Aircraft Service International v. International Brotherhood of T, et al

Filing

FILED OPINION (ANDREW J. KLEINFELD, MILAN D. SMITH, JR. and N. RANDY SMITH) AFFIRMED. Judge: AJK , Judge: MDS Dissenting, Judge: NRS Authoring. FILED AND ENTERED JUDGMENT. [8932572]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AIRCRAFT SERVICE INTERNATIONAL
INC.,
Plaintiff-Appellee,
v.
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS AFL CIO LOCAL 117,
Defendant,

No. 12-36026
D.C. No.
2:12-cv-01729JLR

OPINION

and
WORKING WASHINGTON; ALEX
POPESCU; JONATHAN ROSENBLUM,
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
July 8, 2013—Seattle, Washington
Filed January 10, 2014
Before: Andrew J. Kleinfeld, Milan D. Smith, Jr.,
and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith;
Dissent by Judge Milan D. Smith, Jr.

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SUMMARY*

Labor Law
The panel affirmed the district court’s issuance of a
preliminary strike injunction brought under the Railway
Labor Act against “carrier employees” of an aircraft service
provider.
The panel held that the Norris-LaGuardia Act did not
withdraw jurisdiction from the district court to enjoin the
strike, which grew out of a labor dispute, because the Railway
Labor Act is recognized as an exception to the NLGA’s
jurisdiction-stripping provisions.
The panel concluded that the carrier employees had an
enforceable duty under section 2 First of the RLA to
diligently strive to make and maintain agreements and settle
all disputes. The panel held that section 2 First does not
merely set forth a policy and does not apply only to unionized
carrier employees. The panel held that the employees’
decision to strike before appointing a representative and
attempting to collectively bargain under the procedures of the
RLA was a violation of their duty in section 2 First.
Accordingly, the district court’s exercise of jurisdiction was
proper.
The panel held that the strike injunction was not
overbroad in violation of the First Amendment. Given the
district court’s reasonable finding that the balance of the
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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equities favored the employer because permitting the strike
would essentially shut down an airport, the panel held that
preliminarily enjoining the employees’ strike was not an
abuse of discretion.
Dissenting, Judge M. Smith wrote that the injunction
should be vacated because the employees violated no express
provision of the RLA, and before seeking an injunction, the
employer failed to satisfy the condition precedent in section
8 of the NLGA by failing first to make all reasonable effort
to settle the parties’ dispute.

COUNSEL
Dmitri Iglitzin, Schwerin Campbell Barnard Iglitzin & Lavitt,
LLP, Seattle, Washington; David P. Dean (argued), Kathy L.
Krieger, Darin M. Dalmat, and Daniel M. Rosenthal, James
& Hoffman, P.C., Washington, D.C., for DefendantsAppellants.
Douglas W. Hall, FordHarrison LLP, Washington, D.C., for
Plaintiff-Appellee.

OPINION
N.R. SMITH, Circuit Judge:
To avoid interruptions to interstate commerce, the
Railway Labor Act treats labor relations in the national
transportation industry differently from more generally
applicable labor law. Section 152 First of the Railway Labor
Act, 45 U.S.C. § 152 First (“section 2 First”), imposes a duty

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on all carrier employees to engage in the Act’s labor dispute
resolution procedures before ceasing to perform their work.
Because the employees of Aircraft Service International are
carrier employees, they must comply with the Act. Because
they are subject to this obligation, the district court did not
abuse its discretion in issuing the strike injunction. The
injunction did not violate the employees’ or other defendants’
First Amendment rights; it furthered the important
governmental interest of regulating the economic relationship
between labor and management and was no greater than
essential to the furtherance of that interest.
Facts and Procedural History
Air Craft Service International, Inc., doing business as Air
Craft Service International Group (“ASIG”), provides air
craft services at Seattle-Tacoma International Airport (“SeaTac”). As part of such services, ASIG refuels approximately
75 percent of the airplanes at Sea-Tac.
On September 14, 2012, ASIG indefinitely suspended one
of its employees, Alex Popescu. The parties dispute the
reasons for his suspension. ASIG alleges it suspended
Popescu for “inappropriate behavior, including screaming
obscenities at his supervisor.” Popescu and other ASIG
employees counter that he was suspended “in retaliation for
his leadership on workplace safety issues, including testifying
at a public hearing for the Seattle Port Commission.” The
Seattle Port Commission hearing was held two days prior to
his suspension and was Popescu’s second appearance before
the Commission.
After Popescu’s suspension, other ASIG employees at
Sea-Tac (“Employees”) decided to organize “a group

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response” to advocate for Popescu’s reinstatement. In
organizing this response, Jonathan Rosenblum of
Working Washington1 became heavily involved in this
employer/employee dispute. After approximately two weeks
of failed efforts to gain Popescu’s reinstatement, the
Employees decided “by an overwhelming majority” to strike
for up to eight hours on some future date.
Working Washington announced the Employees’ decision
to strike at an October 3, 2012 press conference, even though
no strike date was set. After the press conference, ASIG
immediately filed a complaint in the United States District
Court for the Western District of Washington against the
International Brotherhood of Teamsters’ local chapter,
Teamsters Local 117;2 Working Washington; Jonathan
Rosenblum; Alex Popescu; and unnamed ASIG employees.
In the complaint, ASIG requested a temporary restraining

1

Jonathan Rosenblum has been “a union and community organizer since
1984.” During the time of this dispute, he functioned as the Campaign
Director for Working Washington.
Working Washington describes itself as “a coalition of individuals,
neighborhood associations, immigrant groups, labor unions, civil rights
organizations, and people of faith united in support of quality jobs and a
fair economy.” Working Washington claims extensive ties to various
employee groups at Sea-Tac, including baggage handlers, passenger
service workers, ground transportation employees, taxicab drivers, cargo
handlers, and fuelers. It has organized various efforts “to advocate for
safety and respect on the job” at Sea-Tac, among other places.
Working Washington is not a labor union and has not been selected
by ASIG’s Employees to represent them.
2

Teamsters Local 117 was initially implicated in ASIG’s complaint,
though eventually the parties stipulated to its dismissal.

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order, a preliminary injunction, and a declaratory judgment
for a permanent injunction to enjoin the strike as unlawful
under the Railway Labor Act (“RLA”).
The district court issued a temporary restraining order on
October 5, 2012, prohibiting all Defendants from striking or
encouraging a strike at Sea-Tac. The order sought to
“maintain the status quo pending the outcome of a hearing to
determine whether a preliminary injunction should issue.”
After a full hearing on October 17, 2012, the district court
concluded that preliminary injunctive relief was proper,
applying the factors in Winter v. Natural Resources Defense
Counsel, 555 U.S. 7, 20 (2008). The Court issued the
following strike injunction:
Alex Popescu, Working Washington,
Jonathan Rosenblum, and John Does 1-100,
and their officers, agents, employees, and
members are hereby preliminarily enjoined
from in any manner or by any means
directing, calling, causing, authorizing,
inducing, instigating, conducting, continuing,
encouraging, or engaging in any strike, work
stoppage, sick-out, slow-down, work-to-rule
campaign, or other concerted action in
violation of the RLA which is intended to
interfere with [ASIG’s] normal operations.
(footnote omitted).
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an

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injunction is in the public interest.” Winter, 555 U.S. at 20.
Reviewing the district court decision as to the first Winter
factor, the district court reasoned that the text and purposes of
the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. (in
particular section 2 First), support ASIG’s position that air
carrier “employees are never permitted to strike as a first
step.” The district court also concluded the second factor was
satisfied, “because the threat of irreparable harm is largely
self-evident from the underlying facts of the case. In essence,
Defendants are threatening to shut down SeaTac Airport.” In
balancing the equities, the district court found for ASIG, as
“[a]n improperly granted injunction would . . . merely delay[]
resolution of [the Defendants’] dispute with [ASIG].” Id.
Finally, the court reasoned that the fourth Winter factor
favored ASIG: “an unlawful strike would plainly be contrary
to the public interest,” while “an injunction might prevent
commerce from being severely disrupted.”
Popescu, Rosenblum, and Working Washington appealed
the temporary restraining order and preliminary strike
injunction. In the appeal, they challenge the district court’s
exercise of jurisdiction over the dispute. They also contend
the breadth of the injunction violates their First Amendment
rights.
Standard of Review
“We review de novo a district court’s exercise of subject
matter jurisdiction.” Burlington N. Santa Fe Ry. Co. v. Int’l
Bhd. of Teamsters Local 174, 203 F.3d 703, 707 (9th Cir.
2000). If we find the district court properly exercised
jurisdiction, we will “review the district court’s decision to
grant . . . a preliminary injunction for abuse of discretion. Our
review is limited and deferential.” Sw. Voter Registration

