Wheeling & Lake Erie Railway v. Brotherhood of Locomotive Eng

Filing

AMENDED OPINION and JUDGMENT filed : The district court s holding that the dispute is minor is REVERSED, the portion of the preliminary injunction granting relief to Wheeling & Lake Erie Railway Company on the parties dispute over using supervisors as conductors is VACATED, and the case is REMANDED for further proceedings consistent with the opinion of this court. Decision for publication. Damon J. Keith, Karen Nelson Moore, and Jane Branstetter Stranch (AUTHORING), Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0131p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
┐
WHEELING & LAKE ERIE RAILWAY COMPANY,
Plaintiff-Appellee, │
│
│
v.
│

No. 13-4356

>

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND
TRAINMEN; ROBERT H. LINSEY,
Defendants-Appellants.

│
│
│
│
┘

Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:13-cv-02105—John R. Adams, District Judge.
Argued: October 7, 2014
Decided and Filed: June 26, 2015
Before: KEITH, MOORE, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Margo Pave, ZWERDLING, PAUL, KAHN & WOLLY, P.C., Washington, D.C.,
for Appellants. Ronald M. Johnson, JONES DAY, Washington, D.C., for Appellee. ON
BRIEF: Margo Pave, Michael S. Wolly, ZWERDLING, PAUL, KAHN & WOLLY, P.C.,
Washington, D.C., for Appellants. Ronald M. Johnson, JONES DAY, Washington, D.C., for
Appellee.
______________________
AMENDED OPINION
______________________
STRANCH, Circuit Judge. We are asked to decide whether the Wheeling & Lake Erie
Railway Company (the Railroad) and the Brotherhood of Locomotive Engineers and Trainmen
(BLET) are engaged in a major or a minor dispute under the Railway Labor Act (RLA). The
district court entered a preliminary injunction barring BLET from taking any economic action

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against the Railroad, finding that the parties were engaged in a minor dispute. Because we
determine the parties’ dispute over the Railroad’s use of supervisors as conductors is major, not
minor, we REVERSE the district court’s holding that the dispute is minor. We further VACATE
the portion of the preliminary injunction granting relief to the Railroad on the parties’ dispute
over using supervisors as conductors, and we REMAND the case to the district court for further
proceedings consistent with this opinion.
I. FACTS
The Railroad is a regional common carrier within the meaning of the RLA. 45 U.S.C.
§ 151, First. It maintains its principal offices in Brewster, Ohio, and operates 840 miles of track
in the states of Ohio, Pennsylvania, West Virginia, and Maryland. BLET is an unincorporated
association and labor union within the meaning of the RLA, 45 U.S.C. § 151, Sixth, and it
represents locomotive engineers and trainmen, including conductors and brakemen, who work
for the railroad. BLET has represented the Railroad’s engineers since 1992 and its trainmen
since 2004. Prior to 2004, the trainmen were represented by the United Transportation Union
(UTU). After BLET replaced UTU, the union negotiator was Cole Davis, BLET’s General
Chairman of the BLET General Committee of Adjustment NS Northern Lines/W&LE (BLET
GCA).
Central to our analysis is the “crew consist” provision found in Article I, Scope, of the
Trainmen Agreement, which provides:
(h): i. The crew consist of all assignments (regular or extra) shall consist of not
less than one (1) conductor and one (1) brakeman, except as otherwise provided
for under paragraph (ii) hereof. (Exceptions: No conductor or brakeman shall be
called for light engines or engine changers.)
ii. The Carrier may operate conductor only assignments at its own discretion.
In the event a conductor works without a brakeman[,] he shall receive a special
allowance of ten dollars for each complete tour of duty.
iii. The Carrier is not prohibited from operating crews with a greater number
of trainmen if it so desires.
R. 19 Page ID 282.

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On October 9, 2003, the Railroad served a notice on UTU, pursuant to Section 6 of the
RLA, 45 U.S.C. § 156, seeking to eliminate the “crew consist” provision of the Trainmen
Agreement. Negotiations concerning this notice continued for several years.
During the negotiations, the Railroad insisted that the “crew consist” provision must be deleted
from the Trainmen agreement so that the Railroad would not have to assign a union conductor to
each train. BLET refused this proposed change. In March 2007, the Railroad finally agreed to a
new Trainmen Agreement that maintained the “crew consist” provision, and that agreement, with
some changes not relevant here, was ratified by the BLET membership in June 2008. The 2008
agreement presently governs the relationship of the parties, although the parties have continued
to negotiate changes to the agreement since 2012.
On July 11, 2008, Joseph C. Burley, the Railroad’s Director of Human Resources, sent a
letter to Cole Davis of BLET stating in part:
During this most recent round of bargaining, we were unable to reach an
agreement on the operation of trains with a single person crew in limited
situations despite our good faith efforts. At the request of [BLET, the Railroad]
agreed to remove this topic from the bargaining table for this round with the
understanding that the parties will continue to bargain over this matter in the next
round of negotiations.
R. 19-1 Page ID 320. Davis promptly responded in writing that BLET was “committed . . . to
the principle that railway operations cannot be conducted safely with any less than two
Train/Engine Service employees on each movement and are prepared to maintain that stance
throughout the course of any future rounds” of bargaining. R. 19-1 Page ID 322. Davis also
corrected Burley’s notion that BLET had agreed to continue bargaining over the elimination of
the “crew consist” rule in future rounds of contract negotiations:
The tentative agreement that failed ratification in 2007 was reached in March of
that year after the Carrier unconditionally withdrew the issue of single person
crews. When the Agreements that were ratified were being negotiated locally the
Carrier attempted, unsuccessfully, to attach a side letter containing an in futuro
commitment to bargain over single person crews during the next round of
negotiations. It was only after intercession by the [National Mediation Board]
and the attendance of [BLET’s] National President and First Vice President at our
last negotiation session in Cleveland that the Carrier withdrew its demand for the
offending side letter and initialed the tentative Agreements that were ultimately

