Aircraft Service International, Inc. v. International Brotherhood of Teamsters, Local 117 ( 2015 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    AIRCRAFT SERVICE INTERNATIONAL,           No. 12-36026
    INC.,
    Plaintiff-Appellee,         D.C. No.
    2:12-cv-01729-
    v.                          JLR
    INTERNATIONAL BROTHERHOOD OF
    TEAMSTERS, AFL-CIO, LOCAL 117,              OPINION
    Defendant,
    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 En Banc
    September 18, 2014—San Francisco, California
    Filed March 10, 2015
    Before: Alex Kozinski, Diarmuid F. O’Scannlain, Andrew
    J. Kleinfeld, Barry G. Silverman, Susan P. Graber, Richard
    A. Paez, Marsha S. Berzon, Richard C. Tallman, Andrew
    2       AIRCRAFT SERVICES INT’L V. WORKING WASH.
    D. Hurwitz, John B. Owens, and Michelle T. Friedland,
    Circuit Judges.
    Opinion by Judge Owens;
    Concurrence by Judge Berzon;
    Dissent by Judge Kleinfeld
    SUMMARY*
    Labor Law
    The en banc court reversed and vacated the district court’s
    preliminary injunction under the Railway Labor Act against
    a strike by aircraft fuelers at Seattle-Tacoma International
    Airport.
    The en banc court held that the district court erred in
    failing to consider whether, prior to seeking a preliminary
    injunction, the fuelers’ employer had made “every reasonable
    effort to settle [the labor] dispute either by negotiation or with
    the aid of any available governmental machinery of mediation
    or voluntary arbitration,” as required by Section 8 of the
    Norris-LaGuardia Act. In addition, the record lacked any
    evidence that the employer had done so. The en banc court
    held that the Railway Labor Act creates an exception to the
    Norris-LaGuardia Act, but this exception is limited and does
    not include Section 8.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    AIRCRAFT SERVICES INT’L V. WORKING WASH.              3
    Concurring, Judge Berzon, joined by Judges Paez and
    Graber, agreed with the majority that the district court erred
    in granting an injunction, as the employer had not complied
    with its duty under Section 8 of the Norris-LaGuardia Act.
    Judge Berzon wrote to explain that, in her view, even if the
    employer had complied with its duty under Section 8, it still
    would not have been entitled to an injunction because the
    labor dispute was not governed by the dispute resolution
    provisions of the Railway Labor Act.
    Dissenting, Judge Kleinfeld, joined by Judges
    O’Scannlain, Silverman, and Tallman, wrote that the district
    court’s order should be affirmed because the strike was
    barred by the Railway Labor Act, and the
    jurisdiction-stripping provisions of the Norris-LaGuardia Act
    did not apply.
    COUNSEL
    Dmitri Iglitzin, Schwerin Campbell Barnard Iglitzin & Lavitt,
    LLP, Seattle, Washington; David P. Dean (argued), Kathy L.
    Krieger, Darin M. Dalmat, and Ryan E. Griffin, James &
    Hoffman, P.C., Washington, D.C., for Defendants-
    Appellants.
    Douglas W. Hall (argued), FordHarrison LLP, Washington,
    D.C., for Plaintiff-Appellee.
    4     AIRCRAFT SERVICES INT’L V. WORKING WASH.
    OPINION
    OWENS, Circuit Judge:
    Aircraft Service International, Inc., doing business as
    Aircraft Service International Group (“ASIG”), sought and
    obtained a preliminary injunction from the district court in
    October 2012 prohibiting ASIG’s employees from striking at
    Seattle-Tacoma International Airport (“Sea-Tac”). Section 8
    of the Norris-LaGuardia Act (“NLGA”) strips district courts
    of jurisdiction to enter such an injunction unless the party
    seeking relief has made “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. Because the district court
    failed to consider whether ASIG satisfied this provision and
    the record lacks any evidence that ASIG did so, we reverse
    and vacate the preliminary injunction.
    I. FACTS AND PROCEDURAL HISTORY
    ASIG is responsible for refueling about 75 percent of the
    airplanes at Sea-Tac. The dispute at issue arose when ASIG
    indefinitely suspended one of its fuelers, Alex Popescu, on
    September 14, 2012. Popescu and other ASIG fuelers allege
    that he was suspended “in retaliation for his leadership on
    workplace safety issues, including testifying at a public
    hearing of the Seattle Port Commission.” ASIG counters that
    Popescu was suspended “so it could investigate reports that
    [he] had engaged in inappropriate conduct at the workplace.”
    After his suspension, Popescu and other ASIG fuelers
    decided to organize a “group response” to press for his
    reinstatement. Working Washington, a local coalition “united
    AIRCRAFT SERVICES INT’L V. WORKING WASH.           5
    in support of quality jobs and a fair economy,” was heavily
    involved in this effort. Jonathan Rosenblum is Working
    Washington’s “Campaign Director.” After unsuccessfully
    advocating for Popescu’s reinstatement for two weeks, and at
    Working Washington’s recommendation, the fuelers began
    distributing strike ballots on September 28. “[B]y an
    overwhelming margin,” the fuelers voted to approve a strike
    to “get Alex Popescu back to work and to protest retaliation
    and intimidation by ASIG.” Working Washington held a
    press conference soon after to publicize the fuelers’ vote.
    Two days after this press conference, ASIG filed a complaint
    in the Western District of Washington seeking to enjoin any
    anticipated strike. This chain of events is summarized as
    follows:
    •   September 14, 2012: ASIG suspends Popescu.
    •   September 17, 2012: Popescu meets with the local
    ASIG station manager to discuss reinstatement and
    investigatory process.
    •   September 25, 2012: Several ASIG fuelers allegedly
    call ASIG’s Human Resources Department to ask for
    Popescu’s reinstatement.
    •   September 28–30, 2012: Working Washington
    distributes and collects strike ballots.
    •   September 30, 2012: The strike ballots are counted.
    •   October 3, 2012: Working Washington holds a press
    conference publicizing the strike vote.
    6       AIRCRAFT SERVICES INT’L V. WORKING WASH.
    •   October 5, 2012: ASIG files a complaint for
    injunctive and declaratory relief.
    The district court issued a temporary restraining order on
    October 5, 2012, prohibiting the fuelers from engaging in any
    strike activity “or other concerted action which is intended to
    interfere with ASIG’s operations.” After a hearing, the
    district court issued the following preliminary injunction on
    October 18, 2012:
    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 [Railway Labor Act] which is
    intended to interfere with ASI[G]’s normal
    operations.
    (footnote omitted).
    In granting this preliminary injunction, the district court
    assessed whether ASIG had satisfied the four prongs of the
    Winter test: (1) the moving party is likely to succeed on the
    merits; (2) irreparable harm is likely if the injunction is not
    granted; (3) the balance of equities tips in the moving party’s
    favor; and (4) an injunction is in the public interest. Winter
    v. Natural Res. Def. Council, Inc., 
    555 U.S. 7
    , 20 (2008).
    Acknowledging that the “parties spen[t] very little time
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                 7
    briefing the other three criteria,” the district court devoted the
    lion’s share of its analysis to the first prong—in particular,
    Defendants’ contention that the Railway Labor Act (“RLA”)
    does not govern the dispute. The district court relied on both
    the RLA’s stated purpose of avoiding interruptions to
    commerce and its prohibition on “strike-first tactics” in
    concluding that the Act prohibited Defendants’ proposed
    strike.
    The district court then addressed Defendants’ argument
    that it had “no authority to issue an injunction because the
    NLGA forbids it from doing so.” Citing Burlington Northern
    Railroad v. Brotherhood of Maintenance of Way Employes,
    
    481 U.S. 429
    (1987), and Pittsburgh & Lake Erie Railroad v.
    Railway Labor Executives’ Ass’n, 
    491 U.S. 490
    (1989), the
    district court concluded that the RLA trumped the NLGA.
    The district court entered the injunction without analyzing or
    citing Section 8 of the NLGA.
    II. STANDARD OF REVIEW
    “We review the legal determination of whether the district
    court had the power to issue an injunction de novo, but
    review the district court’s exercise of that power for abuse of
    discretion.” Cont’l Airlines, Inc. v. Intra Brokers, Inc.,
    
    24 F.3d 1099
    , 1102 (9th Cir. 1994). “Abuse-of-discretion
    review is highly deferential to the district court,” but “[w]hen
    a district court makes an error of law, it is an abuse of
    discretion.” Microsoft Corp. v. Motorola, Inc., 
    696 F.3d 872
    ,
    881 (9th Cir. 2012) (internal quotation marks omitted). We
    review all legal interpretations underlying an injunction de
    novo. 
    Id. 8 AIRCRAFT
    SERVICES INT’L V. WORKING WASH.
    III. DISCUSSION
    The NLGA generally divests federal courts of 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
    [the NLGA].” 29 U.S.C. § 101. Two provisions of the
    NLGA are relevant to this case: Section 4 and Section 8.
    Under Section 4, “in any case involving or growing out of
    any labor dispute,” federal courts are prohibited from issuing
    an injunction to prohibit any person from “[c]easing or
    refusing to perform any work,” i.e., striking. 
    Id. § 104(a).
    Under Section 8, federal courts are prohibited from issuing
    injunctive relief to “any 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.” 
    Id. § 108.
    Section 8 is called the NLGA’s “clean hands” provision.
    Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, P. &
    W. R.R., 
    321 U.S. 50
    , 60 (1944) (quoting 75 Cong. Rec. 5464
    (1932) (statement of Rep. John O’Connor)) (internal
    quotation marks omitted).
    The parties do not dispute that this case involves a “labor
    dispute” for purposes of the NLGA. Accordingly, the district
    court lacked jurisdiction to issue a preliminary injunction
    unless it could overcome the restrictions of Sections 4 and 8.
    AIRCRAFT SERVICES INT’L V. WORKING WASH.              9
    A. Background of the Norris-LaGuardia Act and the
    Railway Labor Act
    The Norris-LaGuardia Act was enacted to “tak[e] the
    federal courts out of the labor injunction business.”
    Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s
    Ass’n, 
    457 U.S. 702
    , 712 (1982) (emphasis omitted). Before
    its passage in 1932, “federal courts routinely enjoined labor
    picketing at the behest of employers.” Burlington N. Santa
    Fe Ry. Co. v. Int’l Bhd. of Teamsters Local 174, 
    203 F.3d 703
    , 707 (9th Cir. 2000) (en banc); see Milk Wagon Drivers’
    Union, Local No. 753 v. Lake Valley Farm Prods., 
    311 U.S. 91
    , 102 (1940) (citing congressional report that
    “approximately 300 [injunctions] were issued in connection
    with the railway shopmen’s strike of 1922”). “This practice
    was derisively dubbed ‘government by injunction.’”
    Burlington N. Santa Fe Ry. 
    Co., 203 F.3d at 707
    (quoting
    Milk Wagon Drivers’ 
    Union, 311 U.S. at 102
    ).
    Seeking injunctive relief was popular among employers
    because of its “unique effectiveness in stifling labor
    disputes.” 
    Id. “[P]reliminary injunctions
    enabled employers
    to defeat unions instantly by preventing them from using self-
    help and destroying the momentum of strikes before
    substantive legal rights were litigated.” Id.; see also Felix
    Frankfurter & Nathan Greene, The Labor Injunction 17 &
    n.71 (1930). Employers typically sought relief in federal
    courts because “federal judges tended to be more hostile to
    labor than state court judges.” Burlington N. Santa Fe Ry.
    
    Co., 203 F.3d at 708
    . Rather than attempt to amend the
    substantive law to remedy this “extraordinary problem,”
    Congress felt compelled to take the “extraordinary step of
    divesting federal courts of equitable jurisdiction” over these
    disputes. Burlington N. R.R. v. Bhd. of Maint. of Way
    10    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    Employes, 
    481 U.S. 429
    , 437 (1987). Thus was born the
    NLGA.
    The Railway Labor Act was enacted with a different goal
    in mind: “[t]o avoid any interruption to commerce or to the
    operation of any carrier engaged therein.” 45 U.S.C. § 151a.
    Passed in 1926, the RLA was intended to quell the persistent
    labor unrest that “threaten[ed] disruption of transportation.”
    Bhd. of R.R. Trainmen v. Chi. River & Ind. R.R., 
    353 U.S. 30
    ,
    40 (1957).       Finding existing voluntary mechanisms
    inadequate, the major railroad carriers and unions came
    together to craft a mandatory system of dispute resolution.
    
