OWENS, Circuit Judge:
Aircraft Service International, Inc., doing business as Aircraft Service International Group ("ASIG"), sought and obtained a preliminary injunction from the district court in October 2012 prohibiting ASIG's employees from striking at Seattle-Tacoma International Airport ("Sea-Tac"). Section 8 of the Norris-LaGuardia Act ("NLGA") strips district courts of jurisdiction to enter such an injunction unless the party seeking relief has made "every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration." 29 U.S.C. § 108. Because the district court failed to consider whether ASIG satisfied this provision and the record lacks any evidence that ASIG did so, we reverse and vacate the preliminary injunction.
ASIG is responsible for refueling about 75 percent of the airplanes at Sea-Tac. The dispute at issue arose when ASIG indefinitely suspended one of its fuelers, Alex Popescu, on September 14, 2012. Popescu and other ASIG fuelers allege that he was suspended "in retaliation for his leadership on workplace safety issues, including testifying at a public hearing of the Seattle Port Commission." ASIG counters that Popescu was suspended "so it could investigate reports that [he] had engaged in inappropriate conduct at the workplace."
After his suspension, Popescu and other ASIG fuelers decided to organize a "group response" to press for his reinstatement. Working Washington, a local coalition "united in support of quality jobs and a fair economy," was heavily involved in this effort. Jonathan Rosenblum is Working Washington's "Campaign Director." After unsuccessfully advocating for Popescu's reinstatement for two weeks, and at Working Washington's recommendation, the fuelers began distributing strike ballots on September 28. "[B]y an overwhelming margin," the fuelers voted to approve a strike to "get Alex Popescu back to work and to protest retaliation and intimidation by ASIG." Working Washington held a press conference soon after to publicize the fuelers' vote. Two days after this press conference, ASIG filed a complaint in the Western District of Washington seeking to enjoin any anticipated strike. This chain of events is summarized as follows:
The district court issued a temporary restraining order on October 5, 2012, prohibiting the fuelers from engaging in any strike activity "or other concerted action which is intended to interfere with ASIG's operations." After a hearing, the district court issued the following preliminary injunction on October 18, 2012:
(footnote omitted).
In granting this preliminary injunction, the district court assessed whether ASIG had satisfied the four prongs of the Winter test: (1) the moving party is likely to succeed on the merits; (2) irreparable harm is likely if the injunction is not granted; (3) the balance of equities tips in the moving party's favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Acknowledging that the "parties spen[t] very little time briefing the other three criteria," the district court devoted the lion's share of its analysis to the first prong — in particular, Defendants' contention that the Railway Labor Act ("RLA") does not govern the dispute. The district court relied on both the RLA's stated purpose of avoiding interruptions to commerce and its prohibition on "strike-first tactics" in concluding that the Act prohibited Defendants' proposed strike.
The district court then addressed Defendants' argument that it had "no authority to issue an injunction because the NLGA forbids it from doing so." Citing Burlington Northern Railroad v. Brotherhood of Maintenance of Way Employees, 481 U.S. 429, 107 S.Ct. 1841, 95 L.Ed.2d 381 (1987), and Pittsburgh & Lake Erie Railroad v. Railway Labor Executives' Ass'n, 491 U.S. 490, 109 S.Ct. 2584, 105 L.Ed.2d 415 (1989), the district court concluded that the RLA trumped the NLGA. The district court entered the injunction without analyzing or citing Section 8 of the NLGA.
"We review the legal determination of whether the district court had the power to issue an injunction de novo, but review the district court's exercise of that power for abuse of discretion." Cont'l Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1102 (9th Cir.1994). "Abuse-of-discretion review is highly deferential to the district court," but "[w]hen a district court makes an error of law, it is an abuse of discretion." Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 881 (9th Cir.2012) (internal quotation marks omitted). We review all legal interpretations underlying an injunction de novo. Id.
The NLGA generally divests federal courts of jurisdiction to "issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of [the NLGA]." 29 U.S.C. § 101. Two provisions of the NLGA are relevant to this case: Section 4 and Section 8. Under Section 4, "in any case involving or growing out of any labor dispute," federal courts are prohibited from issuing an injunction to prohibit any person from "[c]easing or refusing
The parties do not dispute that this case involves a "labor dispute" for purposes of the NLGA. Accordingly, the district court lacked jurisdiction to issue a preliminary injunction unless it could overcome the restrictions of Sections 4 and 8.
The Norris-LaGuardia Act was enacted to "tak[e] the federal courts out of the labor injunction business." Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen's Ass'n, 457 U.S. 702, 712, 102 S.Ct. 2672, 73 L.Ed.2d 327 (1982) (emphasis omitted). Before its passage in 1932, "federal courts routinely enjoined labor picketing at the behest of employers." Burlington N. Santa Fe Ry. Co. v. Int'l Bhd. of Teamsters Local 174, 203 F.3d 703, 707 (9th Cir.2000) (en banc); see Milk Wagon Drivers' Union, Local No. 753 v. Lake Valley Farm Prods., 311 U.S. 91, 102, 61 S.Ct. 122, 85 L.Ed. 63 (1940) (citing congressional report that "approximately 300 [injunctions] were issued in connection with the railway shopmen's strike of 1922"). "This practice was derisively dubbed `government by injunction.'" Burlington N. Santa Fe Ry. Co., 203 F.3d at 707 (quoting Milk Wagon Drivers' Union, 311 U.S. at 102, 61 S.Ct. 122).
