss. This dispute is particularly divisive
because it involves a dishonored agreement. After
agreeing in 2005 that the Nicolau Arbitration
would be “final and binding,” the East Pilots, and
later USAPA, rejected its outcome. App. B, 55a.
There is no question, therefore, that this dispute is
highly divisive. Petitioners’ claim also concerns a
dispute that directly affects collective bargaining.
Until there is a new _ collective bargaining
agreement (“CBA”), the airline cannot fully merge
its operations.* The dispute over enforcement of the
Nicolau Award prevents reaching such agreement.
Petitioners’ claim, therefore, implicates the federal
interest in prompt adjudication. That interest is
3 An example of the divisiveness of this dispute is described by
the district court: “The Nicolau Award caused outrage among many
East Pilots. The East Merger Representatives sought to have the award
overturned and petitioned ALPA to revisit it. Emotions flared for weeks
and months to follow while ALPA attempted to broker a compromise
between the two pilot groups.” App. B, 42a.
* The district court explained: “Because no new CBA is in place,
the Airline carries on in a state of separate operations. Efforts toward a
new CBA have been complicated by the process of deciding what
seniority list the CBA will include.” App. B, 39a.
-10-
offended by delaying adjudication of Petitioners’
claim on the basis of prudential ripeness.
Delaying adjudication of Petitioners’ claim also
conflicts with the federal interest in prompt
resolution of internal union disputes that
“challenge the stable relationship between the
employer and the union.” 488 U.S. at 331
(alteration and quotation marks omitted). Federal
courts apply a 6-month limitations to duty of fair
representation disputes. DelCostello v. Teamsters,
462 U. S. 151, 172 (1983). In Reed, this Court
explained that courts do so in furtherance of an
interest in prompt resolution of such claims. 488
U.S. at 331. This interest is offended when, as
happened here, resolution of such claims is delayed
on prudential ripeness grounds.
A highly divisive internal union dispute that
directly affects collective bargaining or challenges
the stable relationship between the carrier and its
union must not be left to fester for more than five
years. That is far too long. See Cummings v. John
Morrell & Co., 36 F.3d 499, 507 (6th Cir. 1994)
(‘{F]ive or six years is simply too long a time to let
a labor dispute fester.”). Yet, that is what results
from the Ninth Circuit’s decision.
tA
B. The federal interest in prompt
resolution of internal union
disputes that affect collective
bargaining is particularly
strong where the dispute
concerns seniority integration
after an airline merger.
Airline-merger related seniority disputes are
frequently quite contentious and often involve the
courts. See, e.g., Rakestraw v. United Atrlines, 981
F.2d 1524 (7th Cir. 1992); Air Wisconsin Pilots
Protection Com. v. Sanderson, 909 F.2d 213 (7th
Cir. 1990); Bernard v. Air Line Pilots Ass’n, Int'l,
873 F.2d 213 (9th 1989). Such judicial involvement
is consistent with the federal interest in a stable
nationai transportation system. Burlington N. R.R.
v. Bhd. of Maint. of Way Employees, 481 U.S. 429,
450 (1987) (noting, “the major purpose of Congress
in passing the RLA®5 [was] [t]o prevent, if possible,
wasteful strikes and interruptions of interstate
commerce”) (alteration and quotation marks
omitted). That interest, in turn, strengthens the
interest in prompt resolution of disputes that
interfere with airline mergers. This _ logically
underlies the 2007 McCaskill-Bond Amendment,®
5 “RLA” refers to the Railway Labor Act, 45 U.S.C. §§ 151
et seq.
6 McCaskill-Bond provides that “sections 3 and 13 of the
labor protective provisions imposed by the Civil Aeronautics
Board in the Allegheny-Mohawk merger... shall apply to the
integration of covered employees of the covered air carriers.”
121 Stat. 2383, § 117. App. C, 10G6a. In the event two merging
pilot groups cannot agree on how to integrate their seniority
list, §§ 3 and 13 provide that an NMB arbitrator would decide
-12-
which mandates expedient, final and binding
arbitration of seniority disputes arising from
airline mergers.
Pursuant to McCaskill-Bond, workers involved
in an airline-merger related seniority dispute can
compel a “final and binding” arbitration of their
dispute using procedures nearly identical to those
used in the Nicolau Arbitration. App. D, 110a. Such
arbitrations must be held “within 20 days after the
controversy arises” and must be decided “within 90
days after the controversy arises.” App. D, 109a-
110a. This narrow time frame for arbitration
reflects a strong federal interest in obtaining an
expedient resolution of such disputes.
The federal interests underlying the McCaskill-
Bond Amendment demonstrate a_ heightened
federal interest in obtaining prompt resolution of
seniority disputes arising from airline mergers. The
Ninth Circuit’s ruling that delays resolution of
Petitioners’ claim on prudential ripeness grounds
conflicts with that interest.
the issue and that “[{t]he decision of the arbitrator shall be
final and binding on the parties.” Alleghany-Mohawk Merger
Case, 59 C.A.B. 22, 45 (1972) (LPP § 13 ). App. D, 109a-110a.
Although the Nicolau Arbitration was not conducted pursuant
to McCaskill-Bond, it was conducted pursuant to the same
Alleghany-Mohawk Labor Protective Provisions. There is no
material basis, therefore, to distinguish the ripeness of a
claim to enforce the Nicolau Arbitration, here, from the
ripeness of claims to enforce a McCaskill-Bond arbitration.
oni
C. The Ninth Circuit disregarded
Clayton’s admonition that
delayed adjudication of an
internal union dispute must not
merely exhaust an aggrieved
worker.
When Congress provides a right in the context
of the Railway Labor Act, it implicitly provides a
remedy to enforce that right. See Steele v. Louisville
& Nashville R.R. Co., 323 U.S. 192, 207 (1944)
(“That right would be sacrificed or obliterated if it
were without the remedy which courts can give for
breach of such a duty or obligation and which it is
their duty to give in cases in which they have
jurisdiction.”). A remedy, in turn, would be
“sacrificed or obliterated” if federal doctrine worked
to exhaust aggrieved workers’ resources or resolve
before they could obtain meaningful rehef on a
meritorious claim. Where the district court has
jurisdiction to provide a remedy, therefore, it
should not delay such remedy on_ prudential
grounds if that would only impair’ workers’
ultimate remedy.
Clayton addressed delay in the context of
internal union disputes. 451 U.S. at 692. It
balanced the hardships of delaying adjudication of
such disputes against the general institutional
advantages of nonjudicial resolution. Jd. Clayton
admonishes federal courts to not delay adjudication
of such disputes unless “internal union procedures
are capable of fully resolving meritorious claims
short of the judicial forum.” Jd. Delay that can only
exhaust an aggrieved workers’ resources or resolve
is unfair and inconsistent with federal policy.
-14-
“(W]here ‘the member [may] become exhausted
instead of the remedies,’ it would be unfair to the
employee to insist that internal union remedies be
exhausted before going to court.” Mrandsen v. Bhd.
of Ry., Airline & S.S. Clerks, Freight Handlers,
Exp. & Station Employees, 782 F.2d 674, 679 (7th
Cir. 1986) (quoting NLRB v. Marine Workers Local
22, 391 U.S. 418, 425 (1968)). See also Clayton 451
U.S. at 693, n.22 (“Of course exhaustion might
deplete the employee’s energy and resources to the
point where he chooses not to pursue his § 30]
claim in court, but that result is surely inconsistent
with federal policy.”).
Clayton explained that, unless delay in favor of
internal union procedures can be justified, 1
merely undermines the policy favoring prompt
adjudication:
As we recently stated, one of the important
federal policies underlying § 301, is the
“relatively rapid disposition of labor
disputes.’ ” This policy is undermined by an
exhaustion requirement unless the internal
procedures are capable of either reactivating
the employee’s grievance or of redressing it.
Id. at 693 (citations omitted).
Given that USAPA is constitutionally
committed to a date-of-hire seniority list, delay of
adjudication by the district court cannot possibly
lead to extra-judicial resolution in Petitioners’
favor. No matter how meritorious their claim might
be, Petitioners will never obtain relief from
USAPA. Nothing positive can be gained, therefore,
by delaying adjudication of Petitioners’ claim-—as
directed by the Ninth Circuit—until after
“negotiations are complete.” App. A, 17a. This delay
can do nothing other than exhaust Petitioners’
cl the, ¢
resources and reenhwo Tha adaicmicenl 4 7.
yun - Aba © BETES we a BEN SAAS ABAA 44a 4% sy saat
Ninth Circuit, therefore, is contrary to federal
policy recognized by this Court. Indeed, it sets a
bad precedent that will likely encourage similar
mischief in future airline mergers.
tf. THE NINTH CIRCUIT MISAPPLIED
PRUDENTIAL RIPENESS.
A. The duty of fair representation
applies at all stages of union
representation.
“The duty of fair representation is the quid pro
quo for the union's right lo exclusive
representation; it protects employees in the
minority from arbitrary discrimination by the
majority union.” Laborers & Ilod Carriers, Loc. No
341 uv. NLRB, 564 F.2d 834, 839-40 (9th Cir. 1977)
“So long as a labor union assumes to act as the
statutory representative of a craft, it cannot rightly
refuse to perform the duty, which is inseparable
from the power of representation conferred upon it,
to represent the entire membership of the craft.”
Steele, 323 U.S. at 204. As well as in enforcing
contract terms, “[a] union must discharge its duty
in bargaining with the employer.” Chauffeurs,
Teamsters & Helpers Loc. No. 391 v. Terry, 494 U.S.
558, 563 (1990). It logically follows, therefore, that
a union can breach the duty of fair representation
at all stages of representation, including while it is
bargaining with the employer over contract terms
16-
B. This matter is ripe because the
hardships of postponing
adjudication are great and
there are no corresponding
benefits.
Ripeness “is drawn both from Article Ill
limitations on judicial power and from prudential
reasons for refusing to exercise jurisdiction.” Reno
v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18
(1993). Prudential ripeness “evaluate[s] both the
fitness of the issues for judicial decision and the
hardship to the parties of withholding court
consideration.” Abbott Laboratories v. Gardner, 387
U.S. 136, 149 (1967). Prudential ripeness is lacking
where a “systemic interest in postponing
adjudication due to a lack of fitness outweighs the
hardship on the parties created by — the
postponement.” Chavez v. Director, OWCP, 961
I’. 2d 1409, 1414 (9th Cir. 1992)
A court determining prudential ripeness weighs
the hardships of postponing adjudication only
where there are “institutional interests that
militate in favor of deferral of review.” Consol. Coal
Co. v. Fed. Mine Safety & Health Rev. Comm'n, 824
2d 1071, 1088-89 (D.C. Cir. 1987) (idwards, C.d.,
concurring). If there is no benefit’ to delaying
review, if no institutional interest militates in favor
of deferral of review, there is no reason to weigh
hardship. There is no such benefit where, as here,
there is no internal union procedure to fairly
resolve a dispute over seniority
Prudential ripeness must not be used to deny a
person any forum to resolve an important federal
9.
question. Federal courts, for example, apply the
closely related abstention doctrines only where an
alternative forum exists that can resolve” the
dispute. See, C2, Colorado lviwer Water
Conservation Dist. v. United States, 424 U.S. 800,
817 (1976) (recognizing considerations of “jwise
judicial administration, yiving revard to
conservation of judicial resources and
comprehensive disposition of htigation’). Where an
alternative forum could provide comprcehensive
rehef, this Court often requires exhaustion of that
forum as a prerequisite to ripeness. /2.g., Panette v
Quarterman, 551 U.S. 980 (2007) (state habens):
Williamson County Regional Planning Comm'n ov
Hamilton Bank, 473 U.S. 172, 186 (1985) (state
takings).
The question of prudential ripeness, therefore,
largely hinges on whether an alternative forum
could provide a comprehensive disposition of the
legal questions at issue. The answer to the ripeness
inquiry, therefore, may depend on how the question
at assue is framed. Hence, a court addressing
ripeness must focus on “the precise legal question
to be answered.” Yahoo! vo La Ligue Contre Le
Racisme, 433 F.3d 1199, 1212 (9th Cor. YOOG),
relying on Adler vo. Bd. of Hduc., 3842 US. 485
(1952).
The precise legal question to be answered here
is whether USAPA 1s breaching its duty of fair
representation by refusing to support the Nicolau
Award and by adopting and promoting the Mast
Pilots’ date-of-hire semiority scheme. Under the
Railway Labor Act, only the district court) can
resolve this issue. Czosek v. O'Mara, 307 U.S. 25,
-18-
27-28 (1970) (‘{[A] suit against the union for breach
of its duty of fair representation is not within the
jurisdiction of the National Railroad Adjustment
Board or subject to the ordinary rule that
administrative remedies should be exhausted
before resort to the courts.”). In other words, there
is no alternative forum that might resolve
Petitioners’ claim if it were dismissed for lack of
ripeness. No institutional interest, therefore,
militates in favor of postponing adjudication.
Not only does no institutional interest militate
in favor of postponing adjudication, but substantial
hardships strongly militate against such delay. The
Ninth Circuit correctly noted that “considerable
time, effort, and expense have been devoted to the
merits of Plaintiffs’ [duty of fair representation]
claim before both this Court and the district court.”
App. A, 9a. Wasting that time, effort and expense is
surely a burdensome hardship. This must be
considered and given substantial weight. On
balance, therefore, this action is ripe.
-19-
CONCLUSION
This petition for a writ of certiorari should be
eranted so that the Court can address the ripeness
of claims to enforce arbitrated integrations of
seiority lists.
Respectfully submitted,
Marty Harper
MHarper@polsinelli.com
Counsel of Record
Kelly J. Flood
KF lood@polsinelli.com
Andrew S. Jacob
AJacob@polsinelli.com
Katherine V. Brown
KVBrown@polsinalli.com
POLSINELL! SHUGHART, P.C.
One East Washington Street,
Suite 1200
Phoenix, AZ 85004-2568
(602) 650-2000
Counsel for Petitioners
APPENDIX
-1a-
APPENDIX
Appendix A: Ninth Circuit opinion, dated June
Me IE cviavaesciuycka badsccnrays tors shar eeu used shan tend ee clncaa la
Appendix B: District Court order, dated July
BF eis peace once ghee hag ea eee 34a
Appendix C: McCaskill-Bond Amendment, 141
Stat. 2383, Div. K,-Title I, § 117 (Dec. 26,
Appendix D: Alegheny-Mohawk Labor Protec-
CIV PHOVISIONS, BO SF, 18 oo occiccccsccsccsscesssccvsersevns 109a
-la-
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Don ADDINGTON, individual resident of the
State of Arizona formerly employed by America
West Airlines, Inc. and presently employed by
its successor after merger, U.S. Airways, Inc.;
John Bostic, individual resident of the State of
Arizona formerly employed by America West
Airlines, Inc. and presently employed by its suc-
cessor after merger, U.S. Airways, Inc.; Mark
Burman, individual resident of the State of Ar-
zona, formerly employed by America West Air-
lines, Inc. and presently employed by its succes-
sor after merger, U.S. Airways, Inc.; Afshin
Iranpour, individual resident of the State of Ari-
zona, formerly employed by America West Air-
lines, Inc. and presently employed by its succes-
sor after merger, U.S. Airways, Inc.; Roger
Velez, individual resident of the State of Ani-
zona, formerly employed by America West Air-
lines, Inc. and presently employed by its succes-
sor after merger, U.S. Airways, Inc.; Steve War-
gocki, individual resident of the State of Arizona,
formerly employed by America West Airlines,
Inc. and presently employed by its successor af-
ter merger, U.S. Airways, Inc.,
Plaintiffs-Appellees,
i i ae eae ae ae ae ae ae ae ae Lae a a ae a a, ae La a ee a a ee a
-2a-
-V.-
US AIRLINE PILOTS ASSOCIATION, an un-
incorporated association representing the p1-
lots in the employment of U.S. Airways lnc., a
Delaware corporation,
Defendant-Appellant,
-and-
US Airways, Inc., a Delaware corporation;
Stephan Bradford; Robert Davison; Douglas L.
Mowery,
Defendants.
Nee ee eee ee eee ee SS”
No. 09-16564.