    Id. The result
    was the RLA’s “virtually endless” process of
    “negotiation, mediation, voluntary arbitration, and
    conciliation.” Burlington N. 
    R.R., 481 U.S. at 444
    (internal
    quotation marks omitted). The hope was that future labor
    disputes would be resolved through this process, and not
    through disruptive strikes. See 
    id. at 451.
    Congress extended
    the “same benefits and obligations” of this process to the
    fledgling air transportation industry in 1936. Int’l Ass’n of
    Machinists v. Cent. Airlines, Inc., 
    372 U.S. 682
    , 685 (1963);
    see 45 U.S.C. §§ 181–188.
    B. Interplay Between the Railway Labor Act and the
    Norris-LaGuardia Act
    The relationship between the RLA—with its goal of
    keeping the trains and planes running—and the NLGA—with
    its goal of keeping federal courts out of the labor injunction
    business—has always been somewhat unclear. See 75 Cong.
    Rec. 5504 (1932) (statement of Rep. Fiorello LaGuardia)
    (inquiring about an apparent “tie-up” between the provisions
    of the RLA and the NLGA). Although Section 4 of the
    NLGA is phrased in absolute language, the Supreme Court
    AIRCRAFT SERVICES INT’L V. WORKING WASH.              11
    consistently has held that the “competing demands of the
    RLA and the Norris-LaGuardia Act” must be
    “accommodate[d].” Burlington N. 
    R.R., 481 U.S. at 445
    ; see
    also Int’l Ass’n of Machinists v. Street, 
    367 U.S. 740
    , 772–73
    (1961); Graham v. Bhd. of Locomotive Firemen &
    Enginemen, 
    338 U.S. 232
    , 239–40 (1949); Virginian Ry. Co.
    v. Sys. Fed’n No. 40, 
    300 U.S. 515
    , 563 (1937). In practice,
    this means that the RLA has been read as creating an
    exception to the NLGA. Yet the boundaries of this exception
    are narrow. Although the “specific provisions of the Railway
    Labor Act take precedence over the more general provisions
    of the Norris-LaGuardia Act,” Pittsburgh & Lake Erie R.R.
    v. Ry. Labor Execs.’ Ass’n, 
    491 U.S. 490
    , 513 (1989) (internal
    quotation marks omitted), “[t]his exception is necessarily a
    limited one,” Burlington N. 
    R.R., 481 U.S. at 446
    . In fact,
    “[e]ven when a violation of a specific mandate of the RLA is
    shown,” courts should “hesitate” to grant an injunction
    “unless that remedy alone can effectively guard the plaintiff’s
    right.” 
    Id. (quoting Int’l
    Ass’n of 
    Machinists, 367 U.S. at 773
    ) (internal quotation mark omitted).
    The district court concluded that the RLA applied to this
    dispute, and that this meant that no provision of the NLGA
    could apply—thus allowing the district court to issue the
    preliminary injunction without considering whether Section
    8 of the NLGA was satisfied. This blanket conclusion,
    however, elided the distinction between Sections 4 and 8 of
    the NLGA. Although the Supreme Court has “held that the
    NLGA § 4 general limitation on district courts’ power to issue
    injunctions in labor disputes must be accommodated to the
    more specific provisions of the RLA,” Pittsburgh & Lake
    12      AIRCRAFT SERVICES INT’L V. WORKING WASH.
    Erie 
    R.R., 491 U.S. at 513
    (emphasis added),1 neither this
    court nor the Supreme Court has held that the same is true
    with respect to Section 8.
    The vast majority of courts to consider this question have
    applied Section 8 to disputes that the RLA governs.2 Indeed,
    1
    This is not to suggest that the RLA applies to this dispute, in which
    ASIG’s employees are non-unionized, or that Section 4 of the NLGA does
    not apply. We do not reach those intertwined questions. The dissent’s
    reliance on the fuelers’ obligations under Section 2, First of the RLA is
    thus misplaced. We assume, for the purposes of this opinion only, that
    this provision binds the fuelers—and that this obligation supersedes
    Section 4 of the NLGA.
    2
    See Grand Trunk W. R.R. v. Bhd. of Maint. of Way Emps. Div.,
    
    497 F.3d 568
    , 571–73 (6th Cir. 2007) (requiring that a carrier must satisfy
    Section 8 before obtaining an injunction under the RLA); Nw. Airlines
    Corp. v. Ass’n of Flight Attendants–CWA (In re Nw. Airlines Corp.),
    
    483 F.3d 160
    , 166–67, 177 (2d Cir. 2007) (“While [the NLGA] generally
    admits of only limited exception, the Supreme Court has held that the
    NLGA does not preclude courts from enforcing the mandates of the RLA.
    Even so, however, a party seeking an injunction under the NLGA must
    have clean hands.” (citation omitted)); Air Line Pilots Ass’n, Int’l v.
    United Air Lines, Inc., 
    802 F.2d 886
    , 900–02 (7th Cir. 1986) (“In making
    its ruling, the district court correctly noted that any party seeking
    injunctive relief under the RLA must comply with section 8 of the
    Norris-LaGuardia Act.” (citation omitted)); Piedmont Aviation, Inc. v. Air
    Line Pilots Ass’n, Int’l, 
    416 F.2d 633
    , 638–39 (4th Cir. 1969); Bhd. of R.R.
    Trainmen v. Akron & Barberton Belt R.R., 
    385 F.2d 581
    , 613–14 (D.C.
    Cir. 1967) (“That principle of accommodation means that actions to enjoin
    violations of the Railway Labor Act may be maintained without regard to
    Section 4 of the Norris-La Guardia Act, and yet be subject to Section 8 of
    that Act.”); Consol. Rail Corp. v. Bhd. of Maint. of Way Emps., 735 F.
    Supp. 1265, 1268–70 (E.D. Pa. 1990); E. Air Lines, Inc. v. Air Line Pilots
    Ass’n, Int’l, 
    710 F. Supp. 1342
    , 1347 (S.D. Fla. 1989). But see Bhd. of
    R.R. Trainmen v. Denver & Rio Grande W. R.R., 
    290 F.2d 266
    , 270 (10th
    Cir. 1961).
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                        13
    over the years our court has treated Sections 4 and 8 as
    independent limitations on a district court’s power to issue an
    injunction, even when the RLA applied. See, e.g., Trans Int’l
    Airlines, Inc. v. Int’l Bhd. of Teamsters, 
    650 F.2d 949
    ,
    957–58, 961–67 (9th Cir. 1980) (Kennedy, J.) (considering
    whether the “clean hands” requirement had been satisfied
    independently of analysis of whether the RLA trumped
    Section 4); Switchmen’s Union of N. Am. v. S. Pac. Co.,
    
    398 F.2d 443
    , 447 (9th Cir. 1968) (considering whether
    Section 8 had been satisfied after determining that the RLA
    trumped Section 4); Order of Ry. Conductors & Brakemen v.
    Spokane, Portland & Seattle Ry. Co., 
    366 F.2d 99
    , 104–05
    (9th Cir. 1966) (noting that, even if the RLA trumped Section
    4, the Supreme Court’s Toledo decision “foreclose[d] the
    railroad, which positively rejected mediation, from claiming
    an injunction”); Butte, Anaconda & Pac. Ry. Co. v. Bhd. of
    Locomotive Firemen & Enginemen, 
    268 F.2d 54
    , 60 & n.10
    (9th Cir. 1959) (noting that Section 8 would have barred
    injunctive relief even if the RLA had trumped Section 4); see
    also Rutland Ry. Corp. v. Bhd. of Locomotive Eng’rs,
    
    307 F.2d 21
    , 39–40 (2d Cir. 1962) (relying in part on Butte
    At least two other circuits have issued seemingly conflicting decisions
    with respect to this question. Compare Ry. Express Agency, Inc. v. Bhd.
    of Ry., Airline & S.S. Clerks, Freight Handlers, 
    437 F.2d 388
    , 393–94 (5th
    Cir. 1971), and Itasca Lodge 2029 v. Ry. Express Agency Inc., 
    391 F.2d 657
    , 667–69 (8th Cir. 1968), with Atlanta & W. Point R.R. v. United
    Transp. Union, 
    439 F.2d 73
    , 79–80 (5th Cir. 1971), and Bhd. of R.R.
    Carmen of Am., Local No. 429 v. Chi. & N.W. Ry. Co., 
    354 F.2d 786
    ,
    794–96 (8th Cir. 1965).
    14     AIRCRAFT SERVICES INT’L V. WORKING WASH.
    for the proposition that, even if the RLA trumps Section 4, a
    party must comply with Section 8 to obtain injunctive relief).3
    This approach to the relationship between the RLA and
    Section 8 is consistent with the Supreme Court’s past efforts
    to “accommodate” the RLA and Section 4 of the NLGA. As
    noted above, the RLA creates only a “limited” exception to
    Section 4—one restricted to situations in which an injunction
    is the only remedy that can safeguard a right that the RLA
    grants. Burlington N. 
    R.R., 481 U.S. at 446
    ; see also
    
    Graham, 338 U.S. at 239
    –40 (rejecting a construction of
    Section 4 that would leave federal courts “powerless to
    enforce” rights granted by the RLA); Fed. Express Corp. v.
    Teamster Union, Local No. 85, 
    617 F.2d 524
    , 526 (9th Cir.
    1980) (“[W]hile 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.”). For example, in Brotherhood of Railroad
    Trainmen v. Chicago River & Indiana Railroad, a union
    chose to strike rather than submit to the dispute resolution
    procedures of the 
    RLA. 353 U.S. at 32
    –33. If the Supreme
    Court had chosen to strictly enforce Section 4 in those
    circumstances, the railroad would have effectively been left
    with a right under the RLA without a remedy. Accordingly,
    the Court instead permitted the injunction to stand despite
    Section 4 to prevent the specific provisions of the RLA from
    being rendered “nugatory.” See 
    id. at 40–42
    (quoting
    Virginian Ry. 
    Co., 300 U.S. at 563
    ). Only in such a case of
    “irreconcilable conflict between” the RLA and the NLGA is
    3
    We also have recognized that Section 4 of the NLGA is conceptually
    distinct from Section 8 in other contexts. See Camping Constr. Co. v.
    Dist. Council of Iron Workers, 
    915 F.2d 1333
    , 1348 (9th Cir. 1990).
    AIRCRAFT SERVICES INT’L V. WORKING WASH.              15
    it necessary to choose between the RLA and the NLGA. See
    Chi. & N.W. Ry. 
    Co., 402 U.S. at 582
    n.18.
    Section 8, however, does not conflict with any provision
    of the RLA. On the contrary, as the D.C. Circuit recognized
    years ago, strict enforcement of Section 8 does “not trammel,
    but . . . rather further[s] the effectuation of that Railway
    Labor Act, for it ensures compliance by complainant carrier
    or union which cannot seek an injunction until and unless it
    has discharged the obligations imposed by the Railway Labor
    Act.” Akron & Barberton Belt 
    R.R., 385 F.2d at 614
    ; see also
    Local 553, Transp. Workers Union of Am. v. E. Air Lines,
    Inc., 
    695 F.2d 668
    ,679 (2d Cir. 1982) (“Section 8 of the
    Norris-LaGuardia Act, however, does not conflict with the
    RLA. . . . Since section 8 is congruent with the RLA, Local
    553 should be held to section 8’s requirements . . . .”); Local
    553, Transp. Workers Union of Am. v. E. Air Lines, Inc.,
    
    544 F. Supp. 1315
    , 1331 (E.D.N.Y. 1982) (“[Section] 8 does
    not conflict with the mandatory status quo provisions of the
    RLA. Rather, [Section] 8 is in harmony with the purposes of
    the RLA.”), modified on other grounds, 
    695 F.2d 668
    . In
    applying Section 8 in Brotherhood of Railroad Trainmen,
    Enterprise Lodge, No. 27 v. Toledo, P. & W. R.R.—a case
    that involved the RLA—the Supreme Court said the same:
    “The policy of the Railway Labor Act was to encourage use
    of the nonjudicial processes of negotiation, mediation and
    arbitration for the adjustment of labor disputes. The over-all
    policy of the Norris-LaGuardia Act was the same. . . . It is
    dominant and explicit in Section 
    8.” 321 U.S. at 58
    –59
    (citations omitted); see also In re Dist. No. 1—Pac. Coast
    Dist., Marine Eng’rs Beneficial Ass’n (AFL-CIO), 
    723 F.2d 70
    , 80 (D.C. Cir. 1983) (noting that Toledo held that Section
    8 had not been satisfied “without even mentioning [Section]
    16      AIRCRAFT SERVICES INT’L V. WORKING WASH.
    4”). There is thus no need to read another exception into the
    NLGA to accommodate the RLA.4
    4
    The dissent relies on two Supreme Court cases interpreting Section 4
    for the proposition that the “jurisdiction-stripping provisions of the Norris-
    LaGuardia Act do not apply to disputes, such as this one, where the parties
    have not first engaged in any of the procedures of the Railway Labor Act.”
    Dissent at 44. Again, neither of these cases speak to the proper
    accommodation between Section 8 and the RLA. The Court in Chicago
    River did not discuss the applicability of Section 8 to the case before it.
    And in Chicago & North Western Railway Co. v. United Transportation
    Union, the Court considered only the “question [of] whether § 4 of the
    Norris-LaGuardia Act prohibit[ed] the use of a strike injunction.”
    