Seeking injunctive relief was popular among employers because of its "unique effectiveness in stifling labor disputes." Id. "[P]reliminary injunctions enabled employers to defeat unions instantly by preventing them from using self-help and destroying the momentum of strikes before substantive legal rights were litigated." Id.; see also Felix Frankfurter & Nathan Greene, The Labor Injunction 17 & n.71 (1930). Employers typically sought relief in federal courts because "federal judges tended to be more hostile to labor than state court judges." Burlington N. Santa Fe Ry. Co., 203 F.3d at 708. Rather than attempt to amend the substantive law to remedy this "extraordinary problem," Congress felt compelled to take the "extraordinary step of divesting federal courts of equitable jurisdiction" over these disputes. Burlington N. R.R. v. Bhd. of Maint. of Way Employees, 481 U.S. 429, 437, 107 S.Ct. 1841, 95 L.Ed.2d 381 (1987). Thus was born the NLGA.
The Railway Labor Act was enacted with a different goal in mind: "[t]o avoid any interruption to commerce or to the operation of any carrier engaged therein." 45 U.S.C. § 151a. Passed in 1926, the RLA was intended to quell the persistent labor unrest that "threaten[ed] disruption of transportation." Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R., 353 U.S. 30, 40, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). Finding existing voluntary mechanisms inadequate, the major railroad carriers and unions came together to craft a mandatory system of dispute resolution. Id. The result was the RLA's "virtually endless" process of "negotiation, mediation, voluntary arbitration, and conciliation." Burlington N. R.R., 481 U.S. at 444, 107 S.Ct. 1841 (internal quotation marks omitted). The hope was that future labor disputes would
The relationship between the RLA — with its goal of keeping the trains and planes running — and the NLGA — with its goal of keeping federal courts out of the labor injunction business — has always been somewhat unclear. See 75 Cong. Rec. 5504 (1932) (statement of Rep. Fiorello LaGuardia) (inquiring about an apparent "tie-up" between the provisions of the RLA and the NLGA). Although Section 4 of the NLGA is phrased in absolute language, the Supreme Court consistently has held that the "competing demands of the RLA and the Norris-LaGuardia Act" must be "accommodate[d]." Burlington N. R.R., 481 U.S. at 445, 107 S.Ct. 1841; see also Int'l Ass'n of Machinists v. Street, 367 U.S. 740, 772-73, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); Graham v. Bhd. of Locomotive Firemen & Enginemen, 338 U.S. 232, 239-40, 70 S.Ct. 14, 94 L.Ed. 22 (1949); Virginian Ry. Co. v. Sys. Fed'n No. 40, 300 U.S. 515, 563, 57 S.Ct. 592, 81 L.Ed. 789 (1937). In practice, this means that the RLA has been read as creating an exception to the NLGA. Yet the boundaries of this exception are narrow. Although the "specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act," Pittsburgh & Lake Erie R.R. v. Ry. Labor Execs.' Ass'n, 491 U.S. 490, 513, 109 S.Ct. 2584, 105 L.Ed.2d 415 (1989) (internal quotation marks omitted), "[t]his exception is necessarily a limited one," Burlington N. R.R., 481 U.S. at 446, 107 S.Ct. 1841. In fact, "[e]ven when a violation of a specific mandate of the RLA is shown," courts should "hesitate" to grant an injunction "unless that remedy alone can effectively guard the plaintiff's right." Id. (quoting Int'l Ass'n of Machinists, 367 U.S. at 773, 81 S.Ct. 1784) (internal quotation mark omitted).
The district court concluded that the RLA applied to this dispute, and that this meant that no provision of the NLGA could apply — thus allowing the district court to issue the preliminary injunction without considering whether Section 8 of the NLGA was satisfied. This blanket conclusion, however, elided the distinction between Sections 4 and 8 of the NLGA. Although the Supreme Court has "held that the NLGA § 4 general limitation on district courts' power to issue injunctions in labor disputes must be accommodated to the more specific provisions of the RLA," Pittsburgh & Lake Erie R.R., 491 U.S. at 513, 109 S.Ct. 2584 (emphasis added),
The vast majority of courts to consider this question have applied Section 8 to disputes that the RLA governs.
This approach to the relationship between the RLA and Section 8 is consistent with the Supreme Court's past efforts to "accommodate" the RLA and Section 4 of the NLGA. As noted above, the RLA creates only a "limited" exception to Section 4 — one restricted to situations in which an injunction is the only remedy that can safeguard a right that the RLA grants. Burlington N. R.R., 481 U.S. at 446, 107 S.Ct. 1841; see also Graham, 338 U.S. at 239-40, 70 S.Ct. 14 (rejecting a construction of Section 4 that would leave federal courts "powerless to enforce" rights granted by the RLA); Fed. Express Corp. v. Teamster Union, Local No. 85, 617 F.2d 524, 526 (9th Cir.1980) ("[W]hile federal courts may issue injunctions in labor disputes to compel the parties to fulfill their
Section 8, however, does not conflict with any provision of the RLA. On the contrary, as the D.C. Circuit recognized years ago, strict enforcement of Section 8 does "not trammel, but ... rather further[s] the effectuation of that Railway Labor Act, for it ensures compliance by complainant carrier or union which cannot seek an injunction until and unless it has discharged the obligations imposed by the Railway Labor Act." Akron & Barberton Belt R.R., 385 F.2d at 614; see also Local 553, Transp. Workers Union of Am. v. E. Air Lines, Inc., 695 F.2d 668, 679 (2d Cir.1982) ("Section 8 of the Norris-LaGuardia Act, however, does not conflict with the RLA.... Since section 8 is congruent with the RLA, Local 553 should be held to section 8's requirements...."); Local 553, Transp. Workers Union of Am. v. E. Air Lines, Inc., 544 F.Supp. 1315, 1331 (E.D.N.Y.1982) ("[Section] 8 does not conflict with the mandatory status quo provisions of the RLA. Rather, [Section] 8 is in harmony with the purposes of the RLA."), modified on other grounds, 695 F.2d 668. In applying Section 8 in Brotherhood of Railroad Trainmen, Enterprise Lodge, No. 27 v. Toledo, P. & W. R.R. — a case that involved the RLA — the Supreme Court said the same: "The policy of the Railway Labor Act was to encourage use of the nonjudicial processes of negotiation, mediation and arbitration for the adjustment of labor disputes. The over-all policy of the Norris-LaGuardia Act was the same.... It is dominant and explicit in Section 8." 321 U.S. at 58-59, 64 S.Ct. 413 (citations omitted); see also In re Dist. No. 1 — Pac. Coast Dist., Marine Eng'rs Beneficial Ass'n (AFL-CIO), 723 F.2d 70, 80 (D.C.Cir.1983) (noting that Toledo held that Section 8 had not been satisfied "without even mentioning [Section] 4"). There is thus no need to read another exception into the NLGA to accommodate the RLA.
