Don Addington v. Us Airline Pilots Association; Us Airways, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON ADDINGTON; JOHN BOSTIC;
MARK BURMAN; AFSHIN IRANPOUR;
ROGER VELEZ; STEVE WARGOCKI;
MICHAEL J. SOHA; RODNEY ALBERT
BRACKIN; GEORGE MALIGA, on
behalf of themselves and all
similarly situated former American
West pilots,
Plaintiffs-Appellants,
v.
US AIRLINE PILOTS ASSOCIATION;
US AIRWAYS, INC.,
Defendants-Appellees.
No. 14-15757
D.C. No.
2:13-cv-00471-
ROS

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ADDINGTON V. USAPA 2
DON ADDINGTON; JOHN BOSTIC;
MARK BURMAN; AFSHIN IRANPOUR;
ROGER VELEZ; STEVE WARGOCKI;
MICHAEL J. SOHA; RODNEY ALBERT
BRACKIN; GEORGE MALIGA, on
behalf of themselves and all
similarly situated former American
West pilots,
Plaintiffs-Appellees,
v.
US AIRLINE PILOTS ASSOCIATION,
Defendant-Appellant,
and
US AIRWAYS, INC.,
Defendant.
No. 14-15874
D.C. No.
2:13-cv-00471-
ROS

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ADDINGTON V. USAPA 3
DON ADDINGTON; JOHN BOSTIC;
MARK BURMAN; AFSHIN IRANPOUR;
ROGER VELEZ; STEVE WARGOCKI;
MICHAEL J. SOHA; RODNEY ALBERT
BRACKIN; GEORGE MALIGA, on
behalf of themselves and all
similarly situated former American
West pilots,
Plaintiffs-Appellees,
v.
US AIRLINE PILOTS ASSOCIATION,
Defendant,
and
US AIRWAYS, INC.,
Defendant-Appellant.
No. 14-15892
D.C. No.
2:13-cv-00471-
ROS
OPINION
Appeals from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Argued and Submitted
April 14, 2015—San Francisco, California
Filed June 26, 2015
Before: A. Wallace Tashima, Susan P. Graber,
and Jay S. Bybee, Circuit Judges.

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ADDINGTON V. USAPA 4
Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Tashima
SUMMARY*
Duty of Fair Representation
The panel reversed in part and vacated in part the district
court’s judgment in favor of the US Airline Pilots Association
(“USAPA”) in a case in which pilots of America West
Airlines, which merged with US Airways in 2005, sued the
USAPA under the Railway Labor Act for breach of the duty
of fair representation in connection with a dispute between
the America West Pilots (“West Pilots”) and the US Airways
pilots (“East Pilots”) over a single, integrated seniority list.
The panel held that the West Pilots’ claim is ripe for
decision, now that US Airways completes its merger with
American Airlines and their respective pilots— including US
Airways’ feuding East and West groups—attempt to
negotiate a single integrated seniority list.
Observing that USAPA has served as the stalking horse
for the East Pilots’ exclusive interests and left the West Pilots
bereft of representation, the panel held that USAPA’s
manifest disregard for the interests of the West Pilots and its
discriminatory conduct towards them constitutes a clear
breach of duty. The panel accordingly reversed the district
court’s conclusion that USAPA did not breach its duty of fair
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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ADDINGTON V. USAPA 5
representation and remanded with instructions to enjoin
USAPA from participating in McCaskill-Bond seniority
integration proceedings in the US Airways-American Airlines
merger except to the extent that USAPA will advocate a 2007
arbitration award.
The panel vacated as moot the portion of the district
court’s decision denying the West Pilots separate
representation in the McCaskill-Bond proceedings, with
instructions to dismiss. The panel dismissed USAPA and US
Airways’ cross-appeals for failure to present an argument.
Judge Tashima concurred in part and dissented in part. He
agreed with the majority that the West Pilots’
McCaskill-Bond claim is moot, and that the cross-appeals
should be dismissed. Contrary to the majority, he wrote that
the West Pilots’ breach of the duty of fair representation
claim should also be dismissed as moot. He would not reach
the merits, but he wrote that he disagrees with the majority’s
determination that USAPA breached its duty of fair
representation. He wrote that even assuming USAPA
breached its duty of fair representation, the injunction the
majority imposes is erroneous and an abuse of discretion in
view of the fact that USAPA is no longer a certified
bargaining representative and, therefore, is not subject to the
Railway Labor Act and can no longer be yoked with a duty of
fair representation.

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ADDINGTON V. USAPA 6
COUNSEL
Marty Harper (argued), Marty Harper, PLLC, Phoenix,
Arizona; Andrew S. Jacob and Jennifer Axel, Polsinelli P.C.,
Phoenix, Arizona, for Plaintiffs-Appellants/Cross-Appellees.
Patrick Szymanski (argued), Washington, D.C.; Brian J.
O’Dwyer and Joy K. Mele, O’Dwyer & Bernstien, LLP, New
York, New York; Susan Martin and Jennifer Kroll, Martin &
Bonnett, P.L.L.C., Phoenix, Arizona, for Defendant-
Appellee/Cross-Appellant US Airline Pilots Association.
Robert A. Siegel (argued) and Chris A. Hollinger, O’Melveny
& Myers LLP, Los Angeles, California; Karen Gillen, US
Airways, Inc., Tempe, Arizona, for Plaintiff-Appellee/Cross-
Appellant US Airways, Inc.
OPINION
BYBEE, Circuit Judge:
In 2005, US Airways merged with America West
Airlines, setting their respective pilots on a collision course
over a single, integrated seniority list. At the time of the
merger, the US Airways pilots (“East Pilots”) and the
America West pilots (“West Pilots”) were both represented
by the Air Line Pilots Association (“ALPA”) as they
attempted to negotiate a seniority list. The East Pilots
advocated a list based on “date of hire,” while the West Pilots
advocated a list based on the strength of their pre-merger
airline. When these negotiations failed, the dispute went to
binding arbitration. The arbitration panel ordered a single list
that did not fully accede to the wishes of either group.

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ADDINGTON V. USAPA 7
Unhappy with the result, the more numerous East Pilots
forced the decertification of ALPA and the creation of a new
union, the US Airline Pilots Association (“USAPA”), that
was expressly opposed to the enforcement of the arbitrator’s
award and openly committed to a seniority list based on date
of hire, which favored the East Pilots.
This is the second time a dispute over the seniority list has
come before us. In the prior case, the West Pilots sued
USAPA for a breach of the duty of fair representation.
Following both a jury and a bench trial, the district court
found a breach and ordered USAPA to negotiate a collective
bargaining agreement with US Airways based on the
arbitrator’s award. In Addington v. U.S. Airline Pilots Ass’n
(Addington I), 606 F.3d 1174, 1184 (9th Cir. 2010), we
dismissed the West Pilots’ duty of fair representation claim
as unripe. Five years later, as US Airways completes its
merger with American Airlines and their respective pilots—
including US Airways’ feuding East and West groups—
attempt to negotiate a single integrated seniority list, the West
Pilots’ claim is now ripe for decision. The district court, in a
decision it found “hard” and “a very close call,” concluded
that USAPA did not violate its duty of fair representation to
the West Pilots. We reverse.
I. BACKGROUND
The history of what we have called “a bitter seniority
dispute,” Addington I, 606 F.3d at 1176, is a detailed one, and
one that we will set forth with some care.

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ADDINGTON V. USAPA 8
A. 2005 US Airways–America West Merger
1. The Merger and the Negotiations
The dispute between USAPA and the West Pilots arose
when America West Airlines and US Airways merged to
form a single airline carrier called US Airways. After the
formal merger was completed in May 2005, the difficult
process of combining day-to-day operations began. At that
time, a single collective bargaining representative, ALPA,
represented both the East and West Pilots. In September
2005, ALPA and the merging airlines entered into a
Transition Agreement that set forth the process for achieving
operational integration of the two airlines, including issues of
pilot seniority relevant here.
Prior to the merger, the East and West Pilots each had
their own separate seniority list and collective bargaining
agreement. The Transition Agreement provided for the
integration of the seniority lists in accordance with ALPA’s
Merger Policy, which required the two pilot groups to
negotiate an integrated list and, if negotiation failed, to
submit to binding arbitration. The Merger Policy stated that
any award issued by an arbitration board “shall be final and
binding on all parties to the arbitration and shall be defended
by ALPA.” In either event, the Policy bound the parties to
reach a “fair and equitable agreement,” keeping in mind five
goals: (1) preserving jobs; (2) avoiding windfalls to either
group of pilots at the expense of the other; (3) maintaining or
improving pilots’ pre-merger pay and standard of living;
(4) maintaining or improving pilots’ pre-merger status; and
(5) minimizing detrimental changes to pilots’ career
expectations. Once the two sides arrived at an integrated list,
the Transition Agreement provided that the list would be

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ADDINGTON V. USAPA 9
submitted to the airline for acceptance, at which point ALPA
agreed to “use all reasonable means at its disposal to compel
the company to accept and implement the merged seniority
list.”
The Transition Agreement also provided a timeline for
implementing the single seniority list. Specifically, the
Agreement stated that the seniority list would be
implemented when three things occurred: (1) US Airways
obtained a single operating certificate (this occurred in 2007);
(2) the two pilot groups created a single seniority list in
accordance with the process set forth above; and (3) the pilots
and the new airline negotiated a “Single Agreement”—a new
collective bargaining agreement—applicable to all pilots.
Until that happened, the existing seniority lists and collective
bargaining agreements for the respective sets of pilots would
remain in place.
Finally, the parties agreed that the Transition Agreement
could be modified by written agreement between ALPA and
the airline.
Consistent with the procedures set forth in the Transition
Agreement, two merger committees—one representing the
East Pilots, and one representing the West—entered into
negotiations over an integrated seniority list. Several factors
complicated the negotiations. The East Pilots were a
substantially larger group, consisting of about 5,100 pilots, as
compared with 1,900 West Pilots. America West, however,
was a newer and financially stronger airline; although its
pilots generally had a later hire date, they also enjoyed better
wages and greater job security. Most significantly, some
1,700 East Pilots (about one-third of all East Pilots) were on
furlough at the time of the merger, while no West Pilots were

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ADDINGTON V. USAPA 10
on furlough. The negotiations, including mediation, failed to
generate consensus over a single list, so pursuant to ALPA’s
Merger Policy, the parties proceeded to binding arbitration.
2. The Nicolau Arbitration
An arbitration panel, led by George Nicolau, held
hearings over the course of eighteen days, from December
2006 to February 2007. In all, the arbitration record included
testimony from 20 witnesses, 14 volumes of exhibits, and
more than 3,000 pages of hearing transcript. In the
arbitration, the East Pilots advocated for a seniority list
ordered by date of hire, adjusted for length of service, which
ended up pushing most of the West Pilots far down the
seniority list and placing a number of furloughed East Pilots
above active West Pilots. The West Pilots, on the other hand,
advocated for a list based on pilot rank and career prospects,
which gave comparatively less weight to length of service.
In May 2007, the arbitration panel issued a careful, 35-
page decision known as the “Nicolau Award.” The panel,
noting that the pilots’ respective proposals “differed
dramatically,” observed that, in such mergers, “[i]t is
understandable that universal acceptance is never achieved.”
The arbitration panel adopted neither proposal in full, instead
crafting its award using aspects of both proposals. The
Nicolau Award placed about 500 senior East Pilots at the top
of the seniority list, explaining that the West Pilots were not
operating the widebody international aircraft generally flown
by the most senior East Pilots at the time of the merger. It
also placed at the bottom of the list the 1,700 East Pilots who
were furloughed at the time of the merger, explaining that
“merging active pilots with furloughees, despite the length of
service of some of the latter, is not at all fair or equitable

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ADDINGTON V. USAPA 11
under any of the stated criteria.” The Nicolau Award blended
the remainder of the East Pilot list with the West Pilot list.
3. Decertification of ALPA/Certification of USAPA
As the district court aptly observed, “[t]o say the East
Pilots were not pleased [with the Nicolau Award] is an
understatement.” As we described in Addington I, a majority
of the East Pilots “strenuously objected” to the Nicolau
Award and immediately set about finding ways to prevent its
implementation. 606 F.3d at 1177–78. Initially, the East
Pilots tried to convince ALPA to find a way to set aside the
Award. When that failed, the East Pilots filed suit to set aside
the Nicolau Award. ALPA continued to urge the East Pilots
to “comply with its representational and legal obligations
under the Constitution & Bylaws, ALPA Merger Policy, the
Transition Agreement, and implementing resolutions of the
Executive Council.” Finally, the East Pilots withdrew their
representatives from the committee negotiating a Single
Agreement with the airline, effectively bringing those
discussions to a standstill.
ALPA subsequently presented the Nicolau Award to the
airline for acceptance, consistent with its obligation under the
Transition Agreement to “use all reasonable means” to
compel the airline to accept the arbitrated seniority list. US
Airways accepted the Award a few months later, in December
2007. Id. at 1178.
In the meantime, dissatisfied with ALPA’s commitment
to the Nicolau Award and hoping to prevent the Award from
ever going into effect, the East Pilots decided to leave ALPA
and form a new union. They consulted lawyers, who
cautioned them that “the language you use in setting up your

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ADDINGTON V. USAPA 12
new union . . . can be used against you. You need to stress
[t]he positives of the new union and not dwell on the award.
Don’t give the other side a large body of evidence that the
sole reason for the new union is to abrogate an arbitration, the
Nicolau award.” The pilots and counsel sought a “roadmap
. . . based on the premise that a new bargaining agent can get
around the award and make the Nicolau award moot.”
Ultimately, the East Pilots created USAPA, which adopted a
constitution committing it “[t]o maintain[ing] uniform
principles of seniority based on date of hire and the
perpetuation thereof.” In November 2007, the National
Mediation Board certified a representation election between
ALPA and USAPA. Predictably, because of the number of
East Pilots, USAPA won the election and was certified as the
collective bargaining representative for all pilots in April
2008.
In September 2008—five months after certification and
almost a year after the airline accepted the Nicolau
Award—USAPA presented a new seniority proposal to US
Airways. This proposal ignored the Nicolau Award, instead
ordering the pilots according to their date of hire. USAPA’s
ordering system effectively forced the West Pilots to the
bottom of the seniority list, leaving them vulnerable to any
furloughs. USAPA made clear that it would never implement
the Nicolau Award.
B. 2008 West Pilot Suit Against USAPA (Addington I)
That same month, the West Pilots sued in district court,
alleging that USAPA had breached its duty of fair
representation by proposing a new seniority list instead of
pursuing the implementation of the Nicolau Award. After a
trial, a jury found that “USAPA had breached its duty by