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ratified and are completely silent with respect to the issue of single person crews
or the nature and scope of the next round of negotiations. While verbally
acknowledging our statutory duty to bargain in good faith, [BLET] did not
consent to any understanding in connection with, or in exchange for, the Carrier’s
withdrawal of its demand for the side letter concerning future negotiations over
the single person crew issue.
R. 19-1 Page ID 322–23.
On January 1, 2011, Robert H. Linsey succeeded Cole Davis as General Chairman of
BLET. On March 25, 2011, Linsey sent a letter to Joseph Burley stating that he had just learned
that, on March 3 and 14, the Railroad had operated trains from Brewster, Ohio without a union
conductor assigned to the trains. Linsey advised Burley that BLET viewed these acts as major
violations of the Trainmen Agreement. His letter stated that “[n]o less than one Conductor must
be assigned to all trains without exception [and] [w]e must insist, therefore, that you take
immediate[] action to preclude any repetition of such egregious violations.” R. 20-2 Page ID
472. Burley and other officials of the Railroad met with Linsey and assured him that they would
cease such operations.
Approximately two months later, in May 2011, Linsey learned that the Railroad had run
another train without an engineer or a conductor and had instead allowed a Railroad management
official and a shop employee to run the train. Linsey wrote a letter to James I. Northcraft, Vice
President of Transportation for the Railroad, objecting to the action and demanding that the
Railroad cease and desist its operation of trains without the required union crew.

Burley

responded that there were no rested engineers or conductors available to run the train. Linsey
disagreed, pointing out that a rested engineer and a rested conductor were available to run the
train and the Railroad acted deliberately in failing to call them. Again, Linsey demanded that the
Railroad cease and desist its conduct. After further investigation into the incident, Burley
admitted that the rested engineer and conductor should have moved the train because a freight
car was attached to the locomotives. He suggested that the affected union employees submit
time claims.
On July 25, 2011, Linsey sent a letter to Burley stating:
We appreciate your acknowledgement that there is no contractual basis for your
actions and that you will undertake every effort to assure that it does not happen

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again. As you know, [BLET] considers the operation of any locomotive without a
full crew to raise a major dispute and while we understand that sometimes
mistakes are made inadvertently, future instances like this will be regarded as
violations of the Carrier’s status quo obligation under the RLA and addressed
accordingly.
R. 20-2 Page ID 481; R. 20 Page ID 327–28.
The following January, BLET served a Section 6 notice on the Railroad to amend the
Trainmen Agreement. In March 2012, the Railroad served a Section 6 notice on BLET, seeking
once again to remove the “crew consist” provision from the Scope Rule of the Trainmen
Agreement.
BLET and the Railroad engaged in direct bargaining over both parties’ Section 6 notices
on numerous occasions without success. In August 2012, BLET asked the National Mediation
Board (NMB) to appoint a mediator to assist the parties in their negotiations. The NMB
assigned a mediator shortly thereafter, and the parties mediated their disputes. In March 2013,
BLET asked the NMB to try to induce the parties to submit their unresolved bargaining disputes
to binding arbitration. The NMB asked the Railroad for comments on BLET’s proposal for
arbitration.
Burley rejected the request for arbitration as premature. He acknowledged that the
primary issue was the Railroad’s proposal to eliminate the crew consist rule, which required the
railroad to assign a union conductor to all freight trains.

Because the parties’ collective

bargaining agreement covering locomotive engineers—the Engineer Agreement—had allowed
the Railroad to operate a train manned with only an engineer since 1993, the Railroad wished to
revise the Trainmen Agreement to remove the requirement that a conductor must be assigned to
the trains. Burley suggested that BLET, not the Railroad, was “being intractable.”
On Friday, September 13, 2013, Linsey learned that the Railroad had again operated two
trains without the required complement of union employees. He called Burley that day and
followed up with a letter stating that, on September 12, Lorne Dodds, Road Foreman of Engines,
and Andrew Lengyal, a Trainmaster, performed a switching operation, and then Dodds alone
operated another train for fifteen miles after the train’s crew reached their maximum hours of
service. Although Burley asserted that there were no union engineers or conductors available for

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these jobs, Linsey reminded him that the scope rule of the Trainmen Agreement did not allow the
Railroad to operate a train without assigning a union conductor.

