another favorite:
In September 2008, the West Pilots filed a DFR action.
The
District Court ruled that the West Pilots were “entitled to a union that
will not abrogate the Nicolau Award without a legitimate purpose.”
After a 10-day trial, a jury found that USAPA breached the DFR because it was acting for no legitimate
union purpose. The Court then enjoined USAPA from entering
into a collective bargaining agreement (“CBA”) that did not implement the
Nicolau Award. USAPA appealed and the Ninth Circuit vacated the judgment on the
basis of lack of ripeness. But in so doing, it
cautioned USAPA that unless it “bargain[ed] in good faith pursuant to its
DFR, with the interests of all members—both East and West—in mind,”
there would be “an unquestionably ripe DFR suit, once a contract is
ratified.” On July 27, 2010, US Airways filed a declaratory action to obtain
guidance as to whether it would be liable if it entered into a CBA with
USAPA that did not implement the Nicolau Award.
The District Court held that USAPA would breach its DFR if it entered into
such a CBA without “a legitimate union purpose.” But, out of deference to the Ninth Circuit, the
Court held, in theory, that it was possible that something might arise in
future CBA negotiations that could provide a legitimate purpose.
In February 2013, four parties—(1) American Airlines, a Chapter 11
debtor; (2) the Allied Pilots Association (“APA”), the union representing
the American pilots; (3) US Airways; and (4) USAPA—entered into a
contract called the “Memorandum of Understanding Regarding
Contingent Collective Bargaining Agreement” (“MOU”). (Doc. 5-2). The
MOU fixes all material terms for the CBA that will apply to US Airways
pilots if American Airlines and US Airways merge (to form a new airline,
“New American”). The MOU does not implement the Nicolau award. It
does not (by any means) provide a legitimate reason for USAPA to
repudiate its duty to implement the Award. Yet, USAPA has repeatedly
and unquestionably (but wrongly) stated that it can and will treat the
Nicolau Award as a nullity.