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ADDINGTON V. USAPA 13
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.” Addington v. US Airline Pilots Ass’n, No. CV 08-
1633, 2009 WL 2169164, at *1 (D. Ariz. July 17, 2009)
(unpublished). The district court then held a bench trial on
the remaining equitable issues.
The court found that “USAPA’s sole objective in
adopting and presenting its seniority proposal to the Airline
was to benefit the East Pilots at the expense of the West
Pilots, rather than to benefit the bargaining unit as a whole.”
Id. at *6. It reached this conclusion by determining that the
terms of the Nicolau Award were final and binding, and thus
any amendment USAPA wished to make to that Award
required a legitimate union purpose. Id. at *10. The court
rejected, one by one, each of USAPA’s asserted objectives.
Among other things, it found no merit to USAPA’s claim that
a different seniority proposal was necessary to break through
the East Pilots’ impasse and ratify a new collective
bargaining agreement, stating that “any asserted impasse was
a pretext for bare favoritism of the East Pilots,” and that even
if an impasse did exist, “it [was] one that USAPA goaded on”
when it “misled the majority about its power to improve their
seniority prospects at the expense of the West Pilots.” Id. at
*17–18.
Having found no legitimate union purpose for USAPA’s
actions, the court entered judgment for the West Pilots and
issued an injunction ordering USAPA “to negotiate in good
faith for the implementation of the Nicolau Award, defending
that Award in negotiations and presenting it with the single
new [collective bargaining agreement] to the pilots for
ratification vote.” Id. at *28. It also ordered USAPA “to
negotiate for the implementation of the Nicolau Award as

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ADDINGTON V. USAPA 14
part of any single [collective bargaining agreement],
unmodified by additional conditions and restrictions USAPA
would place upon it.” Id.
The East Pilots appealed. In Addington I, with one judge
dissenting, we dismissed the case on ripeness grounds,
concluding that the district court did not have jurisdiction to
decide the case in the first instance. 606 F.3d at 1179. In so
holding, we considered the “fitness of the issues for judicial
decision,” and the “hardship to the parties of withholding
court consideration.” Id. (quoting Abbott Labs. v. Gardner,
387 U.S. 136, 149 (1967)). We concluded that there were
many contingencies that could yet “prevent effectuation of
USAPA’s proposal and the accompanying injury” and that it
was “speculative” whether the West Pilots would be harmed
by the withholding of decision, because it was unclear
whether a collective bargaining agreement implementing the
Nicolau Award could be ratified. Id. at 1179–80. Observing
that our judgment was consistent with our other duty of fair
representation cases, “which have found DFR violations
based on contract negotiation only after a contract has been
agreed upon,” we remanded the case to the district court with
directions to dismiss. Id. at 1181, 1184.
C. 2010 US Airways Declaratory Judgment Action
Shortly after we ordered dismissal of Addington I, US
Airways filed a declaratory judgment action against the West
Pilots and USAPA in district court, seeking guidance as to
whether it could be held liable for assisting in a breach of
USAPA’s duty of fair representation if it entered into a
collective bargaining agreement that did not implement the
Nicolau Award. In the same proceeding, USAPA sought
summary judgment on its claim that its date-of-hire seniority

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ADDINGTON V. USAPA 15
proposal did not breach any duty of fair representation. Id.
The district court made two rulings of note. First, the district
court concluded that USAPA was “bound” by the Transition
Agreement because USAPA succeeded “to the status of the
former representative [ALPA] without alteration in the
contract terms” when it became the pilots’ new collective
bargaining representative. US Airways, Inc. v. Addington,
No. CV 10-01570, 2012 WL 5996936, at *4 (D. Ariz. Oct.
11, 2012) (quoting Int’l Bhd. of Teamsters v. Tex. Int’l
Airlines, Inc., 717 F.2d 157, 163 (5th Cir. 1983))
(unpublished). At the same time, however, the court noted
that, pursuant to the Transition Agreement’s own terms, the
Agreement “can be modified at any time by written
agreement of [USAPA] and [US Airways].” Id. (internal
quotation marks omitted).
Second, the district court warned USAPA of the possible
consequences of ignoring the Nicolau Award, and adverted
that, “in negotiating for a particular seniority regime, USAPA
must not breach its duty of fair representation”:
[I]f USAPA wishes to abandon the Nicolau
Award and accept the consequences of this
course of action, it is free to do so. By
discarding the result of a valid arbitration and
negotiating for a different seniority regime,
USAPA is running the risk that it will be sued
by the disadvantaged pilots when the new
collective bargaining agreement is finalized.
An impartial arbitrator’s decision regarding an
appropriate method of seniority integration is
powerful evidence of a fair result. Discarding
the Nicolau Award places USAPA on
dangerous ground.

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ADDINGTON V. USAPA 16
Id. Citing our decision in Addington I, the court rued that it
could not “provide as much guidance as it had hoped it
could” because the matter would not be ripe until there was
a collective bargaining agreement. Id. at *5. Nevertheless,
the court concluded that “[USAPA’s] seniority proposal does
not breach its duty of fair representation provided it is
supported by a legitimate union purpose,” and granted partial
summary judgment in favor of USAPA. Id. No party
appealed from that decision.
II. THE INSTANT LITIGATION
Having reviewed the relevant background, we turn to the
proceedings that underlie the present suit.
A. 2013 US Airways–American Airlines Merger and MOU
In April 2012, US Airways announced its intention to
pursue a merger with American Airlines, following a decision
by American Airlines’ parent company, AMR Corporation,
to commence bankruptcy proceedings. Soon after, US
Airways entered into discussions with the Allied Pilots
Association (“APA”), the American Airlines pilots’ union,
regarding labor contract terms. Although USAPA was not
originally included in the negotiations, US Airways
subsequently agreed to include USAPA, which in turn tasked
a Negotiating Advisory Committee with representing its
pilots at negotiations. The Committee was comprised of four
pilots: two East Pilots and two West Pilots.
Between late 2012 and early 2013, American Airlines, US
Airways, USAPA, and APA negotiated a multi-party
agreement called the “Memorandum of Understanding
Regarding Contingent Collective Bargaining Agreement”

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ADDINGTON V. USAPA 17
(“MOU”). The MOU sets forth procedures for reaching a
Merger Transition Agreement between APA and “New
American Airlines,” the merged airline, in addition to a Joint
Collective Bargaining Agreement to apply to all pilots
employed by New American. Under the MOU, once the
Merger Transition Agreement is fully implemented, it will
“fully displace and render a nullity any prior collective
bargaining agreements applicable to US Airways pilots and
any status quo arising thereunder.”
The MOU also addresses a number of labor-related issues
important to the pilots, including terms and conditions of pay,
pension and retirement benefits, vacation time, and furlough
guarantees. Both parties agree that the MOU contains
significant economic benefits for all US Airways pilots,
including pay increases. With respect to seniority integration,
the MOU provides under Paragraph 10(h):
US Airways agrees that neither this
Memorandum nor the [Joint Collective
Bargaining Agreement] shall provide a basis
for changing the seniority lists currently in
effect at US Airways other than through the
process set forth in [the McCaskill-Bond
Amendment].
This provision, which did not appear in prior drafts of the
MOU, was proposed by USAPA. It incorporates the 2007
McCaskill-Bond Amendment, which sets forth a process by

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ADDINGTON V. USAPA 18
which merging airlines must integrate the seniority of their
pilots. See 49 U.S.C. § 42112 Note.1
The USAPA Board of Pilot Representatives voted to
approve the MOU on January 4, 2013. Thereafter, the
USAPA Negotiating Advisory Committee embarked on a
series of roadshow presentations designed to inform its pilots
about the MOU and urge their approval. USAPA, however,
tailored its presentation to its divided audiences. When
presenting the MOU to the West Pilots, the USAPA
representative stated that the MOU was merely “neutral” with
respect to seniority. However, when speaking to East Pilots,
the representative said that the MOU was beneficial because,
in effect, it confirmed that the Nicolau Award was “dead.” In
a written statement to pilots, USAPA confirmed that under
the MOU, the Nicolau Award was dead: “West pilots should
not vote in favor of the MOU because they believe it will
revive the Nicolau Award, and the East pilots should not vote
against it because they are concerned it will cause the Nicolau
Award to be implemented.” Ultimately, a majority of voting
pilots approved the MOU. Of the 1,041 West Pilots who
voted, 1,017 voted in favor of the MOU. The MOU was
ratified on February 8, 2013.
B. District Court Proceedings Below
In March 2013, shortly after the MOU was ratified, a
group of West Pilots filed the present action on behalf of
themselves and others similarly situated, bringing several
claims against USAPA. In Claim One, the West Pilots
1 We discuss the McCaskill-Bond Amendment infra note 5. That
statutory process is similar to the process provided for in ALPA’s Merger
Policy in that it calls for negotiation and, failing agreement, arbitration.

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ADDINGTON V. USAPA 19
alleged that USAPA had breached its duty of fair
representation, asserting that “USAPA does not have a
legitimate union purpose to use anything other than the
Nicolau Award list to integrate East Pilots and West Pilots.”
Because the MOU “abandons a duty to treat the Nicolau
Award as final and binding,” the West Pilots claimed,
USAPA breached its duty of fair representation by entering
into the MOU. As for a remedy, the West Pilots sought a
declaratory judgment that “USAPA is continuing to violate
the duty of fair representation by insisting that it will use a
date-of-hire seniority list rather than the Nicolau Award list”
and an injunction “requiring Defendants to conduct seniority
integration according to the MOU procedures but using the
seniority order in the Nicolau Award list to order the US
Airways pilots.”2
The district court certified a class of approximately 1,600
West Pilots, held a two-day bench trial in October 2013, and
issued a decision in January 2014, in favor of USAPA. The
court found that USAPA and its counsel, Pat Szymanski,
2 Claim Two of the West Pilots’ complaint alleged that US Airways
breached the Transition Agreement. The district court dismissed that
claim on the ground that it lacked jurisdiction to hear the claim. Under the
Railway Labor Act, federal courts lack subject matter jurisdiction over
certain disputes “grounded in the [collective bargaining agreement].” See
Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 881 (9th Cir. 2002)
(quoting Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 256 (1994)).
The West Pilots have not appealed the dismissal of this claim. Under
Claim Three, the West Pilots sought attorneys’ fees under the common
benefit doctrine. Finally, contemplating the MOU’s Seniority Integration
Process set to begin upon the completion of the bankruptcy proceedings
involving American Airlines, the West Pilots sought an order under Claim
Four declaring that they have “party status” in the integration process and
“the right . . . to participate fully (with counsel of their own choice)” in
that process.

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ADDINGTON V. USAPA 20
were “motivated in large part simply by a desire to ensure
that the Nicolau Award never take effect.” Addington v. US
Airline Pilots Ass’n, No. CV 13-00471, 2014 WL 321349, at
*3 (D. Ariz. Jan. 10, 2014) (unpublished). The court
observed that the text of Paragraph 10(h) of the final MOU
was amended from USAPA’s original proposal, which read:
“This MOU is not intended to nor shall it constitute the
‘Single Agreement’ referred to in Paragraph VI.A. of the
September 23, 2005 Transition Agreement.” The court found
that by including Paragraph 10(h), USAPA likely sought to
abrogate any duty it had to implement the Nicolau Award:
“While there is no definitive evidence why [Paragraph 10(h)]
was included, USAPA likely believed this provision was
necessary because completion of a ‘Single Agreement’ would
have triggered obligations under the Transition Agreement,
including implementation of the Nicolau Award.” Id. at *2.
The court then found that, during its roadshow to inform
pilots about the purpose and effect of the MOU, “USAPA
undoubtedly played fast-and-loose with its members and
changed its explanation of Paragraph 10(h) depending on its
audience.” Id. at *7 n.9. In general, the district court found,
the West Pilots voted to ratify the MOU because they
“accepted USAPA’s oral and written representations that the
MOU was neutral.” Id. at *3.
As it had done in the 2012 action, the district court
assumed that USAPA had an “existing obligation to use the
Nicolau Award.” Id. at *6. The question, then, was whether
USAPA had “some legitimate union purpose” for ignoring the
Nicolau Award. Id. The court noted that, because no new
seniority list had been agreed upon, it could not compare a
new list with the list required by the Nicolau Award. In the
end, the court concluded that the “increased compensation
provisions” in the MOU suggested that “legitimate union

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ADDINGTON V. USAPA 21
objectives motivated some aspects of the MOU,” although it
also found that “USAPA’s actions are sufficiently disturbing
to make this a very close call.” Id. at *5, 7. “The fact that
USAPA might have, in truth, been motivated by a desire to
weaken the chances of eventual adoption of the Nicolau
Award is not enough.” Id. at *7. The court expressed
hesitation about the West Pilots’ plea to examine Paragraph
10(h) in isolation, suggesting that such analysis “may
inappropriately enmesh courts in the minutiae of collective
bargaining.” Id. But the court put aside its reservation and
went on to reason: “A rational person could conclude that
making the MOU explicitly neutral [by including Paragraph
10(h)] served the legitimate union purpose of securing the
additional compensation contained in the MOU while putting
off to another day the question of the appropriate seniority
regime.” Id. Moreover, the court stated, “USAPA could
have rationally decided the neutral provision was necessary
to prevent the drag-out fight that surely would have
accompanied any non-neutral, seniority-related provision.”
Id. *7 n.8.
The district court entered judgment in favor of USAPA on
the duty of fair representation and separate representation
claims and a judgment of dismissal without prejudice on the
West Pilots’ claim for attorneys’ fees.3 Id. at *13. In so
holding, the court observed that “USAPA avoided liability on
the DFR claim by the slimmest of margins and the Court has
3 The district court also rejected the West Pilots’ claimed right to
separate representation at the upcoming McCaskill-Bond Seniority List
Integration (“SLI”) proceedings, concluding that McCaskill-Bond
contemplates only that the certified bargaining representative participate
in seniority integration proceedings. Addington, 2014 WL 321349, at
*8–12. As we discuss in the following section, the West Pilots were
ultimately offered a seat at the table by APA.

