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Seattle Airport Strike Injunction|Lifted by En Banc 9th Circuit

SAN FRANCISCO (CN) - It was improper to block the strike by nonunionized Seattle-Tacoma International Airport workers, the en banc 9th Circuit ruled Tuesday.

Employees of Aircraft Service International Group (ASIG), the contractor responsible for fueling 75 percent of the planes at Sea-Tac, had wanted a strike in 2012 to protest the suspension of fellow fueler Alex Popescu.

While the workers attribute Popescu's suspension to his history of speaking out about workplace safety, ASIG claims to have suspended Popescu based on reports of inappropriate workplace conduct.

Labor advocates at Working Washington helped the employees distributed strike ballots two weeks after Popescu's suspension, but ASIG blocked the action with an injunction under the Railway Labor Act (RLA).

A divided three-judge panel of the 9th Circuit later affirmed the injunction, but the federal appeals court vacated that opinion in favor of an en banc rehearing last year.

In a 7-5 opinion Tuesday, the court sided with fuelers and Working Washington.

The 61-page lead opinion speaks to the tension between the RLA and the Norris-LaGuardia Act (NLGA), which prevents federal courts from issuing injunctions in labor disputes.

Although the RLA has been historically read as creating an exception to the NLGA, the trial court should have considered that Section 8 of the NLGA does not conflict with any RLA provision, according to the ruling.

Section 8 provides that "no 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."

ASIG bypassed this step and sought an injunction without first attempting to settle out of court, the court found.

"Section 8's salutary mandate that parties make all reasonable efforts to settle labor disputes before seeking judicial intervention will help prevent, not cause, interruptions to commerce," Judge John Owens wrote for the majority.

The lower court's failure to consider Section 8 defeats the purposes of both the RLA and the NLGA and "frustrates the goals of both statutes," the court found.

In a concurring opinion, Judge Marsha Berzon said "ASIG still would not have been entitled to an injunction" even if it had complied with its Section 8 duties.

Insisting that the dispute "falls wholly outside the RLA's regulatory framework," Berzon cited the National Mediation Board's finding that Sea-Tac fuelers "are incapable of choosing among themselves a representative for dealing with their employer, as they are not a nationwide craft or class." (Emphasis in original.)

Requiring the fuelers to elect a representative would be "doubly nonsensical" and would "impose an illogical and impossible-to-fulfill condition" on the fuelers, Berzon added, joined by two others in the majority.

"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," Berzon wrote.

Three judges meanwhile joined the dissent by Judge Andrew Kleinfeld.

In saying that the lower court and the original panel "got it right," Kleinfeld said that the RLA "protects the public from the consequences of some labor strife with an especially grave impact on those other than the companies and employees involved."

"Shutting down the Seattle-Tacoma International Airport amounts to the blockade of a major American port which imposes harms on nonparticipants in the labor dispute that vastly outweigh the interests of the company and its employees," he wrote.

There was sufficient evidence to indicate that Popescu often had "blowups" at work that made his fellow employees feel unsafe, and that when the company tried to discuss his behavior with him, he yelled obscenities, threw his chair and slammed the door as he left the room, according to the dissent.

"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," Kleinfeld wrote.

Even setting aside Popescu's behavior, the RLA requires nonjudicial negotiation and mediation efforts from both parties, not just the employers, according to the dissent. With no evidence that ASIG avoided efforts to settle, Kleinfeld emphasized that the statute does more than "protect management or labor against hardheads on the other side of the table."

"Today, the majority does indeed render the employees' duty to follow the Railway Labor Act procedures a nullity, by depriving the courts of the ability to enforce the Railway Labor Act," the dissent states.

Kleinfeld also questioned whether Working Washington used the SeaTac case as a springboard for its own larger agenda.

Indeed it would be fairly easy for the fuelers to certify Working Washington as their representative, Kleinfeld said.

"Without that, they are in the position of a lawyer settling a case on behalf of a client who has not chosen to be represented by that lawyer, who perhaps represents someone else with a conflicting interest," he wrote.

The majority meanwhile doubted Kleinfeld's claim that "today's decision destroys" the shield Congress created to protect against striking harms.

"Our decision will neither summon monsters from the deep nor rain frogs from heaven to 'destroy' the North American transportation system," Owens wrote.

"Rather, our narrow holding ... merely requires carriers to abide by Section 8's requirements before seeking an injunction."

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