Section 8 provides in relevant part that "[n]o restraining order or injunctive relief shall be granted to any complainant ... who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration." 29 U.S.C. § 108. Though the precise requirements of this obligation vary from case to case, there are "certain minimum steps" that are usually required:
Rutland Ry. Corp., 307 F.2d at 41. These basic requirements are consistent with the Supreme Court's broad construction of Section 8. See Toledo, 321 U.S. at 57, 64 S.Ct. 413 ("One must not only discharge his legal obligations. He must also go beyond them and make all reasonable effort....").
Our past decisions construing Section 8 have fleshed out these principles. In Switchmen's Union of North America, we faced a dispute over the "bumping" of a railroad yardmaster. 398 F.2d at 445-47. In dismissing the union's argument that Section 8 divested the district court of authority to issue an injunction, we concluded that the carrier had fulfilled its obligations both because "there was no unfair surprise" in the bumping of the yardmaster and because the carrier had attempted, "in good faith," "to confer on the issue prior to the incident which led to the strike." Id. at 447. San Antonio Community Hospital v. Southern California District Council of Carpenters concerned a union's decision to display a banner
In this case, nothing in the record permits us to hold that ASIG satisfied Section 8's "reasonable effort" requirement. Although the district court erred by failing to undertake a Section 8 analysis, the record reveals that ASIG sought an injunction from the district court without first attempting to settle the dispute.
The dissent responds by seeking to divert attention away from the conduct of ASIG. As far as we can tell, however, there is no authority for the dissent's proposition that the actions of the employees may relieve the carrier from satisfying Section 8's prerequisites. The dissent cites Switchmen's Union of North America, Trans International Airlines, Order of Railway Conductors & Brakemen, and Butte as support for this proposition, but not one of these cases mentions the employees' conduct as relevant to the Section 8 inquiry. In Switchmen's Union of North America, we rejected the union's Section 8 argument because the carrier had "performed its obligations under ... the Railway Labor Act." 398 F.2d at 447. In Trans International Airlines, we rejected the union's Section 8 argument because the carrier's "own conduct" was "not sufficiently likely to be found illegal or otherwise wrongful that [it] should be prevented from seeking injunctive relief." 650 F.2d at 957. In Order of Railway Conductors, we noted that the carrier could not "claim[] an injunction against a strike" because the carrier had "positively rejected mediation." 366 F.2d at 105. In Butte, we noted that the carrier was "also necessarily denied" from seeking an injunction because the carrier "had not exhausted its administrative remedies." 268 F.2d at 60 & n. 10. Neither these cases nor the dissent can deny the Toledo rule that a carrier must establish that it made every reasonable effort before seeking an injunction. 321 U.S. at 56-57, 64 S.Ct. 413 ("If a complainant has failed ... to make every reasonable effort to settle the dispute, he is forbidden relief." (emphasis added)). In the absence of any efforts by ASIG to comply with Section 8, the dissent's discussion of what the employees did or did not do is simply a red herring.
Our decision will neither summon monsters from the deep nor rain frogs from the heavens to "destroy" the North American transportation system. We do not hold that courts are prohibited from enjoining airport strikes. Rather, our narrow holding — compelled by Toledo and consistent with that of the vast majority of courts confronting this issue — merely requires carriers to abide by Section 8's requirements before seeking an injunction. Because the record lacks evidence that ASIG made every reasonable effort to settle the dispute, we reverse the district court's order and vacate the preliminary injunction.
BERZON, Circuit Judge, with whom Judges PAEZ and GRABER join, concurring:
I agree with the majority that the district court erred in granting an injunction, as Aircraft Service International Group ("ASIG") has not complied with its duty under Section 8 of the Norris-LaGuardia Act ("NLGA") to make "every reasonable effort to settle [its] dispute" with the fuelers before seeking an injunction prohibiting the planned work stoppage. 29 U.S.C. § 108. I write only to explain that, in my view, even if ASIG had complied with its duty under Section 8, ASIG still would not have been entitled to an injunction.
The conflict underlying this case is undisputably a "labor dispute" for purposes of the NLGA.
The majority does not say otherwise. But this is an instance in which the narrow ruling may simply prolong litigation by inviting a second motion for an injunction, preliminary or permanent, after Section 8 compliance. I would prefer to put this case to rest now.
The NLGA severely constrains federal courts' jurisdiction to issue injunctions concerning labor disputes, see 29 U.S.C. §§ 101-115, including entirely eliminating jurisdiction to issue injunctions in certain instances, see id. § 104.