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ADDINGTON V. USAPA 22
serious doubts that USAPA will fairly and adequately
represent all of its members while it remains a certified
representative.” Id. at *12. It “stress[ed]” that it was not
holding that USAPA was “free to ignore the Nicolau Award
because its members will refuse to ratify anything other than
a strict date-of-hire system.” Id. at *7. “In effect,” the court
explained, “this is an argument that USAPA is free to treat
the West Pilots poorly because that is what the majority of its
members wish it to do. That is not the law.” Id. The district
court admonished USAPA that it “cannot justify its actions
by claiming it is merely acting as the conduit for enacting the
East Pilots’ self-serving wishes.” Id.
C. Seniority List Integration Proceedings
While the parties were litigating their claims before the
district court, the SLI proceedings forged ahead. The
National Mediation Board certified APA as the exclusive
collective bargaining representative for all pilots involved in
the US Airways–American Airlines merger.4 The merger and
reorganization plan became effective on December 9, 2013,
triggering the MOU’s provision mandating integration
pursuant to the McCaskill-Bond Amendment. In accordance
with the McCaskill-Bond process, the parties initially
attempted to reach agreement through negotiations. When
the parties did not reach a negotiated outcome by the agreed-
4 Recall that the APA was the American Airlines’ collective bargaining
representative prior to the merger. It is no surprise that APA was elected;
with nearly 10,000 pilots, APA represents a much larger group of pilots
than the East and West Pilots combined.

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ADDINGTON V. USAPA 23
upon deadline, they initiated preparations for arbitration
pursuant to Section 13(b) of the Allegheny-Mohawk LPPs.5
As the parties proceeded to arbitration, a dispute arose
among USAPA, US Airways, American Airlines, and APA
over whether APA possessed the authority to designate
additional merger committees to participate in the SLI
proceeding.6 APA had agreed that USAPA could continue to
5 The McCaskill-Bond Amendment codified two of the labor-protective
provisions that the Civil Aeronautics Board imposed in a 1972 merger
between Allegheny Airlines and Mohawk Airlines. 49 U.S.C. § 42112
Note; Allegheny-Mohawk Merger Case, 59 C.A.B. 19, 45 (1972). These
two provisions, Sections 3 and 13, are also known as the “Allegheny-
Mohawk LPPs.”
Section 3 provides that employees involved in a merger of airlines
will have their separate seniority lists combined into a single seniority list
covering all employees in a “fair and equitable manner.” It further
provides that if the parties cannot agree on a fair and equitable manner for
combination of the seniority lists, any party may submit the dispute for
resolution in accordance with the dispute resolution procedures of Section
13.
Section 13(a) of the Allegheny-Mohawk LPPs establishes a resolution
procedure for seniority integration disputes. If a dispute arises, and the
parties have not settled the dispute within 20 days, Section 13 provides for
a default process for selecting arbitrators and a 90-day timeline for
resolving the dispute. Subsection (b) states that the parties may agree on
an alternative method for dispute settlement or arbitrator selection, but no
party is excused from compliance with the default procedure unless all the
parties agree on an alternative.
6 We take judicial notice of US Airways’ 28(j) Letter filed on February
26, 2015, and its accompanying exhibits, the Seniority Integration
Protocol Agreement and the January 9, 2015 Preliminary Arbitration
Board Award. See Harris v. Cnty. of Orange, 682 F.3d 1126, 1131–32
(9th Cir. 2012) (“We may take judicial notice of undisputed matters of

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ADDINGTON V. USAPA 24
participate in the SLI process even though it no longer
constituted the bargaining representative for all the pilots, but
APA also wished to designate a separate committee to
represent the West Pilots. USAPA disagreed, and, in
February 2014, filed a declaratory judgment action seeking to
prevent the West Pilots’ participation in the SLI process.
APA counterclaimed, seeking a declaration that it had the
discretion to establish a new merger committee if it so chose.
The parties eventually agreed to a settlement, the terms of
which are set forth in the Seniority Integration Protocol
Agreement (“Protocol”).
Among other things, the Protocol established a
Preliminary Arbitration Board to handle disputes regarding
the SLI arbitration process. Pursuant to the Protocol, the
dispute over whether APA has the authority to designate a
separate merger committee for the West Pilots was referred
to the Preliminary Arbitration Board. On January 9, 2015,
the Preliminary Arbitration Board issued a final Award,
concluding that “APA has the discretion to designate a West
Pilots Merger Committee to participate in the [S]eniority
Integration List (SLI) process, and that it should do so.” In
the Matter of the West Pilots’ Request for a Merger
Committee, Preliminary Arbitration Board Award at 30 (Jan.
9, 2015). The Board explained that designating such a
committee would be “consistent with [APA’s] duty of fair
representation to all pilot employees,” because it would
“ensure that the interests of all pilots will be properly
represented during the SLI negotiations.” Id. at 32–33. The
Board observed that, “[g]iven the history of intransigence and
hostility between USAPA and the West Pilots,” in addition to
public record, including documents on file in federal or state courts.”
(citation omitted)).

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ADDINGTON V. USAPA 25
USAPA’s constitutional commitment to date-of-hire
principles, “it is far from clear that USAPA could or would
adequately represent the interests of the West Pilots.” Id. at
33. Accordingly, the Board concluded that designating a
West Pilot Merger Committee would be consistent with
McCaskill-Bond’s requirement that the SLI process be “fair
and equitable” and ordered APA to designate the West Pilot
Merger Committee as a full participant in the seniority
integration process. Id. at 34–35.
The West Pilots acknowledge that the Preliminary
Arbitration Board Award granted them separate
representation at the arbitration. Thus, the American Airlines
Pilots Seniority Integration Committee, the USAPA Merger
Committee, and the West Pilots’ Merger Committee are each
set to participate in the upcoming SLI arbitration. The
hearings are scheduled to begin on June 29, 2015, and
conclude on October 16, 2015. The SLI Arbitration Board,
which has already been selected, is expected to issue an
award by December 9, 2015. The parties have agreed to
allow a “reasonable extension,” if requested by the Board, in
the event the Board is unable to meet that deadline. Absent
an extension, however, an Award will issue on December 9,
resulting in a single seniority list integrating the pilots of
American Airlines, US Airways, and the former America
West.
III. THE DUTY OF FAIR REPRESENTATION
With that background, we turn to the issue before us—
whether USAPA violated its duty of fair representation to the
West Pilots. We note at the outset that, of the many labor
issues to which the duty of fair representation applies in the
airline industry, pilot seniority is among the most important

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ADDINGTON V. USAPA 26
and the most sensitive. Pilot seniority has been a fertile area
for duty of fair representation claims. See, e.g., Air Line
Pilots Ass’n v. O’Neill, 499 U.S. 65 (1991); Humphrey v.
Moore, 375 U.S. 335 (1964); Rakestraw v. United Airlines,
Inc., 981 F.2d 1524 (7th Cir. 1992); Bernard v. Air Line
Pilots Ass’n, 873 F.2d 213 (9th Cir. 1989); Jones v. Trans
World Airlines, Inc., 495 F.2d 790 (2d Cir. 1974). Seniority
is immensely valuable to pilots; greater seniority means better
wages and working conditions. A pilot’s position on a
seniority list determines her rank, the aircraft she flies, and
the control she maintains over her work schedule. Perhaps
most important, a pilot’s seniority determines her degree of
exposure to “furloughs,” or unpaid leaves of absence. The
most junior pilots at an airline are often the first to be
furloughed; seniority can therefore mean the difference
between being in or out of a job. See Humphrey, 375 U.S. at
346–47. And the issue of seniority is a sensitive one for the
union to traverse because a seniority dispute is the equivalent
of a family feud over an inheritance: it is a zero-sum game,
where moving one pilot up the list necessarily requires
moving another pilot down.
It is no wonder, then, that this controversy between the
West Pilots and USAPA persists through two mergers,
numerous negotiations, an arbitration, eight years of
litigation, three district court decisions, and now, two
decisions in our court. The lengthy and bitter history between
the West Pilots and USAPA vividly illustrates the
significance of this issue to the parties. Below, we first
address the justiciability of the West Pilots’ claim before
turning to the merits.

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ADDINGTON V. USAPA 27
A. Justiciability
This case is ripe for review. Although we will discuss the
duty of fair representation in greater detail in the next section,
it is sufficient for us to note here that the duty “applies to all
union activity, including contract negotiation.” O’Neill,
499 U.S. at 67; see also Commc’ns Workers of Am. v. Beck,
487 U.S. 735, 743 (1988) (the duty of fair representation
applies to “challenges leveled not only at a union’s contract
administration and enforcement efforts, but at its negotiation
activities as well” (citation omitted)); Addington I, 606 F.3d
at 1183 n.8 (the duty “applies both to contract negotiation and
contract administration”). The preliminary question is not
whether “a union in its negotiating capacity” has a duty of
fair representation to its members—it plainly does, O’Neill,
499 U.S. at 77—but rather, at what point can unfairly
represented members complain to us? In Addington I, we
concluded that it was when the fruit of negotiations is
manifest and some kind of “‘final product’ has been reached.”
606 F.3d at 1182 (quoting O’Neill, 499 U.S. at 78).
We believe that a sufficiently “final product” was reached
in this case when USAPA negotiated the MOU in 2013 with
American Airlines, US Airways, and APA. The MOU
supplied a framework—the new ground rules—for entering
into a comprehensive collective bargaining agreement for
New American Airlines. Obviously, in the merger of
American and US Airways, the question of pilot seniority will
be a critical component of the efforts to merge the groups of
pilots. However, the creation of an integrated seniority list in
that merger is complicated by the fact that no single,
integrated seniority list has ever emerged from the US
Airways–America West merger. In a merger of two airlines,

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ADDINGTON V. USAPA 28
there are presently three seniority lists. That complication is
where Paragraph 10(h) of the MOU comes in.
Paragraph 10(h) relieves USAPA of any obligation it had
to negotiate with the airlines and APA based on the Nicolau
Award. By ensuring that the East and West Pilots’ seniority
lists will remain separate, while at the same time permitting
the McCaskill-Bond seniority integration proceedings to go
forward, Paragraph 10(h) effectively ensures that the Nicolau
Award will never be implemented under the original US
Airways–America West Transition Agreement and the ALPA
Merger Policy to which USAPA succeeded. As USAPA
reassured the East Pilots, with the adoption of Paragraph
10(h), the Nicolau Award was “dead.” Indeed, in its briefing
to us, USAPA candidly concedes that it has successfully
abrogated the Nicolau Award, acknowledging that Paragraph
10(h) ensures that there will “never be a ‘[S]ingle
[A]greement’ as referred to in the Transition Agreement.” If
there can never be a “Single Agreement,” then USAPA will
never face the prospect of being compelled, under the legal
force of the Transition Agreement, to implement the Nicolau
Award. Thus, USAPA’s abandonment of the Transition
Agreement’s process for implementing the Nicolau Award is
no longer speculative or contingent; it is a settled fact. The
West Pilots’ duty of fair representation claim is thus fit for
decision.
The second prong of our ripeness inquiry asks whether
withholding judicial consideration also works a direct and
immediate hardship on the parties. Addington I, 606 F.3d at
1179. We think that the answer to this question is also
obvious. US Airways is a house divided. After ten years of
negotiation, arbitration, and litigation, the US Airways pilots
are poised to enter the SLI arbitration process without a single

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ADDINGTON V. USAPA 29
seniority list. Thus, not only must the West Pilots advocate
for the seniority interests of US Airways pilots generally in
the SLI proceedings, but they must also advocate the Nicolau
Award vis-à-vis the date-of-hire seniority scheme that the
East Pilots will present. This imposes a double hardship on
the West Pilots that they would not otherwise have had to
bear if USAPA had observed its duty of fair representation
and made a good faith effort to implement the Nicolau
Award. It is no answer to say that the SLI Board might, in its
discretion, decide to use the Nicolau Award in its eventual
integration of the US Airways and American Airlines pilots.
Whether or not this possibility comes to pass, the West Pilots
presently must endure the direct and immediate hardship of
fighting on two fronts.
If the West Pilots are to have any relief, we must grant it
before the SLI Award issues. The West Pilots have asked
that the East and West Pilots be integrated in accordance with
the Nicolau Award in the upcoming SLI proceedings. Their
proposed injunction would effectively put the West Pilots in
the position they would likely have occupied but for the
breach: the US Airways pilots would enter the seniority
integration process united behind a single seniority list
integrated in accordance with the Nicolau Award. Plaintiffs
have therefore alleged an actual “injury as a result of the
putatively illegal conduct of the defendant . . . . that is likely
to be redressed if the requested relief is granted.” Gladstone
Realtors v. Vill. of Bellwood, 441 U.S. 91, 99–100 (1979)
(citations omitted). Moreover, it is unclear whether the West
Pilots will have any remedy available once the East, West,
and American pilots have been integrated pursuant to the SLI

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ADDINGTON V. USAPA 30
Award. The impending SLI Board decision makes it even
more critical that we adjudicate this dispute now.7
Plaintiffs’ duty of fair representation claim is ripe for
adjudication, the requested remedy can ameliorate Plaintiffs’
claimed injury, and neither party argues otherwise. Plaintiffs
have waited almost eight years for a resolution of their duty
of fair representation claim on the merits. We will defer that
resolution no longer.
B. The Duty of Fair Representation
We turn, therefore, to the merits of the West Pilots’ duty
of fair representation claim. Whether a union’s conduct
amounted to a breach of its duty of fair representation
presents a mixed question of law and fact that we review de
novo. Woods v. Graphic Commc’ns, 925 F.2d 1195, 1199
7 Having turned the West Pilots away once before in Addington I, the
dissent would have us bar the door to them entirely. The dissent contends
that this appeal is moot because the West Pilots’ complaint requested an
injunction “requiring Defendants to conduct seniority integration . . . using
the seniority order in the Nicolau Award,” but USAPA is no longer the
exclusive bargaining representative for the US Airways pilots. See
Dissent at 52–55. Though the merger has stripped USAPA of the legal
status it once possessed, such that USAPA cannot violate any duty of fair
representation in the future, it did not wipe away any harms that USAPA
wrought to the West Pilots in the past. Nor does the change in USAPA’s
status prevent us from granting meaningful injunctive relief to the West
Pilots in this case; USAPA continues to enjoy the right to participate in the
upcoming SLI arbitration. See United States v. AMC Entm’t, Inc.,
549 F.3d 760, 768 (9th Cir. 2008) (courts enjoy “considerable discretion
in granting injunctive relief and in tailoring . . . relief”). We thus decline
to place the West Pilots in the dissent’s catch-22: having once rebuffed
as unripe the West Pilots’ plea to redress USAPA’s discriminatory
treatment, we will not now deprive them of federal review yet again on the
grounds that their claim is moot.

