Burlington Northern & Santa Fe Railway Co. v. Brotherhood of Maintenance of Way Employees

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

m 01-10538
_______________

BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY;
CONSOLIDATED RAIL CORPORATION; CSX TRANSPORTATION, INC.;
KANSAS CITY SOUTHERN RAILWAY COMPANY;
NORFOLK SOUTHERN RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY,

Plaintiffs-
Counter Defendants-
Appellees,

VERSUS

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,

Defendant-
Counter Claimant-
Appellant.

_________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________

April 4, 2002

Before SMITH and DEMOSS, Circuit Judges, I.
and DUPLANTIER,* District Judge. A union appeals an injunction issued under
the Railway Labor Act (“RLA”). The six ap-
JERRY E. SMITH, Circuit Judge: pellee railroad carriers have obtained, on sum-
mary judgment, an injunction against appellant
Brotherhood of Mai ntenance of Way
*
Employees (“BMWE”) requiring it to give ten
District Judge of the Eastern District of
days’ notice before initiating a “strike, work
Louisiana, sitting by designation.
stoppage, picketing or other self help” against before the affected carrier could obtain a tem-
any of the carriers. Burlington N. & Santa Fe porary restraining order.” Id.1
R.R. v. BMWE, 143 F. Supp. 2d 672, 696
(N.D. Tex. 2001) (“Burlington Northern”). BMWE claims that its policy of surprise
In that published Memorandum Opinion and strikes does not violate the RLA and that the
Order, the district court provides an injunction is forbidden by the Norris-
impressive and detailed evaluation of the facts LaGuardia Act (“NLGA”). We conclude that
and law and a persuasive explanation of its the BMWE’s actions violated its duties under
reasons for entering the injunction. Finding no the RLA and that the NLGA does not bar an
error, we affirm, essentially on the basis of the injunction under the specific circumstances of
district court’s well-crafted opinion, except to this case.
the extent that we provide further analysis
below. II.
A.
As the district court found, the BMWE has We first consider the BMWE’s duties under
a long history of launching strikes without the RLA. It is well established that “the major
warning, including many that are illegal under purpose of Congress in passing the Railway
the RLA. See id. at 694 (finding that “[t]he Labor Act was to provide a machinery to pre-
court can, and does, infer from the facts thus vent strikes.” Tex. & New Orleans R.R. v.
found that BMWE has a pattern, practice, and Bhd. of Ry. & Steamship Clerks, 281 U.S.
policy of authorizing, encouraging, permitting, 548, 565 (1930) (quotations omitted). To fur-
calling or engaging in strikes, work stoppages, ther this goal, § 152 First of the RLA
picketing, and other self-help against plaintiffs comprehensively requires that labor and
and their subsidiaries over what BMWE claims management “exert every reasonable effort . . .
are unilateral changes in agreements . . . . to settle all disputes . . . in order to avoid any
[T]he conduct of the BMWE in engaging in interruption to commerce or to the operation
activities of that kind without giving the of any carrier growing out of any dispute
affected carrier advance notice . . . violate[s] between the carrier and the employees
BMWE’s duties under § 152 First.”). Since thereof.” 45 U.S.C. § 152 First (1994)
1993, “BMWE has struck, attempted to strike, (emphasis added). “[T]he obligation under
or threatened to strike plaintiffs at least § [152] First is central to the effective working
eighteen times, including nine cases in which of the Railway Labor Act,” and compliance
pickets went up and/or operations were dis-
rupted until the affected plaintiff was able to 1
obtain a temporary restraining order.” Id. at The district court made these factual findings
679. without an evidentiary hearing; it provides a
detailed explanation of why it believes no hearing
was required. Burlington Northern, 143 F. Supp.
In the year preceding the injunction, 2d at 45-55. We do not consider whether this was
“BMWE . . . accelerated its practice of strikes error, because BMWE does not raise the issue as
against the plaintiffs, with four incidents” be- a ground for reversal. “We liberally construe
tween February 2000 and early 2001. Id. “In briefs in determining issues presented for review;
each case, BMWE planned its strike in secret however, issues not raised at all are waived.”
and made every effort to implement the strike Carmon v. Lubrizol Corp., 17 F.3d 791, 794 (5th
Cir. 1994).