Argued and Submitted Dec. 8, 2009.
Filed June 4, 2010.
Background: Airline pilots brought action against
newly-certified union, alleging that union breached
its duty of fair representation by negotiating con-
tract that favored certain pilots over others in
merging of seniority lists of two merged airlines.
After jury found in favor of pilots on issue of
breach, the United States District Court for the
District of Arizona; Neil V. Wake, District Judge,
2009 WL 2169164, following bench trial on remain-
ing issues, granted pilots' request for injunction.
Union appealed.
-3a-
Holding: The Court of Appeals, Tashima, Circuit
Judge, held that, as a matter of first impression,
action was not ripe.
Remanded.
Bybee, Circuit Judge, dissented and filed opinion.
Andrew 8S. Jacob, Polsinelli Shughart, PC, Phoenix,
AZ, for the plaintiffs-appellees.
Lee Seham, Nicholas Paul Granath, Lucas Middle-
brook and Stanley Silverstone, Seham, Seham,
Meltz & Petersen, LLP, White Plains, NY, for the
defendant-appellant.
Appeal from the United States District Court for
the District of Arizona, Neil V. Wake, District
Judge, Presiding. DC No. CV 08-1633 NVW.
Before A. WALLACE TASHIMA, SUSAN P. GRA-
BER, and JAY S. BYBEE, CIRCUIT Judges.
Opinion by Judge TASHIMA; Dissent by Judge
BYBEE.
TASHIMA, Circuit Judge:
This case arose out of a bitter seniority dispute pre-
cipitated by the merger of U.S. Airways, Inc., and
America West Air-lines (“AWA”). Following the
merger, the companies’ respective seniority lists
had to be integrated to create a single list for the
merged airline. The U.S. Airways, Inc., pilots
(“East Pilots”) and the AWA pilots (“West Pilots”),
who were both represented by the Air Line Pilots
Association (“ALPA”), began exploring methods of
-4a-
integration pursuant to ALPA's policy regarding
mergers. The East Pilots generally had been hired
earlier and favored a strict date-of-hire system,
while the West Pilots sought a seniority system
that would take into consideration the relative pre-
merger strength of their airline over U.S. Airways,
Inc. Ultimately, the union submitted the internal
dispute to arbitration.
Although it is common for a merger to raise the is-
sue of integrating seniority lists, this case contains
an added wrinkle. The East Pilots, who were dis-
satisfied with the seniority integration proposal
ALPA arrived at through the union's internal arb)-
tration, led a successful effort to decertify ALPA
and replace it with a new union, U.S. Airline Pilots
Association (‘“USAPA”). Headed by an East Pilot,
USAPA was constitutionally committed to pursuing
date-of-hire principles, in contrast to ALPA, whose
merger policy committed it to pursuing the arbi-
trated seniority list.
Certain West Pilots brought this action against the
newly-certified union alleging that USAPA
breached its duty of fair representation (“DFR”) by
negotiating a contract that would impermissibly
favor the East Pilots at the expense of the West P1-
lots. A jury found that the union had breached its
DFR, and the district court, after a bench trial on
the remaining equitable issues, granted the West
Pilot Plaintiffs an injunction against USAPA.
Addington v. U.S. Airline Pilots Ass'n, 2009 WL.
2169164 (D.Ariz. July 17, 2009). USAPA contends,
inter alia, that the district court never had jurisdic-
tion because the West Pilots' claim is not ripe. We
agree.
Da
BACKGROUND
In 2005, U.S. Airways, Inc., and AWA merged to
form a single carrier called U.S. Airways (or the
“alrline”’). At the time of the merger, ALPA was the
collective bargaining representative for both the
Kast Pilots and the West Pilots. Each group had a
separate collective bargaining agreement (“CBA”)
which was administered by each group's Master
Mxecutive Council. As with most mergers, an inte-
grated seniority list had to be created. The Kast Pi-
lots were the bigger group-about 5,100, compared to
about 1,900 West Pilots-and were generally hired
before the West Pilots. The West Pilots received
more favorable wages under their CBA and, unlike
the East Pilots, no West Pilots were furloughed at
the time of the merger.
The two merging airlines and ALPA entered into a
Transition Agreement (“TA”), which incorporated
by reference ALPA's Merger Policy. Under the TA,
the carriers agreed not to object to AILPA's seniority
integration proposal, provided it did not result in
certain additional costs. The seniority inteyration
proposal could be implemented only as part of a
single CBA. The single CBA would require ap
proval by the Kast Master Executive Council, the
West Master Executive Council, and a majority of
each of the East and West pilot groups, effectively
giving each side a veto. Until the single CBA was
negotiated, with few exceptions, the T'A placed a
“fence” between Kast and West operations, such
that each would continue to operate under its re-
spective CBA.
m9
Pursuant to the ALPA Merger Policy, the two pilot
proups began nevoliating seniority integration, but
tg no avail. Under the union's Merger Polhecy, uf ne
sotiation and mediation between the two : ides faal,
the issue is submitted to “final and binding” arbi
tration. ‘I'he merged seniority list is then presented
to the airline, and ALVA is to “use all reasonable
means at its disposal to compel the company to ac
cept and implement the merged semiority list.” The
arbitrated list is not subject to a separate ratifica
tion vote, but becomes part of the single CBA
which is subject to member ratification
George Nicolau was selected to chair the arbitra
tion panel, pursuant to the Meryver Policy Arbitra
tion commenced between “the U.S. Airways Pilot
Merger Representatives and the America West P)
lot Merger Representatives.” In early May 2007,
the panel issued its award (the “Nicolau Award’). A
majority of Hast Pilots “strenuously objected” to the
Nicolau Award and opposed its implementation
The East Pilot’ representatives sought to have
ALPA prevent implementation of th Nicolau
Award. ALPA unsuccessfully attempted to get the
two sides to reach a compromise
While the arbitration was pending, negotiation
with the airline progressed, and the airline pro
posed a comprehensive CBA in May 2007, In late
July 2007, the Kast Master I:xecutive Council de
termined that the Kast Pilots would never ratify a
CBA that incorporated the Nicolau Award. On
Auyvust 15, 2007, the Kast Pilots withdrew then
representatives from the committee negotiating the
new CBA with the airline, halting those negotia
tions. In late 2007, ALPA submitted the Nicolau
7a
Award to the airline, which accepted the award on
December 20, 2007
In the meantime, several Mast Pilots bevan explor
ing the possibility of forming, a new umion that
would not implement the Nicolau Award. ‘They
formed USAPA and, on November 29, 2007, the
National Mediation Board certified a representa
tion election. USAPA won the election and was cer
tified as the collective baryvaining representative for
the entire group of pilots, Mast and West, on April
18, 2008. From the date the East Pilots withdrew
from nevotiations until ALPA was decertified, there
were no further negotiations with the arrline
USAPA adopted a constitution that established an
“objective” of “maintainting| uniform principles of
seniority based on date of hire and the perpetuation
thereof, with reasonable conditions and restrictions
to preserve each pilot's unmergved career expecta
tions.” Under USAPA's constitution, ratification re
quires a majority vote of the entire union member
ship, such that each pilot group no longer has its
own veto power.
hive months after certification, USAPA presented a
semority proposal to the airline. The proposal in
corporated date-of-hire principles. Althouph the
proposal contaimmed some protections for West I)
lots, if was not nearly as favorable to West Pilots as
the Nicolau Award. The airline had not yet re
sponded to the proposal when the distriet court en
tered its permanent injunction
The airline has been forced to reduce flying because
of economic considerations. The reductions have
-8a-
mostly hit the western operations. Because of the
continuing separate operations, approximately 175
of the 300 furloughs the airline had announced by
the time of trial were West Pilots. At the time of
trial, 140 West Pilots had been furloughed. Under a
single CBA incorporating the Nicolau Award, none
of the West Pilots would have been furloughed.
Six individual West Pilot-Plaintiffs (“Plaintiffs”)
filed this hybrid action against USAPA and U.S.
Airways, seeking damages and injunctive rehef.
The district court dismissed the claims against the
airline because the System Board of Adjustment
had exclusive jurisdiction over them. Addington v.
U.S. Airlines Pilots Ass'n, 588 F.Supp.2d 1051,
1064 (D.Ariz.2008). Plaintiffs amended their com-
plaint in the surviving DFR action, specifying that
the claim was brought on behalf of similarly situ-
ated West Pilots. The district court certified a class
of West Pilots and set a bifurcated trial schedule.
After a jury trial on liability, the jury found that
USAPA had violated the DFR because it abandoned
the Nicolau Award in favor of a date-of-hire list
solely to benefit the East Pilots at the expense of
the West Pilots.
After a bench trial on remedy, the district court or-
dered injunctive relief, permanently enjoining and
ordering USAPA to (1) “Immediately, and in good
faith, make all reasonable cfforts to negotiate and
implement a single [CBA] with U.S. Airways that
will implement the Nicolau Award seniority pro-
posal ...”; (2) “Make all reasonable efforts to support
and defend the seniority rights provided by or aris-
ing from the Nicolau Award in negotiations with
U.S. Airways”; and (3) “Not negotiate for separate
-9a-
[CBAs] for the separate pilot groups....” The district
court denied USAPA's post-trial motions for judg-
ment as a matter of law and for a new trial. USAPA
timely appealed, and this court granted USAPA's
ase
DISCUSSION
Although considerable time, effort, and expense
have been devoted to the merits of Plaintiffs' DFR
claim before both this Court and the district court,
we are without jurisdiction to address the merits of
the claim unless it is ripe. See S. Pac. Transp. Co. v.
City of L.A., 922 F.2d 498, 502 (9th Cir.1990). We
review ripeness de novo. See Manufactured Home
Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1025
(9th Cir.2005); Laub v. U.S. Dep't of Interior, 342
F.3d 1080, 1084 (9th Cir.2003). If the claim before
us is not ripe, we must dismiss. See S. Pac. Transp.,
922 F.2d at 502.
No published case has expressly addressed when a
DFR claim based on a union's negotiation of a CBA
becomes ripe. Thus, we apply the general principles
underlying the ripeness doctrine and take guidance
from our decisions regarding the related issue of
when a DFR claim accrues for statute of limitations
purposes in the context of the administration of a
CBA. We conclude that Plaintiffs’ DFR claim is not
yet ripe.
The ripeness doctrine rests, in part, on the Article
II] requirement that federal courts decide only
cases and controversies and in part on prudential
concerns. See Maldonado v. Morales, 556 F.3d
1037, 1044 (9th Cir.2009), cert. denied, --- U.S. ----,
-10a-
130 S.Ct. 1139, --- L.Ed.2d ---- (2010); W. Oil & Gas
Ass'n v. Sonoma County, 905 F.2d 1287, 1290 (9th
Cir.1990). The ripeness inquiry is “intended to ‘pre-
vent the courts, through avoidance of premature
adjudication, from entangling themselves in ab-
stract disagreements.’ ” Maldonado, 556 F.3d at
1044 (quoting Abbott Labs. v. Gardner, 387 U.S.
136, 148, 87 S.Ct. 1507, 18 L.id.2d 681 (1967),
overruled on other grounds by Califano v. Sanders,
430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
To determine whether a case is ripe, “we consider
two factors: ‘the fitness of the issues for judicial de-
cision,’ and ‘the hardship to the parties of withhold-
ing court consideration.’ ” Yahoo! Inc. v. La Ligue
Contre Le Racisme Et L'Antisemitisme, 433 F.3d
1199, 1211-12 (9th Cir.2006) (en banc) (per curiam)
(quoting Abbott Labs., 387 U.S. at 149, 87 S.Ct.
1507). Both factors militate in favor of finding this
claim premature.
A question is fit for decision when it can be decided
without considering “contingent future events that
may or may not occur as anticipated, or indeed may
not occur at all.” Cardenas v. Anzai, 311 F.3d 929,
934 (9th Cir.2002) (internal quotation marks omit-
ted); see also United States v. Streich, 560 F.3d 926,
931 (9th Cir.), cert. denied, --- U.S. ----, 180 S.Ct.
320, 175 L.Ed.2d 211 (2009). “At the same time, a
litigant need not ‘await the consummation of
threatened injury to obtain preventive relief. If the
injury is certainly impending, that is enough.’ ” Id.
(quoting 18 Unnamed “John Smith” Prisoners. v.
Meese, 871 F.2d 881, 883 (9th Cir.1989) (emphasis
in Stretch )).
-lla-
We conclude that this case presents contingencies
that could prevent effectuation of USAPA's pro-
posal and the accompanying injury. At this point,
neither the West Pilots nor USAPA can be certain
what seniority proposal ultimately will be accept-
able to both USAPA and the airline as part of a fi-
nal CBA. Likewise, it is not certain whether that
proposal will be ratified by the USAPA membership
as part of a new, single CBA. Not until the airline
responds to the proposal, the parties complete ne-
gotiations, and the membership ratifies the CBA
will the West Pilots actually be affected by
USAPA's seniority proposal-whatever USAPA's fi-
nal proposal ultimately is. Because these contin-
gencies make the claim speculative, the issues are
not yet fit for judicial decision.
We also conclude that withholding judicial consid
eration does not work a direct and immediate hard-
ship on the West Pilots. “To meet the hardship re-
quirement, a litigant must show that withholding
review would result in ‘direct and immediate’ hard-
ship and would entail more than possible financial
loss.” Winter v. Cal. Med. Review Bd., Inc., 900 F.2d
1322, 1325 (9th Cir.1990) (citing Cal. Dep't of Educ.
v. Bennett, 833 F.2d 827, 833-34 (9th Cir.1987)); see
also Am. Trucking Ass'ns v. ICC, 747 F.2d 787, 790
(D.C.Cir.1984) (finding no hardship where the pol
icy statement the plaintiffs challenged “neither im
pose[d] any obligation upon [the plaintiffs], nor in
any other respect ha|d] any impact upon them ‘felt
immediately ... in conducting their day-to-day af-
fairs'” (quoting Toilet Goods Ass'n v. Gardner, 387
U.S. 158, 164, 87 S.Ct. 1520, 18 L.Ed.2d 697
(1967))).
-12a-
Plaintiffs correctly note that certain West Pilots
have been furloughed, whereas they would still be
working under a single CBA implementing the
Nicolau Award. It is, however, at best, speculative
that. a single CBA incorporating the Nicolau Award
would be ratified if presented to the union's mem-
bership. ALPA had been unable to broker a com-
promise between the two pilot groups, and the East
Pilots had expressed their intentions not to ratify a
CBA containing the Nicolau Award. Thus, even un-
der the district court's injunction mandating
USAPA to pursue the Nicolau Award, it 1s uncer-
tain that the West Pilots' preferred seniority sys-
tem ever would be effectuated. That the court can-
not fashion a remedy that will alleviate Plaintiffs’
harm suggests that the case is not ripe.*™!
FN1. The dissent asserts that “nothing
would be gained by postponing a decision,
and the parties' interest would be well
served by a prompt resolution of the West P1-
lots' claim.” Diss. op. at 8017 (internal al-
terations, quotation marks, and citation
omitted). To be sure, the parties’ interest
would be served by prompt resolution of the
seniority dispute, but that is not the same as
prompt resolution of the DFR claim. The
present impasse, in fact, could well be pro-
longed by prematurely resolving the West Pi-
lots' claim judicially at this point. Forced to
bargain for the Nicolau Award, any contract
USAPA could negotiate would undoubtedly
be rejected by its membership. By deferring
judicial intervention, we leave USAPA to
bargain in good faith pursuant to its Dik,
with the interests of all members-both Itast
-l3a-
and West-in mind, under pain of an unques-
tionably ripe DFR suit, once a contract is
ratified.