As the majority states, see Maj. Op. at 1074, where the RLA unambiguously applies, the jurisdictional bar of the NLGA, 29 U.S.C. § 104, can give way. See, e.g., Burlington N. R.R. Co. v. Bhd. of Maint. of Way Emps., 481 U.S. 429, 445, 107 S.Ct. 1841, 95 L.Ed.2d 381 (1987). But "[t]his exception is necessarily a limited one," and is applicable only where a party violates an unambiguous, applicable provision of the RLA. Id. at 446-47, 107 S.Ct. 1841. Given the express divestment of authority of NLGA Section 4, "the command of the [RLA] should be explicit and the purpose to afford a judicial remedy plain" before a court may grant injunctive relief to enforce an obligation under the RLA. Gen. Comm. of Adjustment of Bhd. of Locomotive Eng'rs for Mo.-Kan.-Tex.R.R. v. Mo.-Kan.-Tex.R. Co., 320 U.S. 323, 337, 64 S.Ct. 146, 88 L.Ed. 76 (1943) ("M-K-T"). This stringent rule recognizes that, "[f]aced with a choice between [an] ambiguity in the RLA and the unambiguous mandate of the [NLGA], we [are to] choose the latter." Burlington, 481 U.S. at 447,
The RLA does not regulate all relations between carriers and their employees. For example, a state-law wrongful discharge claim is not subject to the RLA's minor dispute resolution provision unless the dispute is grounded in the interpretation or application of a collective bargaining agreement. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 265-66, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). And the RLA does not regulate jurisdictional disputes between unions over the "overlapping... interests of two crafts." M-K-T, 320 U.S. at 334-37, 64 S.Ct. 146. Instead, the RLA encompasses only "three classes of labor disputes and establishes a different dispute resolution procedure for each." W. Airlines, Inc. v. Int'l Bhd. of Teamsters, 480 U.S. 1301, 1302, 107 S.Ct. 1515, 94 L.Ed.2d 744 (1987) (O'Connor, J., in chambers).
Specifically, the RLA governs "[m]ajor," "[m]inor," and "[r]epresentation" disputes. W. Airlines, 480 U.S. at 1302, 107 S.Ct. 1515. "Major disputes" comprise a "class" of disputes "concerning `rates of pay, rules or working conditions,' ... [and] relate to `the formation of collective [bargaining] agreements or efforts to secure them.'" Norris, 512 U.S. at 252, 114 S.Ct. 2239 (quoting Consol. Rail Corp. (Conrail) v. Ry. Labor Execs.' Ass'n, 491 U.S. 299, 302, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989)) (last alteration in original). "The second class of disputes, known as `minor' disputes, `gro[w] out of grievances....'" Id. (quoting 45 U.S.C. § 151a) (first alteration in original). These involve "`controversies over the meaning of an existing collective bargaining agreement in a particular fact situation.'" Id. at 253, 114 S.Ct. 2239 (quoting Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 33, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957)). Therefore, under Congress's scheme, "major disputes seek to create contractual rights, minor disputes to enforce them." Conrail, 491 U.S. at 302, 109 S.Ct. 2477. Finally, "`representation' disputes involve defining the bargaining unit and determining the employee representative for collective bargaining." W. Airlines, Inc., 480 U.S. at 1302, 107 S.Ct. 1515. The dispute between ASIG and the fuelers here falls into none of the three relevant RLA categories.
The closest fit is the "minor" dispute category. The fuelers' concern is with the suspension of a fellow worker, i.e., Popescu. The RLA's mandatory arbitration mechanism applies, inter alia, to the resolution of minor "disputes between an employee or group of employees and a carrier... growing out of grievances," 45 U.S.C. § 153, First (i) (emphasis added), and thus can cover many disputes concerning whether a certain employee should have been disciplined or discharged. Indeed, employee discipline issues are often the subject of RLA minor disputes. See, e.g., Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 72-76, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009); United Transp. Union v. BNSF Ry. Co., 710 F.3d 915 (9th Cir.2013); Ass'n of Flight Attendants, AFL-CIO v. Horizon Air Indus., Inc., 280 F.3d 901 (9th Cir.2002). But Hawaiian Airlines, Inc. v. Norris made clear that the word "grievances" in the RLA minor dispute resolution provisions refers only to "disputes involving the application or interpretation of a CBA." 512
The underlying dispute in this case is not a representation dispute for essentially the same reason — the workers are not seeking to collectively bargain regarding future terms and conditions of employment, and have no interest in choosing a representative of their group at this time. RLA Sections 2, Third, Fourth, and Ninth regulate the means by which employees may bind themselves to a representative for the purpose of negotiating with an employer. See 45 U.S.C. § 152, Third, Fourth, and Ninth. But none of those provisions contains an unambiguous obligation to select a representative where there is no desire to negotiate terms and conditions of employment with the employer. See Burlington, 481 U.S. at 447, 107 S.Ct. 1841.
Section 2, Third, could conceivably be read in isolation to require that the employees elect a representative: "Representatives, for the purposes of this chapter, shall be designated by the respective parties without interference...." 45 U.S.C. § 152, Third. The immediately following section, however, Section 2, Fourth, states that "[e]mployees shall have the right to organize," rather than the duty to organize. 45 U.S.C. § 152, Fourth. In other words, Section 2, Fourth, gives the employees "the right to determine who shall be the representative of the group or, indeed, whether they shall have any representation at all." Bhd. of Ry. & S.S. Clerks v. Ass'n for Benefit of Non-Contract Emps., 380 U.S. 650, 670, 85 S.Ct. 1192, 14 L.Ed.2d 133 (1965). Read in combination with Section 2, Fourth, then, Section 2, Third, does not require representation. Rather, it prohibits both the employer and the employees from "in any way interfer[ing] with, influenc[ing], or coerc[ing] the other in its choice of representatives." 45 U.S.C. § 152, Third. As the Fifth Circuit concluded, "employees were given the right under the Act not only to opt for collective bargaining, but to reject it as well.... [T]he implicit message throughout the Act is that the `complete independence' of the employees necessarily includes the right to reject collective representation. Indeed, the concept of `complete independence' is inconsistent with forced representation." Russell v. Nat'l Mediation Bd., 714 F.2d 1332, 1343 (5th Cir.1983), reh'g denied, 721 F.2d 819, cert. denied, 467 U.S. 1204, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984) (quoting 45 U.S.C. § 151a).