    402 U.S. 570
    , 581 (1971) (footnote omitted); see also Brief for the
    Petitioner at 8 n.6, Chi. & N.W. Ry. Co., 
    402 U.S. 570
    (No. 70-189), 
    1970 WL 136733
    (noting that the “lower courts never reached the question [of
    whether Section 8 barred the injunction at issue], and it is not pertinent to
    the issue presented here”). We address a question left unanswered by
    those cases.
    The dissent also fails to engage with any of the cases cited above that
    give Section 8 a much wider scope, instead claiming that our position
    “creates a circuit split.” Dissent at 35. Yet three of the cases cited by the
    dissent never mention Section 8. This could perhaps mean that these
    courts assumed without comment that the RLA trumped Section 8—but
    it could just as easily mean that, like the Fifth Circuit, these courts did not
    consider whether “[Section] 8 of the Norris-LaGuardia Act” applied
    because it “was not advanced as a basis for denying an injunction against
    the strike,” Nat’l Airlines, Inc. v. Int’l Ass’n of Machinists & Aerospace
    Workers, 
    416 F.2d 998
    , 1003 n.4 (5th Cir. 1969) (citing Butte’s discussion
    of Section 8 but recognizing that “[w]e take the case as we find it”).
    Moreover, the lone case in this purported “split” that does discuss Section
    8 actually cuts against the dissent’s position. In United Airlines—
    immediately following the sentence quoted by the dissent—the court
    reaffirmed the Seventh Circuit’s longstanding position that the RLA does
    not categorically supersede Section 8, noting that things would have been
    different if the union had a “stronger case for barring the injunction under
    [Section] 8 of the 
    NLGA.” 243 F.3d at 365
    & n.11. But even if we were
    to read these four cases as the dissent suggests, they merely add to the
    circuit split, and possible intra-circuit splits, noted above.
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                       17
    Consistent with our own precedent and that of many other
    courts, we reaffirm that a party seeking an injunction under
    the RLA is not relieved of its obligation to comply with the
    provisions of Section 8 of the NLGA.5
    C. Application of Section 8 to this Dispute
    Section 8 provides in relevant part 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. Though the precise
    requirements of this obligation vary from case to case, there
    are “certain minimum steps” that are usually required:
    Unfair surprise should be avoided whenever
    possible. The representatives of management
    should meet with those of labor. Each side
    should listen to the contentions of the other
    side and each side should explain its position
    clearly and honestly, but not for as long a time
    as is customary in full-scale bargaining. In
    short, men of good faith must in good faith get
    together in a sincere effort to resolve their
    differences.
    5
    Section 8 also prohibits an injunction if the complainant “has failed to
    comply with any obligation imposed by law which is involved in the labor
    dispute in question.” Though Defendants do not invoke this provision
    here, the dissent does not explain why—in a different case involving the
    RLA—Congress would have intended to allow carriers or employees to
    escape the obligation to follow the law before seeking injunctive relief.
    18    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    Rutland Ry. 
    Corp., 307 F.2d at 41
    . These basic requirements
    are consistent with the Supreme Court’s broad construction
    of Section 8. See 
    Toledo, 321 U.S. at 57
    (“One must not only
    discharge his legal obligations. He must also go beyond them
    and make all reasonable effort . . . .”).
    Our past decisions construing Section 8 have fleshed out
    these principles. In Switchmen’s Union of North America, we
    faced a dispute over the “bumping” of a railroad 
    yardmaster. 398 F.2d at 445
    –47. In dismissing the union’s argument that
    Section 8 divested the district court of authority to issue an
    injunction, we concluded that the carrier had fulfilled its
    obligations both because “there was no unfair surprise” in the
    bumping of the yardmaster and because the carrier had
    attempted, “in good faith,” “to confer on the issue prior to the
    incident which led to the strike.” 
    Id. at 447.
    San Antonio
    Community Hospital v. Southern California District Council
    of Carpenters concerned a union’s decision to display a
    banner disparaging the cleanliness of the workplace.
    
    125 F.3d 1230
    , 1233 (9th Cir. 1997). Considering the Section
    8 issue, we held that it was sufficient that the employer “had
    engaged the Union on a number of occasions in an effort to
    resolve this dispute before seeking an injunction.” 
    Id. at 1238.
    In this case, nothing in the record permits us to hold that
    ASIG satisfied Section 8’s “reasonable effort” requirement.
    Although the district court erred by failing to undertake a
    Section 8 analysis, the record reveals that ASIG sought an
    injunction from the district court without first attempting to
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                          19
    settle the dispute.6 Even if the employees lacked an identified
    union representative, that did not relieve ASIG of its
    obligations under Section 8 to make “every reasonable effort”
    to resolve the disagreement before seeking the injunction.
    We need not map out the precise contours of Section 8 here
    because ASIG’s failure to make any efforts to settle the
    dispute fell short of what Section 8 requires, and thus the
    district court erred by entering the injunction.7
    The dissent responds by seeking to divert attention away
    from the conduct of ASIG. As far as we can tell, however,
    there is no authority for the dissent’s proposition that the
    actions of the employees may relieve the carrier from
    satisfying Section 8’s prerequisites. The dissent cites
    Switchmen’s Union of North America, Trans International
    Airlines, Order of Railway Conductors & Brakemen, and
    Butte as support for this proposition, but not one of these
    cases mentions the employees’ conduct as relevant to the
    Section 8 inquiry. In Switchmen’s Union of North America,
    we rejected the union’s Section 8 argument because the
    carrier had “performed its obligations under . . . the Railway
    Labor 
    Act.” 398 F.2d at 447
    . In Trans International
    6
    The dissent chides us because there is “no district court finding of fact
    to that effect,” dissent at 56, but ASIG’s explicit “position is that it had no
    obligation to negotiate unless and until a representative was certified.”
    ASIG has never contended—as the dissent does now—that its single
    meeting with Popescu satisfied Section 8’s requirements.
    7
    Like the dissent, ASIG argues that even if it did not comply with
    Section 8 “the balancing of hardships and the public interest weigh in
    favor of issuing the injunction.” See United Air Lines, Inc. v. Int’l Ass’n
    of Machinists & Aerospace Workers, 
    243 F.3d 349
    , 365 n.11 (7th Cir.
    2001). This court, however, has never recognized a public interest
    exception to the plain language of Section 8, and we decline to do so here.
    20     AIRCRAFT SERVICES INT’L V. WORKING WASH.
    Airlines, we rejected the union’s Section 8 argument because
    the carrier’s “own conduct” was “not sufficiently likely to be
    found illegal or otherwise wrongful that [it] should be
    prevented from seeking injunctive 
    relief.” 650 F.2d at 957
    .
    In Order of Railway Conductors, we noted that the carrier
    could not “claim[] an injunction against a strike” because the
    carrier had “positively rejected 
    mediation.” 366 F.2d at 105
    .
    In Butte, we noted that the carrier was “also necessarily
    denied” from seeking an injunction because the carrier “had
    not exhausted its administrative 
    remedies.” 268 F.2d at 60
    &
    n.10. Neither these cases nor the dissent can deny the Toledo
    rule that a carrier must establish that it made every reasonable
    effort before seeking an 
    injunction. 321 U.S. at 56-57
    (“If a
    complainant has failed . . . to make every reasonable effort to
    settle the dispute, he is forbidden relief.” (emphasis added)).
    In the absence of any efforts by ASIG to comply with Section
    8, the dissent’s discussion of what the employees did or did
    not do is simply a red herring.8
    We emphasize that our conclusion is modest: we hold that
    a party must comply with Section 8 of the NLGA before
    seeking an injunction under the RLA. The dissent’s
    8
    We do not hold, as the dissent suggests, that injunctions are never
    available in RLA labor disputes. If a party seeking an injunction has
    exercised “every reasonable effort” to resolve the disagreement, Section
    8 will not serve as a bar. What constitutes “every reasonable effort” will
    vary from case to case, and will depend in part on the actions (or
    inactions) of the opposing side. See Rutland Ry. 
    Co., 307 F.2d at 40-41
    .
    The dissent is thus wrong to suggest that we hold that employers are
    barred from obtaining injunctions even if the employees refuse to
    negotiate or even if the employees are too fractured to engage in any
    meaningful negotiation. We hold only that employers must exercise
    “every reasonable effort” before seeking an injunction; no “reasonable”
    effort, which is what we face here, cannot be “every reasonable effort.”
    As 
    noted supra
    , not even ASIG claims its efforts were reasonable.
    AIRCRAFT SERVICES INT’L V. WORKING WASH.              21
    suggestion that our holding will disrupt commerce is
    fundamentally mistaken. As the Supreme Court has
    explained, “the purpose” of Section 8 “is to head off strikes,”
    not encourage them. 
    Toledo, 321 U.S. at 65
    (emphasis
    added). 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. By contrast, allowing injunctions
    when the necessary steps “have not been taken, not only
    violates the section’s terms,” but encourages parties to act
    unilaterally and avoid the reasonable steps that “when
    achieved, make unnecessary invocation of the court’s aid.”
    
