Brotherhood of Maintenance of Way Employees Division/IBT

Filing 33

MEMORANDUM AND ORDER - IT IS ORDERED: Defendant's Motion for a Preliminary Injunction (filing 8 ) is granted. The Brotherhood, and its officers, agents, employees, and members, are preliminarily enjoined from initiating or participating in any strike, work stoppage, or other self-help intended to interfere with BNSF's normal operations, pending a final judgment in this case. Ordered by Judge John M. Gerrard. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BROTHERHOOD OF
MAINTENANCE OF WAY
EMPLOYES DIVISION/IBT,

8:13-CV-249

Plaintiff,
MEMORANDUM AND ORDER
vs.
BNSF RAILWAY COMPANY,
Defendant.
This matter is before the Court on Defendant's Motion for a
Preliminary Injunction (filing 8). After fully reviewing the evidence and the
parties' arguments, the Court finds that the plaintiff labor union is
threatening to take action which would violate the Railway Labor Act, 45
U.S.C. § 151 et seq. Therefore, the Court finds both jurisdiction and grounds
to enjoin the plaintiff from doing so. The defendant's motion will be granted.
BACKGROUND
Most of the relevant facts are undisputed. The Brotherhood of
Maintenance of Way Employes Division of the International Brotherhood of
Teamsters (the Brotherhood) is a labor union representing employees of the
BNSF Railway Company (BNSF) working as maintenance of way employees.
Filing 31 at 1. BNSF is a Class I rail carrier that was formed through the
combination of several former railroads, including the former Burlington
Northern (BN). Filing 31 at 1. BNSF and the Brotherhood are parties to
several collective bargaining agreements (CBAs), including a 1982 "schedule
agreement" that was republished in 2002. Filing 31 at 2.
This case concerns a 120-mile rail line in northeast Nebraska (the
"NENE line") that had previously been owned by BN. Filing 31 at 2. The
NENE line was listed in the 1982 CBA. Filing 31 at 2. The NENE line was
sold to the Nebraska Northeastern Railroad, a short line operator, in 1996.
Filing 31 at 2. On July 19, 2013, BNSF entered into a purchase and sale
agreement with Nebraska Northeastern to acquire and operate the NENE
line. Filing 31 at 2. BNSF filed a petition with the Surface Transportation
Board seeking to exempt the NENE line acquisition from the requirements of

49 U.S.C. § 11323 et seq., which requires certain railroad transactions to be
preapproved by the Board. Filing 31 at 2-3. The Board granted the petition,
conditioned on the acceptance of certain employee protections set forth in
New York Dock Railway—Control—Brooklyn Eastern District Terminal, 360
I.C.C. 60 (1979) (New York Dock), aff'd sub nom. New York Dock Ry. v.
United States, 609 F.2d 83 (2d Cir. 1979), and Wilmington Terminal
Railroad—Purchase & Lease—CSX Transp., Inc., 6 I.C.C.2d 799, 814-26
(1990) (Wilmington Terminal). Filing 31 at 3.
The sale closed on December 4, 2012. Filing 31 at 3. On December 17,
BNSF notified the Brotherhood, pursuant to New York Dock, that it intended
to integrate the NENE line's operations into BNSF's operations and to
negotiate an implementing agreement with the Brotherhood. But BNSF and
the Brotherhood failed to reach an agreement. The Brotherhood asked that
the National Mediation Board appoint an arbitrator to determine the terms
of an implementing agreement. Filing 31 at 3. Thereafter, BNSF informed
the Brotherhood that it was withdrawing the integration proposal and would
continue to operate the NENE line as a stand-alone operation. Filing 31 at 34.
At the time of the sale, NENE had 14 employees, 4 of whom performed
maintenance of way work. Filing 31 at 2. Most of the NENE employees
affected by the transaction chose to accept jobs offered by BNSF. Filing 31 at
3. Those employees are now performing maintenance of way work on the
NENE line using BNSF equipment, but are not performing maintenance of
way work for BNSF beyond the NENE line. Filing 31 at 3. BNSF is applying
the rates of pay, rules, and working conditions that existed on the NENE line
before the sale to employees currently working on the line. Filing 31 at 4. The
Brotherhood contends BNSF should be applying the rates of pay, rules, and
working conditions set forth in the operative CBAs between the Brotherhood
and BNSF. BNSF disagrees, and contends that it is permitted to apply the
terms and conditions from before the sale. Filing 31 at 4.
On August 16, 2013, the Brotherhood filed this action against BNSF,
alleging violations of the Railway Labor Act. Filing 1. On August 26, the
Brotherhood informed BNSF that it would exercise "self-help" (i.e., strikes or
other economic force) over the dispute within 10 days unless BNSF ceased
what the Brotherhood described as a unilateral change to the CBAs. Filing 31
at 4-5. But BNSF, describing its actions as permissible under the CBAs and
New York Dock/Wilmington Terminal conditions, invoked arbitration under
New York Dock. Filing 31 at 4-5. Then, on September 4, BNSF filed the
motion currently before the Court, asking the Court to enjoin the
Brotherhood from a strike or any other form of self-help. Filing 8. After

