these may be valid reasons to order seniority by
date-of-hire where a union is working with a
clean slate. But, USAPA is
not working with a clean slat
e. USAPA is working with a
“slate” that has the Nicolau Award inscribed in
what all agreed would be indelible ink.

The balance of equities tips in Plaintiffs’ favor.
No adverse effects would flow from prelim
inary relief. As explained above, such
relief would only expedite in
tegrating New Americ
an flight operations. The “innocent”
parties to this merger—the airlines, APA,
and the West Pilots—recognize that truth and
want this dispute resolved early, ideally
before the bankruptcy court approves the
reorganization plan (which is expected to ha
ppen in the fall of 2013). APA, for example,
states that it “has no wish to inherit this
dispute” when, as expected, it becomes the
bargaining representative for all New Americ
an pilots. (SOF ¶ 111
.) US Airways sought
a resolution in 2010 when it filed the declarat
ory judgment action. Only USAPA wants to
delay resolution.
In any number of contexts, “waiver must be clear and unequivocal.”
Chapman v.
Deutsche Bank National Trust Co
., 651 F.3d 1039, 1045, n.2 (9
th Cir. 2011). There is no
basis here to find such waiv
er by the West Pilots. If anyt
hing, it was clearly understood
that voting for the MOU did not waive the
right to Nicolau implementation. Indeed,
throughout the ratification pr
ocess, USAPA stated that ra
tification of the MOU did not
waive the right to enforce th
e Nicolau Award. (SOF ¶¶ 88
, 90.) Ratifying the MOU,
therefore, does not give USAPA the ri
ght to repudiate the Nicolau Award.
Yet, after the MOU was ratified, USAP
A asserted that the MOU negates the
Transition Agreement (the agre
ement that establishes the finality of the Nicolau Award).
(
Id.
¶ 100(a).) If that were true (which it
is not) then USAPA
breached its DFR by
misleading the West Pilots to pe
rsuade them to ratify the MOU.
See Bautista v. Pan Am.
World Airlines, Inc.
, 828 F.2d 546, 550 (9th Cir. 1987) (“Intentionally misleading
statements by union officials de
signed to persuade members to
join in collective action,
such as a strike or ratification of a newly
negotiated agreement, can supply the bad faith
necessary to a DFR violation.”).

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