Trouble In Paradise


Hawaiian Airlines Accused Of Violating The Railway Labor Act By Hacking Into Union Activist’s Password-Protected Website

Secure web sites provide a powerful new tool for railroad workers to network and organize for their mutual benefit.

With password-protected internet sites, workers can share news and comments about grievances and working conditions. A single computer-savvy union member can create a powerful network of united co-workers. Yet as workers use secure websites to communicate and organize, some corporate managers will predictably want to break into the system to find out what employees are saying in secret.

In a new case from Hawaii, efforts by management to break into a secure website set up by a union activist presented important legal questions under the Railway Labor Act, the Wiretap Act and the Stored Communications Act. A Federal appellate court recently had to answer these questions of law in a case filed by an airline pilot, Robert Konop, against his employer, Hawaiian Airlines.

Konop filed a lawsuit saying the airline violated the Railway Labor Act (which applies to airlines), plus the Federal Wiretap and Stored Communications Acts. According to Konop, the airline violated these laws when a corporate executive used subterfuge to access a secure website set up by Konop.

The website was set up by Konop as part of his efforts to organize fellow workers to oppose management demands for contract concessions. Konop set up a secure website where fellow pilots and other airline employees could share news and information in confidence. To access the website, employees had to:

  • Type in a name that was on an approved list.
  • Create a password.
  • Read a statement which said users had to agree that access to the site was limited to employees of the airline, and that access by airline management was specifically prohibited.
  • Click on a “Submit” button to indicate acceptance of the terms.

Konop posted comments on the website accusing the airline of using “Nazi” and “Soviet” bargaining tactics. He also posted a comment saying the airline president was being investigated on suspicion of having committed fraud. Warming up, Konop called the airline president an “incompetent” who “has little skill and ability with people.” According to Konop, “with as few skills as [the airline president] possess, it is difficult to imagine how he got this far.”

With these comments zipping along the internet at light speed, it was not surprising that an airline official heard the buzz and schemed to get access to the secure website. According to Konop, an airline vice president asked two pilots for permission to use their names to access Konop’s web site. When the pilots agreed to let management use their names, Konop says the airline V.P. went through the process of logging on under the names of the cooperative pilots.

Shortly after the airline executive surreptitiously accessed the secure web site, the airline president called the local union president to complain about what Konop was saying on his web site. The union president called Konop, and said the airline president was threatening to sue Konop for defamation.

Konop filed a lawsuit in Federal court in Hawaii alleging that the airline violated the Railway Labor Act, the Wiretap Act and the Stored Communications Act. When the trial judge threw these claims out of court, Konop appealed to the U.S. Court of Appeals for the 9th Circuit. One of the problems, the appellate court explained, is that the Wiretap Act and Stored Communications Act were enacted before the World Wide Web was created.

Splitting 2-1, the three-judge panel ruled that the Airline didn’t violate the Wiretap Act. According to the majority, the Wiretap Act wasn’t violated because the airline didn’t surreptitiously access Konop’s communications at the very moment the messages were originally being transmitted by Konop. In other words, according to the majority, the Wiretap Act only applies when web-site communications are surreptitiously intercepted at the very moment they are being transmitted to the computer (the “server”) where the messages were stored.

However, all three judges agreed that Konop is entitled to a trial on whether the airline violated the Stored Communications Act. This law was basically designed to protect people from hackers who break into an electronic service or database to access stored electronic communications without permission. But this law also says that an authorized “user” of an electronic service can give someone else permission to access the site. Hawaiian Airlines argued it didn’t violate this law because it had permission from two pilots to use their names to access Konop’s website.

Rejecting this argument, the appellate court explained that at least one of the pilots never accessed Konop’s website. Since this pilot was never a “user” of the website, he couldn’t give the airline valid permission to access the secure website. So, the appellate court concluded, Konop was entitled to go to trial on his claim that the airline violated the Stored Communications Act.

With Konop’s claim that the airline violated the Railway Labor Act by interfering with his organizing activities, the airline argued it had two defenses. First, the airline argued that Konop’s claim was barred by the Collective Bargaining Agreement between the union and the airline. According to the airline, Konop could only grieve his claim under the CBA.

Second, the airline argued that Konop forfeited protection under the RLA because the statements posted on the website supposedly contained “malicious, defamatory and insulting material known to be false.”

Rejecting the first defense, the appellate court explained that Konop wasn’t suing for violation of the Collective Bargaining Agreement. Instead, Konop was suing the airline for violating the right granted to him by the Railway Labor Act to engage in organizing activities.

Rejecting the second defense, the appellate court said Konop’s comments about the airline as supposedly having “Nazi” and “Soviet” management styles was the kind of oratorical hot air that is protected under Federal labor law. And Konop had a right to express his opinion about the airline president’s competence. Plus there was no evidence that the Konop knew that his other statements about the airline president (that the president was suspected of fraud) were supposedly false.

Under Federal labor law, the appellate court explained, Konop – as part of his organizing activities – had a “license to use intemperate, abusive, or insulting language without fear of restraint or penalty.”

The appellate court concluded Konop has valid claims that the airline violated the Railway Labor Act by:

(A) Surreptitiously accessing his secure website;

(B) Using prohibited access to his web site to help the union faction that favored agreeing to the concessions demanded by the airline; and

(C) Engaging in coercion and intimidation by threatening to sue Konop for defamation.

Konop’s case goes back for trial. Now Konop will have to prove his allegations that Hawaiian Airline violated the Stored Communications Act and the Railway Labor Act. But in using a secure web-site to communicate with his union brothers and sisters about wages, working conditions and grievances, Konop has a “license to use intemperate, abusive, or insulting language without fear of restraint or penalty.”

If you or a loved one have suffered a work injury or wrongful death on the railroad, call an experienced FELA lawyer / railroad injury attorney at Hoey & Farina, P.C. at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.


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