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briefing and a hearing on September 25, BNSF's motion was submitted for
disposition.
DISCUSSION
STATUTORY BACKGROUND
This case sits at the wye of three different statutory schemes: the
Norris-LaGuardia Act (Norris-LaGuardia), 29 U.S.C. § 106 et seq.; the
Interstate Commerce Act, 49 U.S.C. § 10101 et seq. (ICA); and the Railway
Labor Act (RLA).
Norris-LaGuardia expresses a basic policy against the injunction of
activities of labor unions. Burlington N. R.R. Co. v. Bhd. of Maint. of Way
Emps., 481 U.S. 429, 437 (1987). Specifically, as relevant, Norris-LaGuardia
provides that "[n]o 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" from "[c]easing or
refusing to perform any work or to remain in any relation of employment
. . . ." 29 U.S.C. § 104. In other words, Norris-LaGuardia generally precludes
the Court from enjoining a strike.
The ICA regulates rail transactions such as a rail carrier's
abandonment of a rail line, transfer of that line to another carrier, or transfer
of that line to a non-carrier. See Redden v. I.C.C., 956 F.2d 302, 303 (D.C. Cir.
1992). The ICA provides that the sale of active rail lines is subject to the prior
approval of the Surface Transportation Board.1 See, 49 U.S.C. § 10901; Bhd.
of Maint. of Way Emps. v. Burlington N. Santa Fe R.R. Co., 596 F.3d 1217,
1220 (10th Cir. 2010). To protect employees adversely affected by such sales,
the Surface Transportation Board may impose the protective conditions set
forth in New York Dock and later clarified in Wilmington Terminal. CSX
Transp., Inc. v. United Transp. Union, 86 F.3d 346, 348 (4th Cir. 1996);
Redden, 956 F.2d at 304-05. Those conditions are intended to meet the
requirement "that the employees of the affected rail carrier will not be in a
worse position related to their employment as a result of the transaction
The ICC Termination Act of 1995, Pub. L. No. 104–88, 109 Stat. 803 (1995), substantially
deregulated rail and motor carrier transportation, abolished the Interstate Commerce
Commission, and transferred the motor carrier regulatory functions formerly performed by
the Interstate Commerce Commission to the Department of Transportation and the Surface
Transportation Board. See, 49 U.S.C. § 13501; GS Roofing Prods. Co., Inc. v. Surface
Transp. Bd., 262 F.3d 767, 771 n.1 (8th Cir. 2001); Owner-Operator Indep. Drivers Ass'n v.
New Prime, Inc., 192 F.3d 778, 780-81 (8th Cir. 1999). For purposes of the regulatory
scheme at issue, the functions of the Surface Transportation Board and the former
Interstate Commerce Commission are essentially interchangeable.
1