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Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003)
(internal citations omitted). That being said, “[t]he district
court’s interpretation of the underlying legal principles . . . is
subject to de novo review.” Id. In sum, the preliminary
injunction will be upheld unless the district court “abused its
discretion or based its decision on an erroneous legal standard
or clearly erroneous findings of fact.” E.E.O.C. v. Recruit
U.S.A., Inc., 939 F.2d 746, 751 (9th Cir. 1991).
Discussion
I. The Federal District Court has Jurisdiction over this
Labor Dispute
Generally, the Norris-LaGuardia Act (“NLGA”)
withdraws jurisdiction from federal courts to enjoin strikes
“growing out of any labor dispute.” 29 U.S.C. § 104(a).
Enacted in 1932, the NLGA “was designed primarily to
protect working men in the exercise of organized, economic
power, which is vital to collective bargaining.” Bhd. of R.R.
Trainmen v. Chicago River & Ind. R. Co., 353 U.S. 30, 40
(1957). Thus, “Congress acted to prevent the injunctions of
the federal courts from upsetting the natural interplay of the
competing economic forces of labor and capital.” Id.
However, the NLGA “does not deprive the federal court
of jurisdiction to enjoin compliance with various mandates of
the Railway Labor Act.” Burlington N. R.R. Co. v. Bhd. of
Maint. of Way Emps., 481 U.S. 429, 445 (1987) (quotation
marks omitted). Though enacted six years prior to the NLGA,
the RLA has been recognized as an exception to the NLGA’s
jurisdiction stripping provisions, because Congress sought to
“channel[] the[] economic forces” the NLGA sought to
protect, “in matters dealing with railway labor, into special

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processes. . . .” Bhd. of R.R. Trainmen v. Chicago River &
Ind. R. Co., 353 U.S. at 41. This channeling recognized “the
failure of voluntary machinery to resolve a large number” of
railway labor disputes “serious enough to threaten disruption
of transportation.” Id. at 40. Indeed, Congress enacted the
RLA after “decades of labor unrest that persistently revealed
the shortcomings of every legislative attempt to address the
problems.” Burlington N. R.R. Co., 481 U.S. at 444. Through
the Act, Congress sought to “protect the public from the
injuries and losses consequent upon any impairment or
interruption of interstate commerce through failures of
managers and employees to settle peaceably their
controversies.” Union Pac. R.R. Co. v. Price, 360 U.S. 601,
609 (1959) (quoting H.R. Rep. No. 328, 69th Cong., 1st Sess.,
p.1).
Only ten years after its enactment, Congress “extended
[the RLA] in 1936 to cover the airline industry.” Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 248 (1994) (citing
45 U.S.C. §§181–188). Congress’s “general aim was to
extend to air carriers and their employees the same benefits
and obligations available and applicable in the railroad
industry.”3 Int’l Ass’n of Machinists v. Cent. Airlines, Inc.,
372 U.S. 682, 685 (1963). This move aligned with Congress’s
longstanding concern of “minimizing interruptions in the
Nation’s transportation services by strikes and labor
disputes.” Id. at 687.

3
“The 1936 amendments made applicable to the airlines all of the
provisions of the Railway Labor Act, excepting § 3, 45 U.S.C. § 153,
dealing with the National Railroad Adjustment Board.” Int’l Ass’n of
Machinists v. Cent. Airlines, 372 U.S. 682, 685 (1963). Section 3 is not
relevant to this case.

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Given this history, the RLA “cannot be appreciated apart
from the environment out of which it came and the purposes
which it was designed to serve.” Burlington N. R.R. Co.,
481 U.S. at 444. Congress explicitly stated the RLA’s
purposes in the text of the statute itself:
(1) To avoid any interruption to commerce or
to the operation of any carrier engaged
therein; (2) to forbid any limitation upon
freedom of association among employees or
any denial, as a condition of employment or
otherwise, of the right of employees to join a
labor organization; (3) to provide for the
complete independence of carriers and of
employees in the matter of self-organization
to carry out the purposes of this chapter; (4) to
provide for the prompt and orderly settlement
of all disputes concerning rates of pay, rules,
or working conditions; (5) to provide for the
prompt and orderly settlement of all disputes
growing out of grievances or out of the
interpretation or application of agreements
covering rates of pay, rules, or working
conditions.
45 U.S.C. § 151a. First and foremost, Congress was
concerned about preventing “any” interruptions to interstate
commerce, because of the pivotal role that railways and air
carriers play in the national economy. Id. Further, Congress
made clear its interest in “prompt and orderly” resolution of
“all” labor disputes. Id. In sum, Congress enacted the RLA to
eliminate interruptions to interstate commerce caused by
labor disputes between carriers and their employees.

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These purposes find application in section 2 First of the
RLA, wherein Congress mandated that:
It shall be the duty of all carriers, their
officers, agents, and employees to exert every
reasonable effort to make and maintain
agreements concerning rates of pay, rules, and
working conditions, and to settle all disputes,
whether arising out of the application of such
agreements or otherwise, in order to avoid any
interruption to commerce or to the operation
of any carrier growing out of any dispute
between the carrier and the employees
thereof.
45 U.S.C. § 152 First.
Section 2 First imposes this duty on all carrier employees.
Nothing in this section supports reading “all carriers[’] . . .
employees” to mean anything other than “all carriers’
employees.” In defining “employee” for purposes of the
RLA, section 1 Fifth confirms this was Congress’s intent:
employee means “every person in the service of a carrier . . .
who performs any work defined as that of an employee or
subordinate official.” Id. at § 151 Fifth. Considering this text,
it is an inescapable conclusion that, when the RLA references
all carrier employees, that is precisely what Congress meant.
See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951
(9th Cir. 2009) (“The preeminent canon of statutory
interpretation requires us to presume that the legislature says
in a statute what it means and means in a statute what it says
there.” (internal quotation marks omitted)).

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At oral argument before this panel, the Employees
conceded they were carrier employees, as defined in the
RLA. As far as section 2 First is concerned, that is the end of
the matter. They have a duty to diligently strive to make and
maintain agreements and settle all disputes. See 45 U.S.C.
§ 152 First. Striking without even attempting to appoint a
representative and collectively bargain violates this duty.
Here, the Employees have made no attempt to engage in the
RLA’s procedures—the very mechanism designed by
Congress to resolve carrier labor disputes. See Int’l Ass’n of
Machinists v. State, 367 U.S. 740, 760 (1961).
Notwithstanding the apparent clarity of this provision in
its application to all carrier employees, the Employees argue
the RLA does not provide federal jurisdiction over this
dispute, because they have no enforceable duty under
section 2 First. Instead, they first contend that section 2 First
is only a policy, not an independent obligation. Second, they
argue that, even if more than a policy, it only applies to
unionized carrier employees.4 Neither contention has merit.
The Employees first argue that section 2 First is a mere
policy mobilized only by other RLA provisions. Their
argument continues that the RLA’s other provisions only
address resolving disputes over forming collective
agreements (major disputes), interpreting such agreements
(minor disputes), and appointing a representative
(representation disputes). See Bhd. of R.R. Trainmen v.
Jacksonville Terminal Co., 394 U.S. 369, 378 (1969) (major
disputes); Bhd. of R.R. Trainmen v. Chicago River & Ind.

