CACTUSBOY 53- your rebuttal to the 9 th please.....
First and foremost, plaintiffs cannot explain, nor do they try, how irreparable injury follows from this Court’s finding that there is no injury at all. As this Court already determined, because no seniority term exists, because it has yet to be negotiated, there is no harm, hence the case is not ripe. Addington v. US Airline Pilots Ass’n, 606 F.3d 1174, at *10 (9th Cir. 2010) (“We conclude that this case presents contingencies that could prevent effectuation of USAPA's proposal and the accompanying injury”). And, in making the lack of injury determination, this Court necessarily rejected plaintiffs’ theory of their case that a failure to implement a predecessor union’s proposal – one even the former union was free to drop – is somehow a violation of the duty of fair representation. Id. at *14, n.3 (“USAPA is at least as free to abandon the Nicolau Award as was its predecessor”). Hence, under the law of this case, that bare possibility cannot constitute injury now, or ever. Second, plaintiffs admit that it is merely speculative (“it might”) that the imagined harm, a date of hire seniority term, is ever negotiated, ratified, and executed. Stays may be denied even with a showing of irreparable harm, but without such showing denial is required. Chrysler LLC, 129 S. Ct. 2275 (2009)
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They claim that the Supreme Court would reverse because, “this case will encourage other unions to refuse, in bad faith, to implement an arbitrated seniority integration” (DktEntry 52 at 1-2), when this Court has already found the Nicolau arbitration was merely “the product of the internal rules and processes of ALPA.” Addington, 606 F.3d 1174, at *15, n.3. But there is no arbitration that USAPA was ever a party to anywhere in this record. And the district court properly dismissed (and plaintiffs did not appeal) the removed state claim, which asserted the pilots themselves were a party. There not only is no ‘federally mandated’ arbitration, there is no arbitration at all, merely a predecessor union’s bargaining proposal.
Plaintiffs also claim that this Court’s disposition would “thwart important federal labor policy – evidenced by the 2007 passage of the McCaskill-Bond bill”(DktEntry 52 at 2).3 But there is no dispute, let alone any claim, that McCaskill is not applicable, nor could it be for several reasons, procedural as well assubstantive. Even if McCaskill were applicable, arbitration is not mandatory, rather, as plaintiffs concede, only utilized, ‘if necessary.’ Plaintiffs’ McCaskill argument is a red-herring.
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3 For good reason, this argument was never raised below.
1The 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 Pilots’ claim.” Diss. op. at 8017 (internal alterations, 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 prolonged by prematurely resolving the West Pilots’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 DFR, with the interests of all members — both East and West — in mind, under pain of an unquestionably ripe DFR suit, once a contract is ratified.
2Plaintiffs’ alleged hardship cannot instead be premised on any delay caused by USAPA in reaching a single CBA. As the district court noted, Plaintiffs abandoned their claim that USAPA is intentionally delaying negotiation of a CBA. Addington, 2009 WL 2169164, at *22 (“During discovery, Plaintiffs 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 8015, is therefore misplaced. Although absence of a CBA might be evidence of a DFR violation, if the violation were based on deliberate delay by the union, it is not evidence of a union’s improper preference of one seniority system over another. As demonstrated by ALPA’s similar difficulties in reaching a CBA, the pilot groups, and individual pilots with their ratification/nonratification powers, are the major contributors to the absence of a CBA in these circumstances.
3We do not address the thorny question of the extent to which the Nicolau Award is binding on USAPA. We note, as the district court recog-nized, that USAPA is at least as free to abandon the Nicolau Award as was its predecessor, ALPA. The dissent appears implicitly to assume that the Nicolau Award, the product of the internal rules and processes of ALPA, is binding on USAPA. See Diss op. at 8021-22.