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ADDINGTON V. USAPA 31
(9th Cir. 1991); Galindo v. Stoody Co., 793 F.2d 1502, 1513
(9th Cir. 1986). We review a district court’s findings of fact
for clear error. Woods, 925 F.2d at 1199; see Jones v. Union
Pac. R.R. Co., 968 F.2d 937, 941–42 (9th Cir. 1992). We
conclude, for the reasons discussed below, that USAPA
breached its duty of fair representation to the West Pilots.
1. USAPA has breached its duty of fair representation
At its most rudimentary level, the union’s duty of fair
representation is a duty “to make an honest effort to serve the
interests of all, . . . without hostility to any.” Ford Motor Co.
v. Huffman, 345 U.S. 330, 337 (1953). The principle was first
articulated in Steele v. Louisville & Nashville R. Co., 323 U.S.
192 (1944), a case with a troubled history not unlike the case
before us. Bester Steele, the appellant in that case, was a
fireman who worked for the Louisville & Nashville Railroad.
323 U.S. at 194. As a black man, Steele was excluded by
“constitution and ritual” from the Brotherhood of Locomotive
Firemen and Enginemen, the exclusive bargaining
representative chosen by the white majority of firemen
employed by the Railroad. Id. at 194–95. The Brotherhood
notified the Railroad that it intended to amend the existing
collective bargaining agreement “in such manner as
ultimately to exclude all Negro firemen from the service.” Id.
at 195. Under the amended agreement, Steele and several
other black men were “disqualified” from their position in a
“passenger pool,” a highly desirable assignment, then
replaced by four white men—all junior in seniority to Steele
and no more competent—and finally, assigned to “more
arduous, longer, and less remunerative work in local freight
service.” Id. at 196. Steele sued the Brotherhood under the
Railway Labor Act—the act under which the Brotherhood’s
authority as exclusive bargaining representative arose.

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ADDINGTON V. USAPA 32
The Supreme Court concluded that the Railway Labor Act
imposes on the bargaining representative of a class of
employees “the duty to exercise fairly the power conferred
upon it [o]n behalf of all those for whom it acts, without
hostile discrimination against them.” Id. at 203. The Court
observed that the Act requires carriers to bargain exclusively
with the representative chosen by the employees and no other,
and that “[t]he minority members of a craft are thus deprived
by the statute of the right, which they would otherwise
possess, to choose a representative of their own.” Id. at 200.
Thus, the Court reasoned, unless the union owes some duty
to represent the minority members of the group, “the minority
would be left with no means of protecting their interests.” Id.
at 201. Accordingly, the Court held: “So long as a labor
union assumes to act as the statutory representative of a craft,
it cannot rightly refuse to perform the duty, which is
inseparable from the power of representation conferred upon
it, to represent the entire membership of the craft.” Id. at 204.
While Steele firmly established the nondiscrimination
principle of the duty of fair representation, the precise
contours of that duty are not clear. In other areas of the law
where there is a general duty of nondiscrimination with
respect to employment, such as equal protection or Title VII,
we have well-developed tests and procedures for identifying
unlawful discrimination. In those contexts, however, the duty
runs to individuals, or classes of individuals sharing a
common characteristic, such as race, gender, age, or
disability. The duty of fair representation in the union
context is quite distinct because of the collective nature of the
union-employer relationship. A union must act in the general
interest of its membership, and it may have to compromise on
positions that will inevitably favor a majority of its members
at the expense of other of its members. See Humphrey,

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ADDINGTON V. USAPA 33
375 U.S. at 349–50 (“Conflict between employees
represented by the same union is a recurring fact.”); Ford
Motor Co., 345 U.S. at 338 (“The complete satisfaction of all
who are represented is hardly to be expected.”); Rakestraw,
981 F.2d at 1530 (“Bargaining has winners and losers.”);
Hendricks v. Airline Pilots Ass’n, 696 F.2d 673, 677–78 (9th
Cir. 1983). Such a winners-and-losers compromise does not
mean that the union has violated its duty of fair
representation.
The Court has struggled to describe the legal relationship
between a union and its members. In Air Line Pilots Ass’n v.
O’Neill, the Court observed that members of the Court have
variously described the duty as analogous to a fiduciary duty
that a trustee owes the trust beneficiaries, or the relationship
between attorney and client, or the duty of care and loyalty
owed shareholders by corporate officers and directors.
499 U.S. at 74–75. In O’Neill itself, the Court resorted to the
language of equal protection. Id. at 81 (“A rational
compromise . . . was not invidious ‘discrimination’ of the
kind prohibited by the duty of fair representation.”). The best
statement of the duty appears in Vaca v. Sipes: “the exclusive
agent’s statutory authority to represent all members of a
designated unit includes a statutory obligation to serve the
interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good
faith and honesty, and to avoid arbitrary conduct.” 386 U.S.
171, 177 (1967). Or, as we have expressed it, “[w]e may
decline to give a union the deference owed to an exercise of
judgment only where union actions or inactions are ‘so far
outside a wide range of reasonableness that [they are] wholly
irrational or arbitrary.’” Beck v. United Food & Commercial
Workers Union, 506 F.3d 874, 879 (9th Cir. 2007) (second
alteration in original) (quoting O’Neill, 499 U.S. at 78).

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ADDINGTON V. USAPA 34
Accordingly, “[t]o establish that the union’s exercise of
judgment was discriminatory, a plaintiff must adduce
‘substantial evidence of discrimination that is intentional,
severe, and unrelated to legitimate union objectives.’” Id. at
880 (quoting Amalgamated Ass’n of St., Elec. Ry. & Motor
Coach Emps. v. Lockridge, 403 U.S. 274, 301 (1971)).
The negotiation of seniority lists presents a particularly
difficult application of the union’s duty of fair representation.
For the reasons we have previously discussed, the creation of
a seniority list is inevitably an exercise in winners and losers.
We must respect the “wide latitude” that unions need for “the
effective performance of their bargaining responsibilities.”
O’Neill, 499 U.S. at 78. Accordingly, obtaining employee
benefits or minimizing risks to employees constitutes a
legitimate purpose for making seniority-related concessions.
See Baker v. Newspaper & Graphic Commc’ns Union,
628 F.2d 156, 166 (D.C. Cir. 1980) (concluding that a union
did not breach its duty of fair representation where it
capitulated to the employer’s proposed seniority regime,
necessary to keep the company afloat, concluding that “the
loss of work for some . . . [was] preferable to job losses for
all”). Achieving stability and strengthening organized labor
also constitute legitimate union purposes. See Rakestraw,
981 F.2d at 1534–35 (finding no breach where a union
drafted the seniority roster to effectively punish pilots who
had “crossed the picket lines” and thereby “strengthen the
hand of organized labor in future conflicts with
management”).
So, what constitutes such “arbitrary conduct” on the part
of the union? For starters, we have made clear that the
union’s duty to avoid “invidious” discrimination extends
beyond such factors as “race or other constitutionally

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ADDINGTON V. USAPA 35
protected categories,” explaining that “these grounds are too
restrictive.” Simo v. Union of Needletrades, 322 F.3d 602,
618–19 (9th Cir. 2003). In the context of negotiating a
seniority list, the prohibition on arbitrariness means that “a
union may not juggle the seniority roster for no reason other
than to advance one group of employees over another.”
Rakestraw, 981 F.2d at 1535; see Ramey v. Dist. 141,
378 F.3d 269, 277 (2d Cir. 2004) (upholding a finding of
violation of the duty of fair representation where union
stripped seniority from pilots who favored a different union).
We have thus found that a union breached its duty of fair
representation when it failed to follow its own policies in
merging the seniority lists of two groups of airline pilots, the
effect of which was to punish the pilots who were not
unionized prior to the merger. Bernard, 873 F.2d at 217.
Other courts have found a breach where the union assigned
seniority based on longevity in the union, Teamsters Local
Union No. 42 v. NLRB, 825 F.2d 608, 613 (1st Cir. 1987);
favored union members over non-union members of the
bargaining unit, Jones, 495 F.2d at 797; made seniority
promises to advance the career of union officials, Barton
Brands, Ltd. v. NLRB, 529 F.2d 793, 799 (7th Cir. 1976); or
made seniority promises to one group of employees to secure
election, Truck Drivers, Local Union 568 v. NLRB, 379 F.2d
137, 143 (D.C. Cir. 1967). In short, a union must act with
some legitimate union purpose that “rationally promote[s] the
aggregate welfare of employees in the bargaining unit.”
Rakestraw, 981 F.2d at 1535 (emphasis added). Decisions
benefitting a majority of the group may not be made merely
because the “losers ha[d] too few votes to affect the outcome
of an intra-union election.” Id. at 1530.
Two cases analogous to ours illustrate these principles.
The first of these is Barton Brands, Ltd. v. NLRB. In that

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ADDINGTON V. USAPA 36
case, Barton Brands acquired Glencoe Distilling Company.
529 F.2d at 795. The employees of both companies agreed to
dovetail their seniority lists, and the union bargained for such
a list with Barton. Id. at 795–96. When Barton did not build
a new facility as planned, it was forced to lay off some of its
employees. Id. at 796. The pre-acquisition Barton employees
sought to “endtail” the former Glencoe employees, who they
saw as taking positions from the pre-acquisition Barton
employees. Id. During the collective bargaining agreement
negotiations, the union and the employer agreed to recalculate
the seniority of the former Glencoe employees and consider
their seniority only from the date of acquisition; this had the
effect of moving the Glencoe employees below all of the pre-
acquisition Barton employees. Id. The Seventh Circuit found
that the union violated its duty of fair representation to the
former Glencoe employees:
[T]he Union acted solely on grounds of
political expediency in reducing the former
Glencoe employees’ seniority. . . . [S]uch
decisions may not be made solely for the
benefit of a stronger, more politically favored
group over a minority group.
Id. at 798–99 (citation omitted). The court remanded to the
NLRB to “consider that in order to be absolved of liability[,]
the Union must show some objective justification for its
conduct beyond that of placating the desires of the majority
of the unit employees at the expense of the minority.” Id. at
800.
The second case is our decision in Bernard v. Air Line
Pilots Ass’n. In that case, Alaska Airlines and Jet America
Airlines were merging their operations. 873 F.2d at 214. The

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ADDINGTON V. USAPA 37
Alaska Airlines pilots were represented by ALPA; the Jet
America pilots were not represented by a union. ALPA
entered into negotiations with Alaska Airlines over
integrating the Jet America and Alaska pilots. Alaska
Airlines refused to allow the Jet America pilots to participate
in the negotiations. Id. at 215. When the airlines and ALPA
entered into an agreement that favored the Alaska pilots, the
Jet America pilots alleged that ALPA had violated its duty of
fair representation. Id. at 214–15. We concluded that ALPA
had violated its duty to fairly represent all members of the
bargaining unit. In particular, we pointed to the fact that
“ALPA failed to follow its own merger policy for mergers
with ALPA-represented groups. This policy would have
required ALPA to conduct internal negotiations with Jet
America pilots, and mediate and arbitrate if necessary, before
presenting its position to management.” Id. at 216.
Effectively, ALPA “discriminate[d] against the Jet America
pilots because they were not unionized prior to the merger.”
Id. at 217.
In the end, applying these principles here, we do not think
that this is a difficult case. From its inception, USAPA has
advocated for date-of-hire principles as a way of suppressing
the minority, the West Pilots. In another context, a date-of-
hire preference would be a perfectly rational means of
ordering a seniority list, see McNamara-Blad v. Ass’n of
Prof’l Flight Attendants, 275 F.3d 1165, 1172 (9th Cir.
2002); Laturner v. Burlington N., Inc., 501 F.2d 593, 599 (9th
Cir. 1974), but here it was a raw exercise of political power
to undo the process to which the East and West Pilots had
agreed. In effect, USAPA promised a date-of-hire regime as
the quid pro quo for securing the East Pilots’ vote on their
new bargaining unit, and it treated the West Pilots as though
they were non-union members.

