CHARLOTTE, N.C. ( TheStreet) -- A federal appeals court ruling last week would free the U.S. Airline Pilots Association to negotiate a new contract with US Airways ( LCC), but the pilots who lost the case are expected to file this week for a rehearing before the full appeals court. "Our position has been vindicated, and we are free to collectively bargain," said Mike Cleary, president of the two-year-old union. "We're going to move forward and accomplish a contract with this company that protects all pilots." Referring to former America West pilots who lost on appeal, Cleary said: "We have an obligation under fair representation to protect them, and we are very cognizant of our responsibilities; I want the west pilots to know that this union is built for everybody, and we are going to continue to do everything we can to represent everybody."
But Marty Harper, attorney for the America West pilots and managing partner in the Phoenix office of Polsinelli Shughart, said he expects his clients will choose to ask the 11-member court to rehear the case, decided by a 2-1 vote of a three-member panel. An option would be to allow USAPA to negotiate a contract and then appeal if west pilots are not protected. "I'm not sure there is necessarily a preferred route, but with the dissent, we think the better approach is to file the petition for a rehearing and give the ninth circuit the opportunity, if it chooses, to have a group of more than three decide this issue," Harper said.
In its ruling on Friday, the Ninth Circuit Court of Appeals in San Francisco backed USAPA and overturned a May 2009 ruling in U.S. District Court in Phoenix, when a jury concluded that the year-old union breached its duty to represent the six America West pilots who were the plaintiffs in the case. Until US Airways pilots approve a new contract that includes a controversial seniority list, it is impossible to determine whether the plaintiffs have been harmed, said the appeals court ruling. In 2008, US Airways pilots voted to replace the Air Line Pilots Association with USAPA because a seniority ruling by arbitrator George Nicolau appeared to favor pilots from America West over pilots from the pre-merger US Airways. The latter group was larger and easily dominated in the union representation election.