Pilots for what was America West Airlines were dealt a setback Friday in their bid for better seniority as part of US Airways.
In a split decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the lawsuit by America West pilots was premature. The majority said there is no evidence — at least not yet — that the new union which represents them and their counterparts from US Airways is going to treat them in an unfair way.
But Justice Wallace Tashima sent a warning of sorts to the union. “By deferring judicial intervention, we leave U.S. Airline Pilots Association to bargain in good faith pursuant to its duty of fair representation, with the interests of all of its members … in mind.” He said that reminder comes “under pain” that, at some point, the courts will have the right to step in and review its activities.
Marty Harper, attorney for the America West pilots, said an appeal to the full 9th Circuit is likely. But Harper said his clients are pleased the court recognizes there is an obligation for the union to take their issues into consideration.
Central to the battle is the 2005 merger of the two airlines more than three years ago. At the time, each airline had its own seniority plan for its pilots.
After hearing arguments from unions representing both groups of pilots, a federal arbitrator imposed an integrated seniority schedule. That was based not only on total seniority — the US Airways pilots had been around longer — but the fact that America West was the stronger of the two airlines and that its pilots, despite their shorter employment history, deserved special consideration.
Seniority is crucial in union arrangements with airlines. It determines not only who gets the choicer routes and schedules but who is laid off when business is down.
That is more than an academic issue: The court noted that when the case went to trial, about 140 of the America West employees had been placed on furlough. If the arbitrator’s arrangement had been in place, all would still have had their jobs at the Tempe-based airline.
But in response to that arbitrator’s plan, the more numerous original US Airways pilots formed a new union and sought to repudiate that arbitrated settlement. Several America West airlines then sued.
Last year U.S. District Court Judge Neil Wake ordered the new union to negotiate a seniority proposal with the now-merged airline that incorporates the arbitrator’s proposal.
But Tashima, writing for the majority, said Wake was wrong to intercede, at least at this point.
He said any harm to the America West employees is purely speculative, as the union has yet to finalize its new contract with US Airways. And Tashima said there also is no assurance that union members will ratify that deal.
“Because these contingencies make the claim speculative, the issues are not yet fit for judicial decision,” Tashima wrote.
But appellate Judge Jay Bybee, in his dissent, said the evidence shows that the America West pilots already have been damaged. He said the sole reason for forming the new union was to benefit the US Airways pilots at the expense of the America West pilots “rather than to benefit the bargaining unit as a whole.”
And Bybee said the new union admitted it would never bargain for a deal that protects the rights of the America West pilots as does the arbitrator’s plan.