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ADDINGTON V. USAPA 38
Under the Transition Agreement’s seniority-integration
process, the two groups of pilots were committed to working
out a single, integrated seniority list through ALPA’s Merger
Policy. That Merger Policy provided a familiar, neutral set of
rules for resolving such explosive issues. Even though
neither side knew what the outcome of the game would be,
both sides knew what the rules were. Both East and West
Pilots had a full and fair opportunity to advocate for the
advantages of their favored seniority regime. Negotiation,
mediation, arbitration—all well-established dispute-
resolution mechanisms—were brought to bear in the East and
West Pilots’ seniority dispute. In the end, neither side could
agree on a method for integrating the two lists, and the matter
went to arbitration. The result was the Nicolau Award, which
did not embrace in full the position of either side. ALPA was
obligated to defend that Award in its collective bargaining
negotiations with US Airways.
Yet, when all was said and done, the East Pilots
repudiated their promise to be bound by the outcome of the
agreed-upon process. When the East Pilots did not get the
outcome they wanted, they simply dumped the rules and
found a new rulemaker—USAPA—that they could control.
By “constitutionally committ[ing USAPA] to pursuing date-
of-hire principles,” Addington I, 606 F.3d at 1177, the East
Pilots fixed the game.
From the outset, USAPA was irreconcilably opposed to
the negotiating position of the West Pilots. Conceived in the
minds of the East Pilots, elected and installed by the East
Pilots, and constitutionally committed to a date-of-hire list
that favored the East Pilots, USAPA could never fairly and
impartially represent the West Pilots. The very reason for its
existence was to undermine the Nicolau Award in every

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ADDINGTON V. USAPA 39
manner that ALPA had refused to do. USAPA was, for all
intents and purposes, a representative for the East Pilots. This
purpose is nowhere more evident than in the East Pilots’ and
USAPA’s own words. In the East Pilots’ consultations with
counsel, they sought to develop a roadmap for creating “a
new bargaining agent [that] can get around the award and
make the Nicolau Award moot.” And although counsel
cautioned the East Pilots to take care not to advertise too
broadly that the “sole reason for the new union” was to
abrogate the Nicolau Award, the East Pilots paid little heed.
Their new union’s constitution spoke its founders’ purpose
loud and clear. USAPA’s constitution committed it “to
maintain[ing] uniform principles of seniority based on date of
hire.” This principle flatly contradicted the Nicolau Award,
but it ensured that the East Pilots, whose voting strength
overpowered the West Pilots by more than two-to-one, would
vote to certify USAPA as the new collective bargaining
representative. And upon its certification, USAPA’s first act
was to submit a new seniority list to US Airways, consistent
with the date-of-hire principles it was constitutionally
committed to proselytize.
Although in Addington I we were uncertain about how the
East and West Pilots’ “internal disputes” would eventually
“work themselves out,” 606 F.3d at 1181 n.4, USAPA’s
subsequent actions have rendered the picture clear. Since
USAPA’s initial act of proposing a revised seniority list in
2008, it has continued to oppose any efforts to reach a “Single
Agreement,” the consummation of which would
automatically trigger the implementation of the Nicolau
Award under the terms of the Transition Agreement. Thus
far, USAPA has been fully successful. Two years after we
decided Addington I, when US Airways and American
Airlines announced their merger, there was still no Single

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ADDINGTON V. USAPA 40
Agreement and no Nicolau Award. USAPA succeeded in
keeping separate the seniority lists applicable to the East and
West Pilots until it finally had the opportunity, in the US
Airways–American Airlines merger, to dismantle the Nicolau
Award for good. In short, USAPA’s aim to benefit the East
Pilots at the expense of the West Pilots is no longer in any
doubt.
There is another, independent reason why USAPA’s
genetic commitment to a date-of-hire principle violates its
duty of fair representation. USAPA did not just follow
ALPA in time; it succeeded to ALPA’s duties under the
Transition Agreement. That union-management Transition
Agreement provided that once ALPA’s Merger Policy
resulted in an integrated list, the union was obligated to
submit it to US Airways and to “use all reasonable means at
its disposal to compel the company to accept and implement
the merged seniority list.” As the district court found in the
2012 proceedings, “[w]hen USAPA became the pilots’ new
collective bargaining representative, it succeeded ‘to the
status of the former representative without alteration in the
contract terms.’” US Airways, 2012 WL 5996936, at *4
(quoting Int’l Bhd. of Teamsters, 717 F.2d at 163). “Thus,
just as ALPA would have been bound by the Transition
Agreement had it remained the pilots’ representative, USAPA
is bound by the Transition Agreement.” Id. The court
observed that the Transition Agreement could still be
modified by agreement of the union and US Airways, but it
warned USAPA that if it abandoned the Nicolau Award it
would be “on dangerous ground.” Id.
When the West Pilots brought this case to the district
court, the court again assumed that USAPA had breached its
duty of fair representation if it abandoned its “obligation” to

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ADDINGTON V. USAPA 41
the Nicolau Award without some “legitimate union purpose.”
Id. at *5. The union claimed that Paragraph 10(h) of the
MOU satisfied that purpose, and the district court reluctantly
agreed. We thus turn to Paragraph 10(h) of the MOU.
2. Paragraph 10(h) did not serve a legitimate union
purpose
The merger with American Airlines presented USAPA
with a dilemma. On the one hand, it offered USAPA an
opportunity to obtain a host of lucrative benefits for all its
pilots through its negotiation of the MOU. On the other hand,
the MOU threatened to become the “Single Agreement” that
USAPA had fought for years to avoid. Ultimately, USAPA
agreed to the MOU, but not without inserting a provision
making clear that its assent to the MOU would not “provide
a basis for changing the seniority lists currently in effect at
US Airways.” Paragraph 10(h) therefore maintained in-place
the separate seniority lists for the East and West Pilots that
persisted at US Airways. The West Pilots contend that
USAPA breached its duty of fair representation when it
included Paragraph 10(h) in the MOU. As the plaintiffs, the
West Pilots bear the burden to demonstrate “substantial
evidence of discrimination that is intentional, severe, and
unrelated to legitimate union objectives.” Beck, 506 F.3d at
880 (internal quotation marks omitted). For the reasons
discussed below, we conclude that the West Pilots have met
their burden and that Paragraph 10(h) of the MOU represents
yet another example of USAPA’s continuing discrimination
against the West Pilots.
Here, the district court identified three reasons why
USAPA may have included Paragraph 10(h) in the MOU.
First, the district court found, USAPA used Paragraph 10(h)

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ADDINGTON V. USAPA 42
to make the MOU “explicitly neutral” and “put[] off to
another day the question of the appropriate seniority regime,”
while securing, in exchange, “the additional compensation
contained in the MOU.” Second, the court suggested that
USAPA viewed Paragraph 10(h) as “necessary to prevent the
drag-out fight that surely would have accompanied any non-
neutral, seniority-related provision.” And finally, the district
court found that USAPA likely believed that Paragraph 10(h)
was necessary to prevent completion of a “Single
Agreement,” triggering implementation of the Nicolau
Award. We address each finding in turn.
First, we address the district court’s conclusion that
USAPA’s motive for including Paragraph 10(h) was to render
the MOU “explicitly neutral” so as to secure the benefits
contained in the MOU. Had there been any evidence to
suggest that USAPA included Paragraph 10(h) for the
purpose of obtaining benefits under the agreement, then
USAPA’s actions would clearly be legitimate. See Baker,
628 F.2d at 166. Certainly, obtaining salary increases,
retirement benefits, and pension benefits is as legitimate a
purpose as obtaining greater job security. See id. The
problem, however, is that the district court did not point to a
single piece of evidence supporting its conclusion. Whereas
the record in Baker clearly showed that a particular seniority
regime was a “major bargaining goal” for the company as it
was necessary to keep the company afloat, see id. at 159, the
district court below pointed to no evidence suggesting that the
airline insisted on Paragraph 10(h) in exchange for the
benefits it was offering.
Moreover, there is no apparent reason why the airlines
would value this asserted concession. While seniority holds
enormous consequence to individual pilots, the record fails to

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ADDINGTON V. USAPA 43
show that New American has any interest in whether one
pilot is senior to another, or vice versa. It is no surprise, then,
that although US Airways and American wished to integrate
their respective pilots in accordance with the new McCaskill-
Bond Amendment, as required by law, there is no evidence
that the airlines had any stake in the substantive outcome of
the seniority integration. Here, there is no rational
justification in the record to support the conclusion that
USAPA decided to put off the seniority discussion to garner
benefits for the pilots under the MOU.8 Because we are left
with “a definite and firm conviction that a mistake has been
made,” we conclude that the district court’s contrary finding
is clearly erroneous. See Woods, 925 F.2d at 1199 (internal
quotation marks omitted).
Second, the district court concluded that Paragraph 10(h)
may have been inserted into the MOU to prevent a “drag-out
fight that surely would have accompanied” any provision
purporting to affect seniority. This conclusion is
unsupportable. It may be perfectly legitimate, in the abstract,
for a union to take measures to avoid infighting while
negotiating a contract with an employer. But conflict
avoidance cannot serve as a legitimate union purpose where
the conflict results from the unilateral, discriminatory action
of the union itself. In other words, the union cannot claim
that it is avoiding intra-union conflict by negotiating a
position that clearly favors one side in the intra-union dispute.
8 USAPA’s view—that the mere presence of contractual benefits
suffices to discharge a union’s duty of fair representation—would permit
unions to insulate any discriminatory action by embedding it within a
contract which nominally provides benefits, even if there is no rational
connection between the benefits and the discriminatory action. Such a
rule proves too much.

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ADDINGTON V. USAPA 44
That is not conflict avoidance; it is using the negotiations as
an excuse for conflict resolution. As we explained above,
USAPA was constitutionally committed to repudiating the
Nicolau Award and thus diametrically opposed to the
interests of its West Pilot members. Thus, accepting the
avoidance of the fight between USAPA and the West Pilots
as a legitimate purpose for including Paragraph 10(h) merely
blesses USAPA’s discriminatory conduct against the West
Pilots. USAPA may not point to a conflict of its own,
unjustified creation to bootstrap its way to a legitimate union
purpose.9
Having set aside two of the district court’s proposed
motives for implementing Paragraph 10(h), we are left with
the court’s final set of findings. The district court found that
USAPA likely included Paragraph 10(h) to ensure that the
Nicolau Award never took effect. This conclusion finds
ample support in the record.10 But we respectfully disagree
9 The dissent contends that “[e]ven if USAPA had some role in
perpetuating the seniority controversy by not resolving it sooner,” we must
focus our attention on the facts and circumstances confronting USAPA at
the time it decided to include Paragraph 10(h) in the MOU, which
included the “very real conflict that existed at the time the MOU was
being negotiated.” Dissent at 62–63. The dissent’s narrow view of the
scope of our review threatens to eliminate meaningful judicial review
entirely. The history and context of a union’s actions is critical to
understanding its motives. Contrary to the dissent’s view that Paragraph
10(h) was neutral, reflecting USAPA’s “decision to walk a middle road,”
Dissent at 60–61, we conclude that the history of this case makes clear
that it was anything but.
10 The record showed that Mr. Szymanski “was motivated in large part
simply by a desire to ensure the Nicolau Award never take effect” and that
USAPA believed that Paragraph 10(h) was necessary to prevent the MOU
from “trigger[ing] obligations under the Transition Agreement, including

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ADDINGTON V. USAPA 45
with the district court and the dissent regarding the inference
to be drawn from this fact. Far from demonstrating that the
union had a legitimate purpose in negotiating Paragraph
10(h), the paragraph is further evidence of USAPA’s
intransigence and its continuous course of discriminatory
conduct. USAPA’s motive is nowhere more evident than in
its behavior during the MOU roadshows where, as the district
court found, USAPA’s representatives told the East Pilots
that Paragraph 10(h) rendered the Nicolau Award “dead,” but
also “played fast-and-loose” with the West Pilots, deceiving
them about the purpose and effect of Paragraph 10(h).11
USAPA included Paragraph 10(h) solely to benefit the East
Pilots over the West Pilots, to free them from the
consequences of the arbitration to which they were bound.
implementation of the Nicolau Award.” Addington, 2014 WL 321349, at
*2–3.
In its final order, the district court took USAPA to task for its dilatory
tactics: “USAPA employed almost every conceivable delaying tactic,”
including extensive filings and motions to continue. Id. at *5. Delay
worked to USAPA’s benefit. The longer it could postpone its obligations
to negotiate for the Nicolau Award, the more likely it was that the West
Pilots would give in or that the matter would become moot.
11 We could not agree more with the dissent that reversal of the district
court’s factual determinations requires a finding of clear error. But far
from “ignor[ing]” evidence that the majority of the West Pilots voted to
ratify the MOU, which the dissent contends we have done, see Dissent at
63 n.5, we have clearly acknowledged it. See supra Part II.A. Rather, it
is the dissent that draws an inference from the facts that the district court
did not; while the dissent contends that “the fact that West Pilots
overwhelmingly ratified the MOU suggests that USAPA was not simply
abandoning their interests,” Dissent at 61, the district court found that the
West Pilots voted in favor of the MOU because, “[i]n general, the West
Pilots accepted USAPA’s oral and written representations that the MOU
was neutral.” See Addington, 2014 WL 321349, at *3.