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during the 4 years following the effective date" of the Surface Transportation
Board's final action. See, 49 U.S.C. § 11326(a); CSX Transp., Inc., 86 F.3d at
349.
Among other things, New York Dock provides for negotiations between
the railroad and its unions for the purposes of reaching agreement with
respect to the terms and conditions of the labor protective compact. CSX
Transp., Inc., 86 F.3d at 349 (citing New York Dock, 360 I.C.C. at 77). If no
agreement is reached by the end of this period, either party may request
arbitration; the parties are then called upon to select an arbitrator and if
they cannot agree upon one, the National Mediation Board shall appoint one.
Id. (citing New York Dock, 360 I.C.C. at 78). The arbitrator then has 30 days
after the hearing to render a "final, binding, and conclusive" decision. Id.
(citing New York Dock, 360 I.C.C. at 78).
Section [11326] and New York Dock seek to achieve a balance
between the interests of labor and management. Labor receives
guaranteed wage protections while management benefits by
avoiding a strike. The avoidance of strikes is crucial to the public
interest in maintaining the nation's transportation system. The
peaceable settlement of labor controversies, especially where they
may seriously impair the ability of an interstate rail carrier to
perform its service to the public, is a matter of public concern.
While both sides may thus contest the particulars of a proposed
implementing agreement before an arbitrator, the arbitrator's
final, binding, and conclusive decision prevents either the union
or the railroad from holding the nation's transportation system
hostage to its aims.
CSX Transp., Inc., 86 F.3d at 349 (citations and quotations omitted).
The RLA also obligates unions and employers to negotiate disputes.
United Transp. Union v. Kansas City Southern Ry. Co., 172 F.3d 582, 585
(8th Cir. 1999); Sheet Metal Workers' Int'l Ass'n v. Burlington N. R.R. Co.,
893 F.2d 199, 202 (8th Cir. 1990). If negotiation fails, the dispute takes one of
two courses, depending upon whether the dispute is characterized as "major"
or "minor." United Transp. Union, 172 F.3d at 585; Sheet Metal Workers, 893
F.2d at 202. Minor disputes follow an administrative resolution process, and
the parties must submit their differences to the National Railroad
Adjustment Board for final arbitration. United Transp. Union, 172 F.3d at
585. (citing 45 U.S.C. § 153(i)); Sheet Metal Workers, 893 F.2d at 202. While
that arbitration is pending, the carrier may apply its reasonable
interpretation of the disputed agreement, and the union may not strike. Bhd.

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Ry. Carmen v. Mo. Pac. R.R. Co., 944 F.2d 1422, 1427 (8th Cir. 1991).
Conversely, in major disputes, the parties are obliged to maintain the status
quo while they pursue a lengthy, almost interminable process of bargaining
and mediation. United Transp. Union, 172 F.3d at 585; (citing Consol. Rail
Corp. v. Ry. Labor Execs. Ass'n, 491 U.S. 299, 302 (1989)); Carmen, 944 F.2d
at 1427; Sheet Metal Workers, 893 F.2d at 202. But when the required
procedures for resolving a major dispute have been exhausted and no
agreement has been reached, the parties may resort to the use of economic
force. Carmen, 944 F.2d at 1427 (citing Consol. Rail Corp., 491 U.S. at 303);
see also Mo. Pac. R.R. Co. v. United Transp. Union, 782 F.2d 107, 110-11 (8th
Cir. 1986).
These statutes do not always coexist easily. While Norris-LaGuardia
generally prevents the federal courts from enjoining labor union activity, the
prohibition of Norris-LaGuardia must give way when necessary to enforce a
duty specifically imposed by another statute. Pittsburgh & Lake Erie R.R. Co.
v. Ry. Labor Execs. Ass'n, 491 U.S. 490, 514 (1989). Thus, the ICA may
supersede Norris-LaGuardia, such that a court may enjoin a strike
threatened in violation of the ICA. See Mo. Pac. R.R. Co., 782 F.2d at 111-12;
see also CSX Transp., Inc., 86 F.3d at 349-50 (citing Boys Markets, Inc. v.
Retail Clerks Union, 398 U.S. 235, 251 (1970)). A court may also issue
injunctions to enforce compliance with the RLA notwithstanding NorrisLaGuardia. Pittsburgh & Lake Erie R.R. Co., 491 U.S. at 513 (citing
Trainmen v. Chicago River & Ind. R.R. Co., 353 U.S. 30, 41-42 (1957)). And
in some instances, the ICA can supersede the RLA. See, Norfolk & W. Ry. Co.
v. Am. Train Dispatchers Ass'n, 499 U.S. 117, 132-33 (1991); Norfolk & W.
Ry. Co. v. Bhd. of R.R. Signalmen, 164 F.3d 847, 853 (4th Cir. 1998).
It is important to recognize that the issue before the Court is narrow:
whether the Brotherhood should be enjoined from self-help using economic
force. The Court is not faced, at this juncture, with deciding what dispute
resolution procedures should be followed by the parties. If the Brotherhood's
threatened self-help would violate either the ICA or the RLA, then it should
be enjoined. And neither party contends that in this case, the ICA supersedes
the RLA. BNSF argues that the Brotherhood's threatened use of economic
force would violate both the ICA and the RLA, and offers both acts as coequal
alternatives to supersede Norris-LaGuardia and support an injunction. The
Brotherhood, on the other hand, contends that the ICA is inapplicable, and
that BNSF, not the Brotherhood, is violating the RLA. In other words, the
parties agree that the RLA is applicable here, although each accuses the
other of violating it.

