En Banc 9th Socks Both Sides on Airport Strike

SAN FRANCISCO (CN) - Nonunionized Seattle-Tacoma International Airport workers who have been blocked from striking tried to procure a different outcome from the en banc 9th Circuit.

Employees of Air Craft Service International Group (ASIG), which provides aircraft refueling services, had wanted a strike in 2012 to protest the suspension of safety advocate Alex Popescu. The workers partnered with labor-advocacy group Working Washington and its campaign director, Jonathan Rosenblum, to plan the strike but they had no union representation.

ASIG immediately sought a temporary restraining order, claiming the strike was illegal under the Railway Labor Act (RLA). The company sued Popescu, Rosenblum, Working Washington and other unnamed employees who supported the strike.

The workers argued that the RLA applied only to unionized employees.

U.S. District Judge James Robert granted a preliminary injunction, finding the RLA applies to any dispute between a carrier and its employees and that the workers' interpretation "would lead to an absurd result."

It would mean that "employees who have not gone to the trouble of organizing could strike at will, giving them substantially greater leverage against their employers than a unionized workforce," Robert wrote.

A divided three-judge panel of the 9th Circuit affirmed the injunction this year.

The RLA requires workers to "exert every reasonable effort" to settle disputes, the court found.

"Here, the employees are unwilling to even 'go through the motions' under the RLA; rather, they wish not to bargain but to strike," Judge N.R. Smith wrote for the majority.

Judge Milan Smith said in dissent that "the injunction upheld by the majority portends the reinsertion of federal courts into the 'labor injunction business.'"

At the en banc hearing of the case Thursday, the 11-judge bench chastised both sides for "wanting it both ways," as Judge Andrew Hurwitz said.

David Dean, of James & Hoffman in Washington, D.C., represented Working Washington and fielded questions about claims that nonunion employees weren't bound by RLA strike rules but were still protected under the act from retaliatory firing.

Douglas Hall, of Ford Harrison in Washington, D.C., represented ASIG and took a similar drubbing over his interpretation of the RLA. Judge Marsha Berzon asked Hall how ASIG could claim employees must follow RLA procedures before striking, but ignore the requirement that employers "exert every reasonable effort to settle all disputes."

Dean told the bench that affirming the strike injunction would create a "new, broad exception" that empowers courts to enjoin nonunion employees.

Judge Richard Tallman didn't buy it.

"Aren't you asking us to insert a work that doesn't exist?" Tallman asked Dean. "You want us to insert 'unionized employees' for 'represented employees?' That word doesn't appear in the statute. It says 'employees of the carrier' These are employees of the carrier, are they not?"

Dean said they are employees, but the Supreme Court read "unionized employees" in the statute.

Berzon grilled Dean over the status of the employees, asking whether he thought "this whole dispute is just outside the statute?" Such an interpretation would hurt the workers because they could be fired if they strike, Berzon noted.

Dean replied that the "dispute-resolution procedure" is outside the statute, but that the RLA says that workers are still protected from firing, even in an unlawful strike.

"You can't have it both ways," Hurwitz interrupted. "How can you claim you are outside the act, because the act only applies to unionized activity, but nonetheless are protected by the act?"

Berzon chimed in, "Why are you protected by the statute if you're doing something that's not covered by the statute at all?"

Dean again responded that the "dispute-resolution procedure" doesn't include nonunion employees.

"While the act is comprehensive the dispute procedures are not," Dean said.

Dean told the bench lifting the injunction was "a matter of justice."

"My client has been enjoined for two years from doing something that they should have been able to do."

"We're a court of law, not justice," Chief Judge Alex Kozinski responded.

Berzon suggested the case should go to mediation.

"They will chose someone in their company to be the representative and the whole problem will be over," she said.

Hall disagreed, saying the court would be "overstepping the role of the National Mediation Board."

"Defendants are arguing you're forcing us into unionization," Hall said. "We're not. But you can't take advantage of the benefits of unionization, i.e. striking, until you do so."

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