Noting that BLET had

previously advised the Railroad in March and May of 2011 that BLET considered the Railroad’s
acts to constitute major violations of the Trainmen Agreement, Linsey demanded that the
Railroad cease such violations. He emphasized that at least one union conductor must be
assigned to all trains without exception under the scope rule of the Trainmen Agreement.
Linsey further pointed out to Burley that, on September 13, 2013, Road Foreman Dodds
relieved the crew of a train and operated the train himself for a distance of twenty-three miles
while Trainmaster Lengyal served “as a taxi service.” At the time of the operation, four union
employees were rested and available for service, but they were not called to work. Linsey
concluded:
In addition to the serious nature of these violations which, in application of the
Railway Labor Act, we consider to be major violations as that term is applied, we
must remind you that the matter of manning was a subject of your notices served
on March 15, 2012, under Section Six of this law. Having yet to reach agreement
on this issue, the mediation process has been invoked . . . which requires the
parties (BLET and [the railroad]) to maintain a status quo in regards to conditions
that existed prior to your service of the aforementioned notices. We consider the
actions cited above to be a violation of that status quo.
If you take exception to any of the facts set forth in [this letter], please contact me
immediately.
R. 20-2 Page ID 483. Burley did not respond immediately. On Friday, September 20, BLET
members engaged in a strike of the Railroad.
The Railroad filed suit the same day in federal court to obtain injunctive relief to end the
strike.

The district court granted a temporary restraining order enjoining the strike, but

conditioned relief on the Railroad’s agreement not to use supervisors or other management
employees in place of engineers or conductors in the operation of its trains.
On October 3, Linsey received a letter from Burley explaining what took place on
September 12 and 13. On those days, he explained, the train crews had reached their maximum
hours of service and there were no other available engineers or trainmen. Burley quoted three
provisions of the Engineer Agreement. The first, from the Scope Rule, stated in part that

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“‘BLET is agreeable to Carrier officials and management providing service, without restriction,
when the Carrier deems that reasonable attempts, as described in Articles 10(f) and 11(b) are
complied with, to acquire manpower are exhausted and the service is related to an emergency or
is incidental or performed to expedite service.’” R. 20-2 Page ID 486 (quoting Article 1, Scope,
paragraph (i) of the Engineer Agreement) (italics omitted). The second provision stated: “‘If
vacancies cannot be filled after all reasonable attempts, including utilizing all extra boards,
furloughed boards, or other assignments, then qualified carrier officers may provide service to
the customers[’] freight which will be affected, without penalty.’” Id. at 486–87 (quoting Article
10, Marking off and Reporting, paragraph (f)) (italics omitted). The third provision stated:
“‘Regularly assigned locomotive engineers who are used in an emergency situation after having
already performed compensation service on the day involved, will be paid for the actual time
worked at time and one half rate with a minimum of two hours.’” Id. at 487 (quoting Article 11,
Calls, paragraph (b)) (italics omitted). Management employees were used to move the trains on
September 12 and 13, Burley explained, because the tracks were blocked and service to
customers was delayed. He relied on the quoted sections of the Engineer Agreement to justify
the Railroad’s use of management employees to serve as engineers to move the trains. He also
noted that “[t]he Trainmen Agreement is silent on this issue,” and contended that, absent specific
language, the Railroad retained management authority to run trains without union employees.
Burley further explained that, while there were no union employees available for service on
September 12, there were four union employees available for service on September 13, but they
were not called because they were needed for trains scheduled later that day. If BLET objected
to the use of management personnel to move the trains, Burley thought the appropriate remedy
was for those employees who believed they should have been called to work to submit a time
claim to the Railroad. Burley also explained that Lengyel was assigned as the conductor on the
train and performed conductor work while operating a motor vehicle shadowing the train, a
practice Burley said is common in the industry. In conclusion, he characterized the issue as a
minor, not a major, dispute and conveyed the Railroad’s position that allowing management
employees to perform the work was not a violation of the status quo.
In documents filed with the district court, Linsey disputed Burley’s position that the four
employees available for service on September 13 could be “saved” for use on later trains on the

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basis that the collective bargaining agreements provide that a determination of employee
availability must be made at the time a train is to depart. According to Linsey, the Railroad
admitted that there were employees available, but the Railroad chose to ignore the agreements
and run trains without the employees as required by the Trainmen’s crew consist rule and the
Engineer’s availability rule.
To support its motion for a preliminary injunction, the Railroad filed the declaration of
James S. Hill, Division Superintendent, who is responsible for the movement of trains. Hill was
aware “of occasional circumstances” when the Railroad used supervisors to man trains when
contract engineers or conductors were unavailable or already assigned to other jobs, and he gave
several examples of this practice. For instance, on October 20, 2011, Hill served as an engineer
and Trainmaster Hank Allender served as a conductor on a train from Hartland Yard in Collins,
Ohio to provide service to a customer in Parkertown, Ohio. After completing that job, they took
a taxi to Huron, Ohio to finish loading an ore train and moved that train from the dock to
Shinrock, Ohio. On October 13, 2011, Allender worked as a conductor alongside a contract
locomotive engineer because the contract conductor was sick and there were no other conductors
available. Hill concluded that, over the last several years, management employees Lengyel,
Dodds, Darren Ohler, Edward Steiner, and Jason Cowart, all of whom report to Hill, had worked
as conductors and engineers on occasion as needed. Hill attached to his declaration certain
documents known as “Train Sheets” to demonstrate that management personnel were used in
place of contract employees when necessary.
Dodds provided a declaration stating that, on October 27, 2010, he worked as an engineer
and Lengyel worked as the conductor on a train, and that he (Dodds) served as an engineer or
conductor on four other occasions in 2010. Dodds also served as a conductor alongside a
contract engineer on June 10, 2013, and on June 11 he worked as an engineer alongside a
contract conductor. He also worked on the September 12 and 13 trains that Linsey disputed just
before BLET called a strike. Similarly, Lengyel stated in his declaration that he worked as a
conductor on October 27, 2010, again during the summer of 2013, and on September 12 and 13,
2013.