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ADDINGTON V. USAPA 46
USAPA’s conduct is blatantly discriminatory. Such a
decision falls outside the “wide range of reasonableness” that
we afford the union because USAPA has violated its duty of
“complete loyalty to[] the interests of all whom it represents.”
Ford Motor Co., 345 U.S. at 338; see Barton Brands,
529 F.2d at 798–99.
In sum, the district court identified three possible reasons
why USAPA included Paragraph 10(h) in the MOU: first, to
obtain the benefits of the MOU while remaining neutral as to
seniority; second, to avoid conflict; and third, to advantage
the East Pilots by promoting date-of-hire seniority over the
Nicolau Award. The first reason is unsupported by the
evidence, and the district court clearly erred in concluding
that this reason could have supported USAPA’s actions. The
second reason is not legitimate; USAPA may not rely upon an
unjustified conflict of its own making as a legitimate union
purpose. And the third reason is clearly discriminatory and
impermissible. None of the purposes that the district court
identified for USAPA’s actions constitutes a “legitimate
union purpose” for abandoning the Nicolau Award in the
MOU. Nor do we see any other legitimate union purpose for
Paragraph 10(h).
Our disagreement with the district court is not
fundamental, however, but merely marginal. The district
court acknowledged that this case presented a “very close
call” and that USAPA avoided liability only by the “slimmest
of margins.” Addington, 2014 WL 321349, at *5, *12. We
conclude that once USAPA assumed the duty to act as
statutory representative for all the pilots, it could not rightly
refuse to represent all the pilots’ interests fairly and
impartially. Because it did so openly, we find that USAPA
violated the most elementary principle of the duty of fair

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ADDINGTON V. USAPA 47
representation—to serve the interests of all of its members,
not just the pilots who voted for the union.
IV. REMEDY
In Steele, the Supreme Court explained that a
“representative which . . . discriminates [among members]
may be enjoined from so doing.” 323 U.S. at 203. Thus, in
duty of fair representation cases, we can fashion an injunction
where it will either prevent the unjustly benefited employee
from “taking the benefit of such discriminatory action,” see
id., or “make the injured employee whole,” see Int’l Bhd. of
Elec. Workers v. Foust, 442 U.S. 42, 49 (1979) (citing Steele,
323 U.S. at 206–07). In crafting equitable relief for the West
Pilots, our task is to determine how the parties would have
fared but for USAPA’s breach.
Because APA has taken its place as the exclusive
bargaining representative for all the pilots who will become
part of New American Airlines, USAPA no longer maintains
its former position. In an ordinary case, that would mean the
end of USAPA’s representative authority. See McNamara-
Blad, 275 F.3d at 1170 (“[A] labor organization that is not the
exclusive representative of a bargaining unit . . . owes no duty
of fair representation to the members of the unit.” (internal
quotation marks omitted)). In this case, however, APA
authorized USAPA to participate in the upcoming SLI
arbitration under APA’s discretionary authority as the
designated collective bargaining representative. Likely
recognizing that USAPA represents only the interests of the
East Pilots, APA sought and obtained permission from the
Preliminary Arbitration Board to designate a separate West
Pilots Merger Committee to represent the interests of the
West Pilots. Thus, even though USAPA no longer enjoys the

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ADDINGTON V. USAPA 48
statutory status of the exclusive bargaining representative,
USAPA continues to have a place at the bargaining table
where it may formally oppose the West Pilots Merger
Committee and advocate for its favored seniority regime.
The harm resulting from USAPA’s violation is the
persisting absence of an integrated seniority list. Permitting
USAPA to go forward in the SLI arbitration process
effectively ratifies USAPA’s past violations of its duty of fair
representation. It allows USAPA to take advantage of the
absence of an integrated list—the direct result of its own
misconduct—to advocate a brand new list unfettered by its
obligations under the ALPA Merger Policy and Transition
Agreement. We cannot countenance such a result.
Nevertheless, we also recognize that it is not certain whether
the Nicolau Award would have been implemented fully but
for USAPA’s breach. Because a good faith attempt to
implement the Nicolau Award would have ultimately
required a ratification vote by all the pilots, and we cannot
know what the results of such a vote would have been, we can
never be certain whether efforts to implement the Nicolau
Award through a collective bargaining agreement with US
Airways would have succeeded. See Addington I, 606 F.3d
at 1179.
We conclude that injunctive relief is necessary and
appropriate in this case to prevent the East Pilots from
continuing to enjoy the benefits of USAPA’s breach at the
expense of the West Pilots. Although there remains some
ambiguity over whether the Nicolau Award would have been
adopted in toto, to conclude, as does the dissent, that the West
Pilots may not obtain any relief at all is to grant USAPA the
benefit of doubt that USAPA itself created. We thus remand
this case with instructions to the district court to enter an

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ADDINGTON V. USAPA 49
order enjoining USAPA from participating in the McCaskill-
Bond seniority integration proceedings, including any
seniority-related discussions leading up to those proceedings,
except to the extent that USAPA advocates the Nicolau
Award.12 See Bernard, 873 F.2d at 217–18 (affirming
preliminary injunction compelling a union to negotiate a new
integrated seniority agreement in accordance with its own
internal procedures). This remedy adequately accounts for
our uncertainty over whether the Nicolau Award would have
been implemented because it allows for the possibility that
the SLI arbitration panel might not ultimately use the Nicolau
Award in its final integration of the US Airways and
American Airlines Pilots. It also limits USAPA’s
participation in the seniority integration proceedings, but does
not prohibit USAPA from advocating the seniority position
of the East and West Pilots, collectively, as against the
American Airlines pilots. Nor is USAPA barred from
participating, to the extent it is otherwise permitted, in
negotiations regarding other labor matters. At the same time,
our injunction has the benefit of alleviating the West Pilots’
hardship of fighting on two fronts and ensuring that the East
Pilots cannot exploit the benefits of USAPA’s breach any
longer.
12 We decline to order the issuance of the West Pilots’ requested
injunction “that an unmodified Nicolau Award must be used to order the
seniority of the East and West pilots in the pending McCaskill-Bond
process.” Although we have approved injunctions against nonparties, see
SEC v. Wencke, 622 F.2d 1363, 1370 (9th Cir. 1980), we decline to do so
here, where USAPA is a party to this suit and enjoining it alone will
provide effective relief to the West Pilots.

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ADDINGTON V. USAPA 50
V. CONCLUSION
Since Steele, “the duty of fair representation has stood as
a bulwark to prevent arbitrary union conduct against
individuals stripped of traditional forms of redress by the
provisions of federal labor law.” Vaca, 386 U.S. at 182.
USAPA has served as the stalking horse for the East Pilots’
exclusive interests and left the West Pilots bereft of
representation. USAPA’s manifest disregard for the interests
of the West Pilots and its discriminatory conduct towards
them constitutes a clear breach of duty. Accordingly, we
reverse the district court’s conclusion that USAPA did not
breach its duty of fair representation and remand with
instructions to enjoin USAPA from participating in the
McCaskill-Bond proceedings except to the extent that
USAPA will advocate the Nicolau Award. On remand, the
district court should consider the West Pilots’ claim for
attorneys’ fees.
We vacate as moot the portion of the district court’s
decision denying the Plaintiffs separate representation in the
McCaskill-Bond proceedings, with instructions to dismiss.
United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950);
see Camreta v. Greene, 131 S. Ct. 2020, 2036 & n.11 (2011)
(vacating only a portion of the lower court’s judgment). The
Preliminary Arbitration Board’s order granted the West Pilots
separate representation in the SLI arbitration.13 Thus, the
13 USAPA contends that Plaintiffs’ own conduct rendered this claim
moot, making vacatur inappropriate in this case. To the contrary, the
Preliminary Arbitration Board granted the West Pilots relief, thus
rendering the West Pilots’ claim moot “due to circumstances
unattributable to any of the parties.” U.S. Bancorp Mortg. Co. v. Bonner
Mall P’ship, 513 U.S. 18, 22–26 (1994) (quoting Karcher v. May,

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ADDINGTON V. USAPA 51
West Pilots have obtained the remedy they sought and “there
is nothing for us to remedy, even if we were disposed to do
so.” Spencer v. Kemna, 523 U.S. 1, 18 (1998).
Finally, we dismiss USAPA and US Airways’ cross-
appeals for failure to present an argument. Fed. R. App. P.
28(a)(8). The judgment of the district court is
REVERSED in part, VACATED in part, and
REMANDED. Costs on appeal are awarded to Plaintiffs-
Appellants.
TASHIMA, Circuit Judge, concurring in part and dissenting
in part:
I agree with the majority that Plaintiffs’ McCaskill-Bond
claim is moot and that the portion of the district court’s
decision addressing that issue should be vacated with
instructions to dismiss that claim. I also agree that USAPA’s
and US Airways’ cross-appeals should be dismissed. I
believe, however, contrary to the majority, that Plaintiffs’
breach of the duty of fair representation claim should also be
dismissed as moot. I, thus, would not reach the merits of that
claim. If we do reach the merits, I disagree with the
majority’s determination that USAPA breached its duty of
fair representation. Moreover, even assuming USAPA
breached its duty of fair representation, the misdirected
injunction the majority imposes is erroneous and an abuse of
discretion in view of the fact that USAPA is no longer a
484 U.S. 72, 82, 83 (1987)). Vacatur is appropriate under such
circumstances.

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ADDINGTON V. USAPA 52
certified bargaining representative and, therefore, is not
subject to the Railway Labor Act and can no longer be yoked
with a duty of fair representation.
Accordingly, I dissent from Parts III, IV, and V of the
majority opinion, except for those portions of Part V that
address Plaintiffs McCaskill-Bond claim and the cross-
appeals.
I.
To see how the duty of fair representation claim has
become moot, one need only peruse the allegations of
Plaintiffs’ First Amended Complaint (“FAC”) that relate
directly to their claim that USAPA breached the duty of fair
representation. First, in their opening, introductory
paragraph, Plaintiffs allege that they “file this complaint to
enjoin Defendants from integrating the pilot operations in a
manner that breaches Defendant USAPA’s duty of fair
representation.” Then, 12 pages later, under “Claim One:
Breach of the Duty of Fair Representation,” the FAC alleges:
97. Pursuant to the duty of fair
representation, USAPA must have a
legitimate union purpose to use anything other
than the Nicolau Award list to integrate East
Pilots and West Pilots.
98. USAPA does not have a legitimate
union purpose to use anything other than the
Nicolau Award list to integrate East Pilots and
West Pilots.

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ADDINGTON V. USAPA 53
99. USAPA, therefore, breached the duty
of fair representation by entering into the
MOU because the MOU abandons a duty to
treat the Nicolau Award as final binding.
100. Plaintiffs are entitled to a declaratory
judgment to that effect and to other remedy
sought below.
The only injunctive relief sought in Plaintiffs’ Prayer for
Relief is:
136. An injunction requiring Defendants
to conduct seniority integration according to
the MOU procedures but using the seniority
order in the Nicolau Award list to order the
US Airways pilots.
All of the allegations of the duty of fair representation claim
are directed solely to the use of the “Nicolau Award to
integrate East Pilots and West Pilots.” But USAPA can no
longer “conduct seniority integration” because it has been
overtaken by the US Airways/American Airlines merger, and
conduct of the seniority integration proceedings is now the
responsibility of APA, the bargaining agent for all pilots of
new American Airlines, including both East and West Pilots.
To understand what it means to conduct seniority
integration, we need look no further than the statute that
governs seniority integration in airline mergers, the
McCaskill-Bond Amendment to the Federal Aviation Act.
McCaskill-Bond, which incorporates labor-protective rules
established by the now-defunct Civil Aeronautics Board,
requires unions and carriers to make “provisions . . . for the

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ADDINGTON V. USAPA 54
integration of seniority lists in a fair and equitable manner.”
Allegheny-Mohawk Merger, 59 C.A.B. 19, 45 (1972),
incorporated by statute, 49 U.S.C. § 42112 Note. These
provisions may include arranging for both negotiation and, if
necessary, arbitration. Id.
When the West Pilots first brought this action, USAPA
was still a certified union and thus had statutory authority
under McCaskill-Bond to make arrangements for how the
seniority integration would be conducted. As laid out in their
FAC, the West Pilots sought an injunction forcing USAPA to
arrange seniority integration in a specific way: by merging
the Nicolau Award and the American Airlines seniority list.
The predicate of this claim was that using any list other than
the Nicolau Award to order the US Airways pilots would be
a breach of USAPA’s duty of fair representation.
That option is now off the table. Because USAPA has
since been decertified as a labor representative, it has no
statutory authority to change or control how seniority
integration will be conducted; only APA and the new
American Airlines have that power. An injunction issued
against USAPA cannot change the seniority integration
procedure. Accordingly, the relief that the West Pilots
actually sought in this action against their then-union can no
longer be granted, rendering the case moot. See Gator.com
Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir. 2005)
(en banc) (stating that a case is moot if “changes in the
circumstances that prevailed at the beginning of litigation
have forestalled any occasion for meaningful relief” (quoting
West v. Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 n.4
(9th Cir.2000))).

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ADDINGTON V. USAPA 55
The fact that the Seniority Integration Protocol
Agreement (the “Protocol”) allows for a USAPA-delegated
“merger committee” to present a position in the McCaskill-
Bond arbitration does not save this case from mootness. The
role of USAPA’s merger committee is legally and
functionally distinct from the former role of USAPA as a
union. As discussed above, the statutory role of a union is
actually to conduct seniority integration, and the already
agreed-upon Protocol lays out how that integration will be
conducted. Under the terms of the Protocol, the USAPA-
delegated merger committee may present an argument, but it
cannot control the process or product of seniority integration.
The FAC did not seek an injunction addressing the
merger committee or limiting what arguments the committee
could present to the arbitrators. Nor could it have. The FAC
was predicated entirely on USAPA’s duty of fair
representation to the West Pilots, a duty which, by virtue of
its decertification, it no longer has. See Dycus v. NLRB,
615 F.2d 820, 827 (9th Cir. 1980) (“A labor organization that
is not the exclusive representative of a bargaining unit . . .
owes no duty of fair representation to the members of the
unit.”). No longer being the certified bargaining agent,
USAPA is in no position “to conduct seniority integration”
using the Nicolau Award or any other list. It also no longer
is able to breach the duty of fair representation because it is
no longer bound by such a duty. For these reasons, Plaintiffs’
duty of fair representation claim has become moot and should
be dismissed.
II.
With respect to the merits of the duty of fair
representation claim, the majority brushes aside the district