    Id. This not
    only “defeats the purposes” of the NLGA, 
    id., but those
    of the RLA as well. As noted above, the “over-all
    policy” of the RLA and the NLGA is the same: “to encourage
    use of the nonjudicial processes of negotiation, mediation and
    arbitration for the adjustment of labor disputes.” 
    Id. at 58
    (emphasis added). Permitting a carrier to obtain an injunction
    to block a strike without pursuing these nonjudicial
    processes—as the dissent would have it—frustrates the goals
    of both statutes.
    IV. CONCLUSION
    Our decision will neither summon monsters from the deep
    nor rain frogs from the heavens to “destroy” the North
    American transportation system. We do not hold that courts
    are prohibited from enjoining airport strikes. Rather, our
    narrow holding—compelled by Toledo and consistent with
    that of the vast majority of courts confronting this
    issue—merely requires carriers to abide by Section 8’s
    requirements before seeking an injunction. Because the
    record lacks evidence that ASIG made every reasonable effort
    22     AIRCRAFT SERVICES INT’L V. WORKING WASH.
    to settle the dispute, we reverse the district court’s order and
    vacate the preliminary injunction.
    REVERSED and VACATED.
    BERZON, Circuit Judge, with whom Judges PAEZ and
    GRABER join, concurring:
    I agree with the majority that the district court erred in
    granting an injunction, as Aircraft Service International
    Group (“ASIG”) has not complied with its duty under Section
    8 of the Norris-LaGuardia Act (“NLGA”) to make “every
    reasonable effort to settle [its] dispute” with the fuelers before
    seeking an injunction prohibiting the planned work stoppage.
    29 U.S.C. § 108. I write only to explain that, in my view,
    even if ASIG had complied with its duty under Section 8,
    ASIG still would not have been entitled to an injunction.
    The conflict underlying this case is undisputably a “labor
    dispute” for purposes of the NLGA.1 As I explain below, it
    is not a dispute governed by any of the specific dispute
    resolution provisions of the Railway Labor Act (“RLA”),
    45 U.S.C. § 151 et seq. As the disagreement between ASIG
    and the fuelers falls wholly outside the RLA’s regulatory
    framework, there is no federal labor statute that supersedes
    the NLGA’s otherwise applicable prohibition on federal court
    injunctions during labor disputes. The district court therefore
    1
    The parties agree that the conflict underlying this case is a “labor
    dispute” for purposes of the NLGA. See 29 U.S.C. § 113(c) (“The term
    ‘labor dispute’ includes any controversy concerning terms or conditions
    of employment . . . .”).
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                      23
    lacks authority to enjoin the prospective work stoppage, even
    if ASIG complies with NLGA Section 8.
    The majority does not say otherwise. But this is an
    instance in which the narrow ruling may simply prolong
    litigation by inviting a second motion for an injunction,
    preliminary or permanent, after Section 8 compliance. I
    would prefer to put this case to rest now.
    I.
    The NLGA severely constrains federal courts’ jurisdiction
    to issue injunctions concerning labor disputes, see 29 U.S.C.
    §§ 101–115, including entirely eliminating jurisdiction to
    issue injunctions in certain instances, see 
    id. § 104.2
    2
    Section 104 of the NLGA provides:
    No court of the United States shall have
    jurisdiction to issue any restraining order or temporary
    or permanent injunction in any case involving or
    growing out of any labor dispute to prohibit any person
    or persons participating or interested in such dispute (as
    these terms are herein defined) from doing, whether
    singly or in concert, any of the following acts:
    (a) Ceasing or refusing to perform any work or to
    remain in any relation of employment;
    (b) Becoming or remaining a member of any labor
    organization or of any employer organization,
    regardless of any such undertaking or promise as is
    described in section 103 of this title;
    (c) Paying or giving to, or withholding from, any
    person participating or interested in such labor dispute,
    any strike or unemployment benefits or insurance, or
    24     AIRCRAFT SERVICES INT’L V. WORKING WASH.
    As the majority states, see Maj. Op. at 11–12, where the
    RLA unambiguously applies, the jurisdictional bar of the
    NLGA, 29 U.S.C. § 104, can give way. See, e.g., Burlington
    N. R.R. Co. v. Bhd. of Maint. of Way Emps., 
    481 U.S. 429
    ,
    445 (1987). But “[t]his exception is necessarily a limited
    one,” and is applicable only where a party violates an
    unambiguous, applicable provision of the RLA. 
    Id. at 446–47.
    Given the express divestment of authority of NLGA
    Section 4, “the command of the [RLA] should be explicit and
    the purpose to afford a judicial remedy plain” before a court
    other moneys or things of value;
    (d) By all lawful means aiding any person participating
    or interested in any labor dispute who is being
    proceeded against in, or is prosecuting, any action or
    suit in any court of the United States or of any State;
    (e) Giving publicity to the existence of, or the facts
    involved in, any labor dispute, whether by advertising,
    speaking, patrolling, or by any other method not
    involving fraud or violence;
    (f) Assembling peaceably to act or to organize to act in
    promotion of their interests in a labor dispute;
    (g) Advising or notifying any person of an intention to
    do any of the acts heretofore specified;
    (h) Agreeing with other persons to do or not to do any
    of the acts heretofore specified; and
    (i) Advising, urging, or otherwise causing or inducing
    without fraud or violence the acts heretofore specified,
    regardless of any such undertaking or promise as is
    described in section 103 of this title.
    29 U.S.C. § 104.
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                      25
    may grant injunctive relief to enforce an obligation under the
    RLA. 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
    , 337 (1943) (“M-K-T”). This stringent rule
    recognizes that, “[f]aced with a choice between [an]
    ambiguity in the RLA and the unambiguous mandate of the
    [NLGA], we [are to] choose the latter.” 
    Burlington, 481 U.S. at 447
    . Any ambiguity eliminates federal courts’ equitable
    jurisdiction to grant injunctive relief.3
    II.
    The RLA does not regulate all relations between carriers
    and their employees. For example, a state-law wrongful
    discharge claim is not subject to the RLA’s minor dispute
    resolution provision unless the dispute is grounded in the
    interpretation or application of a collective bargaining
    agreement. Hawaiian Airlines, Inc. v. Norris, 
    512 U.S. 246
    ,
    265–66 (1994). And the RLA does not regulate jurisdictional
    disputes between unions over the “overlapping . . . interests
    of two crafts. ” 
    M-K-T, 320 U.S. at 334
    –37. Instead, the
    RLA encompasses only “three classes of labor disputes and
    establishes a different dispute resolution procedure for each.”
    W. Airlines, Inc. v. Int’l Bhd. of Teamsters, 
    480 U.S. 1301
    ,
    1302 (1987) (O’Connor, J., in chambers).
    Specifically, the RLA governs “[m]ajor,” “[m]inor,” and
    “[r]epresentation” disputes. W. 
    Airlines, 480 U.S. at 1302
    .
    “Major disputes” comprise a “class” of disputes “concerning
    ‘rates of pay, rules or working conditions,’ . . . [and] relate to
    ‘the formation of collective [bargaining] agreements or
    3
    The NLGA does not affect federal courts’ jurisdiction to grant other
    relief, such as damages.
    26    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    efforts to secure them.’” 
    Norris, 512 U.S. at 252
    (quoting
    Consol. Ry. Corp. (Conrail) v. Ry. Labor Execs.’ Ass’n,
    
    491 U.S. 299
    , 302 (1989)) (last alteration in original). “The
    second class of disputes, known as ‘minor’ disputes, ‘gro[w]
    out of grievances . . . .’” 
    Id. (quoting 45
    U.S.C. § 151a) (first
    alteration in original). These involve “‘controversies over the
    meaning of an existing collective bargaining agreement in a
    particular fact situation.’” 
    Id. at 253
    (quoting Trainmen v.
    Chicago R. & I.R. Co., 
    353 U.S. 30
    , 33 (1957)). Therefore,
    under Congress’s scheme, “major disputes seek to create
    contractual rights, minor disputes to enforce them.” 
    Conrail, 491 U.S. at 302
    . Finally, “‘representation’ disputes involve
    defining the bargaining unit and determining the employee
    representative for collective bargaining.” W. Airlines, 
    Inc., 480 U.S. at 1302
    . The dispute between ASIG and the fuelers
    here falls into none of the three relevant RLA categories.
    The closest fit is the “minor” dispute category. The
    fuelers’ concern is with the suspension of a fellow worker,
    i.e., Popescu. The RLA’s mandatory arbitration mechanism
    applies, inter alia, to the resolution of minor “disputes
    between an employee or group of employees and a carrier . . .
    growing out of grievances,” 45 U.S.C. § 153, First (i)
    (emphasis added), and thus can cover many disputes
    concerning whether a certain employee should have been
    disciplined or discharged. Indeed, employee discipline issues
    are often the subject of RLA minor disputes. See, e.g., Union
    Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen.
    Comm. of Adjustment, 
    558 U.S. 67
    , 72–76 (2009); United
    Transp. Union v. BNSF Ry. Co., 
    710 F.3d 915
    (9th Cir.
    2013); Ass’n of Flight Attendants, AFL-CIO v. Horizon Air
    Indus., Inc., 
    280 F.3d 901
    (9th Cir. 2002). But Hawaiian
    Airlines, Inc. v. Norris made clear that the word “grievances”
    in the RLA minor dispute resolution provisions refers only to
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                27
    “disputes involving the application or interpretation of a
    
    CBA.” 512 U.S. at 255
    . Left outside the RLA—and so
    subject to resolution under state law—are quotidian
    workplace disputes that do not concern the application or
    interpretation of a collective bargaining agreement, such as
    the one at hand. Precisely because the dispute here is so
    similar to a traditional grievance and could well be a minor
    dispute were a collective bargaining agreement in place
    between ASIG and the fuelers, it cannot be a major dispute,
    i.e., one involving employees seeking the formation of a
    future-oriented collective bargaining agreement.
    The underlying dispute in this case is not a representation
    dispute for essentially the same reason—the workers are not
    seeking to collectively bargain regarding future terms and
    conditions of employment, and have no interest in choosing
    a representative of their group at this time. RLA Sections 2,
    Third, Fourth, and Ninth regulate the means by which
    employees may bind themselves to a representative for the
    purpose of negotiating with an employer. See 45 U.S.C.
    § 152, Third, Fourth, and Ninth. But none of those provisions
    contains an unambiguous obligation to select a representative
    where there is no desire to negotiate terms and conditions of
    employment with the employer. See 
    Burlington, 481 U.S. at 447
    .
    Section 2, Third, could conceivably be read in isolation to
    require that the employees elect a representative:
    “Representatives, for the purposes of this chapter, shall be
    designated by the respective parties without interference
    . . . .” 45 U.S.C. § 152, Third. The immediately following
    section, however, Section 2, Fourth, states that “[e]mployees
    shall have the right to organize,” rather than the duty to
    organize. 45 U.S.C. § 152, Fourth. In other words, Section
    28    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    2, Fourth, gives the employees “the right to determine who
    shall be the representative of the group or, indeed, whether
    they shall have any representation at all.” Bhd. of Ry. & S.S.
    Clerks v. Ass’n for Benefit of Non-Contract Emps., 
    380 U.S. 650
    , 670 (1965). Read in combination with Section 2,
    Fourth, then, Section 2, Third, does not require
    representation. Rather, it prohibits both the employer and the
    employees from “in any way interfer[ing] with, influenc[ing],
    or coerc[ing] the other in its choice of representatives.”
    45 U.S.C. § 152, Third. As the Fifth Circuit concluded,
    “employees were given the right under the Act not only to opt
    for collective bargaining, but to reject it as well . . . . [T]he
    implicit message throughout the Act is that the ‘complete
    independence’ of the employees necessarily includes the right
    to reject collective representation. Indeed, the concept of
    ‘complete independence’ is inconsistent with forced
    representation.” Russell v. Nat’l Mediation Bd., 
    714 F.2d 1332
    , 1343 (5th Cir. 1983), reh’g denied, 
    721 F.2d 819
    , cert.
    denied, 
    467 U.S. 1204
    (1984) (quoting 45 U.S.C. § 151a).
    Nor does Section 2, Ninth compel the fuelers to seek
    union representation where they do not wish to be so
    represented. Section 2, Ninth, provides, in part:
    If any dispute shall arise among a carrier’s
    employees as to who are the representatives of
    such employees designated and authorized in
    accordance with the requirements of this
    chapter, it shall be the duty of the Mediation
    Board, upon request of either party to the
    dispute, to investigate such dispute and to
    certify to both parties, in writing, within thirty
    days after the receipt of the invocation of its
    services, the name or names of the individuals
    AIRCRAFT SERVICES INT’L V. WORKING WASH.              29
    or organizations that have been designated
    and authorized to represent the employees
    involved in the dispute, and certify the same
    to the carrier. Upon receipt of such
    certification the carrier shall treat with the
    representative so certified as the
    representative of the craft or class for the
    purposes of this chapter.
    45 U.S.C. § 152, Ninth. In terms, Section 2, Ninth, is limited
    to disputes “among a carrier’s employees as to who are the
    representatives of such employees,” and does not apply
    where there is no such dispute among the employees. 
    Id. (emphasis added).
    For that reason, the D.C. Circuit has
    explained that the representation dispute mechanisms of
    Section 2, Ninth, may only be initiated by employees where
    “the requisite ‘dispute’ [among employees] . . . arise[s]”:
    “Section 2, Ninth does not contemplate [an] action-initiating
    role[] . . . for carriers.” Ry. Labor Execs. Ass’n v. Nat’l
    Mediation Bd., 
    29 F.3d 655
    , 665 (D.C. Cir. 1994) (en banc),
    amended by 
    38 F.3d 1224
    , cert. denied sub nom. Burlington
    N. R.R. Co. v. Ry. Labor Execs. Ass’n, 
    514 U.S. 1032
    (1995).
    The Second Circuit’s opinion in Summit Airlines, Inc. v.
    Teamsters Local Union No. 295, 
    628 F.2d 787
    , 795 (2d Cir.
    1980) is consistent with this understanding. In Summit
    Airlines, the Second Circuit held that the representation
    dispute mechanisms of Section 2, Ninth are not “optional”
    where a union “seek[s] to represent” a class or craft. 
    Id. (emphasis added).
    Consequently, a union cannot “resort
    directly to economic coercion” of a carrier where its object is
    to induce the carrier voluntarily to recognize the union as the
    representative of its employees. 
    Id. Unless a
    union formally
    seeks and obtains certification as the employees’ chosen
    30    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    representative, the employer’s duty to “treat” with, i.e.
    recognize, the representative, is not triggered. 
    Id. at 793,
    795.
    Thus, although an employer may voluntarily recognize a
    representative of a group of employees, the employer’s duty
    to treat with a representative arises only where a
    representative is chosen through Section 2, Ninth’s
    procedures. Id.; see also Galveston Wharves, 4 N.M.B. 200,
    203 (1962).
    In fact, according to the National Mediation Board, the
    fuelers at Sea-Tac are incapable of choosing among
    themselves a representative for dealing with their employer,
    as they are not a nationwide craft or class. See Aircraft Serv.
    Int’l Group, 40 N.M.B. 43, 49 (Nov. 20, 2012). The National
    Mediation Board’s “longstanding practice is to conduct
    elections across a carrier’s entire system,” i.e. for class or
    craft units that are “system-wide” or “nation-wide” if the
    carrier operates nationally. Delta Air Lines Global Servs.,
    28 N.M.B. 456, 460, 461 (2001). Because “[t]he craft or
    class must include all of the employees working in the
    classification deemed eligible, regardless of work locations,”
    Aircraft Serv. In’l Group, 40 N.M.B. at 48, and because
    ASIG’s employees are part of a “nationwide” system, 
    id. at 52,
    the fuelers at Sea-Tac could not elect a representative for
    the group under Section 2, Ninth, even if they wished to do
    so.
    It would thus be doubly nonsensical to require the fuelers
    to seek representation under Section 2, Ninth, where the RLA
    imposes no such unambiguous duty and the Sea-Tac fuelers
    could not validly elect a representative of themselves as a
    group. As the dissenter to the original panel decision in this
    case concluded, “[w]hereas the RLA simply grants employees
    a right to organize, [there is no] obligation on the employees
    AIRCRAFT SERVICES INT’L V. WORKING WASH.               31
    to seek unwanted representation.” Aircraft Serv. Int’l, Inc. v.
    Int’l Bhd. of Teamsters Local 117, 
    742 F.3d 1110
    , 1128 (9th
    Cir. 2014) (M. Smith, J., dissenting). Rendering unionization
    compulsory violates the directive to favor “the unambiguous
    mandate of the [NLGA]” regarding enjoining labor disputes
    where there is “ambiguity in the RLA,” and would impose an
    illogical and impossible-to-fulfill condition on the fuelers.
    