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Linsey and Cole Davis both attested that they were unaware until the filing of the
declarations of Hill, Dodds, and Lengyel that the Railroad used management personnel to move
trains on all of the dates mentioned in the declarations. Because Linsey and Davis were unaware
of most of the events, they did not act on BLET’s behalf to protest the actions. Due to their lack
of knowledge, they also did not approve the Railroad’s conduct.
Neither party presented live testimony at the preliminary injunction hearing.

After

hearing oral argument, the district court granted the Railroad’s motion for a preliminary
injunction, and later stayed the case pending this appeal. The district court found that the
Railroad had met its “relatively light burden” to demonstrate a minor dispute because the
Railroad’s position was “arguably justified” by the lack of a restriction in the Trainmen
Agreement. Because that Agreement is silent on the issue of whether the Railroad can utilize
management personnel when no conductor is available, the court reasoned that the Railroad
retained discretion to make management decisions as necessary when union trainmen were
unavailable.
BLET requests that we vacate the preliminary injunction on the grounds that the parties’
disagreement is a major dispute under the RLA; that the Railroad’s position is frivolous in light
of the clear and mandatory language of the crew consist rule in the Trainmen Agreement that
“all” trains “shall” include at least one conductor; and that the Railroad failed to maintain the
status quo during the parties’ bargaining process on this issue.

Noting that the Trainmen

Agreement expressly includes only one exception to the crew consist rule, which was
inapplicable here, BLET contends the decision below was improper because it essentially rewrote the crew consist rule to include another exception in the Railroad’s favor—allowing use of
management personnel in place of union conductors when necessary—an exception the parties
did not bargain for and to which BLET did not agree. BLET also relies on the provisions of the
Trainmen Agreement, specifying that it does not contain a clause like the one in the Engineer’s
Agreement that grants some discretion to the Railroad to use management personnel when
contract engineers are not available.

The Railroad argues that the district court acted

appropriately in characterizing the dispute as minor, determining that BLET’s strike was
improper, and enjoining BLET from continuing the strike.

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II. ANALYSIS
A. Standard of review
A district court’s decision to grant a preliminary injunction under the RLA rests within
that court’s sound discretion. Adams v. Fed. Express Corp., 547 F.2d 319, 322 (6th Cir. 1976)
(citing Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 551 (1937) and other cases). We
do not disturb an order of injunctive relief unless we conclude that the district court abused its
discretion in issuing the order, id., and a court abuses its discretion if it relies on clearly
erroneous factual findings or improperly applies the law. Smoot v. United Transp. Union, 246
F.3d 633, 648 (6th Cir. 2001). We review de novo the district court’s legal determination of
whether a labor dispute is “major” or “minor” under the RLA. CSX Transp., Inc. v. United
Transp. Union, 395 F.3d 365, 368 (6th Cir. 2005).
B. Major and minor disputes under the RLA
Labor disputes in the railroad industry have traditionally fallen into two distinct
categories:

“disputes concerning the making of collective agreements,” known as major

disputes, and “disputes over grievances,” known as minor disputes. Elgin, J. & E. Ry. Co. v.
Burley, 325 U.S. 711, 722 (1945). This marked categorization of disputes is established in the
RLA. There, Congress created the jurisdictional authority and separate mechanisms through
which efforts are to be made to resolve both types of disputes in an orderly fashion to prevent
labor unrest and interruption of interstate commerce. See 45 U.S.C. § 151a; Burley, 325 U.S. at
722–23. Congress provided:
It shall be the duty of all carriers, their officers, agents, and employees to exert
every reasonable effort to make and maintain agreements concerning rates of pay,
rules, and working conditions, and to settle all disputes, whether arising out of the
application of such agreements or otherwise, in order to avoid any interruption to
commerce or to the operation of any carrier growing out of any dispute between
the carrier and the employees thereof.
45 U.S.C. § 152, First. The RLA encourages carriers and their employees to resolve disputes “in
conference between representatives designated and authorized so to confer.” 45 U.S.C. § 152,
Second. The mechanism to resolve each type of dispute therefore begins with negotiation, but

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the procedural pathways to resolution then diverge into two separate systems depending upon
whether the dispute is major or minor. Burley, 325 U.S. at 725. We begin with major disputes.
Major disputes rest on the authority of 45 U.S.C. § 152 Seventh and 45 U.S.C. § 156,
Consol. Rail Corp. v. Ry. Labor Exec. Ass’n, 491 U.S. 299, 302 (1989), and relate to
disagreements over the formation of collective bargaining agreements (CBAs) or efforts to
procure them. Burley, 325 U.S. at 723. Such disputes arise where a CBA does not exist or
where one of the parties seeks to change the terms of an existing CBA. Id. The issue in a major
dispute “is not whether an existing agreement controls the controversy”; instead, the focus is on
“the acquisition of rights for the future, not [the] assertion of rights claimed to have vested in the
past.” Id.
Because major disputes concern the larger “issues about which strikes ordinarily arise
with the consequent interruptions of traffic the Act sought to avoid[,]” id. at 723–24, Congress
provided that parties must engage in a lengthy process of bargaining and mediation to settle a
major dispute. Consol. Rail Corp., 491 U.S. at 302. The process begins when a party desiring to
make a change affecting the “rates of pay, rules, or working conditions” gives thirty days’
written notice to the other party of the intended change. 45 U.S.C. § 156. This written notice is
known as a “Section 6 notice.” Shortly after the Section 6 notice is received, the parties must
designate the place and time to begin a conference between the representatives of the parties
interested in the intended change. Id. If the parties’ private negotiations are unsuccessful, then
the dispute must be mediated by the parties under the auspices of the National Mediation Board
(NMB). If mediation does not succeed, the parties must voluntarily accept or reject arbitration.
If the major dispute continues after arbitration, the matter may finally make its way to the
President’s desk for possible intervention to secure a resolution of the dispute before a strike
occurs that would impact the nation’s transportation system. 45 U.S.C. § 160; Burley, 325 U.S.
at 725; Consol. Rail Corp., 491 U.S. at 303 n.3. Until the parties have exhausted the process
Congress designed, they “are obligated to maintain the status quo, and the employer may not
implement the contested change in rates of pay, rules, or working conditions.” Consol. Rail
Corp., 491 U.S. at 302–03. A district court has subject matter jurisdiction to enjoin any violation
of the status quo until the statutory mediation procedures are completed, but the party moving for

