Addington v. Us Airline Pilots Ass'n

• Decision Date: 04 June 2010
• Docket Number: No. 09-16564.,09-16564.
• Citation: 606 F.3d 1174
• Parties: 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 successor after merger, U.S. Airways, Inc.; Mark Burman, 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.; Afshin Iranpour, 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.; Roger Velez, 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.; Steve Wargocki, 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., Plaintiffs-Appellees,v.US AIRLINE PILOTS ASSOCIATION, an unincorporated association representing the pilots in the employment of U.S. Airways Inc., a Delaware corporation, Defendant-Appellant,andUS Airways, Inc., a Delaware corporation; Stephan Bradford; Robert Davison; Douglas L. Mowery, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

606 F.3d 1174

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 successor after merger, U.S. Airways, Inc.; Mark Burman, 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.; Afshin Iranpour, 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.; Roger Velez, 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.; Steve Wargocki, 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., Plaintiffs-Appellees,v. US AIRLINE PILOTS ASSOCIATION, an unincorporated association representing the pilots in the employment of U.S. Airways Inc., a Delaware corporation, Defendant-Appellant,andUS Airways, Inc., a Delaware corporation; Stephan Bradford; Robert Davison; Douglas L. Mowery, Defendants.

No. 09-16564.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 8, 2009.

Filed June 4, 2010.

COPYRIGHT MATERIAL OMITTED

Andrew S. Jacob, Polsinelli Shughart, PC, Phoenix, AZ, for the plaintiffs-appellees.

Lee Seham, Nicholas Paul Granath, Lucas Middlebrook 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. GRABER, 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 precipitated 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 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 issue of integrating seniority lists, this case contains an added wrinkle. The East Pilots, who were dissatisfied with the seniority integration proposal ALPA arrived at through the union's internal arbitration, 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 arbitrated 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 Pilots. 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 jurisdiction because the West Pilots' claim is not ripe. We agree.

BACKGROUND

In 2005, U.S. Airways, Inc., and AWA merged to form a single carrier called U.S. Airways (or the “airline”). At the time of the merger, ALPA was the collective bargaining representative for both the East Pilots and the West Pilots. Each group had a separate collective bargaining agreement (“CBA”) which was administered by each group's Master Executive Council. As with most mergers, an integrated seniority list had to be created. The East Pilots 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 ALPA's seniority integration proposal, provided it did not result in certain additional costs. The seniority integration proposal could be implemented only as part of a single CBA. The single CBA would require approval by the East 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 TA placed a “fence” between East and West operations, such that each would continue to operate under its respective CBA.

Pursuant to the ALPA Merger Policy, the two pilot groups began negotiating seniority integration, but to no avail. Under the union's Merger Policy, if negotiation and mediation between the two sides fail, the issue is submitted to “final and binding” arbitration. The merged seniority list is then presented to the airline, and ALPA is to “use all reasonable means at its disposal to compel the company to accept and implement the merged seniority list.” The arbitrated list is not subject to a separate ratification vote, but becomes part of the single CBA, which is subject to member ratification.

George Nicolau was selected to chair the arbitration panel, pursuant to the Merger Policy. Arbitration commenced between “the U.S. Airways Pilot Merger Representatives and the America West Pilot Merger Representatives.” In early May 2007, the panel issued its award (the “Nicolau Award”). A majority of East Pilots “strenuously objected” to the Nicolau Award and opposed its implementation. The East Pilot representatives sought to have ALPA prevent implementation of the Nicolau Award. ALPA unsuccessfully attempted to get the two sides to reach a compromise.

While the arbitration was pending, negotiations with the airline progressed, and the airline proposed a comprehensive CBA in May 2007. In late July 2007, the East Master Executive Council determined that the East Pilots would never ratify a CBA that incorporated the Nicolau Award. On August 15, 2007, the East Pilots withdrew their representatives from the committee negotiating the new CBA with the airline, halting those negotiations. In late 2007, ALPA submitted the Nicolau Award to the airline, which accepted the award on December 20, 2007.

In the meantime, several East Pilots began exploring the possibility of forming a new union that would not implement the Nicolau Award. They formed USAPA and, on November 29, 2007, the National Mediation Board certified a representation election. USAPA won the election and was certified as the collective bargaining representative for the entire group of pilots, East and West, on April 18, 2008. From the date the East Pilots withdrew from negotiations until ALPA was decertified, there were no further negotiations with the airline.

USAPA adopted a constitution that established an “objective” of “maintain[ing] uniform principles of seniority based on date of hire and the perpetuation thereof, with reasonable conditions and restrictions to preserve each pilot's unmerged career expectations.” Under USAPA's constitution, ratification requires a majority vote of the entire union membership, such that each pilot group no longer has its own veto power.

Five months after certification, USAPA presented a seniority proposal to the airline. The proposal incorporated date-of-hire principles. Although the proposal contained some protections for West Pilots, it was not nearly as favorable to West Pilots as the Nicolau Award. The airline had not yet responded to the proposal when the district court entered its permanent injunction.

The airline has been forced to reduce flying because of economic considerations. The reductions have 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 relief. 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 complaint in the surviving DFR action, specifying that the claim was brought on behalf of similarly situated 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 ordered...