Plaintiffs seek to escape this conclusion by framing
their harm as the lost opportunity to have a CBA
implementing the Nicolau Award put to a ratifica-
tion vote. Because merely putting a CBA effectuat-
ing the Nicolau Award to a ratification vote will not
itself alleviate the West Pilots furloughs, Plaintiffs
have not identified a sufficiently concrete injury.?N2
Additionally, USAPAs final proposal may yet be
one that does not work the disadvantages Plaintiffs
fear, even if that proposal is not the Nicolau
Award.FN3
FN2. Plaintiffs’ alleged hardship cannot in-
stead be premised on any delay caused by
USAPA in reaching a single CBA. As the dis-
trict court noted, Plaintiffs abandoned their
claim that USAPA is intentionally delaying
negotiation of a CBA. Addington, 2009 WL
2169164, at *22 (“During discovery, Plain-
tiffs retreated from any notion of deliberate
delay on the part of USAPA.”). The dissent's
assertion that “the absence of a CBA is itself
powerful evidence of a DFR violation,” Diss.
op. at 1184, is therefore misplaced. Although
absence of a CBA might be evidence of a
DER violation, if the violation were based on
deliberate delay by the union, it is not evi-
dence of a union's improper preference of one
seniority system over another. As demon-
strated by ALPA's similar difficulties in
reaching a CBA, the pilot groups, and indi-
vidual pilots with their ratification/non-
-14a-
ratification powers, are the major contribu-
tors to the absence of a CBA in these circum-
stances.
FN3. We do not address the thorny question
of the extent to which the Nicolau Award is
binding on USAPA. We note, as the district
court recognized, that USAPA is at least as
free to abandon the Nicolau Award as was its
predecessor, ALPA. The dissent appears im-
plicitly to assume that the Nicolau Award,
the product of the internal rules and proc-
esses of ALPA, is binding on USAPA. See
Diss op. at 1187-88.
Although we do not hold that a DFR claim based on
a union's promotion of a policy is never ripe until
that policy is effectuated, we conclude that, in this
case, there is too much uncertainty standing in the
way of effectuation of Plaintiffs' harm to warrant
judicial intervention at this stage. Cf. Sergeant uv.
Inlandboatmen's Union of the Pac., 346 F.3d 1196,
1200 (9th Cir.2003) (examining Labor Management
Reporting and Disclosure Act issue “in hght of the
well-established federal policy of avoiding unneces-
sary interference in the internal affairs of unions
and according considerable deference to the inter-
pretation and application of a union's rules and
regulations’”).?N4
FN4. The dissent agrees with “the general
rule that we evaluate the duty of fair repre-
sentation based on the fairness of the actual
representation as memorialized in_ the
[CBA,]” but would hold that this “is an un-
usual case and ... an exception” to that rule.
-15a-
Diss. op. at 1184. As much as the dissent
stresses the case-specific nature of our in-
quiry, however, there is no disputing that
this case would be the first time we allowed a
DFR suit to proceed in a collective bargain-
ing/ contract negotiating context before the
CBA at issue was ratified. Such a departure
from the norm would invite parties to bring
suit long before internal disputes have had a
chance to work themselves out. It would also
force us in each case to decide-without the
benefit of hindsight that 1s enjoyed in statute
of limitations accrual cases-whether a un-
ion's position is a mere announcement of a
bargaining position or the adoption of a per-
manent change in position. Although the dis-
sent believes that it is an easy question in
this case, it will not always be so.
Our conclusion that Plaintiffs’ claim is not ripe is
consistent with our DIR decisions, which have
found DFR violations based on contract negotiation
only after a contract has been agreed upon.FN® See,
e.g., Williams v. Pac. Mar. Ass'n, 617 F.2d 1321,
1328, 1330 (9th Cir.1980) (involving suit for breach
of DFR in negotiating CBA brought after rules at
issue were adopted); Bernard v. Air Line Pilots
Ass'n, 873 F.2d 213, 215 (9th Cir.1989) (involving
suit for breach of DFR during negotiations brought
after agreement between union and employer was
reached); Hendricks v. Atrline Pilots Ass'n, 696
F.2d 673, 674-75 (9th Cir.1983) (same).
FN5. Plaintiffs have identified only one case
in which a court allowed a DFR suit to pro-
ceed before a contract had been executed. See
-16a-
Mount v. Grand Int'l Bhd. of Locomotive
Eng'rs, 226 F.2d 604, 608 (6th Cir.1955). In
Mount, the union notified employees that it
would negotiate a contract amendment in di-
rect opposition to a series of rulings that had
been made pursuant to the union's internal
policies. Id. at 605-06. The Sixth Circuit held
that the fact that the proposed contract had
not been executed did not make the plain-
tiffs DFR action premature. Id. at 608.
Mount, however, contained only a cursory
analysis of the ripeness issue, and we are not
persuaded to apply its conclusion to this
case. More recent cases have held that a
claim does not accrue when the union merely
announces its intention to breach its DFR in
the future. See Ramey v. Dist. 141, Int'l Ass'n
of Machinists & Aerospace Workers, 378 F.3d
269, 279 (2d Cir.2004) (“[WJe do not require,
or even permit, union members to bring a
suit against their union simply because the
union has announced its future intention to
break its duty.”); Teamsters Local Union No.
42 v. NLRB, 825 F.2d 608, 615-16 (Ist
Cir.1987) (“Knowledge of a party's predispo-
sition to commit an unfair labor practice or
suspicion that, when the moment is oppor-
tune, the knife thrust will follow, is not
enough to galvanize § 10(b). The statute be-
gins to run only when the impermissible act
or omission-the unfair labor practice-actually
takes place.”).
Indeed, the Supreme Court case that clarified that
the DFR was applicable during contract negotia-
tions articulated its holding in terms that imply a
-l7a-
claim can be brought only after negotiations are
complete and a “final product” has been reached.
See Air Line Pilots Ass'n, Int'l v. O'Neill, 499 U.S.
65, 78, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991)
(“[Tjhe final product of the bargaining process may
constitute evidence of a breach of duty only if it can
be fairly characterized as so far outside a ‘wide
range of reasonableness,’ that it is wholly ‘irra-
tional’ or ‘arbitrary.’ ” (quoting Ford Motor Co. uv.
Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed.
1048 (1953))).
Notably, even in the cases on which Plaintiffs rely
most heavily, the policy that the plaintiffs claimed
injured them had already been effectuated when
the plaintiffs brought the claim. See Ramey v. Dist.
141, Int'l Ass'n of Machinists & Aerospace Workers,
378 F.3d 269, 275-76 (2d Cir.2004) (noting that air-
line had accepted union's seniority system and the
plaintiffs had been furloughed as aé_ée result);
Teamsters Local Union No. 42 v. NLRB, 825 F.2d
608, 611 (1st Cir.1987) (noting that shifts had been
assigned according to union's seniority system). Al-
though both the Ramey court and Teamsters court
concluded the claim accrued (for statute of limita-
tions purposes) before effectuation of the policy at
issue, see Ramey, 378 F.3d at 279-80 (holding that
claim accrued when union advocated seniority posi-
tion to employer during contract negotiations);
Teamsters, 825 F.2d at 614-15 (holding that claim
accrued when union announced to the plaintiffs
that they had been assigned to less desirable shift,
even though negotiations with employer regarding
the seniority system that would dictate shift as-
signments occurred two months later), the holdings
are not as easily applied in our situation as plain-
-18a-
tiffs urge.?N¢ In both Ramey and Teamsters, the un-
ions argued that the plaintiffs’ claims had accrucd
more than six months prior to filing, such that the
cases were barred by the statute of limitations.
Ramey, 378 F.3d at 276; Teamsters, 825 I’. 2d at
614. In addressing whether the cases were time-
barred, each court was faced with the issue
whether the claim accrued when the union an-
nounced its intention to take a negotiating position
that would amount to a DFR breach (a date that
fell outside the six-month period) or when the un-
ion actually advocated that position to the employer
during negotiations (a date that fell within the six-
month period). Ramey, 378 F.3d at 278-80;
Teamsters, 825 F.2d at 614-15. The court in each
case found that the claim accrued at the later date.
Ramey, 378 F.3d at 279-80; Teamsters, 825 i.2d at
614-15. Significantly, however, because the date
the union advocated its position in negotiations fell
within the six-month period in both cases, there
would have been no need for the plaintiffs to argue
that the claim did not accrue until effectuation of
the policy. Moreover, because the seniority systems
at issue already had been effectuated in both cases,
the courts simply were not faced with the possibil
ity of interfering in a union's internal conflict be-
fore the conflict manifested as concrete injury to
the plaintiffs.
I'N6. Indeed, we are hesitant to transplant a
rule from cases analyzing claim accrual for
statute of limitations purposes to the ripe-
ness context. Although we have noted the re-
lationship between the statute of limitations
and ripeness inquiries, see Levald, Inc. v.
City of Palm Desert, 998 ¥'.2d 680, 687 (9th
1Ya
Cir.1993) (Determining when the cause of
action accrues is merely the corollary to the
ripeness inquiry.’), there are key difference:
in the posture of a case that presents a stat
ute of limitations issue and one that. present:
a ripeness issue. In a statute of limitations
case, unlike a ripeness case, the injury has
unquestionably culminated, and the issue is
whether the plaintiffs learned or should have
learned of the injury so long avo that it
would no longer be fair to bring the suit. In
deciding these cases, courts often decline to
identify a specific date on which the claim
accrued, instead identifying the “earliest” or
“latest” date it could have accrued, depend
ing on whether the court determines the
claim to have fallen inside or outside the ap
plicable statute of limitations. See, e.yp.,
Gvuozdenovic v. United Atr Lines, Inc., 933
k2d 1100, 1106 (2d Cir.1991) (concluding
that claim was time-barred because it ac
crued “at the latest” on the date the union
ratified the allegedly violative agreement,
which was more than six months before fil
ing).
We also note in these cases the apparent absence of
contingencies that stood between the union's advo
cating to the employer a position on a certain policy
and the implementation of that policy. Neither
Ramey nor Teamsters references a ratification re
quirement, and in both cases the employer scemed
predisposed to follow the union's’ proposal. In
Teamsters, the court found accrual at the date the
union communicated its adverse action to the em
ployees. 825 F.2d at 614-15. Although the negotia
20a
tions that would result in that adverse action had
not yet been completed, the announcement was de
finitive. Id. In Ramey, the underlying district court
decrsion indicates that the employer had already
agreed to accept whatever semority system the un
ion proposed. See Ramey v. Dist. 141, Int'l Ass'n of
Machinists & Aerospace Workers, 2002 WI.
399152292. at *4 (18.D.N.Y. Nov.4, 2002) (noting that
the transition agreement in effect gave the union
“complete control over the issue of semority”). Be
cause of these distinctions, we are not convinecd
that these cases, even if they were binding on u:
would require a finding of ripeness in the circum
stances of the case at bench.'N’
FN7. Plaintiffs correctly note that /tamey
suggests a DFR claim can accrue before im
plementation of the policy at issue. Analogiz
ing to anticipatory repudiation in a breach ol
contract case, the amey court noted that it
would be possible-but not required-for a
claim to be brought when @ umion unequivo
cally communicates its intention to breach
its DFR, but that for statute of limitation:
purposes, the claim did not accrue until “the
date on which performance was duc, namely
the date on which [the union] advocated a
position on the semiority issue to {the em
ployer].” 378 F.3d at 279-80. ‘The court went
on, however, to qualify its holding, recogni
ing the requirement of likelihood of harm
Because we hold that [the union] has not
met its burden to demonstrate that plain
tiffs reasonably should have known that
the breach occurred before January 28%,
244
1999 |the date six months before filing
date]
unsettled question of how certain it must
_ we do not address the difficult and
be that harm will be caused by a union's
breach in order to trigger the statute of
lymitations. We have held that the statute
of limitations is triypvered even if it ors not
absolutely certain that a umion member
will be harmed by a breach. However, we
note that there must be some Ihkelhood
that a harm will result from a. union's
breach before a member may file suit. Oth
erwise, such claims would be unduly specu
lative. We caution distmet courts to con
sider this issue in the future when faced
with a suit brought after a union breaches
but before tanguble harm is caused
Id. at 2BO nn. 5 (eitations omitted)
hinally, we find instructive our cases analyzing: ae
crual of DER claims that are based on a union's al
leged errors outside the contract nepotiation pro
ess."N* In the prievance context, too, we have re
quired that a final outcome be reached before al
lowing a suit based on a unmion's allepedly violative
conduct that led to the decision. See Kozy uv. Wings
W. Airlines, Ine., 89 F.3d 635 (8th Cir. 1996). In
Kozy, an employee brought a DER claim allegaung
the union committed errors while representings bin
Ina ymevance hearing before an arbitrator. Jd. at
638. We held that the claim had not accrued until
the arbitrator's written decision was issued. /d. at
639. We noted that
FN8. The DFR applhes both to contract nego-
tiation and contract administration. See
O'Neill, 499 U.S. at 67, 111 S.Ct. 1127.
“There was, at one time, some indication in
this Circuit that the employee ‘should
know’ of his Union's errors in representing
him at a hearing when he saw the errors
committed during the hearing, and that the
six-month [statute of limitations] period be-
gan to run from that date even if the gnev-
ance board had not yet rendered its final
decision.”
Id. at 640 (citing Galindo v. Stoody Co., 793 F.2d
1502, 1509 (9th Cir.1986)). However, we stated,
Galindo resolved that confusion, holding that a
claim accrues for statute of limitations purposes
only when the employee learns of the arbitrator's
award. Kozy, 89 F.3d at 640 (citing Galindo, 793
F.2d at 1509). The holding in Galindo “recog-
nize[d] that the arbitrator's final decision could
make the employee whole despite the union's er-
rors, and that the arbitrator could change his
mind at any time prior to issuing a final and bind-
ing decision.” Kozy, 89 F.3d at 640 (citing
Galindo, 793 F.2d at 1509). Similarly, in the con-
text of negotiations toward a CBA, the parties
could shift positions until negotiations are com-
plete, and the final agreement could be acceptable
to Plaintiffs.
CONCLUSION
For the foregoing reasons, we hold that Plaintiffs’
DFR claim is not ripe; therefore, the case is RE-
MANDED to the district court with directions that
the action be DISMISSED. No costs to either side.
BYBEE, Circuit Judge, dissenting:
i ayree with much of the majority opinion. | concur
that, in general, we should not decide duty of fair
representation (“DFR”) challenges until “after a
contract has been agreed upon.” Ma). Op. at 1181
In the typical case, the contract will be the best
evidence of fair representation or lack thereof. In
my view, however, the contract 1s not the sine qua
non of unfair representation, and the fact that a
case could be more ripe-in the sense that the issues
could be more concrete, more focused-is not evi
dence of the contrary proposition that the case is
not ripe.
This 1s an unusual case and, in my view, an excep
tion to the general rule that we evaluate the duty of
fair representation based on the fairness of the ac
tual representation as memorialized in the Collec:
tive Bargaining Agreement (“CBA”). Here, the ab-
sence of a CBA is itself powerful evidence of a DFR
violation. As set forth quite fairly in the majority
opinion and in a lengthy and careful opinion by the
district court, the Air lane Pilots Association
(“ALPA”) was decertified and a new union, the U.S.
Airline Pilots Association (““USAPA”), certified pre-
cisely to frustrate implementation of the Nicolau
Agreement and to negotiate a CBA with U.S. Air-
ways that favors the East Pilots. As the district
court found, “USAPA's sole objective in adopting
and presenting its seniority proposal to the Airline
was to benefit East Pilots at the expense of West
Pilots, rather than to benefit the bargaining union
-24a-
as a whole.” Thus, “the terms of USAPA's semority
proposal are substantially less favorable to West
Pilots than the Nicolau Award” made through bind-
ing arbitration, an award that “USAPA concedes
that it will never bargain for.” It has been nearly
five years since the two airlines merged, and the
pilots are further from, not closer to, a CBA that
reflects the interests of both pilot groups. Although
a CBA would supply tangible evidence of a violation
of the DFR, in this case, there is sufficient evidence
to consider the West Pilots' complaint without the
CBA. The issues are concrete and were well devel-
oped in district court proceedings that included a
jury trial (for damages) and a bench trial (for equ.-
table relief). IT would hold the case is ripe for deci-
sion and decide the appeal on the merits
The “basic rationale” of the ripeness doctrine “is to
prevent the courts, through premature adjudica-
tion, from entangling themselves in abstract dis-
agreements.” Thomas v. Union Carbide Agric.
Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87
L.Ed.2d 409 (1985). “Constitutional ripeness, 1n
many cases, ‘coincides squarely with standing's in-
jury in fact prong’ and ‘can be characterized as
standing on a timeline.’ ” Stormans, Inc. v. Selecky,
586 F.3d 1109, 1122 (9th Cir.2009) (quoting
Thomas v. Anchorage Equal Rights Comm'n, 220
F.3d 1134, 1138 (9th Cir.2000)). Ripeness is a case-
specific inquiry and does not lend itself to broad,
bright-line rules based on the type of claim as-
serted. In Yahoo! Inc. v. La Ligue Contre Le
Racisme Et L'Antisemitisme, 433 F.3d 1199, 1212
(9th Cir.2006) (en banc), we wrote that “fi]t is [ ]
impertant to a ripeness analysis that we specify the
precise legal question to be answered. Depending
on the legal question, the case may be ripe or un
ripe. If we ask the wrong legal question, we risk
getting the wrong answer to the ripeness auestto:
Getting the legal question riglit is critical. ‘Two r
lated cases from the Supreme Court are particu
larly instructive here. In Ruckelshaus v. Monsar
Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 81
(1984), the Court held that a plaintiff's challeng:
to the constitutionality of an arbitration and con
pensation scheme in the Federal Insecticide, Fun;
cide, and Rodenticide Act (““KIEFRA’) would not. be
come ripe until the “|[Environmental Protectio
Aven y | ha lcd} considered data ubmitted by{t!
plaintiff] in evaluating another application and
arbitrator hald] made an award ” Id. at 1020. 104
S.Ct 2S62 The very next tern howevel!
lhomas v. Union Carbide Agricultural Pri
Co., the Court held that a similar con
challenge to FIFRA's arbitration provisions wa
ripe even though none of the thirteen plaintiffs wa
actually challenging an arbitration award. 473 U.S
at 579-82, 105 8.Ct. 3325. Only one plaintiff
Stauffer Chemical Company-had engaged in arbi
tration, and it sought to enforce the award. None of
the twelve other plaintiffs had actually engaged
an arbitration under FIFRA, but they alleged that
they were “aggrieved by the t/reat of an unconsti
tutional arbitration procedure.” /d. at 579, 10
S.Ct. 3325. The Court did not dismiss any plain
tiffs claims on ripeness grounds: “One does not
have to await the consummation of threatened tn
-26a
jury to obtain preventive relief. If the injury 1s cer-
tainly impending, that is enough. Nothing would be
gained by postponing a decision, and the public in-
terest would be well served by a prompt resolution
of the constitutionality of FIFRA's arbitration
scheme.” Jd. at 581-82, 105 S.Ct. 3325 (quotation
marks and citations omitted) (emphasis added)
What our decision in Yahoo! and the Court's deci
sions in Monsanto and Thomas make clear is that
ripeness is a contextual and commonsense doctrine
If the unique circumstances of a particular claim
render it fit for decision, the claim jis ripe. | submit
that this is a case in which “[nJothing would be
rained by postponing a decision, and the [parties']
interest[s] would be well served by a prompt resolu
tion of” the West Pilots’ DER claim Id. at 582, 105
S.Ct. 3320
eda
B
“(A] union breaches the duty of fair representation
when its conduct toward a member of the bargain-
ing unit is arbitrary, discriminatory, or in bad
faith.” Marquez v. Screen Actors Guild, Inc., 525
U.S. 33, 44, 119 S.Ct. 292, 142 L.ied.2d 242 (1998).
“The duty ... is the quid pro quo for the union's
right to exclusive representation; 1t protects em
ployees in the minority from arbitrary discrimina-
tion by the major’ty union.” Laborers & Hod Carrt
ers, Local No. 341 v. N.L.R.B., 564 F.2d 834, 839-40
(9th Cir.1977).
The majority describes three DFR cases from this
circuit- Williams v. Pacific Maritime Association,
617 F.2d 1321 (9th Cir.1980), Bernard v. Air Line
J at |
eo:
Pilots Association, 873 F.2d 213 (Sth Cir.1989), and
Hendricks v. Atrline Pilots Association, 696 F.2d
673 (9th Cir.1983)-as “flinding] DFR violations
based on contract negotiation only after a contract
has been agreed upon,’ Maj. Op. at 1181. These
cases are not only distinguishable, but completely
inapposite. First, none of these cases even mentions
ripeness Together, Williams, Bernard, and
Hendricks stand for the uncontroversial proposition
that a DER claim can be brought after a CBA or fi
nalized seniority integration agreement has been
completed. The issue here, however, 1s whether =a
DER claim must be brought after a CBA or final
ized seniority integration agreement, which none of
our cases cited by the majority even purport: Te
dress
Just as importantly, none of these cases addressed
the “precise legal question” advanced by the West
Pilots. In Williams, “[t]he heart of the employees'
claim of unfair representation [wals that the unton
breached its statutory duty to plaintiffs by agreeing
to the adoption of [certain] standards for deregis
tration.” 617 F.2d at 1328 (emphasis added). In
Bernard, the factual situation was basically a mir
ror image of this case: the merger of Alaska Air
Group and Jet America became effective on October
1, 1987, and a seniority integration agreement was
completed less than a week later, on October 6,
1987. 873 F.2d at 215. The plaintiffs in Bernard
sued immediately thereafter and were quickly
granted preliminary injunctive relhef, which we up-
held. Jd. at 215, 219. Here, the West Pilots claim to
be aggrieved by the failure to pursue the memori-
alization of an arbitration award in a finalized sen-
iority integration agreement, while in Bernard the
-20a-
claim was the opposite: an agreement was memor}-
alized almost immediately, without taking into ac-
count a preexisting merger policy. Finally, in
Hendricks, plaintiffs argued that “the umon| |
breached its duty of fair representation because |a
contract | amendment was arbitrary and discrimt-
natory.” 696 F.2d at 677 (emphasis added). Like the
theory in Williams, the plaintiffs' theory in
Hendricks actually challenged a memorialized
agreement and was therefore not the “precise” legal
theory advanced here
The majority also cites Atr Line Pilots Association
v. O'Neill, 499 U.S. 65, 111 S.Ct. 1127, 113 L.Ed.2d
51 (1991) (* ALPA ”), for the proposition that “a
claim can only be brought once negotiations are
complete and a ‘final product’ has been reached.”
Maj. Op. at 1182. With all due respect, this over
states what ALPA said. ALPA said nothing about
the ripeness doctrine. What the Court said was
that “lajny ibstantive examination of a union's
performance must be highly deferential, recog
’
nizing the wide latitude that negotiators need fo
the effective performance of their bargaiming re
sponsibilities. For that reason, the final product of
the bargaining process may constitute evidence of a
breach of duty....” 499 U.S. at 78, 111 S.Ct. 1127
(internal citations omitted). The Court's statement
in ALPA only confirms what we already know: a
CBA may be the best evidence of satisfaction of or
violation of the DFR. But the Court's equivocal
“may constitute evidence” falls well short of con
firming that “a claim can only be brought” once
there is a CBA
-29a-
None of these cases are relevant with respect to the
ripeness issue here. They stand for the noncontro-
versial proposition that a DFR claim can _ be
brought after a CBA has been completed. By con-
trast, the issue here is whether a DFR claim can be
brought prior to the completion of a CBA
l agree with the majority that this case would be
ripe 1f USAPA and U.S. Air had entered into a
CBA. That is not the question that this case pre-
sents. We are asked whether our Article III juris
diction extends to a DFR claim based on a union
“constitutionally committed,” Maj. Op. at 1177, to
voiding a binding arbitration award and adopting a
“date of hire” seniority principle that plainly favors
one side of a merger. When the question is posed in
this way, I beleve the ripeness of the West Pilots'
claims becomes clear
We employ a two-part test to determine whether a
claim 1s ripe for review, evaluating “(1) whether the
issues are fit for judicial decision, and (2) whether
the parties will suffer hardship if we decline to con-
sider the issues.” San Diego County Gun Rights
Comm. v. Reno, 98 F.3d 1121, 1132 (9th Cir.1996),
The issues raised by the West Pilots' DFR claim are
straightforward, and the uncontested facts of this
case make clear that the issues involved are fit for
decision on this record.
The West Pilots' DFR theory does not depend on
any contingent future events such as the memor}-
alization of a finalized CBA or seniority integration
agreement. The district court explained why the
-30a-
issues were fit for decision and the parties will suf-
fer hardship if we decline to consider the issues:
The issues fit for decision are these:
Whether USAPA adopted and presented its
seniority proposal without any legitimate
union objective, solely to benefit East Pilots
at the expense of West Pilots, and if so
whether the West Pilots are entitled to
damages and an injunction therefore....
LISAPA concedes it will never bargain for
implementation of the Nicolau Award. It is
constitutionally hostile to doing so. The Atr-
line has accepted the Nicolau Award, ex-
pressing no opposition to it, and the union
has failed to show any legitimate reason (or
plausible future reason) for abandoning it
Liability flows from the process and aims of
USAPA's seniority position. The outcome of
negotialions is irrelevant. Without an tn
junction, USAPA's seniority position inevt
tably impairs the collective bargaining pro
CSS.
For this same reason, denying judicial r
view would work a substantial hardship
upon the parties, including the Airline.... In
addition to depriving the West Pilots of le
gitimate representation, USAPA's bargain
ing position leaves the Airline to decide be
tween a lack of a single CBA and an unlaw-
ful single CBA
(Emphasis added)
-dla-
I agree with the district court that, given the “pre-
cise legal question” raised by the West Pilots, this
case is “fit for decision.” As the district court cor-
rectly observed, given the constitutional commit
ment of USAPA to date-of-hire principles-principles
irreconcilably opposed to the compromise embodied
in the Nicolau Award-“the outcome of negvtiations
is irrelevant.” As a result, the question presented in
this case does not pivot on any “ ‘contingent future
events that may or may not occur as anticipated, or
indeed may not occur at all.’ ” Maj. Op. at 1179
(quoting Cardenas v. Anzai, 311 F.3d 929, 934 (9th
Cir.2002)). The West Pilots' claamed “injury 1s cer
tainly impending, [and} that is enough.” United
States v. Stretch, 560 F.3d 926, 931 (9th Cir.2009)
(quotation marks omitted). Instead, as the district
court found, “USAPA has misled the majority about
its power to improve their seniority prospects at the
expense of the West Pilots. The will of the East Pi
lots springs from a mistaken understanding of the
law and mismanaged expectations. /[f this ts an im
passe, tt is one USAPA has goaded on.” (Emphasi:
added). The impasse is not evidence of the lack of
ripeness of the West Pilots’ claims. It is xhibit A
in their case-it is itself evidence of USAPA's intrac
tability on behalf of the East Pilots. Again, as the
district court found, “USAPA has made plain its in
tent never to bargain for the Nicolau Award,” and
time appears to be on the side of the Kast Pilots.FN!
Under these circumstances, the West Pilots need
not “await the consummation of threatened injury
to obtain preventive relief.” /d. (quotation marks
omitted).
EFN1. Although the West Pilots are not claim
ing that USAPA has “deliberately” delayed
-3d32A-
completing a CBA, Ma). Op. at 1180-81 n. 2,
the majority notes that West Pilots have
been furloughed and that they would not
have been furloughed under the Nicolau
Award, td. at 1180.
When the East Pilots campaigned to decertily
ALPA and replace it with USAPA, a new union
constitutionally committed to pursuing date-of-hire
principles, a DIR claim by the West Pilots would
not have been ripe. As the Second Circuit explained
in Ramey v. District 141 International Association
of Machinists and Aerospace Workers, 378 }.3d 269
(2d Cir.2004), “a breach fof the duty of fair repre
sentation does not) occur[ | when a union an
nounces an intention, even if it does so unequivo
cally, to advocate against the interests of its mem
bers in the future.” Jd. at 278. But when USAPA
won the certification election and refused tn prac
tice to bargain for implementation of the Nicolau
Award, a previously bargained-for award that the
Airline had already accepted and continues to ac
cept, this was not the announcement of an imten
tion, but actual “actfion] against the interest|s] of
the West Pilots-the precise point at which, it seem:
to me (and to the Second Circuit), a DFR breach oc
curs. Id. (‘the breach occurs when the union acts
against the interests of its members’); see also
Santos v. Dist. Council of New York City & Vicinity
of United Brotherhood of Carpenters and Joiners of
Am., AFL-CIO, 619 F.2d 963, 970-71 (2d Cir.1980)
(holding that a union breached its duty of fair rep
resentation, and a DFR claim began to accrue, at
the time “appellants were aware that the [union]
was not proceeding in good faith to seck enforce
ment of [an arbitration] award’).
The majority argues that this case will not be ripe
until “the airline responds to [USAPA' emiority|
proposal, the parties complete negotiations, and thi
membership ratifies the CBA,” Maj. Op. at 1180
but I respectfully disagree. Certainly thi CASE
might be “riper” were plaintiffs to wait for these fu
ture events, but when USAVPA took the reins as thi
West Pilots' union and refused to pursue the N}
lau Award, USAPA's promise moved from abstract
disagreement to adjudi able legal controversy. ‘The
future events cited by the majority are not hkels
occur anytime soon, and plaintiffs will be harme
all the while. In the words of the Thomas Court
fnjothing would be gamed by postpon
on 173 U.S. at 582, 105 8.Ct. 3325
‘war ripen Inquiry ] not. CoOmMcenrtiye ] Vit Vile
1 CASP ) i ripe iT po ibty could aT welve |
thie plaintiff 11T) Phoma had never even entere
into KIERA arbitration ‘The claim would have
iergone RIERA arbitrate
prior to joining with Stauffer in a challenge to FI
been riper had they un
kRA's arbitration procedure Yet the Court note
these plaintiffs' “continuing uncertainty and
pense’ and explained that “|o]ne does not have t
await the consummation of threatened injury to ob
tain preventive rehef Id. at 58] 1O5 S.Ct. 332
(quotation marks omitted). No one disput: that
the West Pilots are now suffering, and will continu
to suffer, “continuing uncertainty and expense’ dus
to the seniority im pa They are entitled to hav
their claims heard
| respectfully dissent
LPPIENDIA B
UNITED STATES DISTRICT COUK!
D. ARIZONA
¥ () ( \ Os lo356 PHA NVVW
('VO8-1728-PHX-NVW
kiled July 17, 2009
Andrew SS. Jacob, Don ©. Stevens, Tl, Katherme V
Brown, Kelly Joyee Flood, Marty Harper, Polsinelh
Shughart PC, Phoenix, AZ, for Plaintiff,
Nicholas Paul Granath, Seham Seham Meltz &
Petersen LIP, Minneapolis, MN, James K. Brenyle
Duane Morris LLP, Vhilade bpbupat, PA. Lee Seham
Lucas I Middlebrook, Stanley Suiverstorm
Theresa Ryan Murphy, Seham Seham Meltz &
Petersen IL. White Plains, NY. Nicholas dason
Isnoch, Stanley Lubin, Lubin & lenoeh PC, Phociis
AZ, Karen Gollen, Sarah Ann Asta, US Airways Ine
Tempe, AZ, Rachel S. danger, Tom A. Jderman
Omelveny & Myers LIP, Washington, DC, Robert
Alan Siegel, Omelveny & Myers LLP, Los Angel
(‘A for Defendant
FINDINGS OF FACT AND CONCLUSIONS OF
LAW and ORDER
NitiIh V. WAKE, District Judve.,
IL INSRRODUCTION
Plaintiff pilots brought this suit on behalf of a ela
of similarly situated pilots formerly cmployed by
America West Airlines. They allege that their cu
rent unmion, the U.S. Airline Pilots) Association
(SUSAPA”’) breached its duty of fair representation
The case was tried to a jury. On May 13, 2ZOO9. the
jury found in Plaintiffs’ favor that USAPA had
breached its duty by abandoning an arbitrated sen
iority list in favor of a date-of-hire list’ solely to
benefit one group of pilots at the expense of an
-36a-
other. At the conclusion of the jury trial, a bench
trial was held to determine the propriety, nature,
and scope of any injunctive relief that would issue.
The Court will now award injunctive relief as sup-
ported by the following findings of fact and conclu-
sions of law. These findings are entered as required
by Federal Rules of Civil Procedure 52(a) and 65(d),
consistent with and supplementary to the facts al-
ready found by the jury in this case. The nature
and scope of relief depends upon the specific facts
underlying liability.