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injunctive relief in federal court is not required to make the usual showing of irreparable injury.
Id. at 303. If no agreement is reached at the completion of this process, “the parties may resort to
the use of economic force.” Id.
By contrast, minor disputes are predicated on 45 U.S.C. § 152 Sixth and 45 U.S.C. § 153
First. Id. A minor dispute “contemplates the existence of a collective agreement already
concluded or, at any rate, a situation in which no effort is made to bring about a formal change in
terms or to create a new one.” Burley, 325 U.S. at 723. The parties’ dispute concerns a
grievance about either “the meaning or proper application of a particular provision with
reference to a specific situation or to an omitted case.” Id. If the dispute centers on an omitted
case, “the claim is founded upon some incident of the employment relation, or asserted one,
independent of those covered by the collective agreement.” Id. Whether the parties’ dispute
relates to application of a particular CBA provision in a specific situation or to application of a
CBA provision to an omitted case, “the claim is to rights accrued, not merely to have new ones
created for the future.” Id. Minor disputes “inevitably appear” in executing major agreements
and policies or “arise incidentally in the course of an employment.” Id. at 724. They relate to
“specific maladjustments of a detailed or individual quality. They seldom produce strikes,
though in exaggerated instances they may do so.” Id.
The RLA directs parties to negotiate a minor dispute, but if negotiation is unsuccessful,
the procedural pathway set out for minor disputes requires the parties to submit the dispute to
compulsory and binding arbitration before the National Railroad Adjustment Board (NRAB) or,
alternatively, to an adjustment board established by the carrier and the employees. Id. at 724–28;
Union Pac. R.R. Co. v. Bhd. Of Locomotive Eng’rs & Trainmen, 558 U.S. 67, 72 (2009); Consol.
Rail Corp., 491 U.S. at 303–04. Either type of adjustment board has exclusive jurisdiction to
resolve a minor dispute. Consol. Rail Corp., 491 U.S. at 304. Judicial review of any arbitration
decision is limited. Id. Federal courts may enjoin a strike arising from a minor dispute and may
condition injunctive relief on the employer’s maintenance of the status quo pending Board
resolution of the dispute. Id. Where the dispute is minor, however, the Supreme Court has never
recognized “a general statutory obligation on the part of an employer to maintain the status quo
pending the Board’s decision.” Id.

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In Consolidated Rail Corp., the Supreme Court sought to “articulate[] an explicit
standard for differentiating between major and minor disputes.” 491 U.S. at 302. The line
drawn in Burley “looks to whether a claim has been made that the terms of an existing agreement
either establish or refute the presence of a right to take the disputed action”; in other words, a
dispute is minor if it may be “resolved by interpreting the existing agreement.” Id. at 305.
Differentiation between major and minor disputes thus becomes “a matter of pleading” by the
party who initiates the dispute, but “there is danger in leaving the characterization of the dispute
solely in the hands of one party.” Id. If a party asserts a contractual basis for a claim without
sincerity or on insubstantial grounds, “honoring that party’s characterization would . . . undercut
the prohibitions of § 2, Seventh, and § 6 of the Act against unilateral imposition of new
contractual terms.” Id. at 306 (internal quotation marks omitted). In that situation, the proper
function of the statutory process for settling disputes is protected only if the court “substitute[s]
its characterization for that of the claimant.” Id. Accordingly, “[w]here an employer asserts a
contractual right to take the contested action, the ensuing dispute is minor if the action is
arguably justified by the terms of the parties’ collective-bargaining agreement.

