Even more fundamentally, the TA, pursuant to section XII.B, is open for modification byIn addition, the Ninth Circuit found that the dispute arose in the context of unfinished,
post-merger bargaining with the Company. 606 F.3d at 1177. In addressing the fact that, due to
the unratifiable nature of the Nicolau Award, the judiciary could not “fashion a remedy that
alleviates Plaintiffs’ harm” id. at 1180, the Ninth Circuit necessarily addressed the harm to the
Company arising from a futile bargaining process. Neither USAPA nor the Company can be
expected to interminably bang their head against the wall by negotiating over an unratifiable
contract – which is precisely why the Company previously encouraged ALPA’s efforts at
compromise. (See Doc. # 39-5).
Significantly, in his recent rejection of the Addington plaintiffs’ 60(B) motion, Judge
Wake greeted with great skepticism the Company’s current allegations of harm in view of the
Company’s successful effort to remove itself from the prior Addington litigation:
[T]he hardship to the Airline was there when they asked to be dismissed out of this
case. They, for whatever reasons, rather than counterclaiming for declaratory venue,
they decided they didn't want to be involved. MM!
USAPA and the Company. (Doc. # 34-2 at 15). Indeed, pursuant to section XII.E.1 of the TA,
it is open for termination, hence it is no firm goal-post to hitch a case or controversy to. (Id. at
16).
6 The Company admits the dispute is contractual in nature by arguing that the West pilot
litigation threat is viable because the “Transition Agreement … required ALPA to present and
US Airways to accept the Nicolau Award [and that] such tendering and acceptance of the
Nicolau Award has occurred in accordance with the terms of the Transition Agreement …”
(Resp. 22:2). Of course, the ultimate goal under both the TA and Section 2, First of the RLA is
to reach a ratifiable collective bargaining agreement – not to extend the multi-year impasse over
a single non-ratifiable bargaining proposal.