Il. FINDINGS OF FACT
This dispute arises out of a particularly fraught
area of labor relations: the integration of pilot sen-
iority lists upon the merger of two airlines. Irom
the perspective of the individual airline pilot, sen-
iority is of the utmost importance. Wages improve
with a pilot's position on the seniority list. So do
working conditions. Seniority gives pilots priority
for bidding on work opportunities-the more senior
the pilot, the better the choices. Seniority impacts
the rank a pilot may take, the aircraft a pilot may
fly, and the control a pilot has over the work sched-
ule. Seniority also determines the availability of
preferred routes and “domiciles”-the locales where
pilots are based. Seniority represents a significant
investment of time in an industry where many pi-
lots spend the bulk of their career at one airline.
Most importantly, a pilot's position on the semority
list creates or limits exposure to demotions and
“furloughs,” the airline industry's euphemism for
layoffs. Generally, the most junior pilots are fur-
loughed first. Furloughed pilots enjoy a night of re-
call when hiring resumes, but until then they are
-3/a-
out of work at the airline. For all of these reasons,
the process of combining two seniority lists during
an airline merger raises stakes, emotions, and the
risk of betrayal cf principle to new heights. Such is
the case here.
A. The Merger
In May 2005, two airlines, America West and U.S.
Airways, merged to become a single airline known
as U.S. Airways (“the Airline”). The America West
pilots who were on the America West seniority list
at the time of the merger are known as West Pilots.
The U.S. Airways pilots who were on the U-S. Air-
ways seniority list at that time are known as the
Kast Pilots. As part of the merger, the two airlines
planned to combine their operations into one, and
as part of that process, the seniority lists of the two
airlines would be integrated into a single list. As
with any attempt to combine two separate seniority
lists, this process pitted the seniority interests of
the East Pilots against the seniority interests of the
West Pilots. Any gain for one side would come at
the expense of the other.
Adding tension was the comparative makeup of
each pilot workforce. At the time of the merger and
now, the East Pilots have been the bigger group:
about 5100 pilots compared to about 1900 West Pi-
lots. America West not only was the smaller of the
two airlines, but it also was the younger. The 1900
West Pilots were generally hired within a more re-
cent time frame than the East Pilots. The two
groups differed in their wages and work status. The
America West wages in place at the time of the
merger were significantly more favorable than the
-38a-
U.S. Airways wages. And all West Pilots were ac-
tively flying at the time of the merger, with hiring
ongoing at the airline and a negligible history of
furloughs. US Airways, on the other hand, found
itself in the midst of bankruptcy proceedings with
approximately 1700 of its pilots on furlough and no
recall in sight. Many of the furloughed pilots had
not flown for U.S. Airways for years.
From the time of the merger until April 2008, both
pilot groups were represented by one union: the Air
Line Pilots Association (“ALPA”). The internal
structure of ALPA played a central role in the sen-
iority integration process. Two different Master Ex-
ecutive Councils (‘MECs”) pursued the interests of
each pilot group: the U.S. Airways Master Execu-
tive Council (“the East MIEC”) and the- America
West Master Executive Council (“the West. MEC’).
The union members of each pilot group elected rep-
resentatives who chose officers for their respective
MECs. The MECs, in turn, appointed individuals to
various union committees. For instance, the MECs
each appointed individuals to a single Joint Nego-
tiating Committee charged with negotiating collec-
tive bargaining terms with the Airline on behalf of
both groups. ‘The MECs also appointed individuals
to separate standing Merger Committees. Each p1-
lot group's Merger Committee consisted of two pilot
Merger Representatives who would participate in
the integration process for the two seniority lists.
Under ALPA's structure, any new collective bar-
gaining agreement (“CBA”) would require ratifica-
tion by a majority of pilots in each of the two pilot
groups.
s)
-39a-
On September 23, 2005, ALPA and the two merg-
ing airlines entered into a Transition Agreement
setting forth the process of achieving the opera-
tional integration of the two airlines. The chairman
of each MEC signed the agreement, witnessed by
other union officials. The Transition Agreement
provides that until operations are combined, “[t}he
pilot workforces of America West and U.S. Airways
will remain separate and covered by their respec-
tive collective bargaining agreements.” With few
exceptions, this status of separate operations places
a fence between the former America West opera-
tions and the former U.S. Airways operations so
that pilots for one side cannot fly the other side's
routes or aircraft.
The Transition Agreement requires three cond?
tions to be met before operational integration can
take place. First, an integrated seniority list must
be created. Second, the union must conclude a sin
gle CBA for both pilot groups, incorporating the in-
tegrated seniority list. Third, the Airline must ob-
tain a single FAA operating certificate, which it has
done. Because no new CBA is in place, the Airline
carries on 1n a state of separate operations. Efforts
toward a new CBA have been complicated by the
process of deciding what seniority list the CBA will
include.
B. The Nicolau Award
The Transition Agreement also specifies how to in
tegrate the two seniority lists: “Ihe seniority lists
of America West pilots and U.S. Airways pilots will
be integrated in accordance with ALPA Merger Pol-
icy and submitted to the Airline Parties for accep-
-40a-
tance.” In turn, ALPA Merger Policy [ex. 3, herein-
after cited as “MP”] provides a step-by-step process
of integrating the lists. At the first stage, the par-
ties attempt to negotiate a single list. [MP pt. 1.G.]
If negotiations fail, a mediator is selected from a
predetermined list through a series of strikes, and
mediation ensues. [MP pt. 1.H.] If mediation fails,
the mediator conducts a “final and binding” arbi-
tration to arrive at a merged list, sitting as the
chairman of a three-person arbitration board. [MP
pt. 1.H.] Once the representatives conclude the
process of integrating the seniority lists, the lst 1s
not subject to a separate ratification vote by the un-
ion membership. [MP pt. 1.D.}] The integrated list is
to be presented as part of any new CBA, however,
which is subject to membership ratification.
In accordance with the Transition Agreement and
ALPA Merger Policy, the Merger Representatives
for the East and West Pilots began negotiating over
seniority in August 2005. The circumstances of the
two pilot groups prevented the two sides from
reaching agreement. In particular, the East Merger
Representatives thought that East Pilots were enti-
tled to seniority rights based upon their dates of
hire, including East Pilots who were on furlough at
the time of the merger. The West Merger Represen-
tatives thought that these furloughees should be
placed at the bottom of the list, with the remaining
pilots merged into one list according to their rela
tive positions on the original seniority lists for each
of the merging airlines.
Failing to reach any negotiated compromise, the
Merger Representatives began the next step of the
ALPA Merger Policy process: mediation. By alter-
-41a-
nating strikes from the predetermined list of me-
diators, George Nicolau was selected as the media-
tor. Mediation took place in October 2006. Like ne-
gotiation, the mediation failed to produce an
agreed-upon, integrated seniority list. The Merger
Representatives then proceeded to the third step of
the ALPA Merger Policy process, entering into ar-
bitration (the “Nicolau Arbitration”) with George
Nicolau presiding along with two non-voting pilot
representative from other airlines, one designated
by each pilot group. The arbitration proceedings
began in December 2006 and concluded—in-Febru-
ary 2007.
The Nicolau Arbitration panel issued its award (the
“Nicolau Award”) in the first week of May 2007.
The award struck a compromise between the re-
quests of both sides. It placed about 500 senior East
Pilots at the top of the list, against the wishes of
West Pilots, because of their special experience
with wide-body international aircraft that America
West was not operating before the merger. It placed
approximately 1700 Kast Pilots who had been fur-
loughed at the time of the merger at the bottom of
the list because of their greatly diminished career
expectations. ‘Then 1t blended the remainder of the
Mast Pilot list with the West Pilot list generally ac-
cording to the relative position of the pilots on their
original lists.
Before, during, and after the arbitration, both sides
understood that any arbitrated result would be fi-
nal and binding as provided in ALPA Merger Pol-
icy, and that the Transition Agreement required
implementation of the Nicolau Award along with
any new single CBA. Each side presented exhaus-
-42a-
tive proof in support of its case over the course of 18
days of hearings, with 20 witnesses and 14 volumes
of exhibits. They filed comprehensive post-hearing
briefs. There is no persuasive evidence that any
East or West Pilot doubted the finality of the arbi-
tration before it took place.
The Nicolau Award caused outrage among many
East Pilots. The East Merger Representatives
sought to have the award overturned and _peti-
tioned ALPA to revisit it. Emotions flared for weeks
and months to follow while ALPA attempted to
broker a compromise between the two pilot groups.
Understanding that ratification of any single CBA
by both pilot groups was essential, ALPA's Execu-
tive Council passed a resolution on May 24, 2007,
urging both MECs to “explore consensual ap-
proaches that promote career protection and mu-
tual success, and achieve an acceptable single
{CBA] that improves pay, benefits, work rules, and
job security for both pilot groups.” Further efforts
at compromise took place at certain union-
organized conferences over the summer. No com-
promise resulted.
While the arbitration was pending, negotiations
with the Airline progressed. In May 2007, the
ALPA Joint Negotiating Committee received a
comprehensive CBA proposal from the Airline
known as the Kirby proposal. [Ex. 98.] While the
union and the Airline remained far apart on many
terms of employment, this proposal represented
significant progress in negotiations and included a
pay increase for both pilot groups worth $122 mil-
lion per year. The West Pilots’ increase was modest,
but the introduction of equal pay for both pilot
-43a-
groups would mean a pay increase for East Pilots
worth $108 million per year. This proposal has re-
mained on the table.
On August 15, 2007, the East MEC withdrew its
representatives from the Joint Negotiating Com-
mittee. This tactic halted negotiations between the
union and the company toward a single new CBA.
By October 1, 2007, the ALPA Executive Council
had determined that there were no grounds under
ALPA Merger Policy for setting aside the Nicolau
Award. ALPA's president criticized the East MECs
actions and stated that it was “time for the [East]
MIEC to comply with its representational and legal
obligations under the Constitution & Bylaws,
ALPA Merger ‘olicy, the Transition Agreement,
and implementing resolutions of the lExecutive
Council” and “adopt a resolution ... reversing all
prior efforts to bar or precondition the continuation
of joint negotiations.” [Ix. 19.]
The East MIC never returned to negotiations.
ALPA submitted the Nicolau Award to the Airline
in late 2007. The Airline accepted the award on De-
cember 20, 2007, as it was required to do if the
award complied with certain basic requirements of
the Transition Agreement.
C. The Formation and Election of USAPA
Another story was unfolding during this course of
events. On May 16, 2007, shortly after the issuance
of the Nicolau Award, East Pilot Stephen Bradford
wrote a lecter to the ALPA [Executive Board an-
nouncing his intent to leave ALPA. He voiced hos-
tility to the Nicolau Award, claiming that he did
-44a-
not want to leave the union but that the Nicolau
Award left him little choice. In his view, it was nec-
essary to leave in order to “write our own merger
policy into our bylaws” and “just to protect what
little we [East Pilots] have left.” [fx. 107 at 1-2.}
He asserted that the East Pilots' majority status in
the union would enable them to achieve their aims.
He and other East Pilots formed a committee to ex-
plore how to prevent implementation of the Nicolau
Award by forming and certifying a new union with
a different seniority objective. They received advice
from a lawyer to take care with “the language you
use in setting up your new union” and not to “give
the other side a large body of evidence that the sole
reason for the new union is to abrogate an arbitra-
tion.” [Ex. 14.]
Mr. Bradford and other East Pilots proceeded to
form Defendant USAPA. On August 10, 2007, they
announced that they held nearly enough popular
support to force a representation election. On No-
vember 29, 2007, the National Mediation Board
certified a representation election. USAPA's cam-
paign purported to address other areas of pilot dis-
content, but it communicated a clear message to
East Pilots that its seniority policy would be more
favorable to them than the Nicolau Award. USAPA
promised that as certified bargaining representa-
tive, it would negotiate for a date-of-hire seniority
integration rather than the Nicolau Award. Many
West Pilots opposed the campaign, and ALPA ob-
jected to the East MECs “failure to respond to and
defend against” it. [Ex. 19.] USAPA won the elec-
tion, and the National Mediation Board certified
USAPA as the East and West Pilots' collective bar-
-45a
gaining representative on April 18, 2008, with Mr.
Bradford as its president.
Five months later, USAPA adopted and presented
to the Airline its own seniority proposal. This pro-
posal constructs a seniority list based upon each
pilot's date of hire, with West Pilots generally fal-
ling to the bottom of the list. The proposal also in-
cludes certain conditions and restrictions providing
limited protection to West Pilots. For example, it
provides that reductions in the number of captain
positions would be shared between the _two pilot
groups on a pro rata basis. Also, West Pilot posi-
tions in existence on June 1, 2008, are protected
such that East Pilots cannot bid into those posi-
tions. But significant limitations attend these pro-
tections. First, they expire after ten years. Second,
a West Pilot “forfeit[s] his/her right with respect to
all protected position provisions” if he or she fails to
bid on or accept an available protected position or
bids on a non-protected position. Third, the date-of
hire list supersedes all conditions and restrictions,
including the pro rata allocation of position reduc-
tions, in the event of a catastrophic reduction of
25% or more of the total number of pilot positions.
Finally, all furloughs and recalls still are imple-
mented “on an integrated |date-of-hire] seniority
list basis” regardless of protected position provi-
sions.
Taking all of the conditions and restrictions into
account, the Court finds that the terms of USAPA's
seniority proposal are substantially less favorable
to West Pilots than the Nicolau Award. The ten.
year period of conditions and restrictions provides
some protection to West Pilots, but once that period
-46a-
expires, even assuming rapid attrition of senior
East Pilots, the West Pilots find themselves with
diminished career opportunities relative to their
position on the Nicolau List. More importantly,
USAPA's proposal exposes the West Pilots to grave
new economic perils. Any furlough will take a dis
proportionate toll on West Pilots, as will any cata-
strophic reduction in force-both realistic possibil-
ties. At the time of the merger, 33% of East Pilots
were on furlough status, a number roughly corre
sponding to 24% of the merged pilot workforce and
89% of the West Pilot workforce. If the very circum
stances at the time of the merger were to recur un-
der USAPA's seniority proposal, many of the West
Pilots would lose their jobs to now-working Ivast
Pilots who were unemployed at the time of the
merger. While all of these factors support the find.
ing, they are not all necessary. The sole fact that
USAPA's seniority proposal disfavors West Pilots
for furlough purposes compels, on its own, the con-
clusion that the proposal is far less favorable to
West Pilots than the Nicolau Award. Barton
Brands, Ltd. v. NLRB, 529 F.2d 793, 796, 800 (7th
Cir.1976).°™)
FN1. USAPA also argues that the minimum
fleet requirements of the ‘Transition Agree
ment prevent any further significant fur
loughs. This argument has little force be
cause USAPA's integrated seniority proposal
only goes into effect when operations are In
teprated after the conclusion of a single new
CBA, which may or may not have its own
fleet requirements, The fleet requirements of
the Transition Agreement are expressly lim
ited to the period of separate operations. |lox
21, at TI.B.]
The Airline has received USAPA's seniority pro
posal but has not responded to it. USAPA and the
Airline continue to negotiate toward a new CBA
Any new CBA is now subject to USAPA's ratifica
tion process, which differs from ALPA's. Under
USAPA's constitution, ratification requires a ma
jority vote of the entire union membership, not
separate votes of the two pilot groups. This system
deprives both pilot groups ol thei eparate veto
powell
ID. USAPA's Objectives
USAPA's sole objective in adopting and presenting
its seniority proposal to the Airline was to benefit
Kast Pilots at the expense of West Pilots, rather
than to benefit the bargaining unit as a whole. It
constitution includes a commitment “to maintain
uniform principles of seniority based on date of hire
and perpetuation thereol, with reasonable cond)
tions and restrictions to preserve mach pilot’ un
merged career expectations.” USAVA officers have
promised to “overturn the Nicolau. Award and
LISAPA considers itself constitutionally bound
never to implement it. Counsel for USAPA concede
that the union will never do (Doc. # 574 at
1047.}
\s explains d below, other motivations USAPA pr
ented at tral were insulfiment a a matter of lav
Lo yustily 11 course of action ome were imply
pretextual!