Where, in

contrast, the employer’s claims are frivolous or obviously insubstantial, the dispute is major.”
Id. at 307.
There is no such thing as a hybrid case with attributes of both major and minor disputes.
Id. at 310. The Supreme Court rejected the union’s request to recognize a hybrid case in
Consolidated Rail Corp. because adding a third category would “aggravate the already difficult
task of distinguishing between” major and minor disputes. Id. The Court held:
[I]f an employer asserts a claim that the parties’ agreement gives the employer the
discretion to make a particular change in working conditions without prior
negotiation, and if that claim is arguably justified by the terms of the parties’
agreement (i.e., the claim is neither obviously insubstantial or frivolous, nor made
in bad faith), the employer may make the change and the courts must defer to the
arbitral jurisdiction of the Board.
Id.
Applying this standard, the Court ruled that a dispute arising from Conrail’s decision to
require drug testing as part of all periodic and return-from-leave physical examinations was a
minor dispute. Id. at 300, 311–12. Conrail had always required employees to submit to such

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physical examinations, a longstanding past practice of the parties based on implied contractual
terms. Id. Because Conrail’s claim was “neither frivolous nor obviously insubstantial,” the
dispute fell within the exclusive jurisdiction of the Board as a minor dispute. Id. at 312, 320.
The Court went no further than to determine that Conrail “met the light burden of persuading
[the] Court that its drug-testing practice is arguably justified by the implied terms of its
collective-bargaining agreement.” Id. at 320. The Court did not reach the merits of the dispute.
Id. at 318, 320.
With this explanation of the differences between major and minor disputes, the resolution
of this appeal comes into focus.
C. BLET and the Railroad are engaged in a major dispute
The Scope Rule in Article I of the Trainmen Agreement states in mandatory language
that the crew for “all assignments (regular or extra) shall consist of not less than one
(1) conductor.” R. 19 Page ID 282 (emphasis added). The rule stated in the Agreement includes
only one exception, related to light engines or engine changers, and the parties agree that this
exception has no relevance to this case. The parties further agree that the Trainmen Agreement
is silent on whether the Railroad can assign only an engineer to a train when a rested contract
conductor is not available, but they do not agree on what that silence means. BLET contends
that contractual silence does not alter the Agreement’s express requirement that the Railroad
assign at least one conductor to every train; this language can only refer to every train in every
situation.

The Railroad insists that, because the Agreement does not contain an express

prohibition on using management employees if no rested conductors are available, the Railroad
retains discretion to act, and particularly so if there is a past practice of similar conduct.
We conclude that BLET has the better argument. The scope rule of the Trainmen
Agreement expressly requires the Railroad to assign a union conductor to every train. See St.
Louis Sw. Ry. Co. v. Bhd. of R.R. Signalmen, 665 F.2d 987, 992 (10th Cir. 1981) (“The
agreement purports to cover all of the work of the employees and apparently leaves no room for
unilaterally contracting out some of the work.”).

To adopt the Railroad’s position would

undercut the clear language of the crew consist rule—which was expressly bargained by the
parties years ago—without requiring the Railroad to complete the Section 6 negotiations through

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which the Railroad was seeking to remove the crew consist rule from the Trainmen Agreement.
By serving a Section 6 notice on the union in 2003, the Railroad acknowledged the RLA
requirement that it negotiate with the union if it wishes to revise or remove the crew consist
provision from the Trainmen Agreement. Disputes about the making of collective bargaining
agreements are major disputes. Burley, 325 U.S. at 722–24. BLET characterized the issue as a
major dispute in all of its written communications with Railroad officials and, importantly, the
Railroad and BLET addressed the issue by following the RLA’s procedures for negotiating a
major dispute. See 45 U.S.C. § 156. When their private negotiations over the crew consist rule
failed, they engaged in mediation with a NMB mediator. When that was not successful, BLET
asked the NMB to encourage the Railroad to participate voluntarily in arbitration, but the
Railroad refused.
The dispute is a major one because the Railroad’s claim that the Trainmen Agreement
allows it to man trains without union conductors is frivolous or obviously insubstantial in light of
the express language of the Trainmen Agreement’s scope rule. See Consol. Rail Corp., 491 U.S.
at 307. The arguments raised and cases cited by the Railroad are unavailing in the face of this
express language.
The Railroad presents this as an issue of managerial discretion, noting that “the general
framework of a collective-bargaining agreement leaves some play in the joints, permitting
management some range of flexibility in responding to changed conditions.” Id. at 309 n.7.
Relying on cases in which this court has classified disputes as minor, it contends that it may
decide unilaterally how to fill conductor positions when no rested conductors are available
because the Trainmen Agreement is silent about that factual situation. The cited cases do not
support the Railroad’s position.
In Airline Professionals Ass’n v. ABX Air, Inc., 274 F.3d 1023, 1029 (6th Cir. 2001)
(ABX I), this court concluded that it was at least arguable that the implied terms of a CBA
permitted ABX to unilaterally implement random employee searches. The conclusion rested on
the proposition that management retains discretion except as limited by the CBA and public law.
Id. (citing Appalachian Reg’l Healthcare v. United Steelworkers of Am., 245 F.3d 601, 604–05
(6th Cir. 2001)). Under that agreement and because “ABX had, in the past, exercised unilateral