Nor does Section 2, Ninth compel the fuelers to seek union representation where they do not wish to be so represented. Section 2, Ninth, provides, in part:
45 U.S.C. § 152, Ninth. In terms, Section 2, Ninth, is limited to disputes "among a carrier's employees as to who are the representatives of such employees," and does not apply where there is no such dispute among the employees. Id. (emphasis added). For that reason, the D.C. Circuit has explained that the representation dispute mechanisms of Section 2, Ninth, may only be initiated by employees where "the requisite `dispute' [among employees] ... arise[s]": "Section 2, Ninth does not contemplate [an] action-initiating role[] ... for carriers." Ry. Labor Execs. Ass'n v. Nat'l Mediation Bd., 29 F.3d 655, 665 (D.C.Cir.1994) (en banc), amended by 38 F.3d 1224, cert. denied sub nom. Burlington N. R.R. Co. v. Ry. Labor Execs. Ass'n, 514 U.S. 1032, 115 S.Ct. 1392, 131 L.Ed.2d 243 (1995).
The Second Circuit's opinion in Summit Airlines, Inc. v. Teamsters Local Union No. 295, 628 F.2d 787, 795 (2d Cir.1980) is consistent with this understanding. In Summit Airlines, the Second Circuit held that the representation dispute mechanisms of Section 2, Ninth are not "optional" where a union "seek[s] to represent" a class or craft. Id. (emphasis added). Consequently, a union cannot "resort directly to economic coercion" of a carrier where its object is to induce the carrier voluntarily to recognize the union as the representative of its employees. Id. Unless a union formally seeks and obtains certification as the employees' chosen representative, the employer's duty to "treat" with, i.e. recognize, the representative, is not triggered. Id. at 793, 795. Thus, although an employer may voluntarily recognize a representative of a group of employees, the employer's duty to treat with a representative arises only where a representative is chosen through Section 2, Ninth's procedures. Id.; see also Galveston Wharves, 4 N.M.B. 200, 203 (1962).
In fact, according to the National Mediation Board, the fuelers at Sea-Tac are incapable of choosing among themselves a representative for dealing with their employer, as they are not a nationwide craft or class. See Aircraft Serv. Int'l Group, 40 N.M.B. 43, 49 (Nov. 20, 2012). The National Mediation Board's "longstanding practice is to conduct elections across a carrier's entire system," i.e. for class or craft units that are "system-wide" or "nation-wide" if the carrier operates nationally. Delta Air Lines Global Servs., 28 N.M.B. 456, 460, 461 (2001). Because "[t]he craft or class must include all of the employees working in the classification deemed eligible, regardless of work locations," Aircraft Serv. In'l Group, 40 N.M.B. at 48, and because ASIG's employees are part of a "nationwide" system, id. at 52, the fuelers at Sea-Tac could not elect a representative for the group under Section 2, Ninth, even if they wished to do so.
It would thus be doubly nonsensical to require the fuelers to seek representation under Section 2, Ninth, where the RLA imposes no such unambiguous duty and the Sea-Tac fuelers could not validly elect a representative of themselves as a group. As the dissenter to the original panel decision in this case concluded, "[w]hereas the RLA simply grants employees a right to organize, [there is no] obligation on the employees to seek unwanted representation." Aircraft Serv. Int'l, Inc. v. Int'l Bhd. of Teamsters Local 117, 742 F.3d 1110, 1128 (9th Cir.2014) (M. Smith, J., dissenting). Rendering unionization compulsory violates the directive to favor "the unambiguous mandate of the [NLGA]" regarding enjoining labor disputes where there is "ambiguity in the RLA," and
The district court nonetheless held that the fuelers' decision to strike was prohibited by the RLA because to hold otherwise would "wholly frustrate" RLA Section 2, First, which requires covered employers and employees "to exert every reasonable effort ... to settle all disputes, whether arising out of the application of ... agreements [concerning rates of pay, rules, and working conditions] or otherwise." 45 U.S.C. § 152, First. But as the Supreme Court has explained, Section 2, First, is not a stand-alone provision. See M-K-T, 320 U.S. at 334, 64 S.Ct. 146.
Longstanding precedent confirms that Section 2, First does not impose duties to refrain from acts not connected to those covered elsewhere in the RLA. M-K-T held that Section 2, First, "merely states the policy [of the RLA] which those other provisions [of the RLA] buttress with more particularized commands." 320 U.S. at 334, 64 S.Ct. 146. While Chicago & North Western Railway v. United Transportation Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971), determined that Section 2, First, is judicially enforceable in some circumstances, that case held only that a party breaches the duty described in Section 2, First, where that duty implements some other command in the RLA.
Specifically, in Chicago & North Western Railway, after "the parties ha[d] exhausted the formal procedures of the Railway Labor Act," the union threatened to strike. 402 U.S. at 571, 573, 91 S.Ct. 1731. The carrier persuaded a district court to enjoin any such strike, arguing that the union had not engaged in a good faith effort to discharge the obligations described in other RLA provisions, including the Union's alleged refusal to bargain with the carrier. Id. at 574, 91 S.Ct. 1731. Chicago & North Western Railway held that such an injunction would be generally permissible, describing the content of the duty imposed by Section 2, First, by repeated analogy to "the duty under the National Labor Relations Act to bargain in good faith," which authorizes courts to "`pass[] judgment upon the quality of the negotiations.'" Id. at 574-75, 91 S.Ct. 1731 (quoting Archibald Cox, The Duty to Bargain in Good Faith, 71 Harv. L.Rev. 1401, 1412-13 (1958)). It was in this sense — because it required parties to satisfy in good faith their more particularized duties — that the Court concluded that "[section] 2 First was intended to be more than a mere statement of policy or exhortation to the parties." Id. at 577, 91 S.Ct. 1731.