4

ASIG’s Employees are not unionized, and they have not selected
Working Washington, which purports to speak for them, as their union or
representative.

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R.R. Co., 353 U.S. at 33 (minor disputes); 45 U.S.C. § 152
Third, Fourth, and Ninth (representation disputes). Given
their disinterest in all of the above, they argue the RLA does
not compel them to do anything.
This argument is fatally flawed for two reasons. First, the
Chicago & North Western Court explicitly rejected this
narrow view of section 2 First previously advanced in 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, 334
(1943) [hereinafter “M-K-T”]. Chicago & N. W. Ry. Co. v.
United Transp. Union, 402 U.S. 570, 578 (1971) (“In light of
the place of § 2 First in the scheme of the Railway Labor Act,
the legislative history of that section, and the decisions
interpreting it, the passing reference to it in the M-K-T case
cannot bear the weight which the Court of Appeals sought to
place upon it.”).5 Instead of being “a mere statement of policy
or exhortation to the parties,” section 2 First “was designed
to be a legal obligation.” Id. at 577. This circuit has likewise
found that section 2 First imposes an independent, mandatory
duty enforceable by the courts. See Reg’l Airline Pilots Ass’n
v. Wings W. Airlines, Inc., 915 F.2d 1399, 1402–03 (9th Cir.
1990); accord, e.g., Delta Air Lines, Inc. v. Air Line Pilots
Ass’n, Int’l, 238 F.3d 1300, 1304–05 (11th Cir. 2001) (“It is
clear that the substantive legal duty of 45 U.S.C. § 152 First,
is a ‘specific provision’ of the RLA and, moreover, is central
5

Our respected colleague’s dissent fails to recognize this. Dissent at
33–34. We are “wholly rel[ying] on the Court’s subsequent holding” in
Chicago & North Western, dissent at 34, because that Court explicitly
rejected the M-K-T Court’s interpretation of section 2 First upon which the
dissent so heavily relies. The Chicago & North Western Court also
confirmed that Virginian Railway Company v. System Federation No. 40,
300 U.S. 515 (1937) “considered and affirmed” that section 2 First
imposes an independent, enforceable duty. 402 U.S. at 579.

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to the purpose and functioning of the RLA.”); Int’l Ass’n of
Machinists & Aerospace Workers, AFL-CIO v. Trans World
Airlines, Inc., 839 F.2d 809, 814 (D.C. Cir. 1988)
(recognizing section 2 First as an “independent duty”).
Second, section 2 First’s text also condemns the
Employees’ narrow view. All carrier employees have a
specific duty to “exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules, and
working conditions, and to settle all disputes, whether arising
out of the application of such agreements or otherwise . . . .”
45 U.S.C. § 152 First (emphasis added). Thus, carrier
employees have a clear duty to “make” agreements, not just
maintain preexisting ones. Perhaps this obligation could be
cast as reaffirming the major and minor dispute resolution
procedures for cases dealing with forming and interpreting
collective agreements, respectively. But the presence of “or
otherwise” demonstrates Congress’s intent to require labor
disputes to be settled even if they do not fit into the major or
minor resolution mechanisms. See Tabor v. Ulloa, 323 F.2d
823, 824 (9th Cir. 1963) (“[A] legislature is presumed to have
used no superfluous words.”). Further, nothing in “or
otherwise” limits its application to representation disputes
only. Rather, “or otherwise” underscores the plain language
in the obligation to “exert every reasonable effort” to “settle
all disputes.” 45 U.S.C. § 152 First.
Accordingly, section 2 First is more than a policy gloss on
the RLA’s other provisions. Section 1a sets forth the RLA’s
purposes and provides the policy. But in section 2, Congress
enumerated duties, the first of which is section 2 First, “the
heart of the Railway Labor Act.” Bhd. of R.R. Trainmen v.
Jacksonville Terminal Co., 394 U.S. at 377–78. Congress

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intended section 2 First to be taken at its terms as a duty. See
Satterfield, 569 F.3d at 951.
The Second Circuit extended this line of reasoning in
Summit Airlines v. Teamsters Local Union No. 295. 628 F.2d
787 (2d Cir. 1980). The airline refused to recognize a union
as their employees’ bargaining representative, and the union
tried to force recognition through economic coercion. Id. at
789. When the airline sought injunctive relief under the RLA,
the union argued that the court had no jurisdiction, because
the union had not violated any duty in the RLA. Id. In
rejecting this argument, the Second Circuit noted that
section 2 First represented a “general obligation of both the
carriers and their employees to attempt in good faith to
resolve all disputes without resort to economic coercion.” Id.
Further, it found that the representation dispute resolution
procedures of section 2 Ninth were compulsory, even though
in that case the dispute was between the carrier and the
employees rather than between competing employee
representatives. Id. at 795 n.4. In so holding, the court
reasoned that a contrary position would render sections 2
First and Ninth meaningless. See id. at 794–95. We find this
reasoning persuasive and applicable to interpreting carrier
employees’ obligations under section 2 First; a legal
obligation sufficient to channel carrier labor disputes into the
RLA’s various dispute resolution procedures. See also e.g., In
re Nw. Airlines Corp., 483 F.3d 160, 168, 174–75 (2d Cir.
2007) (enjoining employees’ strike even though the parties’
CBA was abrogated in bankruptcy, because section 2 First is
a separate duty that “operates independently of the RLA’s
status quo provisions”).
In their second argument, the Employees contend that,
even if section 2 First represents more than a policy, it only

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applies to unionized carrier employees. This view is
inconsistent with the text of section 2 First, which applies to
“all carriers[’] . . . employees.” 45 U.S.C. § 152 First. While
the import of this conclusion is to push carrier employees
contemplating collective action into the RLA’s procedures,
such is as Congress intended.
The Supreme Court made clear that “Congress has given
the unions a clearly defined and delineated role to play in
effectuating the basic congressional policy of stabilizing labor
relations in the industry.” Int’l Ass’n of Machinists v. Street,
367 U.S. 740, 760 (1961). “The Railway Labor Act was
passed . . . to encourage collective bargaining by [carriers]
and their employees in order to prevent, if possible, wasteful
strikes and interruptions of interstate commerce.” Detroit &
T.S.L.R. Co. v. United Transp. Union, 396 U.S. 142, 148
(1969); see also Tex. & N.O.R. Co. v. Bhd. of Ry. & S.S.
Clerks, 281 U.S. 548, 565 (1930) (“[T]he major purpose of
Congress in passing the Railway Labor Act was to provide a
machinery to prevent strikes.” (internal quotation marks
omitted)). Further, collective bargaining has been described
as “the method of settling [carrier labor] disputes.” Int’l Ass’n
of Machinists v. Street, 367 U.S. at 760 (emphasis added).
Thus, while the RLA “does not undertake to compel
agreement between the employer and employees, . . . it does
command those preliminary steps without which no
agreement can be reached.” Virginian Ry., 300 U.S. at 548.
Furthermore, the Supreme Court and this circuit have
plumbed the depths of section 2 First. It is not meant to reach
disputes between a carrier and an individual employee. See
Hawaiian Airlines, 512 U.S. at 255; Williams v. Jacksonville
Terminal Co., 315 U.S. 386, 400 (1942). Similarly, section 2
First does not create a private right of action for employees

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trying to force a union and carrier to comply with the RLA’s
procedures. Herring v. Delta Air Lines, Inc., 894 F.2d 1020,
1022–23 (9th Cir. 1989). Congress instead meant the RLA for
collective disputes directly between the carrier and its
employees. See id. at 1022.
These decisions raise no red flags with respect to the
interpretation of section 2 First here advanced. Section 2 First
clearly applies to all carrier employees, and it imposes upon
them an obligation to “exert every reasonable effort” to make
labor agreements and settle labor disputes. The provisions of
the RLA provide the preliminary mechanism for doing so.
Failure to perceive this connection between section 2 First’s
duty and the RLA’s procedures would allow carrier
employees to leverage their critical role in interstate
commerce and exploit it in their quest for concessions. Such
would contravene the RLA’s purposes, as clearly stated in the
text. See 45 U.S.C. § 151a.
Therefore, the Employees’ decision to strike before
appointing a representative and attempting to collectively
bargain under the procedures of the RLA is a violation of
their duty in section 2 First. Instead, the Employees must
appoint a representative according to section 2 Third, Fourth,
and Ninth (if necessary).6 With a representative, they can then
get down to settling their dispute with ASIG and shouldering

6

The dissent mischaracterizes our opinion as requiring unionization.
Dissent at 33, 36, 37. The RLA’s dispute resolution procedures can only
be navigated by party representatives. See e.g., 45 U.S.C. § 152 Second,
Fourth, Sixth. Therefore, appointing a representative is required before
carrier employees are permitted to strike. While the RLA does not require
carrier employees to form or join a labor union, it does require them to
appoint a representative before striking.