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control over its employee searching policy,” this court held that ABX’s position was arguably
justified by the implied terms of the CBA. Id.
By contrast, the crew consist provision of the Trainmen Agreement at issue here
mandates that the Railroad must assign at least one union conductor to each train. Because the
language of the scope rule is express, we need not consider any implied terms. Cf. Airline
Prof’ls Ass’n, 274 F.3d at 1029. As a result of its promise in the Trainmen Agreement to assign
a union conductor to each train, the Railroad must maintain an adequate workforce of contract
conductors to fulfill the carrier’s needs. Moreover, the record in this case does not support a
finding that the Railroad exercised unilateral control over its conductor assignment policy in the
past. The evidence confirms that the Railroad did not have unilateral control and that BLET did
not acquiesce in the Railroad’s attempts to assign management employees in place of union
conductors. Thus, unlike ABX, the Railroad here is not arguably justified in its position due to
the express language of the crew consist provision. Cf. id.
The later case of Airline Professionals Ass’n v. ABX Air, Inc., 400 F.3d 411 (6th Cir.
2005) (ABX II), is more helpful to the Railroad, but that case still does not carry the day. There,
the parties were engaged in contract negotiations for a successor agreement, having served
Section 6 notices on each other. Id. at 413. During the negotiations, the union filed a grievance
on behalf of a pilot who wished to return to work following disability leave without submitting to
an independent medical examination (IME) requested by ABX. Id. Because the parties were
negotiating a new contract, ABX conceded that the parties were involved in a major dispute. Id.
at 415. This court addressed the question “whether every dispute arising under a CBA that is
being renegotiated is a major dispute.” Id. The court held that the parties’ renegotiation of the
CBA did not automatically require classification of the pilot’s grievance as a major dispute. Id.
Instead, the court had to determine whether the pilot’s grievance was, on its facts, a major
dispute. Id. Because the CBA contained “neither an express authorization for nor an explicit
prohibition of” the IME requirement, ABX retained management prerogative to require an IME
examination, and the court classified the dispute as minor. Id. at 416. Here, on the other hand,
the crew consist provision expressly required the Railroad to assign a contract conductor to every
train, and the Railroad sought to remove that very provision from the Trainmen Agreement

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through Section 6 negotiations. The facts before us are therefore distinguishable from those in
Airline Professionals Ass’n (ABX II).
The Railroad contends that BLET should have resorted to the grievance procedure
outlined in Article 30 of the Trainmen Agreement to pursue its dispute. But we cannot envision
how a grievance procedure could have resolved this fundamental disagreement between the
Railroad and the union about retaining the scope rule in the Trainmen Agreement. BLET did not
raise a claim or grievance on behalf of a particular employee, such as in the case of discipline;
BLET challenged the Railroad’s complete disregard of an express provision of the Trainmen
Agreement while Section 6 negotiations were in progress on that precise issue.
The Railroad relies on CSX Transportation, Inc. v. United Transportation Union, 395
F.3d 365 (6th Cir. 2005), but that case is also distinguishable. There UTU’s national leadership
entered into a national collective bargaining agreement that included a moratorium barring either
party from trying to change any part of the agreement, explicitly prohibited the filing of
Section 6 notices prior to a certain date, and dismissed or settled all existing Section 6 notices
issued before a certain date. Id. at 368. CSX and Conrail subsequently notified UTU that its
Section 6 notice relating to a push car dispute was barred by the moratorium. Id. When UTU
disagreed with that interpretation of the moratorium, CSX and Conrail filed suit in federal court,
arguing the dispute was minor and should be submitted to arbitration before the NRAB. Id. The
district court ruled the dispute was major, but we disagreed and reversed. Id. at 368, 370.
Observing that the railroads’ argument was not strong, we decided the railroads’ position was
arguably justified by the terms of the national agreement, and the case presented a minor dispute.
Id. at 369. Neither the contract language nor the fact pattern presented here is similar.
Having determined that BLET and the Railroad are engaged in a major dispute, we turn
now to application of the RLA to the facts and issues presented.
D. RLA requirements for parties engaged in a major dispute
Until parties engaged in a major dispute exhaust each step of the major dispute process,
they are obligated by law to maintain the status quo. See Consol. Rail Corp., 491 U.S. at 302–
03; United Transp. Union v. Cuyahoga Valley Ry. Co., 979 F.2d 431, 435 (6th Cir. 1992). In

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Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 143
(1969), the Supreme Court agreed with the union “that what must be preserved as the status quo
are the actual, objective working conditions out of which the dispute arose, irrespective of
whether those conditions are covered in an existing collective agreement.”
In Detroit & Toledo Shore Line, the union and the railroad were embroiled in controversy
over whether the railroad could assign employees to report for work at outlying locations some
distance from where the employees had previously reported to work. Id. at 143–44. In the
course of the controversy, the railroad notified the union that it was reviving its plan for outlying
work assignments at Trenton, Michigan. Id. at 146. The union served a Section 6 notice on the
railroad seeking to amend the agreement to forbid the railroad from making any outlying work
assignments. Id. The parties’ negotiations were fruitless and the union asked the NMB for
mediation assistance but, while the mediation was pending, the railroad posted a bulletin
definitely creating the disputed work assignments. Id. Faced with the railroad’s unilateral
change in working conditions, the union threatened a strike, and the railroad filed suit in district
court to prevent a strike. The union counterclaimed, seeking an injunction to enforce the status
quo and prohibit the railroad from establishing the outlying work assignments. Id. at 146–47.
The district court dismissed the railroad’s complaint, granted the injunction sought by the union,
and restrained the railroad from establishing the challenged work assignments. Id. at 147. The
district court held that the status quo requirement of Section 6 prohibited the railroad from taking
action on outlying work assignments “even though there was nothing in the parties’ collective
agreement which prohibited such assignments.” Id. Both this court and the Supreme Court
affirmed the grant of the injunction in favor of the union. Id. at 147, 159.
The railroad in Detroit & Toledo Shore Line argued in the Supreme Court, much like the
Railroad does here, that the purpose of the status quo provision of the RLA “is to guarantee only
that existing collective agreements continue to govern the parties’ rights and duties during efforts
to change those agreements,” and that “working conditions as expressed in an agreement shall
not be altered.” Id. at 147–48. “And since nothing in the railroad’s agreement with the union
precluded the railroad from altering the location of work assignments, this working condition