‘Pet
ik. Furloughs of West Pilots
Continuiny in a state of separate operations, eco
nomic forees have caused the Airline to reduce fly
ing. Most of these reductions have oc urred in the
western operations. As a result, the Airline has an
nounced plans to furlough 300 pilots, including ap
proximately 175 West Pilot: The ‘Transition
Avreement generally prevents last and West Pilot
from flying in the other group's operations, so tu
loughs take place in the locales where flying is re
duced, according to the two separate semiority list
Approximately 140 West Pilots had been fur
louyhed by the time of trial. The group of pre: ently
furloughed pilots includes’ Plaintill Worvock
Plaintiff Bostic, and Plaintiff Iranpour. If a single
CBA that incorporated the Nicolau Award were in
place and operations integrated, none of the West
Pilots would be furloughed at this time
ik. Procedural History
On September 4, 200%, in response to LU SAPA's ae
tions. six individual West Pilot Plaintill brought
this action ayainst USAPA and the Airline allegiuny
that USAPA had breached its duty of fair represen
tation and that the Airline had breached a CBA
The complaint sought damages a: well as myun
tive relief. Plaintiffs also moved for a preliminary
injunction to restrain the Airline from furloughing
West Pilots ahead of Kast Pilots who had been on
furlough at the time of the meryer The Court
eranted the Airline's motion to dismiss tor failure
to exhaust administrative remedie It demed
LISAPA's motion to dismiss the tair representation
ADA
claam under Fed R.Civ. Po 120b)01) and (6); that
claim is the subject of this trial
Around the same time, Phlamtiffs also filed a state
court action on behalf of a class of West Pilots
against a class of Mast Pilots. ‘This complaint al
leged various state law causes of action against the
Kast Pilots. After removal and consoldation, the
state-law causes of action were dismissed as pre
empted by the Railway Labor Act
On November 21, 2008, trialin the fair representa
tion case was accelerated and bifurcated ito two
stages to expedite resolution of this urgent case
The first stage would address the lability of the
union and the propmety of ingunetive rehet. In the
event of a verdict finding USAPA hable, the second
stage would address the causation and quantifies
tion of any damapes owed to Plarntiffs. Trial on th
ability was set to oecur no later than February 17,
2009. One week after tral was set, Plaintiffs filed
an amended complaint on the fair representation
action, specifying: that the suit was brought on be
half of a class of similarly situated West Pilots. Be
cause of the surprise to USAPA and the need for
class discovery, tral was continued. Briefing: fol
lowed on certification as well as the right to a pury
trial. The Court certified the class of West Pilots
and granted USAPA's request for a jury trial under
the Seventh Amendment. The Ninth Cireauit denied
USAPA's request for interlocutory review of the
certification order, Because the class was not certs
fed as to Plamtiffs' compensatory damages claims,
the jury tralompht attached only to the damage:
claims of the six individual Plammtaffs.! 9" Ao jury
trial would nonetheless be held at the lability
-50a-
stage because the damages claims would hinge on
the adjudication of liability.
FN2. Plaintiffs' motion to certify the class
also referred to a class-wide refund of union
dues and fees. USAPA's Motion for Judg-
ment on the Pleadings was granted as to this
claim.
On March 3, 2009, shortly before the class was cer-
tified, a new trial date was set. Over USAPA's ob-
jection, trial on the hability facts and injunctive re-
lief would now take place beginning April 28, 2009.
The parties proceeded to and through trial accord-
ing to plan. The jury retired after approximately
nine days of evidence and returned a verdict for
Plaintiffs. Bench proceedings then were held re-
specting the propriety and scope of injunctive rehief.
No new evidence was introduced at the bench trial
beyond that presented to the jury.FX?
FN3. Plaintiffs offered new testimony of
Brian Stockdell regarding certain Airline lo-
gistics but withdrew the request for relief for
which it was offered. Therefore, this with-
drawn testimony is not considered and has
no effect upon the present order. Cross-
examination of Stockdell was not permitted
when USAPA could not state any purpose for
cross-examining other than to refute his
withdrawn testimony concerning the with-
drawn remedy.
Iii. CONCLUSIONS OF LAW
-5la-
“In chasing down the myriad arguments of the par-
ties, [the Court has] pursued both the fox of en-
hghtenment and the hare of obfuscation through
the bramble of labor law.” Teamsters Local Union
No. 42 v. NLRB, 825 F.2d 608, 609 (1st Cir.1987).
The First Circuit wrote those words about a conten-
tious union seniority case, and the same sort of
chase has occurred here. While neither side has re-
frained from taking dubious legal positions, USAPA
has at various stages misstated law, facts, and pro-
cedural history, with frequent recourse to the “con-
tradiction or confusion ... produced by a-medley of
judicial phrases severed from their environment.”
Guaranty Tr. Co. of N.Y. v. York, 326 U.S. 99, 106,
65 S.Ct. 1464, 89 L.Ed. 2079 (1945) (Frankfurter,
J.). It is therefore necessary to cut a path through
much labor law bramble on the way to granting re-
hef. First, this Order explains the theory support-
ing liability. Second, it reaffirms and elaborates
upon the subject matter jurisdiction and ripeness,
best understood in light of the merits. Third, it out-
lines the propriety, scope, and nature of relief
granted.
A. Duty of Fair Representation
A jury has already found that USAPA breached its
duty of fair representation with respect to the West
Pilots. In short, USAPA violated the duty because
it cast aside the result of an internal seniority arbi-
tration solely to benefit East Pilots at the expense
of West Pilots. USAPA failed to prove that any le-
gitimate union objective motivated its acts.
In general, a union owes a duty of fair representa-
tion to all members of the bargaining unit it repre-
-52a-
sents. McNamara-Blad v. Ass'n of Prof'l Flight At-
tendants, 275 F.3d 1165, 1169 (9th Cir.2002). This
duty “arises from a union's statutory role as the ex-
clusive bargaining representative for a unit of em-
ployees”; it attaches only at the tume that a union
becomes certified as the exclusive bargaining rep-
resentative for the bargaining unit. See rd. at 1169-
71. The duty has evolved as a judicial check on the
union “to prevent arbitrary union conduct against
individuals stripped of traditional forms of redress
by the provisions of federal labor law.” ld. at 1169
(quoting Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct.
903, 17 L.Ed.2d 842 (1967)).
“Under this doctrine, the exclusive agent's statu-
tory authority to represent all members of a desig-
nated unit includes a statutory obligation to serve
the interests of all members without hostility or
discrimination toward any, to exercise its discretion
with complete good faith and honesty, and to avoid
arbitrary conduct.” Vaca, 386 U.S. at 177. Put an-
other way, the duty prohibits unions from acting in
a way that is “arbitrary, discriminatory, or in bad
faith.” Beck v. United Food & Commercial Workers
Union, Local 99, 506 F.3d 874, 879 (9th Cir.2007)
(quoting Vaca, 386 U.S. at 190).
1. Bargaining Backdrop
“The integration of a seniority list is a difficult un-
dertaking because of the inevitability that some 1n-
dividual employees will be disadvantaged in com-
parison to others. In these circumstances, a union
does not breach its duty of fair representation to
others as long as it proceeds on some reasoned ba-
sis.” Herring v. Delta Air Lines, Inc., 894 F.2d 1020,
-53a-
23 (9th Cir.1990). For this reason, ALPA had es-
tablished an internal procedure for the integration
of seniority lists in the merger scenario. Bernard v.
Air Line Pilots Ass'n, Int'l, 873 F.2d 213, 217 (9th
Cir.1989); see also Guvozdenovic v. United Air Lines.
Inc., 933 F.2d 1100, 1107 (2d Cir.1991).
The Nicolau Arbitration was intended to provide a
conclusive resolution of the conflicting seniority 1n-
terests of the Kast Pilots and the West Pilots. The
Transition Agreement generally required the par-
ties to follow ALPA Merger Policy to integrate the
seniority lists. The parties bound by that agree-
ment included the union “by and through the Mas-
ter Executive Councils of the America West and
U.S. Airways pilots.” Both MIC chairmen signed
the Rarcement with the ALPA President, witnessed
by other union officials.
ALPA Merger Policy (cited as “MP”) provided for
the procedures ieading up to and resulting in ‘the
issuance of the Nicolau Award. It also dictated the
award's significance. “Che purpose of arbitration
shall be to reach a fair and equitable resolution
consistent with ALPA policy.” [MP § 1.H.1.b.] “The
Award of the Arbitration Board shall be final and
binding on all parties to the ogee and shall
be defended by ALPA.” [MP § 1.H.5.}] “The merged
seniority list will be presented to management and
ALPA will use all reasonable means at its disposal
to compel the company to accept and implement the
merged seniority list.” [MP § 1.1.1.] “The arbitration
award issued after proceedings under [the Merger
Pohcy] shall be the position of ALPA with man-
agement ....” [MP § 1.1.7.] The Policy Compliance
provision states that “[a]ny attempt by a member
-54a-
or members of ALPA to obtain an agreement which
would operate to frustrate the objectives of this pol-
icy shall be considered an act contrary to the best
interests of ALPA and its members.” [MP § 3.C.]
USAPA does not dispute that it succeeded to
ALPA's rights and obligations under the Transition
Agreement. Nonetheless, USAPA contends that the
Nicolau Award does not limit USAPA in any sense.
USAPA relies heavily on the following stipulation:
“The parties to the Nicolau Arbitration were stated
to be ‘the U.S. Airways Pilot Merger Representa-
tives and the America West Pilot Merger Represen-
tatives. ” USAPA suggests that the Nicolau Award
bound only the merger representatives, with the
sole effect of precluding those representatives from
asserting the existence of any disagreement be-
tween them regarding the Nicolau Award. The
award, according to USAPA, was imposed on the
Kast Pilots without their consent; ALPA, and by
extension USAPA, remained free to order its affairs
as though the award had never happened.
This argument offends common sense, the evidence,
and fundamental principles of law. In the context of
labor rights, it is both discordant and irrelevant.
Generally, properly appointed representatives act-
ing within the scope of their authority do bind those
they represent. ALPA Merger Policy provides that
the Merger Representatives “shall have complete
and full authority to act for and on behalf of the
flight deck crew members of their respective air-
lines for the purpose of concluding a single flight
deck crew member seniority list, which shall not be
subject to ratification.” [MP § 1.D.3.] This 1s not a
dispute about the personal contractual obligations
-55a-
of East Pilots.’N4 The East Pilots took on the bene-
fits and burdens of ALPA's representative actions
when they elected to be represented by that union.
They gave their political consent to the actions of
the merger representatives when thev elected the
Kast MEC that appointed them. Cf. Ackley v. W.
Conference of Teamsters, 958 F.2d 1463, 1478 (9th
Cir.1992) (explaining that unions exist and take
action subject to union members' voting rights); 45
U.S.C. § 152 Fourth (protecting a bargaining unit's
right to choose a union by majority vote). The East
Pilots and ALPA were therefore bound, in the legis-
lative sense of collective bargaining, by ALPA's
Transition Agreement commitment “by = and
through” the Fast MEC to follow ALPA Merger Pol-
icy In merging the seniority lists. See Humphrey v.
Moore, 375 U.S. 335, 337-38, 347-48, 84 S.Ct. 363,
11 L.Ed.2d 370 (1964) (holding that union dis-
charged its duty of fair representation by resolving
a seniority dispute in accordance with negotiation
and arbitration procedures of a CBA negotiated by
a multi-local union and executed by each appropri-
ate loval union).
N4. As already noted, Plaintiffs' parallel
suit alleging state law claims against a puta-
tive class of Kast Pilots was dismissed as
preempted by the statutory duty of fair rep-
resentation.
Although the Court finds that the unambiguous
language of the ‘Transition Agreement resolves the
question on its own, the East MECs course of con-
duct during and after the Nicolau Proceedings con-
firms that the award was intended to be “final and
binding” as to the two pilot groups. USAPA pre-
-56a-
sented no evidence that the Kast MEC or any East
Pilots regarded the Nicolau Arbitration as an aca-
demic exercise before or while it took place. To the
contrary, the East Pilots exhibited a solemn resolve
to make their case. Both sides presented volumi-
nous economic evidence over the course of several
weeks of hearings. The East MEC pressed hard to
have the award overturned within the ALPA
framework. Finally, the East MEC attempted to
subvert the award's implementation by withdraw-
ing from merger negotiations altogether. Rather
than cast doubt on the final and binding nature of
the award, these actions show that from the East
MECs perspective, the award was most final and
most binding. ALPA's attempts to negotiate a com-
promise between the two pilot groups do not belie
the award's finality; those attempts reflect an un-
derstanding that the West Pilots, through the West
MEC, were entitled to sit on their rights. At no
time did ALPA assert the power to impose a differ-
ent seniority proposal on the West Pilots without
their consent.
The award shapes USAPA's duty here even though
the Transition Agreement could be amended by
mutual agreement of the union and the Airline. US
Airways has already accepted the Nicolau seniority
list, and the evidence shows no reason for amend-
ment other than USAPA's internal purposes. As
explained further on, amendment needs some le-
gitimate union objective. Amendment is not a suffi-
cient purpose unto itself, a kind of union wild card
that covers for any purpose, good or ill. The power
of amendment does not trump the union's duty of
fair representation; it must serve It.
-57a-
2. Theory of Liability
In general, a union meets its duty of fair represen-
tation as long as its actions fall within a “wide
range of reasonableness.” Atr Line Pilots Ass'n v.
O'Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 113
L.Ed.2d 51 (1991). This latitude includes a right on
the part of the union to change bargaining positions
midstream. Barton Brands, Ltd. v. NLRB, 529 F.2d
793, 800 (7th Cir.1976). inere is nothing intrinsi-
cally wrong with bargaining for seniority integra-
tion based upon the date of hire; date-of-hire sen-
iority is “genérally ... an equitable and feasible so-
lution” to the problem of merging seniority lists.
Truck Drivers, Local Union 568 v. NLRB, 379 F.2d
137, 143 n. 10 (D.C.Cir.1967); see also Laturner v.
Burlington N., Inc., 501 F.2d 593, 598-603 (9th
Cir.1974). Seniority rights do not “vest” with the
union members in any proprietary sense. See Hass
v. Darigold Dairy Prods. Co., 751 F.2d 1096, 1099
(9th Cir.1985). Even when an internal union arbi-
tration resolves a seniority dispute, it is not neces-
sarily improper for a union to pursue an alternative
outcome. Associated Transport, Inc., 185 NLRB
631, 635 (1970) (unfair labor practice case).
USAPA clings to these generalities, but they give
no protection here. ‘The question is not whether
USAPA made a seniority proposal that is accept-
able in the abstract, or whether USAPA deprived
certain employees of their property rights, or what
position it could have taken before agreement to a
different final and binding process. The question is
not whether USAPA has the right to adjust its bar-
gaining position, even after playing out an agreed
final and binding process, for some good reason.
-58a-
The legal question is whether USAPA-or any un-
ion-violates its duty of fair representation by adopt-
ing and promoting a certain integrated seniority
list for no reason other than to favor one group of
employees at the expense of another. An estab-
lished genre of fair representation decisions says
yes.
The first is Bernard v. Air Line Pilots Association,
International, which concerned the merger of
Alaska Airlines and Jet America, Inc. 873 F.2d 213
(9th Cir.1989). ALPA was the certified bargaining
representative for all Alaska Airlines pilots, but the
Jet America pilots were not members of the union.
Id. at 214. Nonetheless, ALPA owed a duty of fair
representation to the Jet America pilots. /d. at 216.
When it came time to integrate the seniority lists of
the two airlines, ALPA did not follow its own policy,
namely the process of negotiation, mediation, and,
if necessary, arbitration. Jd. at 215. The employer
excluded all Jet America pilots from seniority nego-
tiations. Jd. The Jet America Pilots succeeded in
their fair representation action because they had
been excluded from negotiations and because ALPA
did not follow its own policy. Jd. at 216-17. The
court rejected the union's purported justifications
for its actions: that it was reasonable to “speak [ ]
to management as one voice,” that the union's sen-
iority decisions were consistent with the respective
career expectations of the pilot groups, and that
ALPA's duty to the Jet America Pilots was no
broader than its general duty to the pilot group as a
whole. Jd. ALPA had disregarded its neutral
merger policy to discriminate against the previ-
ously non-unionized pilots. Jd. at 217. Indeed, at
the time of the seniority negotiation, ALPA's presi-
-59a-
dent had disclaimed any duty to the Jet America
pilots. Jd. Under Bernard, a union may not diverge
from its merger policy solely to advance the senior-
ity rights of union members at the expense of non-
union members. /d.
