An 11-judge appeals panel hammered both sides Thursday over the right of airport service workers in Seattle to strike, even if they are not part of a unionized group.
Some of the most intense grilling came from 9th U.S. Circuit Court of Appeals Judge Marsha Berzon, a former labor lawyer who represented unions prior to joining the bench.
Working Washington, which describes itself not as a union but as a coalition of civil rights, union, immigrant and other groups, challenged a federal injunction imposed on a group of non-union refueling workers at Seattle-TacomaAirport. The workers had threatened to strike over suspension of an employee who challenged workplace safety.
Air Craft Service International supplies refueling services to Sea-Tac airport and it suspended Alex Popescu in 2012 in alleged retaliation for his leadership on workplace safety.
Workers decided to protest and went to Working Washington, which announced a plan in October 2012 to strike, but with no specific date.
The company sued in federal court the Teamsters Union, Working Washington and the employees. The company won a temporary restraining order to block any strike.
Under the Railway Labor Act, the national transportation industry is treated differently from other industries in labor relations. To prevent work stoppage that could cripple national commerce, the law imposes a duty on all employees to engage in labor dispute resolution prior to striking.
A three-judge the appeals court upheld the injunction in January against a strike even though the workers were not unionized. The full court voted to reconsider the decision.
The question is whether the company jumped the gun by running to court for an injunction rather than exhausting all efforts to negotiate under terms of the Norris LaGuardia Act.
“The issue is whether the court is going to recognize a new exception to the Norris-LaGuardia Act,” said David Dean, attorney for Working Washington.
“Why isn’t it a new exception to the Railway Labor Act,” asked Judge Andrew Kleinfeld.
Berzon quickly jumped in and through a series of rapid-fire questions asked Dean, “Is it your position that this dispute is outside the [RLA] statute and there is a downside for the employees, the could get fired. If they strike they can get fired.”
“Even if it is an unlawful strike they are still employees,” Dean said.
“You can’t have it both ways,” said Judge Andrew Hurwitz.
“What are they protected by,” Berzon added.
“You’re about to snatch defeat from the jaws of victory,” Hurwitz warned.
But Dean said, “These employees are at-will and have no interest in being represented [by a union]. You are asking to take away the only weapon that unrepresented employees have,” he said.
When the company’s lawyer argued, he faced the same intense questioning.
He responded, “They are trying to force us to negotiate with someone we have no legal obligation to negotiate with.”
Joining Berzon, Hurwitz and Kleinfeld on the panel were Chief Judge Alex Kozinski, Judges Diarmud O’Scannlain, Barry Silverman, Susan Graber, Richard Paez, Richard Tallman, John Owens and Michelle Friedland.
Case: Aircraft service Intl v. Working Washington, No. 12-36026