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their duty under section 2 First.7 Only if the parties properly
proceed through the applicable RLA “procedures and remain
at loggerheads, they may resort to self-help in attempting to
resolve their dispute. . . .” Burlington N. R.R. Co., 481 U.S. at
445; see also Paul M. Schmidt, Comment, Trans World
Airlines v. Independent Federation of Flight Attendants:
Introducing a New Economic Weapon into the Labor Law
Arena, 38 U. Kan. L. Rev. 1061, 1079 (1990) (“Because the
RLA was enacted out of a strong congressional concern for
‘uninterrupted commerce,’ procedural mechanisms were
inserted in the RLA to achieve that end.”).8

7

Our dissenting colleague argues that we have created an “impossible
burden” for the Employees, because (1) the National Mediation Board
declined to mediate their dispute, dissent at 37–38, and (2) appointing a
representative would be difficult, dissent at 38 n.11. However, the NMB
did not decline to mediate, because the employees were incapable of
appointing a representative. Dissent at 37. Instead, the NMB told the
Employees that it only resolves disputes between “carriers and the
designated bargaining representatives of their employees.” Thus, the
advice, that the NMB told the Employees, complies with the law as
outlined herein.
Second, the dissent’s concerns about the Employees’ ability to
appoint a representative are premature at this point in the dispute. The
employees have not attempted to appoint one. Likewise, the dissent’s
citation to the NMB opinion, dissent at 38 n.11 (citing 40 NMB No. 13),
ignores the fact that that case involved a representation dispute between
two competing representatives. Predicting such a dispute would arise if the
Employees attempt to appoint a representative is also premature.
8
The dissent seems to argue that if section 2 First imposes this duty, the
Employees have somehow satisfied it through seeking Rosenblum’s
reinstatement and asking the NMB to mediate their dispute. Dissent at 38.
However, given the text, purposes, and structure of the RLA, these efforts
do not satisfy their duty under section 2 First.

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Finding certain aspects of the RLA compulsory is not
unprecedented. See e.g., Bhd. of R.R. Trainmen v. Chicago R.
& Ind. R., 353 U.S. at 39 (finding arbitration under section 3
compulsory); Summit Airlines, 628 F.2d at 794 (holding that
section 2 Ninth is compulsory). Further, the facts of this case
are distinguishable from the Fifth Circuit’s discussion in
Russell v. Nat’l Mediation Bd., 714 F.2d 1332 (5th Cir. 1983).
The Employees are not trying to deal individually with
management. Rather, their decision to strike is the epitome of
collective action. In Russell, the Fifth Circuit reversed a
decision by the National Mediation Board denying
certification to an individual as class representative of carrier
employees. Id. at 1341. The Board denied the individual’s
application, because he planned to abrogate all existing
collective bargaining agreements. Id. at 1336. In rejecting the
Board’s argument that section 2 First requires carrier
employees to engage in collective bargaining, the court noted
that the RLA “supports but does not require collective
bargaining.” Id. at 1343. Rather, “[i]f the employees do not
wish to organize, prefer to deal individually with
management . . . why, that course, is left open to them, or it
should be.” Id. (quoting H.R. 7650, House Committee on
Interstate and Foreign Commerce, 73d Cong., 2d Sess. 57
(1934)). In the instant case, however, the Employees are not
attempting to deal individually with management; they intend
to strike. When carrier employees have such an intention,
they may do so only if they have followed the RLA and
carried their duties under it. Burlington N. R.R. Co., 481 U.S.
at 445.
Further, our interpretation of the RLA does not permit
“freewheeling judicial interference in labor relations of the
sort that called forth the Norris-LaGuardia Act in the first
place.” Chicago & N.W., 402 U.S. at 583. In Chicago &

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North Western, the Supreme Court underscored the propriety
of a strike injunction where carrier employees are only “going
through the motions” in complying with the RLA’s
procedures and yet threaten a strike. 402 U.S. at 575, 578. In
such a circumstance, enjoining the strike would be “the only
practical, effective means” to enforce compliance with
section 2 First. Id. at 583.
Here, the Employees are unwilling to even “go through
the motions” under the RLA; rather, they wish not to bargain
but to strike. In so doing, they present the very situation for
which Congress enacted the RLA: carrier employees
collectively threatening a strike capable of single-handedly
interrupting interstate commerce by shutting down an airport.
See e.g., Bhd. of R.R. Trainmen v. Jacksonville Terminal Co.,
394 U.S. at 378 (A dispute that “threatens substantially to
interrupt interstate commerce to a degree such as to deprive
any section of the country of essential transportation service”
is of the kind envisioned by the Act to be enjoined. (internal
quotation marks omitted)) (speaking in context of major
dispute resolution procedures). The purposes of the RLA, as
stated in the text, would be thwarted were the strike not
enjoined. See 45 U.S.C. § 151a. Indeed, the formal
procedures of the RLA were enacted to prevent this precise
interruption to interstate commerce from occurring.
Accordingly, the district court’s exercise of jurisdiction
and issuance of the strike injunction are hardly
“freewheeling”; they have the support of the RLA and
Supreme Court and Ninth Circuit precedent. See id; Chicago
& N.W., 402 U.S. at 583; Reg’l Airline Pilots Ass’n, 915 F.2d
at 1402 (Under the RLA, “the federal courts’ obligation is to
oversee the broad structure of the process and prevent major
deviations. . . .”). Simply because a group of carrier

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employees does not meet the typical unionized mold does not
mean Congress intended their strike to be above the law.
Next, Appellants argue that, if the Employees were
allowed to strike, ASIG would also be entitled to engage in
self help, i.e., through firing employees or giving and then
withdrawing concessions. But such an arrangement does not
mean the RLA’s purposes are being preserved or its text
honored. It is hard to think of a situation in this context more
harmful to interstate commerce.9 Thus, we come full circle:
in interpreting section 2 First, the RLA’s text-based purposes
illuminate its meaning. We are not second-guessing the text
with snippets of drafters’ comments. Rather, Congress chose
to express its collective intent by specifying the Act’s
purposes in its text. Thus, any ambiguity in section 2 First can
be resolved with a glance to the RLA’s stated purposes. See
Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863,
877 (9th Cir. 2001). Specifically, finding no duty under the
RLA applicable to the Employees here would offend the

9

Furthermore, commentators and courts have recognized that the RLA’s
dispute resolution process “is ‘purposely long and drawn out, based on the
hope that reason and practical considerations will provide in time an
agreement that resolves the dispute.’” Harvey R. Miller, Michele J.
Meises, Christopher Marcus, The State of the Unions in Reorganization
and Restructuring Cases, 15 Am. Bankr. Inst. L. Rev. 465, 470 (2007)
(quoting Bhd. of Ry. & S.S. Clerks v. Fla. E. Coast Ry. Co., 384 U.S. 238,
246 (1966)). “‘[D]elaying the time when the parties can resort to self-help
provides time for tempers to cool, helps create an atmosphere in which
rational bargaining can occur, and permits the forces of public opinion to
be mobilized in favor of a settlement without a strike or lockout.’” Id. at
471 (quoting Detroit & Toledo Shore Line R.R. Co., 396 U.S. at 150).
Permitting an immediate strike (and consequent interruption to interstate
commerce), simply because carrier employees refuse to appoint a
bargaining representative or make a collective bargaining agreement, is
inconsistent with this aim of the RLA as well.