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was not ‘expressed in an agreement’” and the railroad could make the desired assignments
without violating the status quo. Id. at 148.
The Supreme Court rejected the railroad’s position as inconsistent with the language of
Section 6, which states that “working conditions shall not be altered by the carrier until the
controversy has been finally acted upon,” 45 U.S.C. § 156, and which “speaks plainly of ‘rates of
pay, rules, or working conditions’ without any limitation to those obligations already embodied
in collective agreements.” Detroit & Toledo Shore Line R.R. Co., 396 U.S. at 148. The Court
viewed the railroad’s interpretation of Section 6 as “sharply at variance with the overall design
and purpose of the Railway Labor Act.” Id.
The RLA’s status quo requirement is “central to its design. Its immediate effect is to
prevent the union from striking and management from doing anything that would justify a
strike.” Id. at 150. Because one party may wish to change the status quo without undue delay,
the power granted in the RLA to the other party “to preserve the status quo for a prolonged
period” encourages the moving party to compromise and reach agreement without interrupting
commerce. Id. Both parties bear an obligation “to preserve and maintain unchanged those
actual, objective working conditions and practices, broadly conceived, which were in effect prior
to the time the pending dispute arose and which are involved in or related to that dispute.” Id. at
153. The conditions need not be covered in the existing CBA. Id.
Under its interpretation of the status quo requirement of the RLA, the Supreme Court
found it “quite apparent” that the railroad’s argument had “little merit.” Id. Importantly for this
case, the Court stated:
[T]he mere fact that the collective agreement before us does not expressly prohibit
outlying assignments would not have barred the railroad from ordering the
assignments that gave rise to the present dispute if, apart from the agreement,
such assignments had occurred for a sufficient period of time with the knowledge
and acquiescence of the employees to become in reality a part of the actual
working conditions. Here, however, the dispute over the railroad's establishment
of the Trenton assignments arose at a time when actual working conditions did
not include such assignments. It was therefore incumbent upon the railroad by
virtue of [Section] 6 to refrain from making outlying assignments at Trenton or
any other place in which there had previously been none, regardless of the fact

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that the railroad was not precluded from making these assignments under the
existing agreement.
Id. at 153–54. When the union invoked the major dispute resolution procedures of the RLA, the
railroad refused to maintain the status quo and instead implemented its planned work
assignments. Id. at 154. The Supreme Court explained how that action was at odds with the
RLA: “It could hardly be expected that the union would sit idly by as the railroad rushed to
accomplish the very result the union was seeking to prohibit by agreement. The union
undoubtedly felt it could resort to self-help if the railroad could, and, not unreasonably, it
threatened to strike.” Id. The central goal of the RLA “came very close to being defeated”
because “the railroad prematurely resorted to self-help.” Id. “If the railroad is free at this stage to
take advantage of the agreement’s silence and resort to self-help, the union cannot be expected to
hold back its own economic weapons, including the strike.” Id. at 155. The remedies of the
RLA operate effectively only if both sides are equally restrained. Id.
Application of the status quo requirement of the RLA here means the Railroad was not
free to implement at will the very change it sought to accomplish when it served the Section 6
notice on BLET. It did so anyway. The record evidence in this case demonstrates that the
Railroad prematurely resorted to self-help before the conclusion of the Section 6 major dispute
process. In October of 2010, again in March, June and October of 2011, and again in June and
September of 2013, the Railroad unilaterally ran trains without contract conductors and used
management personnel instead.
BLET officials did not know until March 2011, while the major dispute negotiations were
ongoing, that the Railroad was substituting management employees for contract conductors.
When BLET officials learned this information, they immediately and repeatedly protested and
did not acquiesce in the Railroad’s conduct. Although the Railroad assured BLET officials that
it would stop the offending conduct, the Railroad continued to utilize management personnel to
fill conductor positions.

Under Detroit & Toledo Shore Line, the Railroad could not act

unilaterally in violation of the RLA’s status quo provisions. See Ill. Cent. R.R. Co. v. Bhd. of
Locomotive Eng’rs, 422 F.2d 593, 596 (7th Cir. 1970) (observing that railroad could not “change
existing conditions of work unilaterally and stake its status quo claim at the point gained by
unilateral action”). The Railroad was obligated to maintain the working conditions the Trainmen

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Agreement required—the assignment of at least one contract conductor to each train—until the
parties concluded the RLA’s major dispute process. Instead, the Railroad implemented the
changes it sought and violated the status quo.
III. CONCLUSION
The Railroad failed to carry its burden to show that its position was arguably justified by
the terms of the parties’ collective-bargaining agreement.

The Railroad’s claim that the

Trainmen Agreement allowed it to man trains without union conductors is frivolous or obviously
insubstantial, and the dispute is major. See Consol. Rail Corp., 491 U.S. at 307. The status quo
requirements of the RLA were violated when the Railroad prematurely and unilaterally resorted
to self-help. See Detroit & Toledo Shore Line R.R. Co., 396 U.S. at 155.
Accordingly, we REVERSE the district court’s holding that the dispute is minor, we
VACATE the portion of the preliminary injunction granting relief to the Railroad on the parties’
dispute over using supervisors as conductors, and we REMAND the case to the district court for
further proceedings consistent with this opinion.