Chicago & North Western Railway, then, rejected only the suggestion that M-K-T precluded reading Section 2, First as imposing a good faith requirement as to other, express duties elsewhere delineated in the RLA. Id. Chicago & North Western Railway left untouched the Supreme Court's pronouncement in M-K-T that Section 2, First, does not create a freestanding, independent duty.
Cases both before and after M-K-T and Chicago & North Western Railway confirm the understanding that RLA Section 2, First, is enforceable only in conjunction with another RLA provision. Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 548-49, 57 S.Ct. 592, 81 L.Ed. 789 (1937), for example, held that there is a duty to negotiate a first collective bargaining agreement, relying on the combination of RLA Section 2, First, and the obligation imposed by RLA Section 2, Ninth to "treat with" the properly chosen majority representative. Summit Airlines similarly determined that there is a duty to settle a demand for recognition as a collective bargaining representative in the
Accordingly, there is no basis for interpreting the word "dispute" in Section 2, First, as carrying a meaning entirely divorced from the particular disputes described elsewhere in the RLA. Where, as here, a dispute falls into none of the categories contemplated elsewhere in the RLA, Section 2, First, imposes no obligation to settle it, in good faith or otherwise.
This conclusion has negative as well as beneficial consequences for the fuelers. Although the RLA does not forbid them to strike, it does not protect that activity, either. "No private cause of action exists under the RLA for a group of employees who assert retaliatory conduct based upon employee activities which bear no relationship to establishing a union...." Herring v. Delta Air Lines, Inc., 894 F.2d 1020, 1023 (9th Cir.1990); accord Gullickson v. Sw. Airlines Pilots' Ass'n, 87 F.3d 1176, 1186-87 (10th Cir.1996); Rachford v. Evergreen Int'l Airlines, Inc., 596 F.Supp. 384, 386 (N.D.Ill.1984). Where, as here, employees have disclaimed any effort to form a union, and in fact are incapable of electing a representative under the RLA, see Aircraft Serv. Int'l Group, 40 N.M.B. at 48-49, they have no recourse to the RLA if their employer retaliates against them for striking.
In sum, the fuelers "do not need to find a particular provision in the RLA to justify [striking]. [Rather,] [t]he affected [carrier] must find a specific mandate of the RLA that prohibits the [strike]" to be entitled to an injunction. Ry. Labor Execs. Ass'n v. Wheeling & Lake Erie Ry. Co., 914 F.2d 53, 56 (4th Cir.1990). As no specific mandate of the RLA prohibits nonunionized employees from engaging in a strike as a first step of self-help, ASIG is not entitled to an injunction against this behavior. Accordingly, the injunction should be vacated for that reason, as well as for the reason endorsed by the majority.
KLEINFELD, Senior Circuit Judge, joined by O'SCANNLAIN, SILVERMAN and TALLMAN, Circuit Judges dissenting:
We should affirm. The district court and the panel opinion got it right.
The Railway Labor Act protects the public from the consequences of some labor strife with an especially grave impact on those other than the companies and employees involved. That is why it mandates extensive negotiation, mediation, and arbitration procedures in any major transportation dispute
The injunction, together with the Railway Labor Act conciliation process, provides the statutory means Congress prescribed for making labor and management negotiate, whether they choose to or not. The Railway Labor Act and the traditional four-part test for injunctions
The company in this case, Aircraft Service International Group, Inc. ("Aircraft Service"), refuels about 75% of the airplanes at Sea-Tac. The company suspended one of its aircraft fuelers, Alex Popescu. The company says it suspended Mr. Popescu because employees were concerned about their safety on account of his "blowups" at work, episodes that he attributed to a medical condition. The general manager reported receiving complaints from employees that Popescu "went into a fit of rage" that appeared "borderline psychotic" and "was out of control and repeatedly had screamed obscenities at a supervisor." When, after suspension, the company tried to discuss Popescu's situation with him, he again yelled obscenities, "threw his chair across the room, and slammed the door as he left the room."
The employees have not voted to be represented by any union, so no labor union is involved. So far as the record shows, no one is authorized to speak for Popescu but Popescu himself, and the company's attempt to speak with him failed because he walked out and slammed the door. One of the adverse parties in this case is "Working Washington," which is not a union, but a group that describes itself as "a coalition of individuals, neighborhood associations, immigrant groups, labor unions, civil rights organizations, and people of faith." Working Washington's "Campaign Director" says that although Working Washington "is not seeking to become the bargaining representative" of the employees and has not sought recognition, it advocates for better treatment of workers at the airport.
Working Washington's campaign director says that the employees are compelled to work with unsafe and inadequate equipment and that the company suspended Popescu because he had become a leader in public advocacy for safer and better equipment for the fuelers. According to the campaign director, the obscenity incident was a mutual exchange of yelled obscenities when Popescu complained of a broken drive shaft and the supervisor accused him of sabotaging it. The campaign director alleges that Working Washington distributed and collected strike ballots and held a press conference to announce that the fuelers had authorized a strike against Aircraft Service.
Working Washington's campaign director further states in his affidavit that the fuelers, at a gathering organized by Working Washington, "called the company's Human Resources Department in Denver to request an immediate end to
Neither Working Washington nor the fuelers asked the National Mediation Board to intervene at that time. Neither did the company. A few weeks after the strike announcement, and after the temporary restraining order and preliminary injunction, six of the employees, including Popescu, wrote to the National Mediation Board, in their capacity as unrepresented individual employees, asking whether it provided any sort of dispute resolution services. The Board replied that it provided mediation services to carriers and to designated bargaining representatives of their employees, but not to individual employees or groups, so services were not available to the six employees because they had not been designated as the bargaining representatives for all the employees.
