Law Review Article on Addington
RIPE, RIPER, RIPEST? THE NINTH CIRCUIT'S DECISION IN ADDINGTON V. U.S.
AIRLINE PILOTS ASSOCIATION SETS A MISGUIDED RIPENESS STANDARD FOR DUTY OF FAIR
REPRESENTATION CLAIMS
R.J. Pathroff [FNa1]
Copyright (c) 2011 Southern Methodist University Dedman School of Law; R.J.
Pathroff
IN ADDINGTON v. U.S. Airline Pilots Ass'n, the Ninth Circuit held that, as a
matter of first impression, a plaintiff pilot group's duty of fair-representation
(DFR) claim against a pilot union arising out of an ongoing labor dispute was not
ripe before the ratification of a collective bargaining agreement (CBA) with the
airline. [FN1] Though it was faced with a difficult set of facts, the court's
decision to dismiss the case was misguided. In its analysis, the Ninth Circuit
cast aside the most applicable case law available to it, relying instead on an
overly narrow view of what constitutes a breach of the DFR to support its holding.
[FN2]
In 2005, U.S. Airways, Inc. and America West Airlines (AWA) merged to form a
single carrier, U.S. Airways (the airline). [FN3] Following the merger, the Air
Line Pilots Association (ALPA), the collective bargaining representative for both
the U.S. Airways, Inc. pilots (East Pilots) and the AWA pilots (West Pilots),
entered into a Transition Agreement (TA) with the two merging airlines. [FN4] The
separate seniority lists of the airlines' respective pilot groups had to be
integrated to create a single list for the new airline. [FN5] Under the TA, the
lists were to be integrated under ALPA's Merger Policy and then implemented as
part of a single CBA, which was subject to approval by each group's *128 Master
Executive Council and a majority of each group's membership. [FN6] The East
Pilots, who had generally been hired earlier and favored a strict date-of-hire
list, began negotiations with the West Pilots, who wanted a list that reflected
the relative pre-merger strength of their airline over U.S. Airways, Inc. [FN7]
When the negotiations failed, the union submitted the seniority list issue to
"final and binding" arbitration, under its Merger Policy, the result of which was
a seniority integration proposal called the Nicolau award. [FN8]
Displeased with the Nicolau award, the East Pilots, who outnumbered the West
Pilots 5,100 to 1,900, led a successful effort to decertify ALPA and replace it
with a newly formed union called the U.S. Airline Pilots Association (USAPA),
which was led by an East pilot and was constitutionally committed to pursuing the
East Pilots' favored date-of-hire seniority list in contrast to ALPA, whose merger
policy committed it to pursuing the arbitrated Nicolau award. [FN9] Five months
after its certification, USAPA presented a date-of-hire seniority proposal to the
airline that was not nearly as favorable to the West Pilots as the Nicolau award.
[FN10] While the two pilot groups have continued to operate under their separate
CBAs, economic considerations have forced the airline to furlough 300 pilots, 175
of which are West Pilots. [FN11] Under a CBA incorporating the Nicolau award, none
of the West Pilots would have been furloughed. [FN12]
Six individual West Pilots brought suit against USAPA on behalf of a class
of West Pilots, alleging that USAPA breached its DFR by negotiating a contract
that favored the East Pilots at the expense of the West Pilots. [FN13] A jury
found in favor of the West Pilots, finding that USAPA had breached its DFR to the
West Pilots "by abandoning an arbitrated seniority list in favor of a date-of-hire
list solely to benefit one group of pilots at the expense of another." [FN14]
After a bench trial on remedies, the district court granted the West Pilots an
injunction against USAPA compelling the union to bargain for seniority terms based
on the *129 Nicolau award. [FN15] USAPA appealed, contending that the district
court never had jurisdiction because the West Pilots' claim was not ripe. [FN16]
The Ninth Circuit was asked to decide whether, as a matter of first
impression, a DFR claim based on a union's promotion of a policy was ripe before
the union had completed its negotiations with an employer. [FN17] In a two-to-one
split decision, the Ninth Circuit held that the West Pilots' DFR claim was not yet
ripe. [FN18] The court qualified its decision, however, writing that it was not