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purposes of eliminating interruptions to interstate commerce
and promptly settling all carrier labor disputes. It would also
be inconsistent with section 2 First’s text.
The employees contend that the dearth of cases like this
one supports their interpretation of section 2 First. However,
the fact, that neither the Supreme Court nor this circuit have
ever directly answered the question posed by the parties,
supports the result we reach. Disputes under the RLA usually
involve carrier employees who have unionized or have at
least appointed a representative. Indeed, a case like the instant
one is rare. But this is probably because carrier employees
usually unionize. See Int’l Ass’n of Machinists v. Street,
367 U.S. at 750 (The “railway industry is marked . . . by a
strong and long-standing tradition of voluntary unionism on
the part of the standard rail unions.”). The rarity of disputes
like this one may also indicate that the RLA is accomplishing
its purposes by channeling labor disputes through its
procedures. The statutory text and case law confirm this was
Congress’s intent in enacting the RLA.
Finally, section Eight of the NLGA does not strip the
district court of jurisdiction. Rather, it prohibits issuing a
restraining order or injunction in favor of a:
complainant who has failed to comply with
any obligation imposed by law which is
involved in the labor dispute in question, or
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.

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29 U.S.C. § 108. Because a specific RLA duty applies in this
controversy, the NLGA does not control its resolution. See
Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor Execs. Ass’n,
491 U.S. 490, 513 (1989) (District courts have “jurisdiction
and power to issue necessary injunctive orders to enforce
compliance with the requirements of the RLA
notwithstanding the provisions of the Norris-LaGuardia Act.”
(internal quotation marks omitted)); Burlington N. R.R. Co.,
481 U.S. at 444–45 (“In certain limited circumstances, the
Norris-LaGuardia Act does not prevent a court from
enjoining violations of [a] specific mandate of [the RLA].”).
Further, ASIG desires to resolve a dispute with its employees
the way Congress intended—through the procedures of the
RLA. Given our conclusion that the Employees have not
carried their duty under the RLA, ASIG has shirked none of
its duties. For both reasons, this provision does not alter our
conclusion.
Accordingly, we find the district court’s exercise of
jurisdiction in this case proper, because the Employees are
covered by the RLA and have a “legal obligation” with which
they have not complied. See Chicago & N.W., 402 U.S. at
577.
II. Permissibility of the Strike Injunction vis-à-vis the
First Amendment
The Employees and Working Washington contend the
strike injunction, in its breadth, violates their First
Amendment rights. In essence, they challenge the district
court’s application of the third Winter factor, balancing the
equities. See Warsoldier v. Woodford, 418 F.3d 989, 1002
(9th Cir. 2005).

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However, given our conclusion that section 2 First
imposes an obligation upon the Employees under the RLA,
the district court may enjoin certain actions as unlawful. See
Burlington N. R.R., 481 U.S. at 455. More specifically, the
Supreme Court has held that obligations imposed under
section 2 First are “enforceable by whatever appropriate
means might be developed on a case-by-case basis,”
including strike injunctions. Chicago & N.W., 402 U.S. at
577, 583. Considering Congress enacted the RLA to “avoid
any interruption to commerce or to the operation of any
carrier engaged therein,” 45 U.S.C. § 151a, and given the
district court’s reasonable finding that permitting the strike
would essentially shut down the entire Sea-Tac Airport,
enjoining the Employees’ strike was not an abuse of
discretion.
Further, we have been unable to identify any case in the
Supreme Court or any of the courts of appeal invalidating a
strike injunction (authorized under the RLA) because of First
Amendment concerns. To the contrary, the Court has
consistently found that actions inconsistent with national
labor laws are generally not protected by the First
Amendment. See e.g., Int’l Longshoremen’s Ass’n v. Allied
Int’l, Inc., 456 U.S. 212, 226 (1982) (secondary boycott
illegal under the NLRA warrants no First Amendment
protection); Int’l Bhd. of Elec. Workers v. N.L.R.B., 341 U.S.
694, 704 (1951) (“We find no indication that Congress
thought that the kind of picketing and related conduct which
was used in this case to induce or encourage a strike for an
unlawful object was any less objectionable than engaging
directly in that strike.”); accord Miller v. United Food &
Commercial Workers Union, 708 F.2d 467, 471 (9th Cir.
1983) (“Because of the government’s strong interest in
regulating the economic relationship between labor and

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management, Congress may constitutionally enact measures
which impact on the speech element of picketing.”). In so
holding, the Court has surmised that “conduct designed not to
communicate but to coerce merits still less consideration
under the First Amendment.” Int’l Longshoremen’s Ass’n,
456 U.S. at 226.
Nevertheless, “[t]he freedom of speech and of the press
guaranteed by the Constitution embraces at the least the
liberty to discuss publicly and truthfully all matters of public
concern without previous restraint or fear of subsequent
punishment.” Thornhill v. Alabama, 310 U.S. 88, 101–02
(1940). Indeed, “the dissemination of information concerning
the facts of a labor dispute must be regarded as within that
area of free discussion that is guaranteed by the Constitution.”
Id. at 102.
In Miller v. United Food & Commercial Workers Union,
708 F.2d at 472, this circuit held that a district court could
enjoin informational picketing in the midst of a labor dispute,
given the mixture of speech and conduct, if the injunction
“furthers an important or substantial government interest; if
the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to
the furtherance of that interest.” The relief should “promote[]
the purposes of Congress without regard to the content of the
ideas expressed.” Id.
The speech-to-conduct ratio is lower in the context of a
strike than in informational picketing. Further, nothing in the
district court’s preliminary injunction prohibits Popescu, the
Employees, Working Washington and its members, or
Rosenblum from “discuss[ing] publicly and truthfully” the

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facts of the Employees’ labor dispute with ASIG. The strike
injunction merely prohibits the parties from striking or
encouraging a strike at Sea-Tac.
The Employees and Working Washington contend this
injunction impermissibly extends to “constitutionally
protected speech, expressive activity and association—
including, for example, rallies, public demonstrations,
consumer boycotts, banners, signs, leaflets, petitions, press
releases, news broadcasts, interviews, websites and social
media—that could be construed as promoting or encouraging
current or future group action by ASIG employees.”
However, the injunction, by its terms, fails to be as broad as
the Employees and Working Washington make it out to be.
Instead, the injunction is much more limited. Reading it
plainly, the Employees cannot strike against ASIG, and
neither they nor Working Washington may encourage as
much. Other than that, the Employees and Working
Washington may freely exercise their First Amendment rights
in seeking better working conditions at ASIG and anywhere
else. “There are many ways in which [Defendants] may
express their opposition to [ASIG working conditions, etc.]
without infringing upon the rights of others.” Int’l
Longshoremen’s Ass’n, 456 U.S. at 227.
Therefore, the district court did not abuse its discretion in
finding the balance of the equities favored ASIG and issuing
the strike injunction.
III.

Conclusion

Because the Employees have breached their duty under
section 2 First of the RLA, the district court properly
exercised jurisdiction and enjoined the Employees’ strike.

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The district court did not abuse its discretion in issuing the
strike injunction against the Employees and Working
Washington. The district court’s judgment is therefore
AFFIRMED.

M. SMITH, Circuit Judge, dissenting:
I respectfully dissent.1 The majority concludes that
Section 2, First of the Railway Labor Act (RLA),2 45 U.S.C.
§ 152, First (Section 2, First), imposes an unprecedented,
amorphous duty to refrain from striking on the Airline
Services International fuellers (Fuellers), while imposing no
duty to negotiate on Airline Services International (ASIG)
before it sought the injunction at issue in this case, despite the
clear language of Section 8 of the Norris LaGuardia Act
(NLGA), 29 U.S.C. § 108. The injunction upheld by the
majority portends the reinsertion of federal courts into the
“labor injunction business,” Marine Cooks & Stewards, AFL
v. Pan. S.S. Co., 362 U.S. 365, 369 (1960), in violation of the
language of the NLGA stripping federal courts of the

1

Because I believe that the injunction must be vacated for the reasons
set forth below, I express no opinion with respect to the First Amendment
analysis in the majority opinion.
2

Section 2, First reads: “It shall be the duty of all carriers, their officers,
agents, and employees to exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules, and working
conditions, and to settle all disputes, whether arising out of the application
of such agreements or otherwise, in order to avoid any interruption to
commerce or to the operation of any carrier growing out of any dispute
between the carrier and the employees thereof.” 45 U.S.C. § 152, First.