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ADDINGTON V. USAPA 56
court’s careful findings of fact, made after a full trial, and
orders a misdirected injunction that has little connection to
the issues in this case, or to the relief requested in Plaintiffs’
FAC, an injunction that exceeds the circumscribed role that
we as a federal court may play in national labor disputes.
In view of the deference this court owes to USAPA as the
then-certified bargaining representative, and to the district
court as finder of fact, I would affirm the district court’s
finding that USAPA did not breach its duty of fair
representation. Given the different constituencies a union
must represent, and the impossibility of pleasing them all,
“[a] wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents.”
Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953).
Noting the broad scope of discretion allotted to unions, the
Supreme Court has repeatedly “analogized a union’s role to
that of a legislature,” subject to similarly limited judicial
review. Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65,
75 (1991); Steele v. Louisville & Nashville R.R. Co., 323 U.S.
192, 198 (1944); see Rakestraw v. United Airlines, Inc., 981
F.2d 1524, 1532 (7th Cir. 1992) (“O’Neill analogized the
union’s choice to that of a legislature, subject to the most
deferential judicial review.”). Although the actions a union
may take are limited by the duty of fair representation it owes
to each of its members, “[t]his duty is narrowly construed by
the courts . . . so that unions may act freely in what they
perceive are the best interests of their members generally.”
Jones v. Union Pac. R.R. Co., 968 F.2d 937, 941 (9th Cir.
1992). Like the majority, I recognize that “[i]n the context of
negotiating a seniority list, the prohibition on arbitrariness
means that ‘a union may not juggle the seniority roster for no
reason other than to advance one group of employees over
another.’” Maj. Op. at 35 (quoting Rakestraw, 981 F.2d at

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ADDINGTON V. USAPA 57
1535). In other words, it is not the existence of an
illegitimate motive that turns a union action into a violation
of the duty of fair representation. It is, instead, the absence
of any legitimate motive.
After a full bench trial on the merits, the district court
determined that, although USAPA clearly had some improper
motives, it was also motivated by at least one legitimate
purpose: “securing the additional compensation contained in
the MOU while putting off to another day the question of the
appropriate seniority regime.” Securing additional
compensation is a legitimate union purpose. See Maj. Op. at
42 (citing Baker v. Newspaper & Graphic Commc’ns Union,
Local 6, 628 F.2d 156, 166 (D.C. Cir. 1980)). A
determination of motive constitutes a finding of fact by the
district court, which we may overturn only if it is clearly
erroneous. Woods v. Graphic Commc’ns, 925 F.2d 1195,
1199 (9th Cir. 1991). Even under this deferential standard of
review, the majority writes off the district court’s findings as
clearly erroneous because “the district court did not point to
a single piece of evidence supporting its conclusion” that
“USAPA included Paragraph 10(h) for the purpose of
obtaining benefits under the agreement.” Maj. Op. at 42. I
strongly disagree.
Under the “clearly erroneous” standard, we must “defer
to the lower court’s determination unless, based on the entire
evidence, we are possessed of a ‘definite and firm conviction
that a mistake has been committed.’” SEC v. Rubera,
350 F.3d 1084, 1093 (9th Cir. 2003) (quoting Easley v.
Cromartie, 532 U.S. 234, 242 (2001) (emphasis added)). “So
long as the district court’s view of the evidence is plausible
in light of the record viewed in its entirety, it cannot be
clearly erroneous.” Id. at 1093–94. Thus, our duty does not

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ADDINGTON V. USAPA 58
end with the opinion of the district court; we must review the
entire evidentiary record before overturning a factual finding
with which we may disagree.
A.
The majority mischaracterizes what the district court
found to be USAPA’s legitimate motive for including
Paragraph 10(h) in the MOU. Contrary to the majority’s
assertions, USAPA never claimed that Paragraph 10(h) was
intended as a quid pro quo concession to extract additional
compensation from American Airlines, and the district court
never said it was. See Maj. Op. at 42. What the district court
actually found was that Paragraph 10(h) was intended to
prevent an internal struggle within USAPA’s membership,
which could have jeopardized or delayed the ratification of
the MOU and the additional compensation it offered. While
USAPA was able to negotiate the MOU, it did not act with a
free hand; the agreement would not become binding until
ratified by the union’s membership. Thus, the majority is
mistaken in treating securing additional compensation and
preventing a “drag-out fight” as two separate justifications for
USAPA’s action. They are two sides of the same coin:
USAPA could not secure additional compensation for its
employees if it could not get the MOU ratified, and it could
not get the MOU ratified if the MOU implicated the seniority
issues that had divided USAPA’s membership since 2007.
There is ample evidence in the record to support the district
court’s finding that USAPA feared that the benefits of the
MOU might be jeopardized by implicating pilot seniority.1
1 What matters is not whether or not USAPA could have received
additional compensation without the need for Paragraph 10(h); what
matters is whether USAPA, in exercising its judgment, actually believed

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ADDINGTON V. USAPA 59
The first place this motive is apparent is the language of
Paragraph 10(h) itself. Contrary to the majority’s claims,
Paragraph 10(h) did not “clearly favor[] one side in the
intra-union dispute,” Maj. Op. at 43, or “relieve[] USAPA of
any obligation it had to negotiate with the airlines and APA
based on the Nicolau Award,” id. at 28. What the East Pilots
have wanted all along is not two seniority lists, but a single
seniority list based on date of hire. The West Pilots,
meanwhile, wanted the Nicolau Award without any
modification. Paragraph 10(h) gave neither side what it
wanted. In explicitly disclaiming any effect on pilot
seniority, the MOU was, as the district court found,
“explicitly neutral.” That finding is not clearly erroneous. In
the coming McCaskill-Bond proceedings, the East Pilots
would still have to convince an arbitration panel to abandon
the Nicolau Award if they were ever to get the date-of-hire
seniority regime they wanted. And if USAPA had remained
the certified bargaining representative of US Airways’ pilots,
it would still have been bound by the Nicolau Award to the
same extent it was bound before the MOU was ratified.2 It is
Paragraph 10(h) would help forestall a fight that could endanger or delay
the increased compensation. It is not the place of the courts to second-
guess a union’s exercise of judgment. Beck v. United Food &
Commercial Workers Union, Local 99, 506 F.3d 874, 879 (9th Cir. 2007).
2 The majority fails to explain exactly what obligation USAPA had “to
negotiate with the airlines and APA based on the Nicolau Award,” or how
Paragraph 10(h) removes that obligation. Maj. Op. at 28. The last time
this case was before us, we noted that “USAPA [was] at least as free to
abandon the Nicolau Award as was its predecessor, ALPA.” Addington
v. U.S. Airline Pilots Ass’n (Addington I), 606 F.3d 1174, 1181 (9th Cir.
2010). Nothing in Paragraph 10(h) – or the entire MOU for that matter –
claims to supersede the prior Transition Agreement or the Nicolau Award.
Thus, whatever duty USAPA inherited from ALPA with respect to

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ADDINGTON V. USAPA 60
USAPA’s decertification as the exclusive bargaining agent of
the US Airways pilots, not Paragraph 10(h), that has relieved
it of its duty to the West Pilots.
Had USAPA been truly opportunistic, it might have tried
to include a provision in the MOU calling for date-of-hire
seniority. Instead, Paragraph 10(h) ensured that the MOU
gave neither the East Pilots nor the West Pilots what they
wanted in terms of seniority, but gave both what they wanted
in terms of compensation. USAPA’s decision to walk a
middle road between the desires of the East and West Pilots
strongly supports the district court’s finding that it acted in
part from a desire to “rationally promote the aggregate
welfare of employees in the bargaining unit.” Rakestraw,
981 F.2d at 1535.
The background against which the MOU was negotiated
also supports the district court’s finding that Paragraph 10(h)
was intended to be neutral in order to ensure the MOU could
be ratified. The East Pilot’s hostility to the Nicolau Award
was well known; it was how USAPA came to exist in the first
place. Had the East Pilots feared the MOU would trigger the
Nicolau Award, they would likely have fought the MOU and
USAPA, just as they fought ALPA in 2007.3 And USAPA’s
integrating the East and West pilots survived the MOU, and now,
presumably, rests with APA.
3 We previously recognized the unlikelihood that the East Pilots would
ever ratify an agreement supporting the Nicolau Award, even if it were
proposed by USAPA. See Addington I, 606 F.3d at 1180 (“ALPA had
been unable to broker a compromise between the two pilot groups, and the
East Pilots had expressed their intentions not to ratify a CBA containing
the Nicolau Award. Thus, even under the district court’s injunction

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ADDINGTON V. USAPA 61
Board of Pilot Representatives had already rejected a
previous version of the MOU proposed by USAPA’s
Negotiating Advisory Committee, indicating that those
negotiating the MOU could not take approval for granted.
Finally, the district court’s finding that Paragraph 10(h)
was meant to prevent a counter-productive fight finds support
in the way in which the MOU was negotiated. The majority
paints USAPA as a puppet of the East Pilots, scheming to
advance their interests while “treat[ing] the West Pilots as
though they were non-union members.” Maj. Op. at 37. In
reality, USAPA delegated the negotiation of the MOU to a
Negotiating Advisory Committee comprised of four union
members, two of who were West Pilots and the remaining
two East Pilots. When the MOU was put to a ratification
vote, the West Pilots supported it in even greater numbers
than the union at large: 75% of the total ballots cast favored
ratification, but among the West Pilots, 97.69% of those who
voted favored ratification. Although none of the Negotiating
Advisory Committee members testified as to the specific
reason for including Paragraph 10(h), the fact that half of its
members were West Pilots lends support to the district court’s
finding that Paragraph 10(h) was not a naked power grab by
the East Pilots. And the fact that West Pilots overwhelmingly
ratified the MOU suggests that USAPA was not simply
abandoning their interests. Cf. Gullickson v. Sw. Airlines
Pilots’ Ass’n, 87 F.3d 1176, 1183 (10th Cir. 1996) (“Legal
authority holds . . . that ratification of a seniority arrangement
is a valid defense to complaints about a union’s actions in
making that arrangement.”).
mandating USAPA to pursue the Nicolau Award, it is uncertain that the
West Pilots’ preferred seniority system ever would be effectuated.”).

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ADDINGTON V. USAPA 62
B.
The majority disregards USAPA’s legitimate fears about
a ratification fight, reasoning that “USAPA may not point to
a conflict of its own, unjustified creation to bootstrap its way
to a legitimate union purpose.” Maj. Op. at 44. But the
conflict over seniority is plainly not USAPA’s creation. The
fight began in 2005 when US Airways and America West
merged, and their pilots could not agree on a single,
integrated seniority regime. It escalated in 2007 when an
arbitration panel announced the Nicolau Award, satisfying the
West Pilots but not the East Pilots. It was only after these
events that a group of East Pilots decided to create USAPA to
replace ALPA as their union. USAPA did not create the
conflict; it inherited the conflict, just as APA has now
inherited the conflict. USAPA is not the East Pilots. Had
USAPA’s leadership decided to support the Nicolau Award,
they had every reason to believe they would have been voted
out like ALPA before them.4 The conflict over seniority was
a very real problem within USAPA’s membership, and it was
not a problem USAPA created or could control.
Even if USAPA had some role in perpetuating the
seniority controversy by not resolving it sooner, there is
simply no support for the proposition that a union cannot
justify its actions by referencing conditions it created.
Instead, it is our duty to “evaluat[e] the rationality of a
union’s decision in light of both the facts and the legal
climate that confronted the negotiators at the time the
decision was made.” O’Neill, 499 U.S. at 78 (emphasis
added). The only decision at issue in this case is the decision
to include Paragraph 10(h) in the MOU. No law required
4 See note 3, supra.

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ADDINGTON V. USAPA 63
USAPA to ignore the very real conflict that existed at the
time the MOU was being negotiated.
In short, there is ample evidence to support the district
court’s finding that USAPA acted, in part, from a legitimate
motive when it negotiated to include Paragraph 10(h) in the
MOU. In holding that the district court’s findings of fact
were clearly erroneous, the majority mischaracterizes the
district court’s decision and ignores the real threat that a
ratification fight would have erupted if USAPA’s members
believed the MOU would trigger an obligation to implement
the Nicolau Award. Whatever faults USAPA might have, its
decision not to link the MOU and the Nicolau Award was not
“wholly irrational.” Id. (internal quotation marks omitted).
On that ground alone, we should affirm.5
III.
After erroneously rejecting the district court’s well-
supported factual findings, the majority goes on to order an
injunction that is entirely disproportionate to – and untethered
from – any relief requested in Plaintiffs’ FAC, any injury to
the West Pilots, and in total disregard of USAPA’s current
decertified status. “Injunctive relief is an extraordinary
remedy and must be tailored to remedy the specific harm
5 The majority states, “Contrary to the dissent’s view that Paragraph
10(h) was neutral, reflecting USAPA’s ‘decision to walk a middle road,’
we conclude that the history of this makes clear that it was anything but.”
Maj. Op. at 44 n.9. While I concede that, were the majority the fact
finder, the record plausibly supports such a finding, the issue is whether
the district court clearly erred in finding otherwise. It did not. Among the
evidence the majority ignores is that the West Pilots voted to approve the
MOU, including Paragraph 10(h), almost unanimously – by a 97.69%
favorable vote.

