Hurley et al vs. Horizon Air Inc, No. 2:2009cv00353 - Document 9 (W.D. Wash. 2009)
Court Description: ORDER denying 2 Motion for TRO and Preliminary Injunction, by Judge Robert S. Lasnik.(VP)
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Hurley et al vs. Horizon Air Inc Doc. 9 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 RYAN HURLEY, RICHARD CHASE, SCOTT MILLBURN, LYLE “SKIP” SORUM, and MICHAEL ZDAN, NO. C09-353RSL Plaintiffs, 11 12 13 v. HORIZON AIR INDUSTRIES, INC., a Washington corporation, 14 ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Defendant. 15 16 17 I. INTRODUCTION This matter comes before the Court on plaintiffs’ “Motion for a Temporary Restraining 18 Order and Preliminary Injunctive Relief,” Dkt. #2. Plaintiffs contend that issuance of a 19 temporary restraining order (“TRO”) and a preliminary injunction is essential to prevent 20 defendant from interfering with their right to support the union of their choice. For the reasons 21 set forth below, the Court denies plaintiffs’ motion for a TRO and preliminary injunctive relief. 22 23 24 25 26 27 28 II. DISCUSSION A. Background Plaintiffs are all aircraft mechanics employed by Horizon. Compl., Dkt. #1 at ¶¶ 5-9. Horizon mechanics and related employees are presently represented for collective bargaining ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION - 1 Dockets.Justia.com 1 purposes by the Airline Mechanics Fraternal Association (“AMFA”). Id. ¶ 12. In 2008, several 2 employees contacted the International Brotherhood of Teamsters, Airline Division (“IBT”) to 3 help them switch their representation to IBT, id., and on February 11, 2009, IBT filed an 4 application with the National Mediation Board (“NMB”) requesting an election to determine 5 who should be the representative of the Horizon mechanics and related employees, id. ¶ 13. On 6 March 2, 2009, the NMB announced that IBT had submitted cards from more than 50% of 7 eligible employees and that, accordingly, it would conduct a representation election with IBT 8 and AMFA on the ballot. Id. ¶ 16. Employees will be able to vote over the Internet between 9 March 30 and April 20, 2009. Id. 10 On February 27, 2009, in response to a disruption that occurred after a flyer had been 11 distributed in the workplace by IBT supporters, Decl. of Arthur E. Thomas (“Thomas Decl.”), 12 Dkt. #4, Attach. 2 at ¶ 3, Horizon senior management directed enforcement of a policy that 13 allowed mechanics to wear only Carrier-issued apparel, Compl., Dkt. #1 at ¶ 14. They 14 announced that employees could continue to wear Carrier-issued apparel that bore patches with 15 the AMFA logo, approved by the company with respect to size, color and placement, pursuant to 16 a clause in the Horizon-AMFA collective bargaining agreement that permits employees to wear 17 such patches. Id. Horizon also directed that no union-related discussions take place on the work 18 floor. Id. ¶ 15. 19 On March 2, 2009, IBT counsel Joshua McInerny wrote Arthur E. Thomas, Horizon Vice 20 President for Legal and Labor matters, requesting that Horizon “immediately rescind” the rule 21 prohibiting any IBT insignia from being worn by employees and the rule prohibiting employees 22 from speaking about the union election while they are on the clock. Dkt. #2, Attach. 2 at Ex. 3. 23 On March 3, Mr. Thomas responded that, “[t]o ensure work is carefully performed in the 24 workplace and that employees are not distracted by campaign arguments, we require that the 25 workplace be devoted to work during working time.” Id. at Ex. 4. Mr. Thomas offered, “[i]n 26 27 28 ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION - 2 1 the interest of maintaining balance,” that employees could affix a similar IBT patch on 2 individually purchased uniform items if they first proposed a patch design and had it approved 3 by the company. Id. On March 4, Mr. McInerny wrote a letter “ask[ing] Horizon to reconsider 4 its policy” and indicating that the IBT is “prepared to take immediate legal action to vindicate 5 Horizon employees’ rights” to express support for IBT. Id. at Ex. 5. On March 13, in response 6 to allegations by both IBT and AMFA that Horizon was favoring one union over the other, 7 Horizon announced that “we’re just going to stick with the current collective bargaining 8 agreement specifics that would apply to the display of union identification, IBT or AMFA, in 9 work areas.” Dkt. 4, Attach. 2 at Ex. I. 10 Plaintiffs subsequently filed the present motion for a TRO and preliminary injunctive 11 relief to prohibit enforcement of Horizon’s policies “banning union insignia on its property” and 12 “banning all forms of speech about the union campaign while on company time,” Compl., Dkt. 13 #1 at 10. The Court held a hearing on the motion on March 23, 2009. Dkt. #8. 14 B. Analysis 15 To obtain a temporary restraining order under Federal Rule of Civil Procedure 65(b), a 16 party must show “specific facts in an affidavit or a verified complaint [that] clearly show that 17 immediate and irreparable injury, loss, or damage will result to the movant before the adverse 18 party can be heard in opposition.” A party is entitled to preliminary injunctive relief when it 19 demonstrates either “(1) a likelihood of success on the merits and a possibility of irreparable 20 injury, or (2) the existence of serious questions on the merits and the balance of hardships tips 21 sharply in its favor.”1 Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992). 