Addington v. US Airline Pilots Ass'n

• Decision Date: 26 June 2015
• Docket Number: 14–15892.,Nos. 14–15757,14–15874,s. 14–15757
• Citation: 791 F.3d 967
• Parties: Don ADDINGTON; John Bostic; Mark Burman; Afshin Iranpour; Roger Velez; Steve Wargocki; Michael J. Soha; Rodney Albert Brackin; George Maliga, on behalf of themselves and all similarly situated former American West pilots, Plaintiffs–Appellants, v. US AIRLINE PILOTS ASSOCIATION ; US Airways, Inc., Defendants–Appellees. Don Addington; John Bostic; Mark Burman; Afshin Iranpour; Roger Velez; Steve Wargocki; Michael J. Soha; Rodney Albert Brackin; George Maliga, on behalf of themselves and all similarly situated former American West pilots, Plaintiffs–Appellees, v. US Airline Pilots Association, Defendant–Appellant, and US Airways, Inc., Defendant. Don Addington; John Bostic; Mark Burman; Afshin Iranpour; Roger Velez; Steve Wargocki; Michael J. Soha; Rodney Albert Brackin; George Maliga, on behalf of themselves and all similarly situated former American West pilots, Plaintiffs–Appellees, v. US Airline Pilots Association, Defendant, and US Airways, Inc., Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

791 F.3d 967

Don ADDINGTON;

John Bostic;

Mark Burman;

Afshin Iranpour;

Roger Velez;

Steve Wargocki;

Michael J. Soha;

Rodney Albert Brackin;

George Maliga, on behalf of themselves and all similarly situated former American West pilots, Plaintiffs–Appellantsv.US AIRLINE PILOTS ASSOCIATION ;

US Airways, Inc., Defendants–Appellees.

Don Addington;

John Bostic;

Mark Burman;

Afshin Iranpour;

Roger Velez;

Steve Wargocki;

Michael J. Soha;

Rodney Albert Brackin;

George Maliga, on behalf of themselves and all similarly situated former American West pilots, Plaintiffs–Appellees

v.US Airline Pilots Association, Defendant–AppellantandUS Airways, Inc., Defendant.

Don Addington;

John Bostic;

Mark Burman;

Afshin Iranpour;

Roger Velez;

Steve Wargocki;

Michael J. Soha;

Rodney Albert Brackin;

George Maliga, on behalf of themselves and all similarly situated former American West pilots, Plaintiffs–Appellees

v.US Airline Pilots Association, DefendantandUS Airways, Inc., Defendant–Appellant.

Nos. 14–15757

14–15874

14–15892.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2015.

Filed June 26, 2015.

Marty Harper (argued), Marty Harper, P.L.L.C., Andrew S. Jacob and Jennifer Axel, Polsinelli P.C., Phoenix, AZ, for Plaintiffs–Appellants.

Patrick Szymanski (argued), Washington, D.C.; Brian J. O'Dwyer and Joy K. Mele, O'Dwyer & Bernstien, L.L.P., New York, N.Y.; Susan Martin and Jennifer Kroll, Martin & Bonnett, P.L.L.C., Phoenix, AZ, for Defendant–Appellee–Cross–Appellant.

Robert A. Siegel (argued) and Chris A. Hollinger, O'Melveny & Myers LLP, Los Angeles, CA; Karen Gillen, US Airways, Inc., Tempe, AZ, for Intervenor–Cross–Appellant.

Appeals from the United States District Court for the District of Arizona, Roslyn O. Silver, Senior District Judge, Presiding. D.C. No. 2:13–cv–00471–ROS.

Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.

Opinion

BYBEE, Circuit Judge:

In 2005, US Airways merged with America West Airlines, setting their respective pilots on a collision course over a single, integrated seniority list. At the time of the merger, the US Airways pilots (“East Pilots”) and the America West pilots (“West Pilots”) were both represented by the Air Line Pilots Association (“ALPA”) as they attempted to negotiate a seniority list. The East Pilots advocated a list based on “date of hire,” while the West Pilots advocated a list based on the strength of their pre-merger airline. When these negotiations failed, the dispute went to binding arbitration. The arbitration panel ordered a single list that did not fully accede to the wishes of either group. Unhappy with the result, the more numerous East Pilots forced the decertification of ALPA and the creation of a new union, the US Airline Pilots Association (“USAPA”), that was expressly opposed to the enforcement of the arbitrator's award and openly committed to a seniority list based on date of hire, which favored the East Pilots.

This is the second time a dispute over the seniority list has come before us. In the prior case, the West Pilots sued USAPA for a breach of the duty of fair representation. Following both a jury and a bench trial, the district court found a breach and ordered USAPA to negotiate a collective bargaining agreement with US Airways based on the arbitrator's award. In Addington v. U.S. Airline Pilots Ass'n (Addington I), 606 F.3d 1174, 1184 (9th Cir.2010), we dismissed the West Pilots' duty of fair representation claim as unripe. Five years later, as US Airways completes its merger with American Airlines and their respective pilots—including US Airways' feuding East and West groups—attempt to negotiate a single integrated seniority list, the West Pilots' claim is now ripe for decision. The district court, in a decision it found “hard” and “a very close call,” concluded that USAPA did not violate its duty of fair representation to the West Pilots. We reverse.

