                 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 583.
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 588.
  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.