A similar rule finds expression in Jruck Drivers,
Local Union 568 v. NLRB, 379 F.2d 137
(D.C.Cir.1967).°85 Truck Drivers holds that a un-
ion's fulfillment of its promise to “renounce| | any
good faith effort to reconcile” the seniority interests
of two employee groups would lead to a violation of
its duty of fair representation. Jd. at 142-43. Of
particular relevance was the union's sole motiva-
tion to “win[ }] an election by a promise of preferen-
tial representation to the numerically larger num-
ber of voters.” Jd. at 143; see also Hardcastle v. W.
Greyhound Lines, 303 F.2d 182, 186-87 & n. 10 (9th
Cir.1962) (affirming grant of summary judgment
for defendants in fair representation claim because
plaintiffs failed to show a lack of “discriminatory
action in favor of one politically stronger local or
faction of the union against a politically weaker lo-
cal or faction”); Associated Transport, 185 NLRB at
635 (union may not revisit seniority for improper
purpose).
FN5. Truck Drivers concerned allegations of
unfair labor practices, but the Board's impo-
sition of liability was affirmed with reference
to standards of fair representation.
The Seventh Circuit has embraced the same prin-
ciple. In Barton Brands, two seniority hsts were
dovetailed, that is, combined on a date-of-hire ba-
sis, upon the merger of two companies. 529 F.2d at
-60a-
795-96. Layoffs began, and the larger of the two
merged workforces decided that the existing senior-
ity integration was unfair. Jd. at 796. The union
formulated a new proposal that dovetailed the two
lists for most purposes, but placed the smaller
workforce at the bottom of the list for layoff pur-
poses. /d. A majority of the union membership rati-
fied the new arrangement. Jd. The union met judi-
cial rebuke. Abridging “the established seniority
rights of a minority of the Barton employees ... for
no apparent reason other than political expediency’
constituted an unfair labor practice reflective of fair
representation doctrine. See id. (citing Hargrove v.
Bhd. of Locomotive Engineers, 116 F.Supp. 3
(D.D.C.1953) (fair representation case)), On re-
mand, the Board was instructed “that in order to be
absolved of liability the Union must show some ob-
jective justification for its conduct beyond that of
placating the desires of the majority of the unit
employees at the expense of the minority.” /d.
The Seventh Circuit has reaffirmed this theory of
liability, addressing USAPA's very posture in dic-
tum. In Air Wisconsin Pilots Protection Committee
v. Sanderson, 909 F.2d 213 (7th Cir.1990) (Posner,
J.), two airlines merged, and both p‘lot groups were
represented by ALPA. ALPA foliowed its merger
policy and the seniority integration issue went to
arbitration. Id. at 215. “The arbitrators split the
difference,” giving each group of pilots Jess than it
had asked for. Jd. Some pilots from one of the merg-
ing airlines “tried to replace ALPA as a collective
bargaining representative ... with a newly created
union” but they were outvoted. Jd. When the MEC
for the disgruntled pilot group proposed replacing
the arbitrated list with a list based on length of
-6la-
service-a proposal corresponding to their position
before the arbitration panel-ALPA placed the MIC
in trusteeship. Jd. at 216. Then, as now, ALPA
MECs may be placed in trusteeship if they fail to
comply with ALPA's Constitution, By-Laws, or rep-
resentational obligations. /d. at 215.
The disgruntled pilots brought a fair representation
suit, and its dismissal was affirmed, The court rea-
soned that the arbitration process was fair and the
arbitrators' award definitive under ALPA policy.
Id. at 216. “If ALPA were free to ignore the merged
seniority list, the employees of the post-merger air-
line would have very little job security” and “dis-
putes over seniority would fester-as they have done
in this case.” Jd. In a concluding dictum, the court
noted that “an attempt by a majority of the employ
ees in a collective bargaining unit to gang up
against a minority of employees in the fashion ap-
parently envisaged by plaintiffs,” that is, by “oust-
ing ALPA in favor of a union not pledged to defend
the arbitrators' award |,] ... could itself be thought a
violation of the duty of fair representation by the
union that the majority used as its tool.” /d. at 217,
In Rakestraw v. United Airlines, Inc., 981 F.2d
1524 (7th Cir.1992), ALPA was allowed to depart
from its Merger Policy and to change its negotiat-
ing position midstream by promoting a semority
list that favored the preference of a majority of the
employees in the bargaining unit. Rakestraw did
not abandon or undercut the rule that a union may
not reshuffle a seniority list for improper reasons.
To the contrary, it reaffirmed Barton Brands, hold-
ing that “a union may not juggle the seniority ros-
ter for no reason other than to advance one group of
2a
employees over another.” and it cited Aur Wisconsin
without criticism. Rakestraw, 981 F.2d at 1530
533, 1535. There was no breach of duty where no
ll motive existed or where ALPA acted, at least in
part, to “rationally promote the ayvpreyate welfare
of employees in the bargaining unit” by pursuimp
“two rational and appropriate objectives” without
discrimination between different groups of employ
ees. Id. at 1535
The mfluence of Barton Brands extend well be
yond the Seventh Circuit. The Second Cireuit fol
lows its holding. See Ramey vu. Dist. 141, Int'l Ass'n
of Machinists, 378 I'.3d 269, 247 (Yd Cir.2Z0O04). So
too does the First Circuit. See Teamsters Local U/n
ion No. 42 v. NLRB, 825 F.2d 608, 611° (Ist
(jr. 1987). *N6 “Union members are to be accorded
equal rights, not subjugated arbitrarily to the de
jres of a ‘stronger, more politically favored group
Id. (quoting Barton Brands, 529 b Yd at 799)
(alterations original)
MN6. Like Truck Drivers, this untair labor
practices case relies upon fair representation
principles
3. Legitimate Union Objectives
The question then arises, what kind of pustihlicatior
can the union rely upon to avoid lability? USAPA
has udvanced a broad reading of Rakestraw unde
which any rational relation to a legitimate umion
objective will suffice, regardless of the umon's a
tual motives. Plaintiffs, on the other hand, pro
posed an alternate view where the court would
evaluate a union's primary motive for the actions 1t
Goa-
takes. Neither approach is reflected im the case law.
Liability attached because USAPA's only actual
motivation in adopting and presenting: its senrority
proposal was to benefit Mast Pilots at the expense
of West Pilots.
Union lability for discrimination or bad faith re
quires a subjective examination of the union's ae
tual motives and purposes. Simo vo. Union Nee
dletrades, Indus. & Textile Mmployees, Sw. Mist.
Council, 822 F.3d GO2, GIS (9th Cir 2003). Rak
estraw consones to this rule, resting: not on hypo
thetical connections to legitimate union objectives,
but rather on the actual reasons the union had for
choosing: its course of action. OST Po2d at 153%. ‘That
“ase took up two fact situations addressingg the
same legal issue. In the first, a larger airhine ae
quired a simaltler airline. /d. at 1526. ALPA disre
garded its Merger Pohey in the process of mibeprat
ing the semority lists, and the smaller pilot yroup
acquiesced in the result-a date-of- hire list favoring
the majority. /d. at 1527. Later, the minority
brought suit against the union. Jd. The union was
held to be in pursuit of a legatimate objective be
cause the larger, acquiring airline did not need the
smaller group of pilots and was unlikely to agree to
any arrangement disfavoriny its own pilots, Jd. at
1533. Moreover, “there [was] no evidence that
ALPA's leaders had it in for the [smaller pilot
group].” Id. at 1527.
In the second Fakestraw situation, ALVA was in
the process of negotiating a post-meryer CIA, in-
cluding a date-of-hire seniority list Jd at 1527
Negotiations broke down and the pilots went on
strike. Id. at 1528. In response, the airline em
-64a-
ployer hired 219 replacement pilots. It also hired
320 student pilots who did not begin work during
the strike. Jd. At the same time, almost all 570
striking pilots honored the picket line. /d. After the
strike, no CBA was in place, and ALPA had no al-
ternative but to accept the airline's proposed sen-
iority list with strike-breakers and student trainees
at the top of the lst. /d. at 1528-29. The striking
pilots, constituting a majority in the union, made
aggressive protest. /d. at 1529. Ultimately, man-
agement and the union agreed to put the 570 strik-
ing pilots at the top of the lst according to date of
hire, above the 219 strikebreakers and the 320 stu-
dent pilots. Jd. The strike-breakers brought a fair
representation claim. Jd.
The union “detested” the strike-breakers and “[t]his
loathing played a role in the union's efforts to in-
crease the seniority of the Group of 570.” Id. None-
theless, ill wili or a desire for retribution does not
“spoil an agreement that rationally serves the in-
terests of labor as a whole, and that treats employ-
ees who are pariahs in the union's eyes no worse
than it treats similarly situated supporters of the
union.” FN7 981 F.2d at 1532, 1535. Critical to the
court's reasoning was that “ALPA had at least two
rational and appropriate objectives” satisfying the
rule of Barton Brands. Id. at 1535. It wanted to
harm the strike-breakers, and it also sought to re-
store the seniority of the 570 pilots that it had de-
fended before the strike. By punishing employees
who crossed the picket line, the umion could
“strengthen the hand of organized labor in future
conflicts with management,” in effect “shor|ing] up
the monopolistic quality of organized labor.” Id. By
acting to restore a seniority system vis-a-vis newly
-65a-
hired pilots, the union served the legitimate objec-
tive of “stability” by protecting long-term employee
expectations against outright erasure. 7d. (citing
McCann v. City of Chicago, 968 F.2d 635 (7th
Cir.1992) (equal protection case) and Nordlinger v.
Hahn, 505 U.S. 1, 112 S.Ct. 2326, 120 L.Ed.2d 1
(1992) (same)). No holding of Rakestraw precludes
hability for discriminatory or bad faith action when
a union's sole motivation is improper.
FN7. Analogizing to the legislative sphere,
the court stated, “A discriminatory motive
without a discriminatory rule does not. con-
demn a statute.” Rakestraw, 981 F.2d at
1532.
In Ramey v. District 141, International Association
of Machinists, the Second Circuit considered Rak-
estraw's statement that “[a] rational person could
conclude that dovetailing seniority lists in a merger
... serves the interests of [the union membership] as
a whole.” 378 F.3d 269, 277 (2d Cir.2004) (altera-
tions original). The Ramey court distinguished be-
tween a bare challenge to union action and a chal-
lenge to union action with evidence of an improper
purpose. “Unlike in Rakestraw,” where the first
fact pattern presented no evidence of hostility in
merging seniority lists on a date-of-hire basis,
“plaintiffs here do not suggest that [the union]
acted improperly merely by dovetailing the senior-
ity lists.” Id. “Rather, they argue that [the union]
was motivated by retaliatory animus in choosing
which seniority dates to apply.” Jd. Liability at-
tached because the alteration of seniority based
solely on retaliatory animus was not objectively
reasonable. Jd. Once the jury rejected the union's
-66a-
purported neutral motivation as pretext, it could
conclude that hostile metives alone motivated the
union action. Jd. at 284. A rational relation to pur-
portedly neutral purposes could not defeat hability
where the only actual motive was improper. [d.*N8
IFN8. Ramey imposed hability because the
union was motivated to punish employees
who had been affihated with another union.
These employees had also refused to partici-
pate in a strike. Ramey does not address
Rakestraw' s holding that punishing stnke-
breakers is a legitimate union objective, and
that issue 1s not before the Court.
For these reasons, the jury in this case was in-
structed as follows: “Even if the union's conduct
could be rationally related to a legitimate union ob-
jective, the union can be hable for violating its duty
of fair representation if its actions are shown to be
solely motivated by objectives that are not legiti-
mate union objectives.” ‘To the extent USAPA reads
a stronger rule into Rakestraw, a rule that would
validate all union conduct that could be rationally
related to legitimate union objectives irrespective of
actual motive, USAPA's reading is rejected and
would not be persuasive if accepted because it runs
against the scheme of fair representation doctrine
already discussed, including Ninth Circu:t prece-
dent. See Rakestraw, 989 F.2d 944, 945-48 (7th
Cir.1993) (Ripple, J., dissenting from denial of re-
hearing en banc ) (interpreting the panel decision
in this strong manner and arguing that it violates
Supreme Court and Seventh Circuit precedent);
Bernard, 873 F.2d at 216-17 (looking beyond plau-
sibly rational basis to actual union motive); Simo,
-67a-
322 F.3d at 618 (requiring this inquiry in the Ninth
Circuit); Associated Transport, 185 NLRB at 635
(examining actual union motive). USAPA's pro-
posed rule would collapse “bad faith” and “dis-
crimination” into an arbitrariness inquiry that does
not apply. See Beck v. United Kood & Comm. Work-
ers Unton, Local 99, 506 F.3d 874, 879 (9th
Cir.2007).
Conversely, this Court rejected the Plaintiffs' sug-
gestion that a bad motive combined with a good
motive could still produce hability where the bad
motive predominates. See Rakestraw 981 F.2d at
1534 (rejecting mixed-motive habilty); Ramey 378
i 3d at 284 (relying upon a showing of pretext);
Barton Brands, 873 F.2d at 217 (noting that ALPA
acted solely on the basis of union membership). It
may be possible and desirable to fashion a frame-
work for adjudicating mixed-motive fair represen-
tation cases, but Plaintiffs cite nothing allowing
this Court to thus better the precedents. Regard-
less, the jury found that only an improper motive,
and no proper motive animated USAPA's seniority
agenda.
4. USAPA's Seniority Objective
There is no merit to USAPA's argument that the
pursuit of date-of-hire seniority principles auto
matically Jegitimates USAPA's actions because
date-of-hire seniority is “the gold standard” of inte-
gration methods. [Doc. # 482, at 1902.) The jury
was instructed that “[iJn this case, a general pref-
erence for any particular seniority system other
than the Nicolau Award, standing alone, is not a
legitimate union objective.” USAPA's argument is
-68a-
little more than a circular rationalization for its
departure from the Nicolau Award to favor the ma-
jority. ‘The Nicolau Arbitration occurred on the
premise that insisting in advance on one semority
system or another could not reconcile the interests
of the two pilot groups. The decision to follow a
given seniority philosophy in this case could always
be viewed as politically motivated by the interests
of one pilot group or the other. Fairness could be
found only in an agreed procedure, not in an agreed
outcome. The Transition Agreement and the Nico-
lau Arbitration provided USAPA with a “final and
binding” internal compromise. The union no longer
lacked an appropriate resolution of these irrecon-
cilable interests.
There is no authority for a magic rule that date-of-
hire stops al! inquiry on the duty of fair representa-
tion, in disregard of circumstances. The significance
of date-of-hire seniority varies from one labor nego-
tiation to the next. The bankrupt position of U.S.
Airways at the time of the merger, with almost as
many furloughed pilots as America West had work-
ing, and with a significant furlough history, lent
date-of-hire integration some hues of inequity it
might not have had in another merger. The ques-
tion before the arbitrator was not whether date-of-
hire seniority, in the abstract, was a desirable
thing, but whether it would provide a fair and equ)-
table answer to the career expectations of the un-
merged pilot groups.
USAPA has maintained from the beginning that no
union has ever faced hability based on the pursuit
of date-of-hire principles."N9 Ramey refutes this m
its holding. 378 F.3d at 274-75."N10 ‘The union in
-69a-
Ramey was hable, notwithstanding its date-of-hire
list, because it drew up that lst so as to punish in-
imical employees. /d. A date-of-hire proposal does
not immunize or condemn union action; the policy
preference is generally permissible. It 1s the ma-
nipulation of the seniority proposal in context that
gives rise to the claim. USAPA's date-of-hire
agenda is just a means of changing the arbitrated
outcome for no purpose other than to favor the ma
jority.