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authority to issue injunctions related to labor disputes in most
instances.
I. History
A. History of the NLGA
As the Supreme Court has observed, “[t]he Railway
Labor Act cannot be appreciated apart from the environment
out of which it came and the purposes which it was designed
to serve.” Burlington N. R.R. Co. v. Bhd. of Maint. of Way
Emps., 481 U.S. 429, 444 (1987) (internal quotations
omitted). Towards the end of the nineteenth century and the
beginning of the twentieth, the federal judiciary issued a large
number of labor injunctions. Pejoratively called “government
by injunction,” judicial interference in labor relations became
an issue of national importance by the end of the nineteenth
century. See 1 The Developing Labor Law 7 (John E.
Higgins, Jr. & Patrick Hardin eds., 4th ed. 2002). Nearly
every congress between 1894 and 1914 considered proposals
to restrict the judiciary’s injunctive power. See Felix
Frankfurter and Nathan Greene, The Labor Injunction 163
(New York, 1930).
Congress first attempted to strip federal courts of
jurisdiction to issue labor injunctions when it passed the
Clayton Act in 1914.3 The Supreme Court, however,
3

The Clayton Act states: “No restraining order or injunction shall be
granted by any court of the United States, or a judge or the judges thereof,
in any case between an employer and employees, or between employers
and employees, or between employees, or between persons employed and
persons seeking employment, involving, or growing out of, a dispute
concerning terms or conditions of employment . . . .” 29 U.S.C. § 52. The
Supreme Court noted over 70 years later that “[t]he language of the

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narrowly construed the Clayton Act in Duplex Printing Press
Co. v. Deering, 254 U.S. 443 (1921), and “[d]uring the
1920's, courts issued over 2,100 anti-strike decrees . . . .”
Forbath, Law and the Shaping of the American Labor
Movement 1227 (1991). Congress, however, remained
“intent upon taking the federal courts out of the labor
injunction business,” Marine Cooks, 362 U.S. at 369, and it
passed the NLGA, which broadly stripped federal courts of
jurisdiction to issue injunctions in labor disputes, in 1934.4
“[I]n passing the Norris-LaGuardia Act, Congress described
federal labor injunctions unequivocally as abuses of judicial
power.” Burlington N. Santa Fe Ry. Co., 203 F.3d 703, 709
(9th Cir. 2000) (en banc) (internal quotations omitted). As
the Supreme Court later described it, the NLGA was an
“extraordinary step . . . necessary to remedy an extraordinary
problem.” Burlington N. R.R. Co., 481 U.S. at 437.5

Clayton Act was broad enough to encompass all peaceful strike activity.”
Burlington N. R.R. Co., 481 U.S. at 438.
4

“No court of the United States, as defined in this chapter, shall have
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 this chapter; nor shall any such
restraining order or temporary or permanent injunction be issued contrary
to the public policy declared in this chapter.” 29 U.S.C. § 101.
5
I, of course, do not suggest that my colleagues in the majority bear any
resemblance to the judges criticized in connection with the passage of the
NLGA. Even though I disagree with their analysis, I acknowledge that
my colleagues hold their views in good faith, and that they are construing
the law as they understand it.

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B. History of the RLA

Congress did not intend to leave a regulatory vacuum in
place of judicial intervention in labor relations. Rather, it
sought to replace ad hoc “government by injunction” with a
means by which carriers and organized labor could amicably
settle their disputes without government intervention, and
without disrupting rail service and the national economy.
After a number of legislative false starts, representatives of
both the railway carriers and labor unions met to draft a bill
that would be mutually satisfactory.6 The product of their
cooperation was the RLA. See Int’l Ass’n of Machinists v.
Street, 367 U.S. 740, 758 (1961) (“It is accurate to say that
the railroads and the railroad unions between them wrote the
Railway Labor Act of 1926 and Congress formally enacted
their agreement.”).7
This history reveals two principles that cut against the
majority’s construction of the RLA. First, courts should be
wary of involving themselves in labor disputes in light of
Congress’s goal of “taking the federal courts out of the labor
injunction business.” Marine Cooks, 362 U.S. at 369.

6

Unions had gained increased prominence while the railroads were
under federal control due to World War I. See Chris Hollinger, The
Railway Labor Act, ABA Section of Labor and Employment, 49 (2012).
Due in part to unions’ increased prominence, by the time the federal
government returned the railways to private control in 1920 “about 90%
of the train and engine service employees were organized and about
three-quarters of those in the other classes.” Lloyd K. Garrison, The
National Railroad Adjustment Board: A Unique Administrative Agency,
46 Yale L.J. 567, 570 (1937).
7

The RLA was extended to cover the airline industry in 1936. RLA
§ 201; 45 U.S.C. § 181.

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Second, the RLA represents a compromise between labor and
management, in which each group sacrificed some avenues
of self help in exchange for certain protections. The
majority’s opinion violates both principles.
II. Discussion
A district court “has jurisdiction and power to issue
necessary injunctive orders (to enforce compliance with the
requirements of the Railway Labor Act) notwithstanding the
provisions of the Norris-LaGuardia Act.” Bhd. of R.R.
Trainmen v. Chi. River & Ind. R.R. Co., 353 U.S. 30, 42
(1957) (citing Bhd. of R.R. Trainmen v. Howard, 343 U.S.
768, 774 (1952)). However, “while federal courts may issue
injunctions in labor disputes to compel the parties to fulfill
their obligations under the RLA, when no such duties exist,
the Norris-LaGuardia Act controls.” Fed. Express Corp. v.
Teamster Union, Local No. 85, of Int’l Bhd. of Teamsters,
Chauffeurs, Warehousemen, & Helpers of Am., S.F., Cal.,
617 F.2d 524, 526 (9th Cir. 1980) (citations omitted). In
determining whether such duties exist, “[t]he specific
provisions of the Railway Labor Act take precedence over the
more general provisions of the Norris-LaGuardia Act.” Chi.
R. & I. R. Co., 353 U.S. at 42. A review of the cases applying
these principles shows that labor injunctions in industries
covered by the RLA have been found to be appropriate in two
contexts: first, where parties fail to adhere to a specific duty
in the RLA, including a duty to participate in the RLA’s
dispute resolution procedures;8 and second, where parties

8

See, e.g., Burlington N. R.R. Co. 481 U.S. at 444 (declining to uphold
a strike injunction because “[t]he RLA’s silence could just as easily
signify an intent to allow the parties to resort to whatever self-help is
legally available at the time a dispute arises”); Va. Ry. Co. v. Sys. Fed’n

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attempt to achieve ends provided for in the RLA without
following the corresponding RLA procedures.9
Thus, the Fuellers “do not need to find a particular
provision in the RLA to justify [striking]. [Instead] [t]he
affected [carrier] must find a specific mandate of the RLA
that prohibits the [strike].” Ry. Labor Execs. Ass’n v.
Wheeling & Lake Erie Ry. Co., 914 F.2d 53, 56 (4th Cir.
1990). Further, the RLA mandate underlying the injunction
must be both clear and unambiguous. Burlington N. R.R. Co.,
481 U.S. at 446. (“Faced with a choice between the ambiguity
in the RLA and the unambiguous mandate of the
Norris-LaGuardia Act, we choose the latter.”); See also, e.g.,
Pan Am. World Airways, Inc. v. Int’l. Bhd. of Teamsters,
894 F.2d 36, (2d Cir. 1990) (finding that the RLA did not
impose a specific mandate on employees to refrain from
intermittent work stoppages). In light of the above, the key
question in this case is whether the RLA imposes a clear and