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ADDINGTON V. USAPA 64
alleged.” McCormack v. Hiedeman, 694 F.3d 1004, 1019
(9th Cir. 2012) (internal quotation marks and citations
omitted). “The Supreme Court has cautioned that ‘injunctive
relief should be no more burdensome to the defendant than
necessary to provide complete relief to the plaintiffs.’” Id.
(quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).
An injunction that forbids some future act is not an
appropriate remedy “unless ‘there exists some cognizable
danger of recurrent violation.’” United States v. Laerdal Mfg.
Corp., 73 F.3d 852, 854 (9th Cir. 1995) (quoting United
States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)).
A.
1.
Here, as the majority recognizes, USAPA can no longer
violate the duty of fair representation because it no longer has
such a duty. See Maj. Op. at 47 (“[A] labor organization that
is not the exclusive representative of a bargaining unit . . .
owes no duty of fair representation to the members of the
unit.” (quoting McNamara-Blad v. Ass’n of Prof’l Flight
Attendants, 275 F.3d 1165, 1170 (9th Cir. 2002)) (alterations
in original)). Thus, the underlying basis for requesting
injunctive relief to prevent future breaches of the duty of fair
representation has been completely undercut: USAPA is no
longer a certified bargaining representative under the Railway
Labor Act. “The scope of the duty of fair representation is
generally coextensive with the scope of the union’s statutory
authority as the exclusive bargaining agent.”
McNamara-Blad, 275 F.3d at 1169. “A labor organization
that is not the exclusive representative of a bargaining unit
. . . owes no duty of fair representation to the members of the
unit.” Dycus, 615 F.2d at 827. Nothing USAPA does in the

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ADDINGTON V. USAPA 65
McCaskill-Bond arbitration can violate a duty of fair
representation because USAPA no longer owes such a duty
to the West Pilots, the East Pilots, or anyone else.
The majority acknowledges that “[i]n an ordinary case,”
USAPA’s decertification “would mean the end of [its]
representative authority.” Maj. Op. at 47 (emphasis added).
Nonetheless, the majority implies that this is an extraordinary
case in which a labor organization’s duty somehow survives
its decertification as a union. In doing so, the majority cites
no legal authority to suggest that a union’s duty can ever
extend beyond its certification as a bargaining representative
under the Railway Labor Act or the National Labor Relations
Act. Indeed, no authority supports that position.
Rather, binding precedent makes it clear that the mere fact
that USAPA has been invited to participate in the McCaskill-
Bond arbitration does not resuscitate its duty of fair
representation. Although judicially crafted, the duty of fair
representation is a “statutory obligation” that stems from the
“statutory authority to represent all members of a designated
unit” under the National Labor Relations Act or the Railway
Labor Act. Diaz v. Int’l Longshore & Warehouse Union,
Local 13, 474 F.3d 1202, 1205 (9th Cir. 2007). “[T]he duty
of fair representation is inextricably linked to the union’s
status as exclusive bargaining representative in the collective
bargaining process or in the administration of rights under a
collective bargaining agreement.” Simo v. Union of
Needletrades, Indus. & Textile Employees, Sw. Dist. Council,
322 F.3d 602, 614 (9th Cir. 2003) (quoting Felice v. Sever,
985 F.2d 1221, 1228 (3d Cir. 1993)). Although USAPA may
still be active in the McCaskill-Bond proceedings, it is not the
statutory exclusive bargaining representative of any pilots;
that position is now held by APA. Moreover, USAPA has no

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ADDINGTON V. USAPA 66
right to participate “in the collective bargaining process or in
the administration of rights under a collective bargaining
agreement.” Id. (quoting Felice, 985 F.2d at 1228). Because
USAPA can commit no further breaches of the duty of fair
representation, there exists no “cognizable danger of recurrent
violation,” and the majority’s injunction cannot be justified
as preventing future harm. Laerdal Mfg. Corp., 73 F.3d at
854 (quoting W. T. Grant Co., 345 U.S. at 633). The majority
has not cited a single case in which an affirmative injunctive
duty was imposed on a certified bargaining agent after that
agent had been decertified.
2.
Likewise, the majority’s injunction cannot be justified as
undoing a previous breach of the duty of fair representation.
Any injunctive relief “must be tailored to remedy the specific
harm alleged.” McCormack, 694 F.3d at 1019 (quoting Park
Vill. Apt. Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d
1150, 1160 (9th Cir. 2011)). There is no caselaw relaxing
this requirement in the context of labor disputes.
The only duty of fair representation claim raised in the
West Pilots’ FAC was that USAPA breached its duty of fair
representation by entering into an MOU containing Paragraph
10(h). Any injunctive relief must therefore be crafted to
remedy only the “specific harm” caused by that discrete
union action. Id. (quoting Park Vill. Apartments Tenants
Ass’n, 636 F.3d at 1160). On the record before us, however,
it is impossible to identify any specific harm suffered by the
West Pilots that is clearly traceable to Paragraph 10(h). We
cannot know whether the MOU would have been ratified
without Paragraph 10(h), though history suggests that it
would not have been. If the East Pilots had prevented

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ADDINGTON V. USAPA 67
ratification, the West Pilots would be worse off than they are
now because there would still be two seniority lists, but they
would not have received the additional compensation
contained in the MOU.6
The majority fails to resolve the absence of a remediable
harm. In fact, the majority desperately flails about in its
attempt to identify a discrete injury traceable to Paragraph
10(h). It first states that “[t]he harm resulting from USAPA’s
violation is the persisting absence of an integrated seniority
list.” Maj. Op. at 48 (emphasis in original). But that, of
course, is not the harm Plaintiffs complain they have suffered.
The only harm Plaintiffs complain about is the absence of an
integrated seniority list reflecting the Nicolau Award. The
majority does not address this harm. The reason it doesn’t
address it is because it concedes that there is no such
traceable injury:
[W]e also recognize that it is not certain
whether the Nicolau Award would have been
implemented fully but for USAPA’s breach.
Because a good faith attempt to implement the
Nicolau Award would have ultimately
required a ratification vote by all pilots, and
we cannot know what the results of such a
vote would have been, we can never be
6 It is also speculative whether an MOU not containing Paragraph 10(h)
would have required USAPA to implement the Nicolau Award at all. The
West Pilot’s contention is that, but for Paragraph 10(h), the MOU would
have triggered a duty to implement the Nicolau Award stemming the
Transition Agreement executed during the US Airways-America West
merger. Thus, deciding what effect the MOU would have had absent
Paragraph 10(h) requires interpreting the Transition Agreement, an
analysis which the majority fails to undertake.

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ADDINGTON V. USAPA 68
certain whether efforts to implement the
Nicolau Award through a collective
bargaining agreement with US Airways would
have succeeded.
Id. at 48 (emphasis added). In one breath, the majority claims
that the harm to be remedied is the absence of a seniority list,
a harm about which Plaintiffs have not complained, and in the
next, it admits that it cannot, in any event, trace the absence
of such a seniority list to USAPA’s actions. This is a virtual
admission that there is no continuing harm traceable to
USAPA’s breach of the duty of fair representation to be
remedied by an injunction. In the absence of any clear and
identifiable injury to the West Pilots, it is impossible to craft
a properly tailored injunction. The majority’s resort to
injunctive relief to remedy a speculative (and likely
imagined) harm is inappropriate.7
B.
Even if the majority were correct to afford injunctive
relief, the specific injunction the majority orders is
inappropriately broad and goes well beyond what would be
required of USAPA even if it were still the certified
bargaining representative for the US Airways Pilots. Because
“[a]n injunction should be ‘tailored to eliminate only the
specific harm alleged,’” Skydive Ariz., Inc. v. Quattrocchi,
673 F.3d 1105, 1116 (9th Cir. 2012) (quoting E. & J. Gallo
Winery v. Gallo Cattle Co., 967 F.2d 1280, 1297 (9th Cir.
7 Recall also that we have previously observed that “even under [an]
injunction mandating USAPA to pursue the Nicolau award, it is uncertain
that the West Pilots’ preferred seniority system ever would be
effectuated.” Addington I, 606 F.3d at1180.

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ADDINGTON V. USAPA 69
1992)), we have repeatedly warned district courts that an
“overbroad” injunction is an abuse of discretion, see, e.g.,
Rodriguez v. Robbins, 715 F.3d 1127, 1133 (9th Cir. 2013);
McCormack, 694 F.3d at 1019; Stormans, Inc. v. Selecky,
586 F.3d 1109, 1119 (9th Cir. 2009). As discussed above, it
is far from clear on the record that there is in fact an injury to
be remedied through an injunction or, for that matter, what
exactly the majority believes is the injury to be remedied.
The majority “conclude[s] that injunctive relief is
necessary and appropriate in this case to prevent the East
Pilots from continuing to enjoy the benefits of USAPA’s
breach at the expense of the West Pilots.” Maj. Op. at 48.
But the majority never tells us what those “benefits” are. The
only “benefit” and the only assertion that USAPA breached
its duty of fair representation, would be in the makeup of the
pilot seniority list. But that list has never been drawn up.
The majority appears to recognize as much, continuing,
“Although there remains some ambiguity over whether the
Nicolau Award would have been adopted in toto, to conclude,
as does the dissent, that the West Pilots may not obtain any
relief at all is to grant USAPA the benefit of doubt that
USAPA itself created.” Id. at 48. But my purpose is not “to
grant USAPA the benefit of doubt,” but to grant it to the
district court’s findings of fact, as the clearly erroneous
standard of review requires. Just as important, I would grant
that benefit to the McCaskill-Bond pilot seniority integration
proceeding so that the arbitration board can conduct a
proceeding of its own design.
While the majority leaves the exact text of an injunctive
order for the district court to decide on remand, its
instructions will require the district court to issue an
overbroad injunction. The majority directs the district court

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ADDINGTON V. USAPA 70
“to enter an order enjoining USAPA from participating in the
McCaskill-Bond seniority integration proceedings, including
any seniority-related discussions leading up to those
proceedings, except to the extent that USAPA advocates the
Nicolau Award.” Maj. Op. at 48–49. Put differently,
USAPA will have only one task: advocating the Nicolau
Award.
This remedy bears no relation to the purported harm.
Even if the Nicolau Award had been implemented, USAPA
would still be free to advocate for any seniority regime:
because USAPA is no longer a certified bargaining
representative, it does not owe a duty of fair representation to
any pilots. Dycus, 615 F.2d at 827. By forcing USAPA to
advocate for the Nicolau Award, the majority puts USAPA in
a far more limited position than it would have been in even if
the Nicolau Award had been implemented as the West Pilots
wanted.
Moreover, even if USAPA were still a certified
bargaining representative for the former US Airways Pilots,
it would have had far greater leeway to craft its position in
arbitration than the injunction will provide it. USAPA would
still be free to suggest any proposal that “rationally
promote[s] the aggregate welfare of the employees in the
bargaining unit,” Rakestraw, 981 F.2d at 1535, and its
decisions would be “subject to the most deferential judicial
review,” id. at 1532. Instead, the majority instructs USAPA
to become unwavering partisans of the Nicolau Award,
forsaking all other concerns. On the other hand, the
injunction will have no restraining effect on any of the other
participants in the McCaskill-Bond arbitration, including the
West Pilots who, undoubtedly, will press for a Nicolau
Award-type of seniority list.

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ADDINGTON V. USAPA 71
Such a sweeping injunction also needlessly hamstrings
USAPA’s ability to put forward a position on the key
question at issue in the arbitration: how to combine the US
Airways seniority lists with the pre-merger American Airlines
seniority list. The phrasing of the majority’s instructions to
the district court makes it unclear whether USAPA will be
allowed to put forth a position on merging the lists at all,
since doing so has nothing to do with “advocat[ing] the
Nicolau Award.” Maj. Op. at 50. If USAPA does try to put
forward a position on integration with the pre-merger
American pilots, its efforts will no doubt by hindered by
concerns about whether any given position goes beyond
advocating the Nicolau Award. And the arbitrators, knowing
USAPA is being coerced by a court order, will have little
reason take its suggestions seriously. The majority’s
injunction, which will effectively eliminate USAPA’s ability
to function as a significant participant in the seniority
integration proceedings, is overbroad. This is especially true
because the West Pilots will be a participant in the
McCaskill-Bond arbitration free to press their case in favor of
the Nicolau Award without restraint and without fear of any
counterarguments being made by USAPA.
C.
Setting aside the issues of tailoring and overbreadth, the
injunction the majority imposes is an unwise judicial attempt
to influence the McCaskill-Bond arbitration board.
Regardless of what this court orders, the arbitration board will
have the full and final power to craft the joint seniority list for
the post-merger American Airlines on whatever basis it finds
fair. And the arbitration board will be free to give Nicolau
Award as much or as little weight as it sees fit. The fact that
this court has forced USAPA to promote the Nicolau Award

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ADDINGTON V. USAPA 72
will not serve to make the Nicolau Award seem any more or
less appropriate to the arbitration board. Thus, there is
ultimately very little to be gained from the majority’s
injunction.
On the other hand, the injunction has the potential to work
significant mischief. APA designated three merger
committees to participate in the upcoming arbitration:
USAPA, a West Pilot merger committee, and a merger
committee representing the pilots of the pre-merger American
Airlines. As the majority notes, APA likely intended the
USAPA merger committee to represent the interests of the
East Pilots. Maj. Op. at 47. By designating one merger
committee to represent each distinct group of pilots, APA
sought to “ensure that the interests of all pilots [would] be
properly represented” in the seniority list integration
proceedings. In the Matter of the West Pilots’ Request for a
Merger Committee, Preliminary Arbitration Board Award at
16 (Jan. 9, 2015). This was more than a kind gesture; it was
an effort by APA to comply with its legal obligation to make
“provisions . . . for the integration of seniority lists in a fair
and equitable manner.” Allegheny-Mohawk Merger, 59
C.A.B. at 45.
By cutting off USAPA’s speech rights, the majority
upsets this balance. For all those pilots who were part of US
Airways, but not the West Pilots, there will be no voice to
represent them before the McCaskill-Bond arbitration board.
Advocating a date-of-hire seniority list as a committee
representing a specific group of affected pilots within a larger
union cannot be equated, as the majority does, with acting as
a certified bargaining representative subject to a duty of fair
representation. There is simply no justification for such
judicial interference with the McCaskill-Bond proceedings,

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ADDINGTON V. USAPA 73
the aim of which is to give all affected pilot groups a voice in
the proceeding and to reach a fair and equitable resolution of
the pilot seniority issue.8
IV.
Because USAPA is no longer certified to represent the US
Airways pilots, including the West Pilots, under the Railway
Labor Act, this court cannot give the West Pilots the relief
they seek in their FAC; this case is therefore moot.
Regardless, the district court’s finding that USAPA included
Paragraph 10(h) in the MOU to prevent a counterproductive
struggle is not clearly erroneous, and the district court’s
decision on Plaintiffs’ duty of fair representation claim
should be affirmed. Instead, the majority imposes a speech-
restricting injunction made of whole cloth that has no legal
basis, and may ultimately do more harm than good.
I respectfully dissent from Parts III, IV, and the portion of
Part V directed to the duty of fair representation claim and to
the award of attorneys’ fees.
8 The majority-injunction’s interference with the McCaskill-Bond
arbitration proceeding is broad. In effect, it ties the hands of the
arbitration board as to the scope of the evidence it can hear; it bars the
arbitration board from hearing any evidence of the East Pilots position.
Such judicial interference with an arbitration board’s pre-trial decision on
the scope of evidence it chooses to hear is unprecedented.

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