KN9. The record contains at least twelve rep-
resentations to this effect. |See, e.g., doc.80 at
61, 149, 162; 215 at 5 & n. 5; 348 at 96; 351
at 3, 8; 359 at 2; 389 at 55; 444 at 6-7; 482 at
1757; 495 at 4-5.] USAPA quite recently
stated, “The mere fact that-the mere evi-
dence that Wate-of-Hire was preferred by
USAPA, that's not itself evidence of anything
other than that they preferred an entirely le-
gitimate end. Your Honor, there has never
been a case finding Date-of-Hire in a merger
context of [sic] violation of the duty.” [Doc. #
482 at 1757.]
FN10. Atr Wisconsin also notes in dictum
that liability could attend a length-of-service
seniority list, that is, a list based upon date-
of-hire that accounts for time spent on fur-
lough. 909 F.2d at 215, 217.
USAPA concedes the broad sweep of its argument,
which implies that the Railway Labor Act does not
permit “hopelessly irreconcilable labor groups to
enter into a binding neutral process to resolve their
mutual disagreement so they can go forward on
-70a-
their areas of mutual interest.” [Doc. # 574, at 1071
(question from the Court).] To agree with this con-
clusion would dismantle the framework of honest
intentions and fair dealing, of stability and consis-
tency, that is the premise of all bargaining, not less
labor negotiations. ‘lo this extent-an extent as lim-
ited and minimal as it is important-the Nicolau
Award constrains USAPA as a preexisting dis-
charge of its duty, not to be abandoned without jus-
tification.
Practical problems also dog USAPA's argument.
Even if date-of-hire seniority were a per se legiti-
mate union objective, what about qualified date-of-
hire seniority? USAPA's own proposal includes
conditions and restrictions professed to mitigate its
date-of-hire aspect. At what point would such con-
ditions and restrictions forfeit the dateof-hire im-
munity? The fact is, USAPA's very decision to in-
clude conditions and restrictions is an acknowl-
edgment that the date-of-hire method is sometimes
a Procrustean fit.
5. USAPA's Impasse-Related Objective
USAPA asserts that its seniority proposal was jus-
tified by its necessity to get any new single CBA. In
USAPA's view, ALPA's system of requiring both pi-
lot groups to ratify any new CBA doomed all pro-
gress. First, the East MEC had withdrawn its rep-
resentatives from the Joint Negotiating Committee,
halting CBA negotiations indefinitely. Second,
USAPA asserts that the East Pilots would never
ratify the arbitrated seniority proposal as part of
any new CBA. The evidence of a supposed impasse
requiring sacrifice of the West Pilots to angry East
-71a-
Pilots was pretextual; in any event, it did not per-
suade the jury or the Court that an actual impasse
existed; and the so-called impasse could not, as a
matter of law, justify USAPA's actions toward the
West Pilots and the Nicolau Award.
i. Pretext
The evidence well supports the conclusion, implicit
in the verdict and persuasive to the Court, that any
asserted impasse was a pretext for bare favoritism
of the East Pilots. As soon as the Nicolau Award
was announced, USAPA's founder and future
president Mr. Bradford wrote that it was necessary
to leave ALPA “if this award stands” and “just to
protect what httle we have left.” [Ex. 107 at 1-2.]
Later, an attorney advised Mr. Bradford to conceal
this objective. [Ex. 14.| A USAPA memo dated Feb-
ruary 10, 2008, stated that an attorney had advised
USAPA that “if we could replace ALPA as the bar-
gaining agent we could prevail in achieving a Date
of Hire seniority integration.” [Ex. 315 at 4.] The
same memo states, “If ALPA is not there, the
award is not there.” It shows a deleted sentence
stating that “USAPA would not exist” if any lawyer
had advised that the renegotiation of seniority was
“not possible or very dangerous and likely to fail.”
Editorial annotations explain that the deletion was
necessary to avoid the appearance that “Nif[cJolau is
the only reason for USAPA's existence.” [IEx. 315 at
5.] USAPA publicly expressed the sentiment that
“ALPA = Nicolau.” [Ex. 39.] Some pre-election
USAPA correspondence refers to an impasse, but
USAPA's “Frequently Asked Questions” pages from
the campaign invoke date-of-hire seniority without
any discussion of impasse. [Ex. 37, 39, 96, 100-105.]
-12a-
When USAPA does talk about the impasse, it prom-
ises to “overturn” the Nicolau Award without any
explanation of why this step is needed to get
around ALPA's dual-ratification structure. [Ex. 39.]
Mr. Bradford, who is beyond the subpoena power of
this Court, missed an opportunity for persuasion
when he declined to testify and be cross-examined
at trial concerning motives and pretext in defense
of the union he founded and governed.
ii. Non-persuasion
The East MEC's walkout from the negotiations did
not create an impasse. ALPA possessed the consti-
tutional power to place the recalcitrant East MEC
into trusteeship to continue negotiations toward a
single new CBA. [Ex. 509/2189 at 89-90.]; see also
Air Wisconsin, 909 F.2d at 215 (describing use of
trusteeship powers to resolve seniority dispute).
The former chairman of the West MEC Negotiating
Committee testified that ALPA officials were dis-
cussing that possibility after negotiations broke
down. [Doc. # 475, at 372.] Before certification,
USAPA repeatedly asserted that a contract was
likely to be presented for ratification soon. [/.g., ex.
100 at 3, 7.) And Doug Mowery, an East Pilot for-
merly on ALPA's Joint Negotiating Committee, la-
mented in a March 2008 letter that the East MEC
was likely to be placed in trusteeship. [Ex. 20, at 2.]
FN1I1
FN11 USAPA had every opportunity to pre-
sent evidence that ALPA had abandoned use
of its trustee powers, but USAPA did not
present any, relying instead upon misrepre-
sentations of the record. [E.g., Doc.451 at 10-
-V3a-
11; 482 at 1774-81, 1789-94, 1798-1802}.
ALPA pledged not to deprive the two pilot
groups of their separate ratification rights,
but that pledge would not be inconsistent
with imposing a trusteeship on the East
MEC in order to cenclude, short of ratifica-
tion, a single CBA incorporating the Nicolau
Award.
Nor did the evidence show that the two pilot groups
would never ratify a single CBA under ALPA. It is
wholly speculative to say the Kast Pilots would vote
against any single CBA incorporating the Nicolau
Award no matter how long separate operations con-
tinued and no matter the cost to them. The East
MEC passed a resolution stating that the East Pi-
lots would never ratify a CBA containing the Nico-
lau Award, but this self-serving statement about an
unknown future is not binding or even persuasive.
Moreover, speculation about what could have been
ratified under the ALPA voting system became ir-
relevant when USAPA was certified as bargaining
representative on April 18, 2008. USAPA's struc-
ture allows a simple majority of the membership to
ratify a new CBA. The lack of an actual and legiti-
mate union purpose for jettisoning the Nicolau
Award and the promised improvements in wages
and working conditions from a new CBA may yield
a rmajority coalition of Kast and West Pilots, if not
at first, at least eventually.
iii. Legal insufficiency
Even if an impasse did exist, it would not justify
USAPA's actions as a matter of law. Majority oppo-
-74a-
sition does not defeat the duty of fair representa-
tion; the duty exists to restrain the majority. Air
Wisconsin, 909 F.2d at 216. USAPA's argument
would allow a union to punish any disfavored mi-
nority by pointing to the majority preference in the
union as long as that majority threatens to obstruct
the collective bargaining process, in this case by hi-
jacking contract ratification. Discrimination and
bad faith would be permitted as long as a zealous
majority of union members insisted. Majority will
alone does not corrupt union action. See Rakestraw,
981 F.2d at 1533 (“If the union's leaders took ac-
count of the fact that the workers at the larger firm
preferred this outcome, so what? Majority rule is
the norm.”). It does not exculpate all union action,
either. The union's obligation to federal labor law
includes an obligation to stand up to its member:
ship. USAPA argues that ALPA's merger policy
only requires the union to use “all reasonable
means” to implement the Nicolau Award, but this
phrase is quoted out of context. The policy requires
the union to use “all reasonable means ... to compel
the company to accept and implement the merged
seniority list.” [MP Pt. 1.1.1.] It does not allow the
union to capitulate to an abusive majority."N!2
I'N12. As a historical matter, the duty of fair
representation could not have developed if
this impasse theory were valid. Surely, in
those early cases, unions that discriminated
against black workers were catering to a
stubborn racism of the majority. The duty
would mean nothing if a majority could undo
it by force of stubbornness.
-Tpa-
This principle goes to the core of union politics and
bargaining assumption... A union is required to ex-
plain agreements to union members prior to a
mandatory ratification vote. White v. White Lose
Food, a Div. of DiGiorgio Corp., 237 F.3d 174, 1838
(2d Cir.2001). Before and after its election, USAPA
has misled the majority about its power to improve
their seniority prospects at the expense of the West
Pilots. The will of the East Pilots springs from a
mistaken understanding of the law and misman
aged expectations. If this is an impasse, it is one
USAPA goaded on.
If the membership were correctly advised on the
limits of fair representation that constrain the
agreement-and all the collective bargaining of
every union-then they would perceive no incentive
to hold out for an improper bargaining objective.
Those employees would be left with a choice: To
vote in favor of ratifying a single CBA that incorpo-
rated the Nicolau Award, or to vote against it.
What they could not do is vote against it and expect
the next CBA or the next union to violate the duty
of fair representation in the very same way as the
first one could not. In effect, USAPA claims that
the East Pilots hold such strong objections to the
Nicolau Award that they always will vote as a bloc
against any new CBA with it, enjoying the self.
denial of a single CBA with improved wages and
working conditions into perpetuity. Even if this un
believable story is believed, it only means that the
Kast Pilots have the power of self-inflicted harm. It
does not mean that the union's duty of fair repre
sentation falls victim to self-hostagetaking.
-76a-
Whether considered as a matter of fact or law, the
asserted impasse does not absolve USAPA from h.-
ability.
6. USAPA's Other Objectives
USAPA asserted a range of other union objectives.
These included compliance with its union constitu-
tion, comphance with majority will, dissatisfaction
with ALPA policies and procedures, and dissatis-
faction with the procedures of the Nicolau Arbitra-
tion. All of these objectives were rejected as a mat-
ter of law.
(1) USAPA's constitutional commitment to date-of-
hire seniority docs not excuse its acts. “lhe inter
pretation or construction of the constitution and
laws of a union is for the union.” Laturner v. Bur-
lington N., Inc., 501 F.2d 593 (9th Cir.1974) (quot-
ing Wirtz v. Local Union No. 125, Int'l Hod Carriers
B. & C.L. U., 270 F.Supp. 12, 16 (N.D.Ohio 1966)).
However, that interpretation does not govern if it
would cause the union to “transgress the bounds of
reason, common sense, or fairness, or act arbitrar-
ily, or contravene public policy or the law of the
land.” Local Union No. 125, 270 F.Supp. at 16
(quoting 87 C.J.S. Trade Unions § 13, at 766 (late
ed.)); tetana v. Apartment, Motel, Hotel & Klevator
Operators Union, Local No. 14, 453 F.2d 1018,
1024-25 (9th Cir.1972) (union's internal policies
and practices are subject to the duty of fair repre.
sentation).
(2) Political expediency standing alone-whatever it
takes to win an election-does not provide a legiti-
mate union objective. Jruck Drivers, Teamsters Lo
Tila
cal Union No. 42, Barton Brands, and the Ninth
Circuit's Hardcastle case say with one voice that a
union cannot act solely to benefit a majority of em
ployees in the bargaining unit at the expense of the
minority
(3) Dissatisfaction with ALPA policies and proce
dures, unrelated to the Nicolau Award, could not
provide a leyitimate objective. The evidence sup
gested that some Ikast Pilots had yveneral com
plaints about ALPA and that the seniority issue
was just the last straw. The testimony centered on
a lack of direct representation, extravayant life
styles of umion officials, loss of pension rights, in
adequate contract terms, and inferior safety poh
es. They also complained that more than a decade
ago ALPA, instigated by other pilot groups, sub
verted a merger that would have benefitted U.S
Airways pilots. The pilots may have had many rea
sons for abandoning ALVA and they were entitled
to do so. But this case does not turn on the rejection
of ALPA. It turns on USAPA's consequent motiva
lion to present a new semiorily proposal to the au
line. lor these reasons, the instructions prevented
the jury from finding that “dissatisfaction with the
practices or policies of the previous umion, ALPA,
unrelated to the merged pilot seniority list” was a
leyitimate union objective in this case
(4) Dissatisfaction with the previously agreed-upon
ALPA merger procedures was not a legitimate un
ion objective. Honest disagreement required hon
esty up front. It was only after the Nicolau Award
was issued, and the pilots lost their veil of igno
rance, that so many East Pilots decided that the
procedures were inherently unjust. ‘The umion can
-78a-
not satisfy its duty by catering to this self-
interested hindsight.FN!8
FN13. The evidentiary and legal failure of all
of USAPA's alleged objectives might have
supported summary judgment or judgment
as a matter of law. However, the urgency of
the case did not leave time to brief and de-
cide summary judgment motions before trial,
and Plaintiffs' motion for Judgment as a
Matter of Law did not address the issues
necessary for such a ruling. [Doc. # 446.]
7. Taxonomy of Liability
It is clear that USAPA's conduct violates its duty as
set forth in a special genre of fair representation
cases. It is less clear what subheading of lability
applies: The duty of fair representation prohibits
conduct that is arbitrary, discriminatory, or in bad
faith. This metaphysical question has no impact on
the outcome under existing law, but it has en-
thralled both parties.
At the outset, USAPA's failure to adopt the Nicolau
Award is not “arbitrary” in the technical sense. The
exercise, even the wrongful exercise, of a union's
policy judgment-including CBA interpretation-is
virtually immune to charges of arbitrariness; liabil-
ity under this heading has been limited to proce-
dural or ministerial acts. See Beck v. United Food &
Commercial Workers Union, Local 99, 506 F.3d
874, 879 (9th Cir.2007); Peters v. Burlington N.
R.R., 931 F.2d 534, 540 (9th Cir.1990). The ques-
tion then remains whether such union actions may
be considered “discriminatory” or “in bad faith.”
-79a-
In truth, both headings support liability, separately
and together. ‘The original fair representation cases
concerned racial discrimination, see Vaca v. Stpes,
386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842
(1967), and clearly the duty excludes all forms of
invidious discrimination based upon _ protected
classes. Stmo v. Union of Needletrades, Indus. &
Textile Emplovees, Sw. Dist. Council, 322 F.3d 602,
618 (9th Cir.2003). However, the Ninth Circuit has
expressly held that it is “too restrictive” to limit l-
ability to cases of invidious discrimination, and
that impermissible discrimination may take other
forms. /d. at 618-19. For this reason, the jury was
instructed that “discriminatory” action could be a
basis for hability. The instructions articulated the
difference between lawful and unlawful treatment
of different employee groups, granting the union
wide latitude to resolve conflicting interests even if
the resolution adversely affects one group, as long
as the union took action to further a legitimate un-
ion objective. Contrary to the objections of USAPA,
these instructions articulated the contours of un-
lawful “discrimination” as expressed in tiie applica-
ble cases. See Bernard, 873 F.2d at 216 (prohibiting
discrimination “on the basis of union membership’);
Barton Brands, 529 F.2d at 799 (prohibiting dis-
crimination against the smaller of two merging
workforces); Air Wisconsin, 909 F.2d at 217 (union's
duty prohibits discrimination against “a group of
dissidents on the outs with union's leadership”);
Truck Drivers, 379 F.2d at 144 (“campaign promise
to discriminate” against politically weaker em-
ployee group is a promise to breach duty of fair rep-
resentation); Ramey, 378 I°.3d at 277 (holding that
“a union violates [its duty] when it causes an em-
ployer to discriminate against employees on arbi-
-80a-
trary, hostile, or bad faith grounds”) (quoting
Barton Brands, 529 F.2d at. 799); Teamsters Local
Union No. 42, 825 F.2d at 611-12 (holding, without
limitation, that “discrimination” on the basis of un-
ion membership is an unfair labor practice) (citing
fair representation cases). USAPA “discriminated”
when it adopted a seniority proposal for no reason
other than to advantage the majority East Pilots at
the minority West Pilots' expense.
USAPA also complained at the instructio
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