    Burlington, 481 U.S. at 447
    .
    The district court nonetheless held that the fuelers’
    decision to strike was prohibited by the RLA because to hold
    otherwise would “wholly frustrate” RLA Section 2, First,
    which requires covered employers and employees “to exert
    every reasonable effort . . . to settle all disputes, whether
    arising out of the application of . . . agreements [concerning
    rates of pay, rules, and working conditions] or otherwise.”
    45 U.S.C. § 152, First. But as the Supreme Court has
    explained, Section 2, First, is not a stand-alone provision. See
    
    M-K-T, 320 U.S. at 334
    .
    Longstanding precedent confirms that Section 2, First
    does not impose duties to refrain from acts not connected to
    those covered elsewhere in the RLA. M-K-T held that
    Section 2, First, “merely states the policy [of the RLA] which
    those other provisions [of the RLA] buttress with more
    particularized 
    commands.” 320 U.S. at 334
    . While Chicago
    & North Western Railway v. United Transportation Union,
    
    402 U.S. 570
    (1971), determined that Section 2, First, is
    judicially enforceable in some circumstances, that case held
    only that a party breaches the duty described in Section 2,
    First, where that duty implements some other command in the
    RLA.
    32    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    Specifically, in Chicago & North Western Railway, after
    “the parties ha[d] exhausted the formal procedures of the
    Railway Labor Act,” the union threatened to 
    strike. 402 U.S. at 571
    , 573. The carrier persuaded a district court to enjoin
    any such strike, arguing that the union had not engaged in a
    good faith effort to discharge the obligations described in
    other RLA provisions, including the Union’s alleged refusal
    to bargain with the carrier. 
    Id. at 574.
    Chicago & North
    Western Railway held that such an injunction would be
    generally permissible, describing the content of the duty
    imposed by Section 2, First, by repeated analogy to “the duty
    under the National Labor Relations Act to bargain in good
    faith,” which authorizes courts to “‘pass[] judgment upon the
    quality of the negotiations.’” 
    Id. at 574–75
    (quoting
    Archibald Cox, The Duty to Bargain in Good Faith, 71 Harv.
    L. Rev. 1401, 1412–13 (1958)). It was in this sense—
    because it required parties to satisfy in good faith their more
    particularized duties—that the Court concluded that
    “[section] 2 First was intended to be more than a mere
    statement of policy or exhortation to the parties.” 
    Id. at 577.
    Chicago & North Western Railway, then, rejected only
    the suggestion that M-K-T precluded reading Section 2, First
    as imposing a good faith requirement as to other, express
    duties elsewhere delineated in the RLA. 
    Id. Chicago &
    North Western Railway left untouched the Supreme Court’s
    pronouncement in M-K-T that Section 2, First, does not create
    a freestanding, independent duty.
    Cases both before and after M-K-T and Chicago & North
    Western Railway confirm the understanding that RLA Section
    2, First, is enforceable only in conjunction with another RLA
    provision. Virginian Railway Co. v. System Federation No.
    40, 
    300 U.S. 515
    , 548–49 (1937), for example, held that there
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                33
    is a duty to negotiate a first collective bargaining agreement,
    relying on the combination of RLA Section 2, First, and the
    obligation imposed by RLA Section 2, Ninth to “treat with”
    the properly chosen majority representative. Summit Airlines
    similarly determined that there is a duty to settle a demand for
    recognition as a collective bargaining representative in the
    combination of RLA Section 2, Ninth, which governs the
    resolution of dispute resolution mechanism, and Section 2,
    
    First. 628 F.2d at 791
    –95.
    Accordingly, there is no basis for interpreting the word
    “dispute” in Section 2, First, as carrying a meaning entirely
    divorced from the particular disputes described elsewhere in
    the RLA. Where, as here, a dispute falls into none of the
    categories contemplated elsewhere in the RLA, Section 2,
    First, imposes no obligation to settle it, in good faith or
    otherwise.
    III.
    This conclusion has negative as well as beneficial
    consequences for the fuelers. Although the RLA does not
    forbid them to strike, it does not protect that activity, either.
    “No private cause of action exists under the RLA for a group
    of employees who assert retaliatory conduct based upon
    employee activities which bear no relationship to establishing
    a union . . . .” Herring v. Delta Air Lines, Inc., 
    894 F.2d 1020
    , 1023 (9th Cir. 1990); accord Gullickson v. Sw. Airlines
    Pilots’ Ass’n, 
    87 F.3d 1176
    , 1186–87 (10th Cir. 1996);
    Rachford v. Evergreen Int’l Airlines, Inc., 
    596 F. Supp. 384
    ,
    386 (N.D. Ill. 1984). Where, as here, employees have
    disclaimed any effort to form a union, and in fact are
    incapable of electing a representative under the RLA, see
    Aircraft Serv. Int’l Group, 40 N.M.B. at 48–49, they have no
    34    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    recourse to the RLA if their employer retaliates against them
    for striking.
    IV.
    In sum, the fuelers “do not need to find a particular
    provision in the RLA to justify [striking]. [Rather,] [t]he
    affected [carrier] must find a specific mandate of the RLA
    that prohibits the [strike]” to be entitled to an injunction. Ry.
    Labor Execs. Ass’n v. Wheeling & Lake Erie Ry. Co.,
    
    914 F.2d 53
    , 56 (4th Cir. 1990). 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. Accordingly, the injunction
    should be vacated for that reason, as well as for the reason
    endorsed by the majority.
    KLEINFELD, Senior Circuit Judge, joined by
    O’SCANNLAIN, SILVERMAN and TALLMAN, Circuit
    Judges dissenting:
    We should affirm. The district court and the panel
    opinion got it right.
    The Railway Labor Act protects the public from the
    consequences of some labor strife with an especially grave
    impact on those other than the companies and employees
    involved. That is why it mandates extensive negotiation,
    mediation, and arbitration procedures in any major
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                    35
    transportation dispute1 before allowing lockouts or strikes.
    The anti-injunction provisions of the later Norris-LaGuardia
    Act cannot be read into the Railway Labor Act before that
    settlement process is undertaken, without gutting the Railway
    Labor Act. By expanding the reach of the Norris-LaGuardia
    Act this way, the majority creates a circuit split.2 Shutting
    down the Seattle-Tacoma International Airport (“Sea-Tac”)
    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. That is why injunctions are available to enforce
    the Railway Labor Act notwithstanding the Norris-LaGuardia
    Act.
    The injunction, together with the Railway Labor Act
    conciliation process, provides the statutory means Congress
    prescribed for making labor and management negotiate,
    whether they choose to or not. The Railway Labor Act and
    the traditional four-part test for injunctions3 together ensure,
    as they did in the district court, that airports be kept open
    while negotiations go on, regardless of whether one side or
    both may be unreasonable. The final Winter4 consideration,
    1
    Elgin, Joliet & E. Ry. Co. v. Burley, 
    325 U.S. 711
    , 723–24 (1945)
    (defining “major disputes” as those where employees “seek to create
    rather than enforce contractual rights” and “minor disputes” as those
    relating to “the meaning or proper application” of a collective agreement).
    2
    Compare United Air Lines, Inc. v. Int’l Ass’n of Machinists &
    Aerospace Workers, 
    243 F.3d 349
    , 365 (7th Cir. 2001).
    3
    Cf. Winter v. Natural Res. Def. Council, Inc., 
    555 U.S. 7
    , 20 (2008).
    4
    