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MAJOR OR MINOR DISPUTE UNDER RLA
Under the RLA, a dispute is classified as either major, involving the
creation of new contractual rights, or minor, involving the interpretation and
enforcement of existing CBAs.2 Bhd. of Maint. of Way Emps. v. Burlington N.
Santa Fe Ry., 270 F.3d 637, 638-39 (8th Cir. 2001); see also Carmen, 944 F.2d
at 1426. The distinction is important when establishing jurisdiction because,
as noted above, minor disputes must be submitted to binding arbitration.
Bhd. of Maint. of Way Emps., 270 F.3d at 639; see also Mo. Pac. R.R. Co., 782
F.2d at 110.
There is no bright line rule for differentiating between major and minor
disputes. United Transp. Union, 172 F.3d at 585-86. In general, major
disputes seek to create contractual rights, while minor disputes seek to
enforce them. Id. at 586. In other words, the question is whether the dispute
evolves from the bargaining process for a new or altered contract, or whether
it is over the meaning of an existing CBA. Mo. Pac. R.R. Co., 782 F.2d at 111.
The distinction rests on whether the terms of an existing agreement either
establish or refute the presence of a right to take the disputed action.
Carmen, 944 F.2d at 1427.
Major disputes involve questions relating to the formation of, or efforts
to secure, labor agreements. They look to the acquisition of rights for the
future, not to assertion of rights claimed to have vested in the past. United
Transp. Union, 172 F.3d at 586. For instance, a dispute is major if one party
seeks to change the rates of pay, rules, or working conditions in a manner not
contemplated by the CBA. Sheet Metal Workers, 893 F.2d at 202. They arise
where there is no such agreement, or where it is sought to change the terms
of one, and therefore the issue is not whether an existing agreement controls
the controversy. Id. (citing Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723
(1945)).
In contrast, minor disputes involve the interpretation of existing
agreements. United Transp. Union, 172 F.3d at 586. They contemplate the
existence of a collective bargaining 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. Sheet Metal Workers, 893 F.2d at 202 (citing Burley,
325 U.S. at 723). Characterizing the nature of the dispute depends on
whether it is arguably comprehended within the agreement of the parties.
United Transp. Union, 172 F.3d at 586. "The distinguishing feature of such a

The terms "major" and "minor" do not appear in the RLA itself; they are judicially created
nomenclature. United Transp. Union, 172 F.3d at 585 n.1; Sheet Metal Workers, 893 F.2d at
202 n.2. They are simply a "shorthand method of describing two classes of controversy
Congress had distinguished in the RLA." Consol. Rail Corp., 491 U.S. at 302.
2