We do not know, there being no findings of fact on the point, whether Popescu's supporters really did try to meet with or call the company representatives, or whether the company acted unreasonably in not meeting with whoever claimed to represent its employees. The majority says the strike cannot be enjoined because the company made no "reasonable effort" to settle the dispute. That purported fact is not established. But it does not matter. The Railway Labor Act generally requires both parties to negotiate, mediate, and arbitrate, before either of them can shut down the airport. The point of the statute is to protect the public against the externalities of the labor dispute, not merely to protect management or labor against hardheads on the other side of the table.
The Railway Labor Act is among the first statutes protecting labor and encouraging union organization. Its first two objectives, written into the statutory language, are "to avoid any interruption of commerce" and "to forbid any limitation upon freedom of association among employees or any denial ... of the right of employees to join a labor organization."
The fuelers, or at least those persuaded by Working Washington, proposed to strike without going through these procedures, and they claim that they can do this because they are not unionized and because the company has not made a reasonable effort to settle the dispute. Judge N.R. Smith in the panel opinion noted:
These statutory duties are clear enough. But what happens if one or both parties do not do what the Railway Labor Act says they should do?
The subsequently enacted Norris-LaGuardia Act, promulgated in 1932, might have been read to categorically prohibit injunctions to enforce compliance with Railway Labor Act settlement procedures.
But the Supreme Court did not read it that way. Brotherhood of Railroad Trainmen v. Chicago River Indiana Railroad Co.
The Court further held that "the specific provisions of the Railway Labor Act take precedence over the more general provisions of the Norris-LaGuardia Act,"
Any question about the breadth of Chicago River was answered by the Court in Chicago & North Western Railway Co. v. United Transportation Union.
Chicago & North Western
Senator Watson declared that both attorneys for labor and management agreed on the scope of the law: "They all state to me that beyond any doubt in the world[,] all classes and groups and individuals are covered ... every individual employee who has a grievance, or any group of employees, or any organization of employees, or any person not a member of any organization of employees."
Even when an injunction is the only practical, effective means of enforcing duties under the Railway Labor Act, the Supreme Court has held, in some cases, that Section 8 of the Norris-LaGuardia Act
The difference between the situation in Toledo, Peoria and our case is that the railroad and the union in Toledo, Peoria had indeed gone through the Railway Labor Act process prior to the strike. In our case, the order of events is strike first, mediation maybe later, maybe never. In Toledo, Peoria, it was Railway Labor Act procedures first, strike later, when the railroad refused to complete the Railway Labor Act process by arbitrating. What made the unclean hands provision of Section 8 of the Norris-LaGuardia Act applicable was the railroad's rejection of "the final and crucial step of arbitration."
We have similarly interpreted Section 8 to apply in situations where both parties have engaged in the Railway Labor Act procedures, but then one of them has abandoned the process in bad faith. In Switchmen's Union of North America v. Southern Pacific Co., we upheld a carrier's injunction notwithstanding Section 8 because the carrier had not "failed to perform its obligations under ... the Railway Labor Act, or ... lacked good faith in attempting to settle this dispute."
The majority argues that our emphasis on the conduct of the fuelers is a "red herring" because Section 8 only applies to the "complainant," and that "no authority" relieves a carrier from the mandates of Section 8. That reading eviscerates the statutory command that "[i]t shall be the duty of ... employees," not just carriers, "to exert every reasonable effort ... to settle all disputes ... in order to avoid any interruption to commerce...."
Like Chicago River and Chicago & North Western, Toledo, Peoria relies on legislative history in construing Section 8 narrowly in the Railway Labor Act context. Representative LaGuardia assured Congress that the Railway Labor Act "provides every detail for the settlement of disputes" and that "[t]he workers could not and would not think of going on strike before all the remedies provided in the law have been exhausted."
The reason injunctions are so important to the Railway Labor Act conciliation system is that strikes in the transportation industry have so great an impact upon uninvolved parties:
A little bit of concrete history shows this impact. In 1934, Alaska and many other West Coast states suffered the effects of a massive longshoremen's strike. On May 9, 1934, West Coast longshoremen not covered by the Railway Labor Act
Three of our sister circuits
The Eleventh Circuit held in Delta Air Lines v. Air Line Pilots Association that "when a specific provision of the [Railway Labor Act] is implicated, and there is no other effective way to enforce [it], the [Norris-LaGuardia Act] does not prohibit a federal court from issuing an appropriate injunction."
In Delta Air Lines, Delta pilots engaged in a concerted effort to decline taking "open time" flights.
The Fifth Circuit similarly held in Burlington Northern v. Brotherhood of Maintenance of Way Employees that the Railway Labor Act's requirement to "`exert every reasonable effort to make and maintain'" agreements could be enforced by injunction whenever there is a threat of "`any interruption to commerce.'"
Therefore, notwithstanding the anti-injunction provisions of the Norris-LaGuardia Act it is clear that: (1) when the public interest, interruption of commerce, and a clear statutory provision of the Railway Labor Act are implicated, federal courts can enjoin concerted action by transportation employees acting without a union;
The Seventh Circuit and the District of Columbia Circuit have held that a public interest exception to Section 8 of the Norris-LaGuardia Act allows injunctions under the Railway Labor Act, even when Section 8's requirements are not satisfied, because of the catastrophic effects of transportation strikes on interstate commerce. United Air Lines holds that "the imperatives of the [Railway Labor Act] may override § 8, and that a party's lack of `clean hands' under § 8 `may be overcome by a balancing of the interests, particularly where it is the public interest involved.'"