holding "that a DFR claim based on a union's promotion of a policy is never ripe
until that policy is effectuated," but 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." [FN19]
The Ninth Circuit considered the two ripeness factors--(1) "the fitness of
the issues for judicial decision," and (2) "the hardship to the parties of
withholding court consideration"--and determined that the Pilots' DFR claim was
not ripe. [FN20] First, the majority reasoned that the claim was not fit for
decision because contingencies existed that could prevent the implementation of a
final CBA containing USAPA's date-of-hire seniority proposal. [FN21] In the
opinion of the majority, the West Pilots would not "actually be affected by
USAPA's seniority proposal" until there was a ratified CBA, and it was uncertain
that the date-of-hire seniority list would ultimately be accepted by both USAPA
and the airline as part of a final CBA or that such a CBA would be ratified by the
union's membership. [FN22] Second, the majority held that dismissing the claim did
not work a direct and immediate hardship on the West Pilots. [FN23] It rejected
the West Pilots' position that they suffered harm by losing the opportunity to
have a CBA incorporating the Nicolau award put to a ratification vote, reasoning
that even though certain furloughed West Pilots would still be working under a CBA
incorporating the Nicolau *130 award, it was "at best, speculative that [such a
CBA] would be ratified if presented to the [USAPA's] membership." [FN24]
The Addington majority relied primarily on its Ninth Circuit DFR decisions
and on the language of the Supreme Court's decision in Air Line Pilots Ass'n,
International v. O'Neill to support its holding. [FN25] According to the majority,
dismissing the West Pilots' claim was consistent with the Ninth Circuit decisions
in Williams v. Pacific Maritime Ass'n, Bernard v. Air Line Pilots Ass'n,
International, and Hendricks v. Airline Pilots Ass'n, International, where DFR
violations were found after contracts were agreed upon. [FN26] Additionally, for
the majority, the language of the Supreme Court's holding in O'Neill, which
established that the DFR was applicable during contract negotiations, implied that
a DFR "claim can be brought only after negotiations are complete and a 'final
product' has been reached." [FN27]
The Addington majority went on to distinguish the Second and First Circuit
decisions in Ramey v. District 141, International Ass'n of Machinists & Aerospace
Workers, and Teamsters Local Union No. 42 v. NLRB from the West Pilots' claim by
noting differences between the ripeness and statute of limitations inquiries and
factual differences between the cases. [FN28] Even though the Ramey and Teamsters
courts both held that the respective DFR claims accrued before finalization of the
policy at issue for the purpose of the running of the statute of limitations, the
Addington majority suggested that the holdings were not persuasive because in
Ramey, the airline had already accepted the union's seniority system, and in
Teamsters, "shifts had been assigned according to [the] union's seniority system."
[FN29] Additionally, the majority was "hesitant to transplant a rule" from statute
of limitations-claim-accrual cases because in those cases, the injury has
culminated, and those "courts often decline to identify a specific date on *131
which the claim accrued." [FN30] The majority finally concluded that the West
Pilots' claim would not be ripe "until the airline responds to [USAPA's seniority]
proposal, the parties complete negotiations, and the membership ratifies the CBA."
[FN31]
The Addington majority's ripeness analysis was flawed and its decision was
misguided because it relied on an overly narrow view of what constitutes a breach
of a union's DFR. In contrast to the majority's view that the West Pilots would
not "actually be affected by USAPA's seniority proposal" [FN32] until there was a
ratified CBA, a claim for loss of fair representation during bargaining asserts a
ripe claim "without any requirement of a showing of further injury" [FN33] because
the DFR extends to "challenges leveled not only at a union's contract
administration and enforcement efforts but at its negotiation activities as well."