2
therefore can be enforced by injunction. In addition to violating § 152 First, many of
Chicago & N.W. Ry. v. United Transp. Union, BMWE’s surprise strikes were held to be in
402 U.S. 570, 578-79 (1971). violation of the requirement that unions can
resort to strikes in a dispute over “minor” is-
BMWE contends that the legislative history sues only if they first have exhausted the
of the RLA mandates a narrower construction RLA’s compulsory dispute resolution mechan-
of the RLA than the text alone would dictate. isms. Burlington Northern, 143 F. Supp. 2d at
Even if the BMWE’s view of the legislative 680-85 (describing seven cases in which
history is sound, this argument is unavailing, BMWE was enjoined from striking the
because “[l]egislative history is relegated to a appellees because the dispute at issue was mi-
secondary source behind the language of the nor).3 This circumstances strengthens the con-
statute in determining congressional intent; clusion that BMWE was engaged in a pattern
even in its secondary role legislative history of illegal activity.
must be used cautiously.” Aviall Serv., Inc. v.
Cooper Indus., Inc., 263 F.3d 134, 140-41 B.
(5th Cir.) (internal citations omitted), vacated Precedent from other circuits supports this
for rehearing en banc, 278 F.3d 416 (5th Cir. conclusion. Judge Leventhal, writing for the
2001).2 District of Columbia Circuit, held that “the
continuing duty of responsible bargaining un-
BMWE’s deliberate policy of repeatedly der the [RLA] fairly embraces reasonable no-
calling surprise strikes violates the statutory tice of a strike or lockout or other self help.”
requirement that railroads and unions “exert Del. & Hudson Ry. v. United Transp. Union,
every reasonable effort . . . to settle all dis- 450 F.2d 603, 622 (D.C. Cir. 1971).
putes . . . in order to avoid any interruption to BMWE’s argument that Delaware & Hudson
commerce.” 45 U.S.C. § 152 First. A was not decided under § 152 First is irrelevant,
surprise strike makes it difficult or impossible because the reasoning of the court is based on
to resolve the underlying dispute between a generalized RLA “duty of responsible
labor and management without “interruption bargaining” that applies to § 152 First as
to commerce.” Id. Because management is readily as to other provisions of the Act.4 Id.
unaware that a strike is impending, it cannot
take steps that might prevent it. In cases
3
where the contemplated surprise strike is See Burlington N.R.R. v. BMWE, 961 F.2d
illegal under the RLA, the carrier cannot 86, 89 (5th Cir. 1992) (describing RLA dispute re-
obtain an injunction against it until after the solution procedures for “minor” disputes and hold-
strike has begun and an “interruption to ing that resort to them before striking is
commerce” has already occurred. mandatory).
4
It is also incorrect to claim, as BMWE does,
that Delaware & Hudson’s language requiring no-
tice is mere dictum. The language occurs in the
2
Cf. Garcia v. United States, 469 U.S. 70, 75 same part of the opinion as do the instructions to
(1984) (holding that “only the most extraordinary the district court, which had “continuing
showing of contrary intentions would justify a limi- jurisdiction” over the dispute “for such further
tation on the ‘plain meaning’ of the statutory lan- proceedings as may become appropriate, not
guage”). (continued...)

3
 The Eleventh Circuit recently has held that mandate that labor and management “exert
“[w]hen the public interest, commerce, and a every reasonable effort . . . to settle all
clear statutory provision are implicated, we disputes . . . in order to avoid any interruption
will not shy away from holding the parties to to commerce,” which occurs in the same
their duties under the RLA so as to avoid ‘any sentence of § 152 First as does the provision
interruption to commerce.’” Delta Air Lines, enforced by the Eleventh Circuit.
Inc. v. Air Line Pilots Ass’n, Int’l, 238 F.3d
1300, 1308 (11th Cir.) (quoting § 152 First), Because we are persuaded by the plain text
cert. denied, 532 U.S. 1019 (2001). That of the statute, by the reasoning of the District
court held that § 152 First’s requirement that of Columbia and Eleventh Circuits, and by the
the parties “exert every reasonable effort to desirability of avoiding a circuit split, we easily
make and maintain” agreements qualified as a conclude that the BMWE did indeed violate its
“clear statutory provision” that could be en- statutory duties under § 152 First. We need
forced by injunction whenever there is a threat not, however, go as far as the District of Col-
of “any interruption to commerce.” Id. The umbia Circuit did in concluding that any “de-
same reasoning applies to the section’s liberate timing of a strike without prior
warning” violates the statute. Delaware &
Hudson, 450 F.2d at 622. For purposes of the
4
(...continued) present case, we decide only that the statute
inconsistent with the opinion of this Court.” forbids an ongoing, repeated practice of
Delaware & Hudson, 450 F.2d at 623. surprise strikes that are doomed later to be
held illegal and enjoined. See Burlington
The District of Columbia Circuit evidently ex-
Northern, 143 F. Supp. 2d at 679-85
pected that, although it had overturned an earlier
(describing extensive history of surprise strikes
injunction, an anti-strike injunction, possibly in-
cluding a notice provision, might become by the BMWE against appellees that later were
necessary. Indeed, the language asserting a enjoined). We need not and do not address
requirement of notice immediately follows the the question whether the RLA forbids all
court’s condemnation of an earlier union effort to surprise strikes. Nor do we need to reach the
“call a strike . . . without direct notice to the Eleventh Circuit’s holding that anti-strike in-
railroads.” Id. at 622. junctions are appropriate any time a union’s
violation of a “clear statutory provision”
The circuit court likely feared that such action threatens “interruption to commerce.” Delta,
might be repeated. It noted that the union’s earlier 238 F.3d at 1308.
strike activity was “lawful” only because of “an as-
sumption of good faith as to its stated purpose of C.
the strike” and warned that “[t]he District Court BMWE argues that recognizing an en-
has continuing jurisdiction to reappraise the
joinable statutory duty to avoid surprise strikes
union’s good faith in the light of either substantial
evidence not previously available or developments
under § 152 First also would allow courts to
as to tactics and methods following notice to the enjoin a variety of other union and
carriers of the strike call.” Id. at 623 (emphasis management practices that arguably evidence
added). The latter passage suggests that the circuit a failure to “exert every reasonable effort . . .
court may have expected that the district court to settle all disputes.” 45 U.S.C. § 152 First.
would not allow future strikes without prior “notice For example, BMWE claims that a broad
to the carriers of the strike call.” Id.