22 23 24 25 26 27 28 1 At the hearing, plaintiffs’ counsel stated that he hoped to postpone the hearing on the preliminary injunction, but the Court found no reason to sever the two claims. Plaintiffs’ counsel had filed a declaration stating that he had served the pleadings to defendant, Dkt. #2, Ex. 1 at ¶¶ 4-5, and the issue was fully briefed before the Court. Plaintiffs also agree that the standards for granting a TRO and a preliminary injunction require the same inquiry on the part of the Court. Dkt. # 2 at 5. Moreover, the ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION - 3 1 These are not separate tests, but rather represent a continuum of equitable discretion “in which 2 the required degree of irreparable harm increases as the probability of success decreases,” 3 Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir. 2000). 4 To demonstrate a likelihood of success on the merits of their claim that Horizon has 5 interfered with their right to wear IBT paraphernalia, plaintiffs must first establish that the 6 Railway Labor Act (“RLA”) gives them the right to wear union insignia while at work. The 7 Ninth Circuit held that “absent ‘special considerations,’ an employee has a right, protected by 8 section 7 of the [National Labor Relations Act (“NLRA”)], to wear union buttons and insignia at 9 work.” Pay’N Save Corporation v. NLRB, 641 F.2d 697, 700 (9th Cir. 1981) (quoting NLRB v. 10 Essex Wire Corp., 245 F.2d 589, 593 (9th Cir. 1957)). “The NLRB has found such special 11 considerations, justifying a prohibition on wearing union insignia, in cases where the insignia 12 could exacerbate employee dissension, jeopardize employee safety, or damage machinery or 13 products. The courts have recognized [as] additional ‘special considerations’ distraction from 14 work demanding great concentration and a need to project a certain type of image to the public.” 15 Id. (internal citations and quotation marks omitted). In Skywest Pilots ALPA Organizing 16 Committee v. Skywest Airlines, Inc., 2007 WL 1848678 (N.D. Cal. June 27, 2007), the district 17 court concluded that “the RLA does not offer any less protection than the NLRA for employees 18 attempting to organize a union,” id. at *12 (emphasis in original), and therefore applied the same 19 “special considerations” test to the plaintiff’s RLA claim, id. The parties agree that “the 20 Skywest decision provides guiding authority for this Court in considering plaintiffs’ motion,” 21 Dkt. #4 at 2. 22 23 24 25 26 27 28 same urgency that prompted plaintiffs to file their motion before the upcoming election warrants prompt resolution of both the motion for a TRO and the motion for a preliminary injunction. Plaintiffs’ counsel eventually agreed at the hearing to proceed on the preliminary injunction claim and to rely on the declarations submitted by both sides in lieu of live witness testimony. ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION - 4 1 Horizon contends that its safety concerns constitute appropriate “special considerations” 2 under Skywest. Dkt. #4 at 2. According to Mr. Thomas, “[t]he mechanics are not permitted to 3 wear on the work floor any pins or other items that might come off and fall into aircraft or 4 engine parts, or that might fall on the floor and be sucked into engines upon ignition.” Thomas 5 Decl., Dkt. #4, Attach. 2 at ¶ 6. The potential for damage to the aircraft or engine parts 6 implicates a serious safety concern for Horizon customers. Plaintiffs agree on this point; at the 7 March 23, 2009 hearing, plaintiffs’ counsel indicated that they do not object to Horizon’s non- 8 discriminatory prohibition on wearing union pins and buttons. 9 In fact, the March 23 hearing revealed that the parties actually agree on a policy that 10 would allow union insignia on employee apparel without compromising safety or Horizon’s 11 right to “maintain discipline,” Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945), on 12 company property. Contrary to plaintiffs’ original assertion that Horizon has banned all IBT 13 insignia on its property, see Compl., Dkt. #1 at 10, Horizon has agreed to permit employees to 14 display IBT patches that meet the same specifications as the already-approved AMFA patches, 15 see Thomas Decl., Dkt. #4, Attach. 2 at ¶ 15. Moreover, Horizon has indicated that employees 16 are permitted to wear lanyards bearing union logos as long as they have a breakaway feature for 17 safety. See Decl. of Celia Sherbeck (“Sherbeck Decl.”), Dkt. #4, Attach. 3 at ¶ 7. At the 18 hearing, the parties also agreed that IBT supporters may wear dark-colored union hats or caps 19 that are substantially similar to the company’s hats bearing the AMFA logo.2 20 Plaintiffs also argued in their reply brief that “all Teamster materials are systematically 21 removed from [the workplace’s ‘general use’ bulletin board] by management, even as AMFA 22 continues to post its materials in a locked display case.” Dkt. #6 at 2 n.2. However, at the 23 24 25 26 27 28 2 Because Horizon aircraft mechanics occasionally work on the tarmac in plain view of Horizon passengers, the company has the right to prohibit employees from wearing hats or other paraphernalia that are unprofessional or distracting. Cf. NLRB v. Harrah’s Club, 337 F.2d 177, 180 (9th Cir. 1964). ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION - 5 1 hearing Horizon asserted that the company has not removed any IBT materials from the bulletin 2 board. It further noted that although AMFA does maintain a locked display case pursuant to its 3 collective bargaining agreement, the company has prohibited AMFA from posting any campaign 4 materials in that case. Plaintiffs agreed that this policy is a fair one. 5 In light of the many points of agreement between the parties, the Court finds no reason to 6 restrain or enjoin any of Horizon’s policies or practices regarding employee apparel or use of the 7 company bulletin board. 8 The only remaining point of contention is the lawfulness of Horizon’s policy banning all 9 union-related discussion on the work floor. Horizon contends that it learned of “a disruption 10 [that] had erupted among the mechanics on duty” during the night of February 25-26, 2009, 11 “precipitated by a flyer distributed in the workplace by IBT supporters.” Thomas Decl., Dkt. #4, 12 Attach. 2 at ¶ 3. Horizon was “informed that a number of mechanics on the graveyard shift were 13 so agitated by the allegations in the flier that angry shouting erupted, and very little work was 14 accomplished during the shift.” Id. Plaintiffs dispute that any disruption ever took place, Decl. 15 of Lyle “Skip” Sorum, Dkt. #6, Attach. 3 at ¶ 3, and contend that even if it did the ban should be 16 narrowly tailored to the offending flyer. However, as the Court indicated at the March 23 17 hearing, Horizon has a right to ban non-work-related discussion on the work floor that has given 18 rise to tension and disputes when employees should be concentrating on the demands of their 19 job. Regardless of the extent of the February 26, 2009 incident, Horizon is entitled to 20 “anticipate such occurrences and avoid them” to protect the safe and efficient operation of its 21 business, Harrah’s Club, 337 F.2d at 180. 22 It is important to note that Horizon’s policy only precludes union discussions on the work 23 floor during work hours. See Republic Aviation, 324 U.S. at 803 n.10 (quoting Petyon Packing 24 Co., Inc., 49 NLRB 828, 843 (1943)) (“Working time is for work. It is therefore within the 25 province of an employer to promulgate and enforce a rule prohibiting union solicitation during 26 27 28 ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION - 6 1 working hours.”). Horizon employees are free to discuss union matters during breaks in break 2 rooms. The Court certainly recognizes the importance of union-related speech on the job site. 3 The “right to effectively communicate with one another regarding self-organization,” Beth Israel 4 Hosp. v. NLRB, 437 U.S. 483, 491 (1978), is guaranteed by the RLA, and the Court is wary of 5 employer attempts to ban all such communication. Cf. NLRB v. Magnavox Co. of Tenn., 415 6 U.S. 322, 325-36 (1974) (banning of solicitation “by employees to employees” during 7 “nonworking time . . . might seriously dilute [NLRA] rights”). But the Court finds that Horizon 8 has provided appropriate avenues for union-related speech without allowing the ongoing debate 9 to impinge upon worker productivity. 10 Although plaintiffs protest that the company has not similarly banned speaking on other 11 non-business related matters, including their families, vacations, the weather and sports, Dkt. #2 12 at 4, the Court agrees with defendant that that type of small talk is less likely to interfere with 13 employees’ attention to detail, Sherbeck Decl. ¶ 6. Talk about the unions, on the other hand, has 14 “become heated and disruptive.” Id. Cf. Gerry’s Cash Markets, Inc. v. NLRB, 602 F.2d 1021, 15 1025 (1st Cir. 1979) (“Even during working hours, Gerry’s could not rigorously prohibit talk 16 about union activity while winking at other activities or conversation having substantially equal 17 potential for interference with work.”) (emphasis added). An employer is well within its rights 18 to ban conversation that is particularly contentious and emotionally charged while permitting 19 more mundane conversation on the work floor. Indeed, it would hardly be a victory for Horizon 20 employees if the Court were to adopt plaintiffs’ all-or-nothing approach and require Horizon to 21 ban all non-work-related discussion during work time. Therefore, the Court finds that Horizon 22 is justified in prohibiting union-related discussion during work hours. III. CONCLUSION 23 24 25 26 27 28 For all of the foregoing reasons, plaintiffs’ motion for a TRO and preliminary injunctive relief (Dkt. #2) is DENIED. ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION - 7 1 DATED this 23rd day of March, 2009. 2 3 4 5 A 6 Robert S. Lasnik United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION - 8
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