[FN34] For example, in Automotive, Petroleum & Allied Industries Employees Union,
Local 618 v. Gelco Corp., the Eighth Circuit held that a DFR claim against a union
arising out of the union's decision to submit a grievance between two members to
arbitration was ripe before the final result of the arbitration. [FN35] The Gelco
court rejected the union's argument that the plaintiff union member had not yet
suffered an injury, finding "that it was the nion's decision to take [the]
grievance to arbitration and the manner in which that decision was made which
constituted the breach." [FN36] Similarly, in Addington, a finalized CBA is not
essential for ripeness because USAPA had already constitutionally adopted an
"objective" of maintaining date-of-hire seniority principles and presented a
date-of-hire seniority proposal to the airline. [FN37] As the dissent recognizes,
no further factual development is required because this is "actual 'act[ion]
against the interest of' the West pilots--the precise point at which . . . a
DFR breach occurs." [FN38] While waiting until there is a CBA might make the *132
West Pilots' claim "riper," there is no need to show any future injury. [FN39]
The majority's reliance on the Supreme Court's holding in Air Line Pilots
Ass'n, International v. O'Neill and on existing Ninth Circuit DFR decisions
presents similar problems. In its opinion, the Addington majority suggested that
the Supreme Court's language in O'Neill implies that "a claim can be brought only
after negotiations are complete and a 'final product' has been reached." [FN40] As
the dissent astutely points out, this is a stretch in reasoning and "overstates
what [O'Neill] said." [FN41] Nothing in O'Neill suggests that a DFR claim cannot
accrue before the signing of a CBA because O'Neill did not address the ripeness of
DFR claims but merely held that a union's DFR "applies to all union activity,
including contract negotiation." [FN42] The fact that a CBA "may constitute
evidence" of a violation of the DFR hardly suggests that "'a claim can only be
brought' once there is a CBA." [FN43] If anything, the O'Neill decision implies
that a breach of the DFR may arise before the signing of a CBA because for the
O'Neill Court, the CBA "is only considered as 'evidence' of a breach rather than
the breach itself." [FN44] The majority's reference to the Ninth Circuit DFR
decisions in Williams, Bernard, and Hendricks only lends support to the same empty
proposition as O'Neill. [FN45] Like O'Neill, none of those decisions mention
ripeness or are relevant to the question of whether a DFR claim is ripe before the
signing of a CBA. [FN46] In effect, the majority's use of O'Neill and Ninth
Circuit DFR cases does not support its decision, but merely confirms that the
question before the court is a matter of first impression.
The majority's attempt to distinguish the Ramey and Teamsters statute of
limitations-claim-accrual cases is also unconvincing because it ignores the
logical relationship between the statute of *133 limitations and ripeness
inquiries. [FN47] As the Addington district court and the Ninth Circuit have
previously recognized, "[c]laims are ripe, at the latest, when the statute of
limitations begins to run." [FN48] Further, "[t]he statute of limitations runs on
[DFR] claims from the time that the asserted injury becomes 'fixed and reasonably
certain."' [FN49] Both the Ramey court and the Teamsters court concluded that the
respective DFR claims accrued before effectuation of the policy at issue for
statute of limitations purposes. [FN50] Given that "[d]etermining when the cause
of action accrues is merely the corollary to the ripeness inquiry," [FN51] those
holdings logically weigh in favor of finding that the West Pilots' claim is ripe.
The majority suggested that the courts' holdings were not persuasive, however,
because of differences in the posture of ripeness and claim accrual cases and
because, in Ramey, the airline had already accepted the union's seniority system,
and, in Teamsters, "shifts had been assigned according to [the] union's seniority
system." [FN52] But as the Addington district court pointed out, "[t]his
contention misses the point" as it ignores the logical relationship between
ripeness and claim accrual. [FN53] The majority should have found that the West
Pilots' claim was ripe because "[c]laims are ripe, at the latest, when the statute
of limitations begins to run," and the Ramey and Teamsters plaintiffs'
claims--like the West Pilots' claim in Addington--accrued before the completion of
the union's negotiations with the employer. [FN54]
Moving forward, the decision to dismiss the West Pilots' claim will result
in continuing hardship to the West Pilots because the future events that the
majority cited are unlikely to occur anytime soon. [FN55] It has been five years
since the airlines merged, and the pilot groups are no closer now to a CBA that
reflects the *134 interests of both pilot groups than they were the day of the
merger. [FN56] Additionally, the Ninth Circuit's decision causes undue delay to
the parties because if a CBA ever is signed, and it contains a seniority list that
is less favorable to the West Pilots than the Nicolau award--as will be the case
with USAPA representing the pilots--then USAPA will be subject to a ripe DFR claim
at that time.
In conclusion, the Ninth Circuit's decision was misguided. It set a ripeness
standard that restricts the scope of the DFR, erodes union members' essential
protection from arbitrary and discriminatory conduct by their bargaining
representative, and muddles the logical relationship between DFR claim accrual for
statute of limitations purposes and DFR ripeness. Instead of issuing a holding
premised on doubts about its own ability to provide relief that would actually
result in a finalized CBA, the Ninth Circuit should have held that the West
Pilots' DFR claim was ripe and decided it on its merits.
