# Petition for Writ of Certiorari — Addington v. US Airline Pilots Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2574%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1136 ## Text 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 Tanie of Contents ......6..0.s.009: pee hate i ket Th ET Oe PRU oi occ tive ceed cxisccsacccntevesvny SALA. Petition for a Writ of Certiorart...... ae as eaten eae CPTINIOTG FGI occ ccccccicscescsccsssescs: PO RE ae are em ie eet Bn. aS AED SOE AE ee aa aR TP Serotec 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2574%3A1. Public record. Not legal advice.