I. BACKGROUND

The history of what we have called “a bitter seniority dispute,” Addington I, 606 F.3d at 1176, is a detailed one, and one that we will set forth with some care.

A. 2005 US Airways–America West Merger

1. The Merger and the Negotiations

The dispute between USAPA and the West Pilots arose when America West Airlines and US Airways merged to form a single airline carrier called US Airways. After the formal merger was completed in May 2005, the difficult process of combining day-to-day operations began. At that time, a single collective bargaining representative, ALPA, represented both the East and West Pilots. In September 2005, ALPA and the merging airlines entered into a Transition Agreement that set forth the process for achieving operational integration of the two airlines, including issues of pilot seniority relevant here.

Prior to the merger, the East and West Pilots each had their own separate seniority list and collective bargaining agreement. The Transition Agreement provided for the integration of the seniority lists in accordance with ALPA's Merger Policy, which required the two pilot groups to negotiate an integrated list and, if negotiation failed, to submit to binding arbitration. The Merger Policy stated that any award issued by an arbitration board “shall be final and binding on all parties to the arbitration and shall be defended by ALPA.” In either event, the Policy bound the parties to reach a “fair and equitable agreement,” keeping in mind five goals: (1) preserving jobs; (2) avoiding windfalls to either group of pilots at the expense of the other; (3) maintaining or improving pilots' pre-merger pay and standard of living; (4) maintaining or improving pilots' pre-merger status; and (5) minimizing detrimental changes to pilots' career expectations. Once the two sides arrived at an integrated list, the Transition Agreement provided that the list would be submitted to the airline for acceptance, at which point ALPA agreed to “use all reasonable means at its disposal to compel the company to accept and implement the merged seniority list.”

The Transition Agreement also provided a timeline for implementing the single seniority list. Specifically, the Agreement stated that the seniority list would be implemented when three things occurred: (1) US Airways obtained a single operating certificate (this occurred in 2007); (2) the two pilot groups created a single seniority list in accordance with the process set forth above; and (3) the pilots and the new airline negotiated a “Single Agreement”—a new collective bargaining agreement—applicable to all pilots. Until that happened, the existing seniority lists and collective bargaining agreements for the respective sets of pilots would remain in place.

Finally, the parties agreed that the Transition Agreement could be modified by written agreement between ALPA and the airline.

Consistent with the procedures set forth in the Transition Agreement, two merger committees—one representing the East Pilots, and one representing the West—entered into negotiations over an integrated seniority list. Several factors complicated the negotiations. The East Pilots were a substantially larger group, consisting of about 5,100 pilots, as compared with 1,900 West Pilots. America West, however, was a newer and financially stronger airline; although its pilots generally had a later hire date, they also enjoyed better wages and greater job security. Most significantly, some 1,700 East Pilots (about one-third of all East Pilots) were on furlough at the time of the merger, while no West Pilots were on furlough. The negotiations, including mediation, failed to generate consensus over a single list, so pursuant to ALPA's Merger Policy, the parties proceeded to binding arbitration.

2. The Nicolau Arbitration

An arbitration panel, led by George Nicolau, held hearings over the course of eighteen days, from December 2006 to February 2007. In all, the arbitration record included testimony from 20 witnesses, 14 volumes of exhibits, and more than 3,000 pages of hearing transcript. In the arbitration, the East Pilots advocated for a seniority list ordered by date of hire, adjusted for length of service, which ended up pushing most of the West Pilots far down the seniority list and placing a number of furloughed East Pilots above active West Pilots. The West Pilots, on the other hand, advocated for a list based on pilot rank and career prospects, which gave comparatively less weight to length of service.

In May 2007, the arbitration panel issued a careful, 35–page decision known as the “Nicolau Award.” The panel, noting that the pilots' respective proposals “differed dramatically,” observed that, in such mergers, “[i]t is understandable that universal acceptance is never achieved.” The arbitration panel adopted neither proposal in full, instead crafting its award using aspects of both proposals. The Nicolau Award placed about 500 senior East Pilots at the top of the seniority list, explaining that the West Pilots were not operating the widebody international aircraft generally flown by the most senior East Pilots at the time of the merger. It also placed at the bottom of the list the 1,700 East Pilots who were furloughed at the time of the merger, explaining that “merging active pilots with furloughees, despite the length of service of some of the latter, is not at all fair or equitable under any of the stated criteria.” The Nicolau Award blended the remainder of the East Pilot list with the West Pilot list.

3. Decertification of ALPA/Certification of USAPA

As the district court aptly observed, “[t]o say the East Pilots were not pleased [with the Nicolau Award] is an understatement.” As we described in Addington I, a majority of the East Pilots “strenuously objected” to the Nicolau Award and immediately set about finding ways to prevent its implementation. 606 F.3d at 1177–78. Initially, the East Pilots tried to convince ALPA to find a way to set aside the Award. When that failed, the East Pilots filed suit to set aside the Nicolau Award. ALPA continued to urge the East Pilots to...