No. 40, 300 U.S. 515, 549 (1937) (holding that an employer could be
enjoined for failing to “treat” with an elected representative as required by
Section 2, Ninth of the RLA); Burlington N. Santa Fe Ry. Co. 203 F.3d at
713 (holding that courts can issue strike injunctions where “the [RLA]
provides the procedure for resolving the dispute”).
9

See, e.g., Bhd. Of Locomotive Eng’rs v. Louisville & Nashville R.R.
Co., 373 U.S. 33, 41–42 (1963) (holding that permitting strikes aimed at
enforcing arbitration awards stemming from minor disputes would render
“meaningless” the RLA provisions that call for judicial enforcement of
such awards); Chi. R. & I. R. Co., 353 U.S. at 34 (holding that employees
could not strike to protest minor disputes, because allowing employees to
do so would render the RLA’s procedures for addressing minor disputes,
which call for arbitration, meaningless); Summit Airlines, Inc. v.
Teamsters Local Number 295, 628 F.2d 787 (2d Cir. 1980) (holding that
allowing employees to force recognition of a union by striking would
undermine provisions of the RLA concerning representation disputes).

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unambiguous duty on the Fuellers to refrain from striking. I
conclude that it does not.
A. Section 152, First Does Not Impose a Duty on the
Fuellers to Refrain from Striking
The majority purports to find a clear and unambiguous
duty in Section 2, First. No other court has ever found such
a freestanding duty in that Section. Instead, every court that
has upheld a labor injunction under the auspices of the RLA
has looked to the specific procedures and duties created by
other sections of the RLA. Furthermore, the majority’s
decision conflicts with the Supreme Court’s analysis of
Section 2, First, which clarifies that Section 2 does not
impose duties to engage in or refrain from acts not elaborated
in other sections of the RLA.
As the majority concedes, the non-unionized Fuellers are
not clearly subject to the dispute resolution procedures of the
RLA. Maj. at 16–17 (requiring the Fuellers to unionize in
order to pursue dispute resolution under the RLA). Nor are
they seeking to achieve ends envisioned in the RLA, such as
selecting a bargaining representative or negotiating a
collective bargaining agreement (CBA). Unable to locate a
specific duty in the body of the RLA, the majority is thus
compelled to base its holding on the broad aspirational
language of Section 2, First. This holding creates a third
justification for labor injunctions under the RLA that is both
unprecedented and contrary to the Supreme Court’s
understanding of Section 152, First.
In Virginian Railway, the Supreme Court observed that
“the very words of [s]ection 2, First . . . were taken from
section 301 of the Transportation Act . . . , [and] were held to

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be without legal sanction in that act.” Va. Ry. Co., 300 U.S.
at 544–45 (citing Pa. R.R. Sys. & Allied Lines Fed’n v. Pa.
R.R. Co., 267 U.S. 203, 215 (1925)). While holding that the
RLA imposed obligations on unions and employers, the Court
noted that “these words no longer stand alone and unaided by
mandatory provisions of the statute as they did when first
enacted,” because Section 2, Ninth of the RLA created
mandatory obligations on employers to treat with unions. Id.
Continuing this theme, the Supreme Court held in 1943 that
Section 2, First “merely states the policy which those other
provisions [of the RLA] buttress with more particularized
commands.” Gen. Comm. of Adjustment of Bhd. of
Locomotive Eng’rs. for Mo.-Kan.-Tex. R.R. v. Mo.-Kan.-Tex.
R.R. Co., 320 U.S. 323, 334 (1943) (M-K-T). In other words,
the Court held that Section 2, First is not a freestanding
obligation, but rather a command that parties to a labor
dispute undertake the specific grievance procedures detailed
in the other portions of Section 2, and in the rest of the RLA.
The majority wholly relies on the Court’s subsequent
holding that Section 2, First is “more than a mere statement
of policy or exhortation to the parties; rather, it was designed
to be a legal obligation, enforceable by whatever appropriate
means might be developed on a case-by-case basis.” Chi. &
N. W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 577
(1971). But the independent legal obligation the Court
described in Chicago and North Western was not a new
requirement, but rather a gloss on the duty, already
recognized in M-K-T, to utilize the RLA’s procedures where
applicable. Indeed, the Court explained that Section 2, First’s
duty to “exert every reasonable effort” was essentially a
requirement not to bargain in bad faith or to “go[] through the
motions with a desire not to reach an agreement.” Chicago

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& N. W. Ry. Co., 402 U.S. at 578, 579 n.11.10 The Court thus
held that the duty in Section 2, First does not create new
obligations, but instead allows courts to inquire into how
diligently the respective parties have tried to satisfy their
obligations under the other provisions of the Act. See Bhd. of
Maint. of Way Emps. v. Union Pac. R.R. Co., 358 F.3d 453,
457–58 (7th Cir. 2004) (“The Supreme Court has considered
Section 2, First analogous to the ‘duty under the National
Labor Relations Act to bargain in good faith.’” (quoting Chi.
& N.W. Ry. Co., 402 U.S. at 574–75)). Chicago & North
Western thus instructs courts to enforce the duty to bargain in
good faith, as appropriate. It does not give courts license to
invent new duties under that Section, as the majority does
here.
The majority also ignores the fact that the Court in
Chicago & North Western instructed lower courts not to use
that decision to enlarge the scope of Section 2, First. The
Court explicitly cautioned that “great circumspection should
be used in going beyond cases involving [a] desire not to
reach an agreement, for doing so risks infringement of the
strong federal labor policy against governmental interference
with the substantive terms of collective-bargaining
agreements.” Chi. & N. W. Ry. Co., 402 U.S. at 579 n.11
(internal quotations omitted). The Court was also concerned
that “the vagueness of the obligation under [Section] 2 First
could provide a cover for judicial interference in labor

10
The dissent framed the question presented in Chicago and North
Western as; “to what extent a District Court may inquire into collective
negotiations in determining whether a party has complied with its statutory
duty.” Chicago & N. W. Ry. Co., 402 U.S. at 588 (Brennan, J.,
dissenting).

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relations of the sort that spawned the Norris-LaGuardia Act
in the first place.” Id. at 583.
Because the majority cannot find a specific duty in the
dispute resolution procedures of the RLA upon which to rest
its case, it improperly relies on the preambular language in
Section 2, First to create an unprecedented, nebulous new
obligation requiring the Fuellers alone to take affirmative
action to bring its disputes with the ASIG within the ambit of
the RLA.
The majority cites a number of cases for the proposition
that “section 2 First imposes an independent, mandatory duty
enforceable by the courts.” Maj. at 13–14. I do not dispute
that Section 2, First creates an mandatory duty. This case
instead concerns the scope of that duty. Indeed, the cases
cited by the majority support reading Section 2, First as
imposing a duty to bargain in good faith under the RLA when
it applies rather than imposing a duty to unionize on
unrepresented workers. See Reg'l Airline Pilots Ass'n v.
Wings W. Airlines, Inc., 915 F.2d 1399, 1401 (9th Cir. 1990)
(“RAPA contends that the change in pass benefits after
September 19 [when RAPA was certified as a bargaining
representative] was a violation of section 2, First and Second
because Wings West did not use the bargaining process and,
in fact, distorted the bargaining process by a pre-bargaining
reduction in benefits.”); Delta Air Lines, Inc. v. Air Line
Pilots Ass'n, Int'l, 238 F.3d 1300, 1309 (11th Cir. 2001)
(finding that Section 2, First imposed a duty on a union to
prevent its members from “collectively disrupt[ing] Delta's
flight operations, in contravention of the CBA . . . , by way of
a no-overtime campaign”); Int'l Ass'n of Machinists &
Aerospace Workers, AFL-CIO v. Trans World Airlines, Inc.,
839 F.2d 809, 812–14 (D.C. Cir. 1988) (holding that Section