    Id. at 26.
    36    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    the public interest, is in effect written into the Railway Labor
    Act.
    I. Facts
    The company in this case, Aircraft Service International
    Group, Inc. (“Aircraft Service”), refuels about 75% of the
    airplanes at Sea-Tac. The company suspended one of its
    aircraft fuelers, Alex Popescu. The company says it
    suspended Mr. Popescu because employees were concerned
    about their safety on account of his “blowups” at work,
    episodes that he attributed to a medical condition. The
    general manager reported receiving complaints from
    employees that Popescu “went into a fit of rage” that
    appeared “borderline psychotic” and “was out of control and
    repeatedly had screamed obscenities at a supervisor.” When,
    after suspension, the company tried to discuss Popescu’s
    situation with him, he again yelled obscenities, “threw his
    chair across the room, and slammed the door as he left the
    room.”
    The employees have not voted to be represented by any
    union, so no labor union is involved. 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. One of the
    adverse parties in this case is “Working Washington,” which
    is not a union, but a group that describes itself as “a coalition
    of individuals, neighborhood associations, immigrant groups,
    labor unions, civil rights organizations, and people of faith.”
    Working Washington’s “Campaign Director” says that
    although Working Washington “is not seeking to become the
    bargaining representative” of the employees and has not
    AIRCRAFT SERVICES INT’L V. WORKING WASH.             37
    sought recognition, it advocates for better treatment of
    workers at the airport.
    Working Washington’s campaign director says that the
    employees are compelled to work with unsafe and inadequate
    equipment and that the company suspended Popescu because
    he had become a leader in public advocacy for safer and
    better equipment for the fuelers. According to the campaign
    director, the obscenity incident was a mutual exchange of
    yelled obscenities when Popescu complained of a broken
    drive shaft and the supervisor accused him of sabotaging it.
    The campaign director alleges that Working Washington
    distributed and collected strike ballots and held a press
    conference to announce that the fuelers had authorized a
    strike against Aircraft Service.
    Working Washington’s campaign director further states
    in his affidavit that the fuelers, at a gathering organized by
    Working Washington, “called the company’s Human
    Resources Department in Denver to request an immediate end
    to [Popescu’s] suspension.” He states, “I believe that similar
    calls continued throughout the evening and into the next
    morning.” The fuelers did not get a response. The record
    does not contain any non-hearsay evidence about these calls,
    or for that matter, evidence that there were even any company
    personnel in the Denver office “throughout the evening and
    into the next morning” to receive such calls. This alleged
    barrage of phone calls appears to be the basis for the
    majority’s view that the employees sought to negotiate and
    that it was the company that stonewalled them.
    Neither Working Washington nor the fuelers asked the
    National Mediation Board to intervene at that time. Neither
    did the company.      A few weeks after the strike
    38    AIRCRAFT SERVICES INT’L V. WORKING WASH.
    announcement, and after the temporary restraining order and
    preliminary injunction, six of the employees, including
    Popescu, wrote to the National Mediation Board, in their
    capacity as unrepresented individual employees, asking
    whether it provided any sort of dispute resolution services.
    The Board replied that it provided mediation services to
    carriers and to designated bargaining representatives of their
    employees, but not to individual employees or groups, so
    services were not available to the six employees because they
    had not been designated as the bargaining representatives for
    all the employees.
    We do not know, there being no findings of fact on the
    point, whether Popescu’s supporters really did try to meet
    with or call the company representatives, or whether the
    company acted unreasonably in not meeting with whoever
    claimed to represent its employees. The majority says the
    strike cannot be enjoined because the company made no
    “reasonable effort” to settle the dispute. That purported fact
    is not established. But it does not matter. The Railway Labor
    Act generally requires both parties to negotiate, mediate, and
    arbitrate, before either of them can shut down the airport.
    The point of the statute is to protect the public against the
    externalities of the labor dispute, not merely to protect
    management or labor against hardheads on the other side of
    the table.
    II. The Statutes
    The Railway Labor Act is among the first statutes
    protecting labor and encouraging union organization. Its first
    two objectives, written into the statutory language, are “to
    avoid any interruption of commerce” and “to forbid any
    limitation upon freedom of association among employees or
    AIRCRAFT SERVICES INT’L V. WORKING WASH.            39
    any denial . . . of the right of employees to join a labor
    organization.”5 The Act, though encouraging unionization,
    applies to unrepresented employees as well, such as the
    fuelers in this case. The plain text of the Railway Labor Act
    defines “employee” as “every person in the service of a
    carrier.”6 Both carriers and “employees,” whether unionized
    or not, must try to settle their disputes “to avoid any
    interruption to commerce”7:
    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.8
    The Act generally requires the parties to confer, mediate, and
    arbitrate their disputes:
    The [Railway Labor Act] provides a detailed
    framework to facilitate the voluntary
    5
    45 U.S.C. § 151a.
    6
    
    Id. § 151,
    Fifth.
    7
    
    Id. § 151a.
     8
    
    Id. § 152,
    First.
    40     AIRCRAFT SERVICES INT’L V. WORKING WASH.
    settlement of major disputes. A party desiring
    to effect a change of rates of pay, rules, or
    working conditions must give advance written
    notice. The parties must confer, and if
    conference fails to resolve the dispute, either
    or both may invoke the services of the
    National Mediation Board, which may also
    proffer its services sua sponte if it finds a
    labor emergency to exist. If mediation fails,
    the Board must endeavor to induce the parties
    to submit the controversy to binding
    arbitration, which can take place, however,
    only if both consent. If arbitration is rejected
    and the dispute threatens ‘substantially to
    interrupt interstate commerce to a degree such
    as to deprive any section of the country of
    essential transportation service, the Mediation
    Board shall notify the President,’ who may
    create an emergency board to investigate and
    report on the dispute. While the dispute is
    working its way through these stages, neither
    party may unilaterally alter the status quo.9
    The fuelers, or at least those persuaded by Working
    Washington, proposed to strike without going through these
    procedures, and they claim that they can do this because they
    are not unionized and because the company has not made a
    reasonable effort to settle the dispute. Judge N.R. Smith in
    the panel opinion noted:
    9
    Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 
    394 U.S. 369
    , 378
    (1969) (citations omitted).
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                   41
    Here, the Employees are unwilling to even ‘go
    through the motions’ under the [Railway
    Labor Act]; rather, they wish not to bargain
    but to strike. In so doing, they present the
    very situation for which Congress enacted the
    [Railway Labor Act]: carrier employees
    collectively threatening a strike capable of
    single-handedly interrupting interstate
    commerce by shutting down an airport.10
    These statutory duties are clear enough. But what
    happens if one or both parties do not do what the Railway
    Labor Act says they should do?
    The subsequently enacted Norris-LaGuardia Act,
    promulgated in 1932, might have been read to categorically
    prohibit injunctions to enforce compliance with Railway
    Labor Act settlement procedures.11 After all, the Norris-
    LaGuardia Act generally strips federal courts of jurisdiction
    to issue injunctions in labor disputes.12 This could have been
    read as a limit on remedies available under the Railway Labor
    Act.
    10
    Aircraft Serv. Int’l Inc. v. Int’l Bhd. of Teamsters, 
    742 F.3d 1110
    ,
    1120 (9th Cir. 2014) (citation omitted).
    11
    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;
    nor shall any such restraining order or temporary or permanent injunction
    be issued contrary to the public policy declared in this chapter.”).
    12
    
    Id. 42 AIRCRAFT
    SERVICES INT’L V. WORKING WASH.
    But the Supreme Court did not read it that way.
    Brotherhood of Railroad Trainmen v. Chicago River Indiana
    Railroad Co.13 held that the Railway Labor Act procedures
    are compulsory14 and the district courts do indeed have
    jurisdiction to enjoin noncompliance.15 The Court explained
    that amendments strengthening the Railway Labor Act in
    1934, subsequent to the Norris-LaGuardia Act, repaired the
    “major weakness” or “lack of any compulsion” in the 1926
    version of the Railway Labor Act.16
    The Court further held that “the specific provisions of the
    Railway Labor Act take precedence over the more general
    provisions of the Norris-LaGuardia Act,”17 because the
    Norris-LaGuardia Act protects workers generally, but the
    Railway Labor Act “channel[s]” the economic forces of labor
    and management “into special processes intended to
    compromise them.”18 The Court explained that injunctions
    prohibited by the Norris-LaGuardia Act “strip[] labor of its
    primary weapon without substituting any reasonable
    alternative.”19 The Railway Labor Act, by contrast, provides
    labor with a “reasonable alternative,” the mediation and
    13
    
    353 U.S. 30
    (1957).
    14
    See 
    id. at 34.
     15
    
    Id. at 42.
     16
    
    Id. at 35.
     17
    
    Id. at 42.
     18
    
    Id. at 40–41.
     19
    
    Id. at 41.
              AIRCRAFT SERVICES INT’L V. WORKING WASH.             43
    settlement process set out in the Act. It applies to “all”
    disputes regarding “rates of pay, rules, or working
    conditions”20 and to “every person in the service of the
    carrier.”21 This reasonable alternative eliminates the need for
    the Norris-LaGuardia Act’s jurisdiction-stripping provisions
    to even the playing field.22 The employees need not be a
    member of a union to invoke the Railway Labor Act because
    it facilitates selection of a representative for mediation
    regardless, so they need not have a dispute under a collective
    bargaining agreement to invoke it. The Railway Labor Act
    establishes that employees as well as carriers must make
    every reasonable effort to settle disputes “whether arising out
    of such agreements or otherwise.”23 The “or otherwise”
    language means that a collective bargaining agreement is not
    a prerequisite to the Act’s application.
    Any question about the breadth of Chicago River was
    answered by the Court in Chicago & North Western Railway
    Co. v. United Transportation Union.24 There, the Court held
    that “strike injunctions may issue when such a remedy is the
    only practical, effective means of enforcing the duty to exert
    every reasonable effort to make and maintain agreements.”25
    Such a holding gives effect to the broad congressional policy
    20
    45 U.S.C. § 151a(4).
    21
    
    Id. § 151
    Fifth.
    22
    See Chi. River and Indiana R.R. Co., 353 U.S at 41–42.
    23
    45 U.S.C. § 152 First (emphasis added).
    24
    
    402 U.S. 570
    (1971).
    25
    
    Id. at 58
    3.
    44       AIRCRAFT SERVICES INT’L V. WORKING WASH.
    “[t]o avoid any interruption to commerce” by premature labor
    strikes.26 Indeed, the Chicago & North Western Court was
    particularly aware of the dangers of such interruptions.27 We
    now know, if we did not before this pair of cases, that the
    jurisdiction-stripping provisions of the Norris-LaGuardia Act
    do not apply to disputes, such as this one, where the parties
    have not first engaged in any of the procedures of the
    Railway Labor Act.
    Chicago & North Western28 and Chicago River29 both rely
    heavily on legislative history in interpreting the Railway
    Labor Act. Such history merely confirms the meaning of the
    clear text of the statute. The Court held that statements
    during the Railway Labor Act hearings by “spokesmen of the
    two parties” should be given great weight in construing the
    Act.30 These statements confirm that petitioners cannot evade
    the Act’s settlement procedures simply because they are not
    unionized.
    Senator Watson declared that both attorneys for labor and
    management agreed on the scope of the law: “They all state
    to me that beyond any doubt in the world[,] all classes and
    groups and individuals are covered . . . every individual
    employee who has a grievance, or any group of employees,
    or any organization of employees, or any person not a
    26
    45 U.S.C. § 151a (emphasis added).
    27
    See Chicago & N.W. Ry. 
    Co., 402 U.S. at 581
    n.14.
    28
    See 
    id. at 576–78,
    580–82.
    29
    
    See 353 U.S. at 35
    –39.
    30
    Chicago & N.W. Ry. 
    Co., 402 U.S. at 576
    .
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                     45
    member of any organization of employees.”31 During the
    House debates over the 1934 amendments, the topic
    resurfaced since it was “rumored . . . that this Senate
    amendment require[s] the employees of every railroad . . . to
    be unionized before they can get any benefit.” This
    supposition was again rejected, with Representative Crosser
    firmly stating that the amendment would “not require any
    such thing.”32
    Even when an injunction is the only practical, effective
    means of enforcing duties under the Railway Labor Act, the
    Supreme Court has held, in some cases, that Section 8 of the
    Norris-LaGuardia Act33 does indeed qualify issuance of an
    injunction with a codified clean hands requirement. The
    Court held in Brotherhood of Railway Trainmen v. Toledo,
    Peoria & Western Railroad Co.34 that Section 8’s “unclean
    hands” provision prohibited the district court from enjoining
    a strike under the Railway Labor Act because the railroad had
    failed to make every reasonable effort to settle the dispute.
    31
    1 The Railway Labor Act of 1926: A Legislative History 689–91
    (Michael H. Campbell & Edward C. Brewer III eds., 1988) [hereinafter
    Legislative History] (emphasis added).
    32
    Legislative History, supra note 31, at 1021.
    33
    29 U.S.C. § 108 (“No restraining order or injunctive relief shall be
    granted to any 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.”)
    34
    
    321 U.S. 50
    (1944).
    46        AIRCRAFT SERVICES INT’L V. WORKING WASH.
    The difference between the situation in Toledo, Peoria
    and our case is that the railroad and the union in Toledo,
    Peoria had indeed gone through the Railway Labor Act
    process prior to the strike. In our case, the order of events is
    strike first, mediation maybe later, maybe never. In Toledo,
    Peoria, it was Railway Labor Act procedures first, strike
    later, when the railroad refused to complete the Railway
    Labor Act process by arbitrating. What made the unclean
    hands provision of Section 8 of the Norris-LaGuardia Act
    applicable was the railroad’s rejection of “the final and
    crucial step of arbitration.”35
    We have similarly interpreted Section 8 to apply in
    situations where both parties have engaged in the Railway
    Labor Act procedures, but then one of them has abandoned
    the process in bad faith. In Switchmen’s Union of North
    America v. Southern Pacific Co., we upheld a carrier’s
    injunction notwithstanding Section 8 because the carrier had
    not “failed to perform its obligations under . . . the Railway
    Labor Act, or . . . lacked good faith in attempting to settle this
    dispute.”36    In Trans International Airlines, Inc. v.
    International Brotherhood of Teamsters, we rejected both the
    union and the carrier’s clean hands arguments in a dispute
    where the carrier and union had negotiated and mediated, but
    the union had refused arbitration.37 In Order of Railway
    Conductors & Brakemen v. Spokane, Portland & Seattle
    Railway Co., we prohibited the carrier’s injunction when the
    35
    