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case is that the dispute may be conclusively resolved by interpreting the
existing agreement." Consol. Rail Corp., 491 U.S. at 305. In other words, a
minor dispute does not involve rights that exist independent of the CBA.
Bhd. of Maint. of Way Emps., 596 F.3d at 1223 (citing Hawaiian Airlines, Inc.
v. Norris, 512 U.S. 246, 252 (1994)).
In determining whether a dispute is major or minor, the Court must
determine the terms of the agreement, including the written CBA and the
parties' past practices. United Transp. Union, 172 F.3d at 586. It is important
to stress, however, that the Court need not interpret the terms of the
agreement. Id. The purpose of the inquiry, rather, is to determine whether
the case implicates a question of contract interpretation. Id.; Carmen, 944
F.2d at 1427. And once the Court determines the terms of the agreement, it
must then determine whether the particular dispute is comprehended within
that agreement. United Transp. Union, 172 F.3d at 586.
Where 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' collectivebargaining agreement. Where, in contrast, the employer's claims
are frivolous or obviously insubstantial, the dispute is major.
Consol. Rail Corp., 491 U.S. at 307; Carmen, 944 F.2d at 1427.
In this case, the Brotherhood does not dispute that the parties'
disagreement is controlled by the existing CBA. Indeed, the Brotherhood
expressly argues that BNSF has violated the RLA by refusing to apply the
CBA to the NENE line. Filing 18 at 29. Instead, the Brotherhood claims that
BNSF's contrary interpretation of the CBA is frivolous or obviously
insubstantial. Therefore, the Brotherhood asserts, BNSF is in effect
attempting to unilaterally impose new contractual terms, and the dispute is
major. See Consol. Rail Corp., 491 U.S. at 306-07. So, the Brotherhood
contends, because BNSF has failed to proceed with the RLA's major dispute
resolution procedures, it is precluded by Norris-LaGuardia from seeking
relief from the threatened strike. See Burlington N. R.R. Co. v. United
Transp. Union, 862 F.2d 1266, 1282 (7th Cir. 1988).
The issue, then, is whether BNSF's reliance on the CBA can be
reasonably justified. Formulations of this inquiry have differed over time and
among the circuits: phrases such as "not arguably justified," "obviously
insubstantial," "spurious," and "frivolous" have been employed. United
Transp. Union, 172 F.3d at 586; see also Sheet Metal Workers, 893 F.2d at
203. For example, a case is deemed minor if the railroad's assertion that the
dispute implicates a question of contract interpretation is not obviously