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2, First imposed a duty on management not to unilaterally
change working conditions pending negotiation of a CBA
with a newly certified union).
B. The Majority Opinion Fundamentally Disturbs the
Balance of Interests Contemplated by the RLA
Section 2, First states that all carriers and employees have
a duty to “exert every reasonable effort to make and maintain
agreements . . . and to settle all disputes whether arising out
of the application of such agreements or otherwise . . . .”
45 U.S.C. § 152, First. The majority concludes that this
means that the Fuellers have an obligation to unionize and
bargain collectively. This reading of Section 2, First clashes
with the plain language of the RLA, which gives employees
the “right to organize and bargain collectively through
representatives of their own choosing.” 45 U.S.C. § 152,
Fourth. Whereas the RLA simply grants employees a right
to organize, the majority imposes an obligation on the
employees to seek unwanted representation.
Furthermore, the majority’s distorted reading of
Section 2, First undermines the compromise between labor
and management inherent in the RLA itself. The majority
holds that the Fuellers may strike only after they have
appointed a representative and attempted to negotiate a CBA.
Maj. at 17–18. The National Mediation Board (NMB),
however, concluded that the Fuellers were not a “class or
craft” capable of appointing a representative. See NMB
Letter at ECF No. 14.1 (declining to mediate the dispute
between the Fuellers and ASIG). The majority thus imposes
an impossible burden on the Fuellers: The Fuellers must
organize before they can engage in self help, but the Fuellers

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cannot organize.11 This result cannot be squared with the deal
struck by the drafters of the RLA, in which employees
forfeited their right to strike at will in return for the promise
that employers would negotiate with their designated
representatives in good faith.
Here, the Fuellers have made strenuous efforts to resolve
their differences with ASIG concerning the safety of their
working conditions, and the allegedly retaliatory suspension
of Mr. Popescu, including: asking ASIG to explain its
investigation into and suspension of Mr. Popescu; reaching
out to ASIG’s Human Resource Department; and asking the
NMB to mediate their dispute. In contrast, ASIG has
steadfastly refused to even speak with the Fuellers, either
individually, or as a group. By foreclosing the ability of the
Fuellers to negotiate, the majority’s decision leaves them with
only two options: they must either acquiesce to what they
view as unsafe working conditions and vindictive
management behavior, or they must quit.
In essence, the majority opinion relies on the following
syllogism:

11

The NMB has determined that ASIG Fleet Services Employees, which
includes the Fuellers, constitute a nationwide system. See 40 NMB No.
13 at 49. Accordingly, the Fuellers can only unionize by obtaining the
votes of 50% of ASIG’s national employees. Id. at 48–49. The majority
is thus incorrect that the Fuellers, who constitute only the service
employees at Sea-Tac, can organize to protect their interests. Even if
every member of the Fuellers seeks a representative they would not be
entitled to recognition without a national election. Id. The majority’s
decision thus imposes burdens under the RLA on a group of workers, the
Fuellers, who lack any recourse to the protections of the RLA, which are
predicated on the existence of a certified representative.

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•

Major Premise: Section 2, First requires that employees
attempt to settle disputes through RLA procedures.

•

Minor Premise: Although the Fuellers are not presently
subject to those procedures because they seek neither a
representative nor a CBA, the employees could take
advantage of the RLA by appointing a representative and
seeking a CBA.

•

Conclusion: Because the Fuellers could take advantage of
the RLA by taking certain voluntary predicate acts,
namely unionizing, Section 2, First imposes a duty on the
Fuellers to take those predicate acts so that they can avail
themselves of the RLA.

Requiring parties to take affirmative actions in order to
bring themselves within the RLA’s dispute resolution
procedures will, among other things, dramatically alter the
manner in which unions in industries covered by the RLA
gain recognition, as is evident in this very case.12 Because
both employers and employees are bound by the same
language in Section 2, First, the majority’s logic must apply
equally to both. 45 U.S.C. § 152, First. ASIG refuses to
negotiate with the Fuellers because they are not a duly
certified union. However, while employers are not obligated
to negotiate with representatives that are not certified by the
NMB, they may choose to do so. See Summit, 628 F.2d at

12

Presently, employers are only obligated to negotiate with
representative that have been elected by 50% of the “craft or class”
attempting to unionize pursuant to the RLA. See 45 U.S.C. §§ 152, Third,
Fourth, Ninth. The NMB has determined that ASIG Fleet Services
Employees, which includes the Fuellers, constitute a nationwide system.
See 40 NMB No. 13 at 49.

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795. Thus employers, just like employees, can opt to bring
disputes within the ambit of the RLA through voluntary
predicate actions, namely by recognizing a representative that
has not been certified by the NMB. The logic of the majority
opinion then would, apparently, not only require that the
Fuellers attempt to appoint a representative, it would also
require ASIG to voluntarily recognize any resulting
representative in order to begin negotiating a CBA.
Obviously, such a rule would dramatically alter the NMB’s
role in certifying union elections. See 45 U.S.C. § 152,
Ninth.
III.

The Injunction Must Be Vacated Because ASIG
has not Complied with Section 8 of the NLGA.

Even if the majority’s one-sided construction of the RLA
could be justified, the injunction must still be vacated because
ASIG failed to comply with the requirements of Section 8 of
the NLGA before seeking that injunction. In order to obtain
a labor injunction, a complainant must not only seek to enjoin
behavior that falls within an exception to the NLGA, it must
meet the statutory requirements set out in that Act. 29 U.S.C.
§ 101 (“No court of the United States, as defined in this
chapter, shall have 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 this chapter . . . .”). Section 8 of the
NLGA states 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. This principle applies even where the injunction is
aimed at enforcing compliance with a specific duty of the

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RLA. See Grand Trunk W. R.R., Inc. v. Bhd. of Maint. of
Way, 497 F.3d 568, 571 (6th Cir. 2007) (analyzing whether
employer had complied with Section 8 where the injunction
sought to enforce provisions of the RLA). In order to comply
with Section 8, a complainant “must also go beyond [its legal
obligations] and make all reasonable effort, at the least by the
methods specified if they are available, though none may
involve complying with any legal duty.” Bhd. Of R.R.
Trainmen Enter. Lodge, No. 27 v. Toledo P. & W. R.R.,
321 U.S. 50, 57 (1944).
The majority holds that because the Fuellers “have not
carried their duty under the RLA, ASIG has shirked none of
its duties.” Maj. at 23. In other words, the majority contends
that because the Fuellers have not sought a representative,
ASIG does not have a legal obligation to negotiate. Id.
Section 8, however, requires ASIG to take steps to resolve a
dispute even if it is not legally required to do so, prior to even
seeking an injunction. See Bhd. Of R.R. Trainmen Enter.
Lodge, No. 27, 321 U.S. at 57; Carter v. Herrin Motor
Freight Lines, 131 F.2d 557, 561 (5th Cir. 1942) (“[The
NLGA] denies the equitable relief of injunction to one, who,
as plaintiff did here, standing upon his legal rights, fails to
use every reasonable effort by negotiation, mediation or
arbitration to find a common ground for composing and
settling a labor dispute.”). Interestingly, this language
mirrors the language that the majority finds so persuasive in
Section 2, First of the RLA. 45 U.S.C. § 152, First. Surely
if “every reasonable effort” requires the Fuellers to seek a
representative before they can strike, the same language in the
NLGA requires ASIG to at least make some effort to resolve
the dispute before seeking the drastic remedy of a labor
injunction.
Accordingly, ASIG has not fulfilled its
obligations under Section 8 of the NLGA, the district court

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did not have jurisdiction to issue the injunction in this case,
and the injunction issued by the district court should be
vacated.
Conclusion
The majority reads the ambiguous language of Section 2,
First too broadly, while at the same time inappropriately
reading the language of NLGA Section 8 out of existence.
Because the Fuellers have violated no express provision of
the RLA, and ASIG failed to satisfy the condition precedent
in Section 8 of the NLGA before seeking an injunction, the
district court had no jurisdiction to issue that injunction, and
it should be vacated.
I respectfully dissent.

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