    Id. at 64.
     36
    
    398 F.2d 443
    , 447 (1968).
    37
    
    650 F.2d 949
    , 953–54, 957 (9th Cir. 1980) (Kennedy, J.) (upholding
    one injunction and reversing another on different grounds).
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                 47
    union sought mediation, but the carrier declined.38 In Butte,
    Anaconda & Pacific Railway Co. v. Brotherhood of
    Locomotive Firemen & Enginemen, we prohibited the
    carrier’s injunction under Section 8 when the carrier
    abandoned mediation.39 To get the benefit of Toledo, Peoria
    and to be able to bar the injunction, employees must
    participate in the Railway Labor Act dispute resolution
    process, as the unions and carriers did in these earlier cases.
    The majority argues that our emphasis on the conduct of
    the fuelers is a “red herring” because Section 8 only applies
    to the “complainant,” and that “no authority” relieves a
    carrier from the mandates of Section 8. That reading
    eviscerates the statutory command that “[i]t shall be the duty
    of . . . employees,” not just carriers, “to exert every
    reasonable effort . . . to settle all disputes . . . in order to avoid
    any interruption to commerce . . . .”40 The majority cites no
    case in this or any other circuit where Section 8 of the Norris-
    LaGuardia Act barred a Railway Labor Act injunction, where
    the employees went on strike without first engaging in any of
    the Railway Labor Act procedures. There is no such case
    because such an application would frustrate the purposes of
    the Railway Labor Act. The majority’s “modest” rule allows
    employees of a carrier to strike without fear of injunction as
    long as they are not unionized and some rump group without
    representational authority makes some late night phone calls
    demanding talks with the carrier.
    38
    
    366 F.2d 99
    , 105 (9th Cir. 1966).
    39
    
    268 F.2d 54
    , 57, 60 n.10 (9th Cir. 1959).
    40
    45 U.S.C. § 152 First.
    48       AIRCRAFT SERVICES INT’L V. WORKING WASH.
    Like Chicago River and Chicago & North Western,
    Toledo, Peoria relies on legislative history in construing
    Section 8 narrowly in the Railway Labor Act context.
    Representative LaGuardia assured Congress that the Railway
    Labor Act “provides every detail for the settlement of
    disputes” and that “[t]he workers could not and would not
    think of going on strike before all the remedies provided in
    the law have been exhausted.”41 Recognizing this, the Court
    in Toledo, Peoria establishes that a carrier must have had the
    opportunity to engage in the Railway Labor Act procedures
    before Section 8 would apply:
    [I]n response to an inquiry whether or not
    Section 8’s requirements would apply where
    it might be impossible to move for settlement
    by negotiation, mediation or arbitration,
    [Representative LaGuardia] stated: “The
    answer to that is simple. In seeking a
    restraining order a party believed to be
    aggrieved comes into court and under a
    certain state of facts, which are enumerated in
    the bill itself, asks for a restraining order. If
    time has not permitted him or the corporation
    to avail itself of the existing governmental
    machinery for the settlement of a labor
    dispute, he recites that as one of his facts,
    which is a full compliance, of course, with the
    provisions of section 8, which makes it a
    condition precedent that every remedy must
    41
    See 75 Cong. Rec. 5504; Toledo, Peoria, 321, U.S. at 59.
    AIRCRAFT SERVICES INT’L V. WORKING WASH.               49
    be exhausted to settle the strike before the
    injunction will issue.”42
    Contemporary methods of statutory construction might
    not rely as heavily on legislative history as the Supreme Court
    did in Chicago River, Chicago & North Western, and Toledo,
    Peoria. But the Court did so rely, and in Chicago & North
    Western held that because the Railway Labor Act was a
    “legislative product devised by the parties themselves, which
    Congress enacted,”43 it should be construed with “particular
    attention . . . to the legislative history of the Act.”44 We are
    thus required by Chicago & North Western to use legislative
    history to construe the Railway Labor Act. Doing so, we
    should join the Seventh Circuit’s United Air Lines decision,45
    construing the relationship of the Norris-LaGuardia clean
    hands provision to the Railway Labor Act as Representative
    LaGuardia said it should be construed. United Air Lines
    holds that Section 8 of the Norris-LaGuardia Act does not
    relieve employees of their duties under the Railway Labor
    Act to settle disputes and avoid interruptions to commerce.
    It further holds that a carrier may be entitled to an injunction
    even where negotiation has not yet taken place. United Air
    Lines explains that to “requir[e] a carrier to seek a negotiated
    solution before moving to enjoin an illegal work action would
    enable unions to use such actions to extort concessions from
    42
    Toledo, 
    Peoria, 321 U.S. at 59
    n. 16 (quoting 74 Cong. Rec. 5508)
    (emphasis added).
    43
    Chicago & N.W. Ry. 
    Co., 402 U.S. at 589
    .
    44
    
    Id. at 58
    8.
    45
    United Air Lines, Inc. v. Int’l Ass’n of Machinists & Aerospace
    Workers, 
    243 F.3d 349
    , 365 (7th Cir. 2001).
    50          AIRCRAFT SERVICES INT’L V. WORKING WASH.
    the carrier during the negotiation process. Such a result
    would render the union’s duty under 45 U.S.C. § 152, First a
    nullity . . . .”46 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.
    III. The Public Interest
    The reason injunctions are so important to the Railway
    Labor Act conciliation system is that strikes in the
    transportation industry have so great an impact upon
    uninvolved parties:
    Railway (and airline) labor disputes typically
    present problems of national magnitude. A
    strike in one State often paralyzes
    transportation in an entire section of the
    United States, and transportation labor
    disputes frequently result in simultaneous
    work stoppages in many States.47
    A little bit of concrete history shows this impact. In 1934,
    Alaska and many other West Coast states suffered the effects
    of a massive longshoremen’s strike. On May 9, 1934, West
    Coast longshoremen not covered by the Railway Labor Act48
    called a strike that effectively closed the port of Seattle and
    46
    
    Id. 47 Jacksonville
    Terminal 
    Co., 394 U.S. at 381
    .
    48
    Longshoremen are only covered by the Railway Labor Act if they are
    employees of a carrier. See 45 U.S.C. § 151.
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                       51
    every other major port on the West Coast.49 In less than a
    week, Alaska lost mail service.50 After two weeks, the
    Anchorage Chamber of Commerce estimated that the city had
    only 10 more days’ supply of eggs, butter, and flour, and that
    the whole territory would be without general supplies in thirty
    to sixty days.51 Members of the general public bore the
    immense costs of the strike. Sixteen mills closed in
    Washington and Oregon and an estimated 10,000 people lost
    their jobs because the mills could not “get raw materials or
    send products by water.”52 By the end of the 86-day strike,53
    eight lives had been lost.54 The financial stake disputed by
    the union and carriers was doubtless a small fraction of the
    $200,000,000 in total lost revenue at ports from Bellingham
    49
    Longshoremen Out on Strike; Shipping Halted, The Seattle Daily
    Times, May 9, 1934, at 10. This and other issues of The Seattle Daily
    Times cited in this opinion are available online through the newspaper
    collections of the Harry Bridges Center for Labor Studies, University
    of Washington, http://depts.washington.edu/dock/34strike_
    news_coverage.shtml.
    50
    Alaska Mail Held; Sound Mills Quit; U.S. Action Asked, The Seattle
    Daily Times, May 15, 1934, at 1.
    51
    Strikers Receive Ultimatum; To Load U.S. Alaska Ship, The Seattle
    Daily Times, May 24, 1934, at 10.
    52
    Ryan’s Order to Relieve Alaska is ‘Mandatory,’ The Seattle Daily
    Times, May 25, 1934, at 15.
    53
    3,000 Back on Job Here As Maritime Tie-Up Ends, The Seattle Daily
    Times, July 31, 1934, at 1.
    54
    Strikers Work in All Ports on Pacific Coast, The Seattle Daily Times,
    July 31, 1934, at 5.
    52          AIRCRAFT SERVICES INT’L V. WORKING WASH.
    to San Diego, not including additional losses to individuals
    and local businesses.55
    Three of our sister circuits56 have upheld injunctions
    under the Railway Labor Act’s Section 152, First,
    notwithstanding the Norris-LaGuardia Act’s jurisdiction-
    stripping provisions, because of the devastating impacts on
    the public associated with transportation strikes. Though
    these decisions evidently did not find it necessary to
    explicitly discuss Section 8 of the Norris-LaGuardia Act, they
    illustrate the proposition that the employees of a carrier have
    a separate enforceable duty under the Railway Labor Act to
    resolve disputes to avoid interruption of commerce, and that
    they should not be allowed to strike if they disregard this
    statutory duty.
    The Eleventh Circuit held in Delta Airlines v. Air Line
    Pilots Association that “when a specific provision of the
    [Railway Labor Act] is implicated, and there is no other
    effective way to enforce [it], the [Norris-LaGuardia Act] does
    not prohibit a federal court from issuing an appropriate
    injunction.”57 The Eleventh Circuit reasoned that “[w]hen the
    public interest, commerce and a clear statutory provision are
    implicated, we will not shy away from holding the parties to
    55
    
    Id. 56 See
    Nat’l R.R. Passenger Corp. v. Transport Workers Union of
    America, 
    373 F.3d 121
    (D.C. Cir. 2004); Burlington N. & Santa Fe Ry.
    Co. v. BMWE, 
    286 F.3d 803
    (5th Cir. 2002); Delta Airlines, Inc., v. Air
    Line Pilots Ass’n, Int’l, 
    238 F.3d 1300
    (11th Cir. 2001).
    57
    Delta 
    Airlines, 238 F.3d at 1307
    .
    AIRCRAFT SERVICES INT’L V. WORKING WASH.              53
    their duties under the [Railway Labor Act] so as to avoid ‘any
    interruption to commerce.’”58
    In Delta Airlines, Delta pilots engaged in a concerted
    effort to decline taking “open time” flights.59 As a result,
    Delta had to cancel many flights and the “traveling public”
    suffered immeasurable losses of time and money from delays
    and cancellations.60 The Eleventh Circuit rejected the
    argument that the union had no duty to try to stop the pilots
    because the union had not sanctioned their actions. To the
    contrary, the Eleventh Circuit held that the union did have
    such a duty,61 and if it could not prevent the strike, the district
    court had jurisdiction to enjoin the individual pilots’
    concerted action.62
    In National Railroad Passenger Corp. v. Transport
    Workers Union of America, the District of Columbia Circuit
    upheld a strike injunction,63 despite the Norris-LaGuardia
    Act,64 even though the “dispute [was] not amenable to
    resolution via the procedures of the [Railway Labor Act].”65
    58
    
    Id. at 1308
    (quoting § 152, First).
    59
    
    Id. at 1302.
     60
    
    Id. at 1309.
     61
    
    Id. at 1309.
     62
    
    Id. at 1311
    (citing § 152, First).
    63
    Nat’l R.R. Passenger 
    Corp., 373 F.3d at 127
    .
    64
    
    Id. at 123.
     65
    
    Id. at 126.
    54        AIRCRAFT SERVICES INT’L V. WORKING WASH.
    In that case, when federal Amtrak subsidies fell below
    expected levels, five unions representing Amtrak employees
    called a strike.66 The district court had held that the Railway
    Labor Act did not bar the strike “because the Unions’ dispute
    with Congress and with the administration over Amtrak
    funding cannot be resolved by negotiation, mediation or
    arbitration with Amtrak.”67 The D.C. Circuit disagreed:
    “[T]he possibility that a politically tinged dispute cannot be
    ‘resolved’ by negotiation does not warrant a wholesale
    exception to the mandates of the [Railway Labor Act].”68 The
    D.C. Circuit enjoined the strike because it had the “same
    adverse effect on interstate commerce as a strike motivated
    by more conventional labor concerns.”69
    The Fifth Circuit similarly held in Burlington Northern v.
    Brotherhood of Maintenance of Way Employees that the
    Railway Labor Act’s requirement to “‘exert every reasonable
    effort to make and maintain’” agreements could be enforced
    by injunction whenever there is a threat of “‘any interruption
    to commerce.’”70 The Fifth Circuit was persuaded “by the
    plain text of the statute, by the reasoning of the District of
    66
    