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insubstantial. United Transp. Union, 172 F.3d at 586. The differences
between these formulations are not critical; each illustrates the relatively
light burden which the railroad must bear in establishing exclusive arbitral
jurisdiction under the RLA. Id.; see Consol. Rail Corp., 491 U.S. at 306-07.
In support of its argument that BNSF's construction of the 2002 CBA is
frivolous or obviously insubstantial, the Brotherhood points to Rule 1, which
describes the scope of the CBA as including "the hours of service, rates of pay
and working conditions of all employes not above the rank of track inspector,
track supervisor and foreman, in the Maintenance of Way and Structures
Department . . . ." Filing 25-3 at 2. The Brotherhood also points to Rule 6,
which sets forth seniority districts; the Lincoln Seniority District expressly
includes "Iowa Ferry to O'Neil[,]" which can only be a geographical
description of the NENE line. Filing 25-3 at 9.
BNSF contends, on the other hand, that the 2002 CBA, despite the
broad language of Rule 1, only applies to the former BN portion of BNSF.
Filing 22 at 23 (citing filing 25-1 at 2). And BNSF argues that the reference
to "Iowa Ferry-O'Neil" in the 2002 CBA, which was carried over from the
1982 CBA, could not have been intended in 2002 to cover the NENE line
because at the time, the NENE line was not owned by BNSF. Filing 22 at 24.
BNSF points out that the 2002 CBA contains a number of references to lines
that BNSF no longer owns, and that those references "become defunct once a
line is sold." Filing 22 at 24. BNSF also points to a map that was included
with the 2002 CBA that does not include the NENE line. Filing 9-2 at 100.
The Brotherhood denies the relevance of the map, asserting that
nothing in the CBA incorporates the map. But the Court's task is not to
decide which party's interpretation of the CBA is more persuasive. It is only
to decide whether BNSF has met its relatively light burden of showing that
its reading of the CBA is arguably justified. See Bhd. of Maint. of Way Emps.,
596 F.3d at 1223 (citing Consol. Rail Corp., 491 U.S. at 307). And, the Court
notes, if doubt arises about the classification of a dispute, the dispute is
considered to be minor. Bhd. of Maint. of Way Emps., 270 F.3d at 639; see
also United Transp. Union, 172 F.3d at 588.
In this regard, the Court finds the Eighth Circuit's decision in Sheet
Metal Workers to be particularly instructive. In that case, the scope clause of
the operative CBA broadly provided that union employees were entitled to
perform the sheet metal work on all locomotives leased or purchased by BN.
Sheet Metal Workers, 893 F.2d at 204. But non-union employees at a wholly
owned subsidiary were used to maintain and repair locomotives used by BN
pursuant to an agreement by which BN paid the locomotives' owner at a rate
determined by the amount of electrical power generated by the locomotives.
Id. at 200-01. BN argued that because the locomotives were neither "leased"
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nor "purchased," they were not covered by the scope clause of the CBA, and a
subsidiary could repair and maintain the locomotives because the CBA did
not expressly prohibit it. Id. at 204.
The Eighth Circuit found that the dispute over maintenance and repair
of the locomotives was minor, because BN's interpretation of the contract,
"however improbable it may be," was "nonetheless plausible." Id. at 205. The
Eighth Circuit explained that while the union's "argument may ultimately
prove to be well taken," the court's task was simply to determine whether
BN's position was arguable. Id. at 204. Because the dispute was "arguably
comprehended within the parties' agreement[,]" the court found that the
dispute was minor and thus subject to arbitration. Id. at 205.
The same is true here. The facts of this case are peculiar, and neither
party has identified a case that the Court finds to be particularly analogous.
That weighs in BNSF's favor: there is little precedent to inform the
interpretation of a contract where a line is included in a CBA between a
union and a railroad, the line is sold, the language in the CBA referring to
the line is nonetheless carried over into a new CBA between the union and a
corporate successor, and the line is then reacquired by the successor railroad.
BNSF's understanding of how the CBA applies to such unusual
circumstances is, the Court finds, neither frivolous nor obviously
insubstantial. The fact that BNSF's contract interpretation may be
questionable—and might even be wrong—does not make it frivolous. Id. at
205.
The Court finds that the parties' dispute is minor, and subject to
arbitration under the RLA. Having reached that conclusion, the Court need
not consider the ICA or its relationship with the RLA or Norris-LaGuardia
under these circumstances. See Gen. Comm. of Adjustment v. CSX R.R. Corp.,
893 F.2d 584, 594 n.12 (3d Cir. 1990).
STANDARD FOR INJUNCTIVE RELIEF
When deciding whether to issue a preliminary injunction, the Court
generally turns to the four Dataphase factors: (1) the probability that the
movant will succeed on the merits; (2) the threat of irreparable harm to the
movant; (3) the state of the balance between this harm and the injury that
granting the injunction will inflict on the nonmovant and other parties; and
(4) the public interest. Roudachevski v. All-American Care Centers, Inc., 648
F.3d 701, 705 (8th Cir. 2011) (citing Dataphase Sys., Inc. v. C L Sys., Inc., 640
F.2d 109, 114 (8th Cir. 1981) (en banc)). That said, it is not entirely clear to
what extent those factors apply when a railroad seeks to enjoin a union from
exercising self-help over a minor dispute under the RLA. See, Air Line Pilots
Ass'n, Int'l v. Guilford Transp. Indus., 399 F.3d 89, 95-96 and n.3 (1st Cir.
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2005); Nat'l Ry. Labor Conference v. Int'l Ass'n of Machinists & Aerospace
Workers, 830 F.2d 741, 749-50 (7th Cir. 1987); cf. Chicago River, 353 U.S. 30;
but cf., Boys Markets, 398 U.S. at 254-55; Bhd. of Locomotive Engineers v.
Mo.-Kan.-Tex. Ry. Co., 363 U.S. 528, 531 (1960). The Court need not resolve
that question, because the Court finds that the Dataphase factors weigh in
favor of injunctive relief in any event.3
First, BNSF has shown a likelihood of success on the merits, on the
rather unusual basis that the Court lacks subject-matter jurisdiction over the
merits of the Brotherhood's complaint. Because this is a minor dispute, it
must be resolved through arbitration, and the Court lacks jurisdiction over
the substance of the Brotherhood's argument regarding construction of the
CBA. See Bhd. of Maint. of Way Emps., 270 F.3d at 639. BNSF is therefore
likely to "succeed" on the merits at least to the extent that the Brotherhood's
claims are likely to be dismissed. Cf. Brady v. Nat'l Football League, 640 F.3d
785, 789-92 (8th Cir. 2011).
BNSF's argument regarding the threat of irreparable harm to the
railroad, and its argument about the public interest, substantially overlap.
BNSF presented evidence describing, in detail, the effect that the
Brotherhood's threatened strike would have on its operations, and the larger
economic effects that would result from the disruptions to BNSF. Filing 9-2
at 4-7. The Court need not recite that evidence in detail, because it is not
substantially disputed by the Brotherhood; it suffices to say that any
significant interruption of traffic on a railroad the size of BNSF is likely to
inflict significant, unpredictable, and irreparable harm on BNSF and the
public at large.

