Appeals Court Expands Right-to-Strike Protections

A group of aircraft refueling workers won an end to the injunction that barred a 2012 strike against an airline refueling company at Seattle-Tacoma airport in a 7-4 federal appeals court decision Tuesday.

The 9th U.S. Circuit Court of Appeals held the trial judge could not bar a strike against Aircraft Service International Group,because the company failed to show it had made “every reasonable effort” to settle the dispute through negotiation or government mediation.

The case is significant because it rejects the trial judge’s conclusion that the Railway Labor Act (RLA) trumps the Norris-La Guardia Act (NLGA), which prevents courts from issuing injunctions in labor disputes.  The NLGA requires employers to make every reasonable effort to settle or mediate labor disputes and does not allow courts to step in unless those conditions are met.

The RLA, by contrast, was enacted to avoid interruption to commerce or the operation of carriers.  It crafts a mandatory system of dispute resolution.

Judge John Owens, writing for the majority, called the decision “modest,” adding, “Our decision will neither summon monsters from the deep nor rain frogs from the heavens to ‘destroy’ the North American transportation system.”

In dissent, Judge Andrew Kleinfeld wrote the decision expands he Norris La Guardia Act and thus creates a split among the circuit courts.  He said shutting down of Sea-Tac airport “amounts to the blockade of a major American port.”

ASIG handles 75 percent of the refueling of Sea-Tax planes.  The dispute arose in 2012 when ASIG suspended indefinitely one of its fuelers, Alex Popescu, allegedly for testifying at a public hearing about workplace safety.

The workers accused the company of retaliation for Popescu’s comments at a Seattle Port Commission hearing.  After two weeks of effort by six refuelers to win Popescu’s reinstatement, including the support of a local coalition called Working Washington, the fuelers began circulating strike ballots.  Working Washington held a press conference to publicize the strike vote.

Three days later ASIG sued Working Washington seeking a restraining order to block the proposed strike.  U.S. District Judge James Robart granted the injunction under the RLA, barring Working Washington from authorizing, instigating or encouraging a strike, work stoppage, slow-down or sick-out.

Robert held the RLA applied to the fuelers’ dispute and thus no provision of the NLGA could apply.

Owens found instead that the vast majority of courts to consider the issue have applied the NLGA to disputes that the RLA governs.

Over the years, sections of the NLGA have been treated as “independent limitations on a district court’s power to issue an injunction, even when the RLA applied,” Owens wrote.

In the Seattle case, even if employees lacked an identified union representative “that did not relieve ASIG of its obligations under Section 8 [of the NLGA] to make ‘every reasonable effort’ to resolve the disagreement before seeking an injunction,” he said.

Judge Marsha Berzon, a former labor lawyer representing unions prior to joining the bench, wrote a separate concurring opinion that sided with Owens.

Joining Owens in the majority were Judges Alex Kozinski, Susan Graber, Richard Paez, Berzon, Andrew Hurwitz and Michelle Friedland.

With Kleinfeld in dissent were Judges Diarmuid O’Scannlain, Barry Silverman and Richard Tallman.

Case: Aircraft Service Int. v. Int. Brotherhood of Teamsters, (Working Washington), No.-12-36026

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