    Id. at 122.
     67
    
    Id. at 123
    (internal quotations omitted) (emphasis in original).
    68
    
    Id. at 126.
     69
    
    Id. (internal quotations
    omitted).
    70
    
    286 F.3d 803
    , 807 (2002) (quoting 45 U.S.C. § 152, First) (citation
    omitted).
    AIRCRAFT SERVICES INT’L V. WORKING WASH.                 55
    Columbia and Eleventh Circuits, and by the desirability of
    avoiding a circuit split.”71
    Therefore, notwithstanding the anti-injunction provisions
    of the Norris-LaGuardia Act it is clear that: (1) when the
    public interest, interruption of commerce, and a clear
    statutory provision of the Railway Labor Act are implicated,
    federal courts can enjoin concerted action by transportation
    employees acting without a union;72 and (2) negotiation prior
    to an injunction is not a precondition to enjoining a strike
    since all transportation strikes can have catastrophic effects
    on interstate commerce.73
    The Seventh Circuit and the District of Columbia Circuit
    have held that a public interest exception to Section 8 of the
    Norris-LaGuardia Act allows injunctions under the Railway
    Labor Act, even when Section 8’s requirements are not
    satisfied, because of the catastrophic effects of transportation
    strikes on interstate commerce. United Air Lines holds that
    “the imperatives of the [Railway Labor Act] may override
    § 8, and that a party’s lack of ‘clean hands’ under § 8 ‘may be
    overcome by a balancing of the interests, particularly where
    it is the public interest involved.’”74 Brotherhood of Railroad
    Trainmen v. Akron & Barberton Belt Railroad also holds that
    71
    
    Id. 72 See
    Delta Airlines, 
    238 F.3d 1300
    ; accord Burlington N. & Santa Fe
    Ry. Co., 
    286 F.3d 803
    .
    73
    See Nat’l R.R. Passenger 
    Corp., 373 F.3d at 123
    .
    74
    United Air Lines, Inc. v. Int’l Ass’n of Machinists & Aerospace
    Workers, 
    243 F.3d 349
    , 365 n.11 (7th Cir. 2001) (quoting Air Line Pilots
    Ass’n v. United Air Lines, Inc. 
    802 F.2d 886
    , 901 (7th Cir. 1986)).
    56     AIRCRAFT SERVICES INT’L V. WORKING WASH.
    “a lack of clean hands may be overcome by a balancing of
    interests, particularly where it is the public interest involved
    . . . and that [a] restraining order should issue forthwith to
    avoid jeopardizing the Railway Labor Act.”75 The majority
    omits consideration of the public interest in whether the
    primary air hub in the Northwest is shut down.
    IV. Aircraft Service and Its Fuelers
    The central argument of the majority is that an injunction
    ought not to have issued because Aircraft Service failed to
    “make any efforts” to settle the dispute. There is no district
    court finding of fact to that effect. All we have are three
    affidavits, two from Aircraft Service and one from Working
    Washington. The Aircraft Service representative at Sea-Tac
    says that he met with Popescu in person, joined by a human
    resources area manager by phone, but Popescu cursed at the
    area manager, threw his chair across the room, left, and
    slammed the door behind him. That cannot be a failure to
    “make any effort” by the employer. Working Washington’s
    campaign director says that Popescu supporters called the
    company’s human resources department throughout one
    evening and into the following morning and received no
    response.     These events amount to the company’s
    unsuccessful attempt to settle with Popescu, and a few other
    employees’ attempts to settle Popescu’s issues with the
    company. We lack authority, as an appellate court, to make
    a finding of fact, as the majority appears to do, that the
    company made no effort to settle. They met with Popescu,
    and he threw a chair and walked out.
    75
    Bhd. of R.R. Trainmen v. Akron & Barberton Belt R.R. Co., 
    385 F.2d 581
    , 614 (D.C. Cir. 1967).
    AIRCRAFT SERVICES INT’L V. WORKING WASH.            57
    If, as the majority appears to believe, the affidavits are
    treated as establishing facts, then there would be sufficient
    evidence that Aircraft Service made the reasonable efforts
    required by Section 8 of the Norris-LaGuardia Act. We held
    in Switchmen’s Union of North America v. Southern Pacific
    Co. that a carrier fulfilled its obligation under Section 8 when
    there was “no unfair surprise,” and “the company, in good
    faith, [had] attempted to confer on the issue prior to the
    incident which led to the strike.”76 No employee could claim
    to be “unfairly surprised” by a suspension for “cussing out”
    his boss. Aircraft Service’s refusal immediately to reinstate
    Popescu upon demand appears to have generated the vote to
    strike, but all three affidavits show that Aircraft Service
    attempted, in good faith, to confer with Popescu after his
    suspension and prior to the fuelers threatening to strike.
    The real nub here, for Working Washington as well as
    Popescu and the six fuelers who wrote on his behalf, appears
    to be the company’s refusal to meet and attempt to settle with
    them, not Popescu. The company, after all, did meet with
    Popescu. Aircraft Service’s position was that it had no
    obligation to negotiate with Working Washington or those
    fuelers who made phone calls the night after Popescu was
    suspended. The National Mediation Board’s position was
    that it too had no mediation available for the six Popescu
    supporters. They were both right.
    Working Washington, as its campaign director says in his
    affidavit, is not a union and has not been selected as a
    representative by Aircraft Service’s employees. Working
    Washington has many constituents including “neighborhood
    associations, immigrant groups, labor unions, civil rights
    76
    
    398 F.2d 443
    , 447 (1968).
    58     AIRCRAFT SERVICES INT’L V. WORKING WASH.
    organizations, and people of faith.” Aircraft Service cannot
    assume that Working Washington represents its employees.
    Working Washington selected them, instead of the employees
    selecting Working Washington.               Perhaps Working
    Washington would be looking out solely for the interests of
    Aircraft Service’s employees, or perhaps it would be serving
    its constituents’ interests and preferences and not Aircraft
    Service’s fuelers’ interests. Likewise, the fuelers who
    allegedly called the human resources department, and the six
    fuelers who wrote to the National Mediation Board, have not
    established a right to represent all the other fuelers.
    The company’s affidavit says that employees wanted to
    get rid of Popescu because they feared he might damage their
    vehicles and his irrational rages created a safety threat to
    them. Perhaps more fuelers wanted to get rid of Popescu than
    wanted to keep him, because they feared for their own safety
    on account of Popescu’s erratic behavior. Perhaps Aircraft
    Service has been protecting the interests of most of its
    employees, while Working Washington is sacrificing their
    safety to some other agenda. We have no idea. Proper
    selection of a representative answers the question whether
    some group or entity represents the employees. An
    unsupported claim to speak on their behalf does not.
    The Supreme Court held in Brotherhood of Locomotive
    Engineers v. Missouri-Kansas-Texas R.R. Co. that the
    Railway Labor Act “imposes upon the carrier ‘the affirmative
    duty to treat only with the true representative, and hence the
    negative duty to treat with no other.’”77 The affirmative and
    the negative duty both arise out of the “essential foundation
    77
    
    320 U.S. 323
    , 335 (1943) (quoting Virginian Ry. Co. v. Sys. Fed’n No.
    40, 
    300 U.S. 515
    , 548 (1937)).
    AIRCRAFT SERVICES INT’L V. WORKING WASH.          59
    of the statutory scheme,” “[f]reedom of choice in the
    selection of representatives.”78 The majority’s expansive
    reading of Section 8 of the Norris-LaGuardia Act would
    repeal this central feature of the Railway Labor Act and
    deprive Aircraft Service’s employees of what the Supreme
    Court characterized as a “liberty [that] should be
    safeguarded.”79 That is the liberty of the employees to choose
    their own representative rather than having a representative
    forced upon them.
    That right to pick the representative rather than having
    one imposed is why the Railway Labor Act creates a process
    for employees to select a mediation representative,80 even if
    they are not unionized and do not choose to be represented by
    a union.81 Any question of whether Popescu’s supporters, or
    Working Washington, ought to be negotiated with, or
    mediated or arbitrated with, is to be settled under the statute
    by the detailed procedures for designating representatives.82
    That explains why the National Mediation Board rejected the
    request for mediation by six individual fuelers. After all,
    suppose the company negotiated and mediated, and reached
    an agreement satisfying Working Washington and Popescu’s
    supporters, perhaps to reinstate Popescu with back pay. That
    might leave a majority of the fuelers at what they considered
    too much risk to their personal safety from Popescu. And
    78
    
    Id. at 329–30.
     79
    
    Id. at 330.
     80
    45 U.S.C. § 152, Third, Ninth.
    81
    
    Id. § 152,
    Fifth.
    82
    
    Id. § 152,
    Ninth.
    60       AIRCRAFT SERVICES INT’L V. WORKING WASH.
    Working Washington might be subordinating Aircraft
    Service’s employees interests to the interests and preferences
    of the “labor unions, civil rights organizations, and people of
    faith” that comprise it. A company is not obligated to, and
    may not, under Missouri-Kansas-Texas R.R. Co.,83 negotiate
    and try to settle its employee disputes with an organization its
    workers have not chosen, that may be serving interests
    conflicting with the interests of most of its employees.
    The statute requires that “not less than 50 percent of the
    employees in the craft or class” select a representative.84
    Perhaps Working Washington, or the employees who support
    Popescu, or both, should represent the fuelers and can be
    trusted to represent their interests, not others. They can. All
    they need to do is follow the Railway Labor Act’s
    straightforward process to get certified as their representative.
    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.
    The record is uncontradicted that the company met with
    Popescu to discuss his suspension, but he slammed the door
    and walked out. Even were there some issue of fact about
    this, the injunction would still be within the district court’s
    discretion. A fair reading of the Railway Labor Act and the
    Supreme Court decisions interpreting that law’s relationship
    to the Norris-LaGuardia Act compels the conclusion that an
    injunction would still properly issue, compelling both sides
    to submit to the Railway Labor Act’s dispute resolution
    83
    
    320 U.S. 323
    (1943).
    84
    45 U.S.C. § 152, Twelfth.
    AIRCRAFT SERVICES INT’L V. WORKING WASH.               61
    procedures before any strike could take place. That reading
    would be consistent with the Fifth, Seventh, Eleventh and
    District of Columbia Circuit’s interpretation of the Railway
    Labor Act’s Section 152, First. Delaying an injunction until
    findings can be made on which side is the more unreasonably
    hardheaded, and denying an injunction if the petitioner is the
    more unreasonable, defeats the Railway Labor Act’s first
    stated purpose, which is “to avoid any interruption to
    commerce.” That is why the district court quoted Section
    152, First of the Railway Labor Act and explained that
    “Defendant’s interpretation would wholly frustrate the
    [Railway Labor Act’s] overriding mandate, which is to
    impose a duty on carriers and their employees to ‘settle all
    disputes, whether arising out of the application of such
    agreements or otherwise, in order to avoid any interruption to
    commerce . . . .’” The district court was right.
    V. Conclusion
    The district court had jurisdiction and properly exercised
    it, by enjoining a strike unless and until the parties proceeded
    through the Railway Labor Act’s dispute resolution process.
    Keeping a major American airport open is too important to
    allow an evasion of that process by a rump group of
    employees or a purported spokesman that the employees have
    never authorized to speak for them. Congress passed the
    Railway Labor Act to protect against the harm such a strike
    would impose on uninvolved people all over North America.
    Today’s decision destroys that protection.
    

Document Info

Docket Number: 12-36026

Judges: Kozinski, O'Scannlain, Kleinfeld, Silverman, Graber, Paez, Berzon, Tallman, Hurwitz, Owens, Friedland

Filed Date: 3/10/2015

Precedential Status: Precedential

Modified Date: 11/5/2024

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