The central argument of the majority is that an injunction ought not to have issued because Aircraft Service failed to "make any efforts" to settle the dispute. There is no district court finding of fact to that effect. All we have are three affidavits, two from Aircraft Service and one from Working Washington. The Aircraft Service representative at Sea-Tac says that he met with Popescu in person, joined by a human resources area manager by phone, but Popescu cursed at the area manager, threw his chair across the room, left, and slammed the door behind him. That cannot be a failure to "make any effort" by the employer. Working Washington's campaign director says that Popescu supporters called the company's human resources department throughout one evening and into the following morning and received no response. These events amount to the company's unsuccessful attempt to settle with Popescu, and a few other employees' attempts to settle Popescu's issues with the company. We lack authority, as an appellate court, to make a finding of fact, as the majority appears to do, that the company made no effort to settle. They met with Popescu, and he threw a chair and walked out.
If, as the majority appears to believe, the affidavits are treated as establishing facts, then there would be sufficient evidence that Aircraft Service made the reasonable efforts required by Section 8 of the Norris-LaGuardia Act. We held in Switchmen's Union of North America v. Southern Pacific Co. that a carrier fulfilled its obligation under Section 8 when there was "no unfair surprise," and "the company, in good faith, [had] attempted to confer on the issue prior to the incident which led to the strike."
The real nub here, for Working Washington as well as Popescu and the six fuelers who wrote on his behalf, appears to be the company's refusal to meet and attempt to settle with them, not Popescu. The company, after all, did meet with Popescu. Aircraft Service's position was that it had no obligation to negotiate with Working Washington or those fuelers who made phone calls the night after Popescu was suspended. The National Mediation Board's position was that it too had no mediation available for the six Popescu supporters. They were both right.
Working Washington, as its campaign director says in his affidavit, is not a union and has not been selected as a representative by Aircraft Service's employees. Working Washington has many constituents including "neighborhood associations, immigrant groups, labor unions, civil
The company's affidavit says that employees wanted to get rid of Popescu because they feared he might damage their vehicles and his irrational rages created a safety threat to them. Perhaps more fuelers wanted to get rid of Popescu than wanted to keep him, because they feared for their own safety on account of Popescu's erratic behavior. Perhaps Aircraft Service has been protecting the interests of most of its employees, while Working Washington is sacrificing their safety to some other agenda. We have no idea. Proper selection of a representative answers the question whether some group or entity represents the employees. An unsupported claim to speak on their behalf does not.
The Supreme Court held in Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R.R. Co. that the Railway Labor Act "imposes upon the carrier `the affirmative duty to treat only with the true representative, and hence the negative duty to treat with no other.'"
That right to pick the representative rather than having one imposed is why the Railway Labor Act creates a process for employees to select a mediation representative,
The statute requires that "not less than 50 percent of the employees in the craft or class" select a representative.
The record is uncontradicted that the company met with Popescu to discuss his suspension, but he slammed the door and walked out. Even were there some issue of fact about this, the injunction would still be within the district court's discretion. A fair reading of the Railway Labor Act and the Supreme Court decisions interpreting that law's relationship to the Norris-LaGuardia Act compels the conclusion that an injunction would still properly issue, compelling both sides to submit to the Railway Labor Act's dispute resolution procedures before any strike could take place. That reading would be consistent with the Fifth, Seventh, Eleventh and District of Columbia Circuit's interpretation of the Railway Labor Act's Section 152, First. Delaying an injunction until findings can be made on which side is the more unreasonably hardheaded, and denying an injunction if the petitioner is the more unreasonable, defeats the Railway Labor Act's first stated purpose, which is "to avoid any interruption to commerce." That is why the district court quoted Section 152, First of the Railway Labor Act and explained that "Defendant's interpretation would wholly frustrate the [Railway Labor Act's] overriding mandate, which is to impose a duty on carriers and their employees to `settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce....'" The district court was right.
The district court had jurisdiction and properly exercised it, by enjoining a strike unless and until the parties proceeded through the Railway Labor Act's dispute resolution process. Keeping a major American airport open is too important to allow an evasion of that process by a rump group of employees or a purported spokesman that the employees have never authorized to speak for them. Congress passed the Railway Labor Act to protect against the harm such a strike would impose on uninvolved people all over North America. Today's decision destroys that protection.
At least two other circuits have issued seemingly conflicting decisions with respect to this question. Compare Ry. Express Agency, Inc. v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, 437 F.2d 388, 393-94 (5th Cir.1971), and Itasca Lodge 2029 v. Ry. Express Agency Inc., 391 F.2d 657, 667-69 (8th Cir.1968), with Atlanta & W. Point R.R. v. United Transp. Union, 439 F.2d 73, 79-80 (5th Cir.1971), and Bhd. of R.R. Carmen of Am., Local No. 429 v. Chi. & N.W. Ry. Co., 354 F.2d 786, 794-96 (8th Cir.1965).
The dissent also fails to engage with any of the cases cited above that give Section 8 a much wider scope, instead claiming that our position "creates a circuit split." Dissent at 35. Yet three of the cases cited by the dissent never mention Section 8. This could perhaps mean that these courts assumed without comment that the RLA trumped Section 8 — but it could just as easily mean that, like the Fifth Circuit, these courts did not consider whether "[Section] 8 of the Norris-LaGuardia Act" applied because it "was not advanced as a basis for denying an injunction against the strike," Nat'l Airlines, Inc. v. Int'l Ass'n of Machinists & Aerospace Workers, 416 F.2d 998, 1003 n. 4 (5th Cir.1969) (citing Butte's discussion of Section 8 but recognizing that "[w]e take the case as we find it"). Moreover, the lone case in this purported "split" that does discuss Section 8 actually cuts against the dissent's position. In United Air Lines — immediately following the sentence quoted by the dissent — the court reaffirmed the Seventh Circuit's longstanding position that the RLA does not categorically supersede Section 8, noting that things would have been different if the union had a "stronger case for barring the injunction under [Section] 8 of the NLGA." 243 F.3d at 365 & n. 11. But even if we were to read these four cases as the dissent suggests, they merely add to the circuit split, and possible intra-circuit splits, noted above.
29 U.S.C. § 104.