The Brotherhood throws one more argument into a footnote; commensurate with the
Brotherhood's assessment of the importance of its point, the Court will answer with a
footnote of its own. The Brotherhood argues that BNSF should be denied injunctive relief
because it has failed to exhaust its administrative remedies by actually referring this
dispute to arbitration before the National Railroad Adjustment Board. See filing 18 at 60
n.12 (citing Itasca Lodge 2029 v. Ry. Express. Agency Inc., 391 F.2d 657 (8th Cir. 1968)).
The Court rejects the Brotherhood's argument for two reasons. First, even in Itasca Lodge
2029, the Eighth Circuit affirmed the district court's temporary injunction of a work
stoppage pending the railway's submission of the dispute to the National Railroad
Adjustment Board. 391 F.2d at 669. Second, the record establishes that BNSF has
submitted this dispute for arbitration, albeit under New York Dock instead of the RLA.
Filing 23-1. This, the Court finds, is sufficient to satisfy BNSF's obligation 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." See 29 U.S.C. § 108; see
also Aircraft Mechs. Fraternal Ass'n v. Nw. Airlines Corp., 394 F. Supp. 2d 1082, 1089 n.6
(D. Minn. 2005).
3

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Rather than disputing the factual details associated with the effects of
a work stoppage, the Brotherhood argues that "an injunction will prevent
BMWED from responding to BNSF's exercise of self help by its own exercise
of self help, a response that is permitted by the RLA and [NorrisLaGuardia]." Filing 18 at 59. Obviously, the Court disagrees. And the
Brotherhood falls back on the third Dataphase factor, the balance of harms,
contending that BNSF "fails to explain how the harm to [the Brotherhood]
and its members will be fully remedied if a strike is enjoined based on
BNSF's minor dispute argument and BNSF's position is ultimately rejected
in arbitration." Filing 18 at 59-60. That argument would be more compelling
if the supposed harm to the Brotherhood had been more fully explained.
The Court recognizes that the burden of establishing the propriety of
an injunction is on the movant. Roudachevski, 648 F.3d at 705. But it is
difficult for the Court to credit the Brotherhood's argument in the absence of
a meaningful, concrete articulation of how it and its members are being
harmed. The inchoate assertion of "the harm done to the union and all of its
members by abrogation of the Agreement and BNSF's bad faith in dealing
with [the Brotherhood] on this issue[,]" filing 18 at 60, is unpersuasive; it
essentially describes a breach of contract, for which money damages are
generally considered sufficient.4 "In most cases where the [National Railroad
Adjustment] Board determines that the employer's conduct was not justified
by the contract, the Board will be able to fashion an appropriate
compensatory remedy which takes account of the delay." Consol. Rail Corp.,
491 U.S. at 310 n.8. The Brotherhood has identified nothing in this case that
is inconsistent with that general principle.
Nor is the Court persuaded by the Brotherhood's argument that the
public interest would not be served by an injunction, because the public
interest also includes the policies served by the RLA and Norris-LaGuardia.
Even if those policy interests were cognizable under Dataphase, the Court
has already rejected the Brotherhood's legal argument regarding the
applicability of those statutes in this case. The Court finds that when the
Dataphase factors are considered, they weigh in favor of injunctive relief.
CONCLUSION
In sum, the Court finds that the parties' dispute here is minor within
the meaning of the RLA. As such, a strike would violate the RLA and may be
enjoined by the Court notwithstanding the provisions of Norris-LaGuardia.
Mo. Pac. R.R. Co., 782 F.2d at 110. And, in fact, such an injunction is
The Brotherhood has not asked for security pursuant to Fed. R. Civ. P. 65(c); nor does the
Court see any basis for ordering it at this point.
4

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necessary to give effect to the grievance machinery of the RLA. See Bhd. of
Locomotive Engineers v. Louisville & N. R. Co., 373 U.S. 33, 41-42 (1963).
Furthermore, BNSF has shown that the Dataphase factors weigh in favor of
issuing a preliminary injunction. Therefore, the Court will grant BNSF's
motion for preliminary injunction (filing 8).
IT IS ORDERED:
1.

Defendant's Motion for a Preliminary Injunction (filing 8) is
granted.

2.

The Brotherhood, and its officers, agents, employees, and
members, are preliminarily enjoined from initiating or
participating in any strike, work stoppage, or other selfhelp intended to interfere with BNSF's normal operations,
pending a final judgment in this case.

Dated this 16th day of October, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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