4
interpretation of § 152 First would allow reasoning that “[w]e find it quite impossible to
courts to enjoin carriers’ refusals to settle a say that no set of circumstances could arise
minor dispute or to maintain the status quo where a strike injunction is the only practical,
pending arbitration. effective means of enforcing the command of
§ [152] First.” Id.
These and other similar examples are readi-
ly distinguishable from surprise strikes, BMWE’s strategy of calling numerous sur-
because § 152 First applies only to actions that prise strikes is precisely the sort of violation of
cause “interruption to commerce or to the op- the RLA for which an injunction “is the only
eration of any carrier growing out of any dis- practical, effective” remedy. Id. BMWE re-
pute between the carrier and the employees peatedly has demonstrated its willingness to
thereof.” 45 U.S.C. § 152 First. The actions call surprise strikes that violate its obligations
posited by BMWE, while they may make dis- under the RLA. Normally, such illegal
pute resolution more difficult, do not, in and of conduct could be deterred through after-the-
themselves, interrupt commerce, while surprise fact actions for damages. This court, though,
strikes undeniably do. And strike prevention, specifically has held that there is no damage
not dispute resolution per se, was “the major remedy for violations of § 152 First. See
purpose of Congress in passing the Railway Burlington N. R.R. v. BMWE, 961 F.2d 86, 89
Labor Act.” Texas & New Orleans, 281 U.S. (5th Cir. 1992); Nashville R.R. v. Brown, 252
at 565. F.2d 149, 155 (5th Cir. 1958).

III. Preemptive injunctive relief is the only
A. available remedy for illegal surprise strikes by
Having concluded that the BMWE’s the BMWE. An injunction issued only after an
actions violated the RLA, we turn to the illegal strike has begun cannot undo the
question whether the injunction is barred by damage caused to the carriers from the
the NLGA. That statute “expresses a basic beginning of the strike to the issuance of the
policy against the injunction of the activities of injunction.
labor unions.” Int’l Bhd. of Machinists v.
Street, 367 U.S. 740, 772 (1961) (citing 29 More importantly, an after-the-fact injunc-
U.S.C. § 101). Nonetheless, “the [NLGA] tion cannot prevent the “interruption of
does not deprive the federal courts of commerce” that will have occurred during this
jurisdiction to enjoin compliance with various period; stopping such disruption is, as we have
mandates of the Railway Labor Act.” Id. seen, the main purpose of the RLA. 45 U.S.C.
§ 152 First. Finally, after-the-fact injunctions
When considering requests for injunctive would not give the BMWE any incentive to re-
relief under the RLA, “courts should hesitate frain from illegal strikes in the first place, be-
to fix upon the injunctive remedy unless that cause it still would receive the benefit of any
remedy alone can effectively guard the damage to the carriers inflicted before the in-
plaintiff’s right.” Chicago & North Western, junction went into effect.
402 U.S. at 582. The Supreme Court,
however, also has said that the NLGA does To be sure, the district court could have
not bar injunctive relief under § 152 First, chosen to enjoin only unambiguously illegal

5
surprise strikesSSthose that are over “minor” United States Steel, 519 F.2d at 1245. Here,
issues. But if the carrier learns of the strike the court merely required ten days’ notice of a
only after the fact, it cannot litigate the strike and did not come close to enjoining the
“major-minor” issue until after the strike has right to strike itself.
begun. At that point, if the carriers prevail in
court, they still will not receive compensation Second, United States Steel is
for the disruption of operations inflicted by the distinguishable because it was decided under
strike while it lasted. Supreme Court precedent that forbids
enjoining any strike under the Taft-Hartley Act
The case might well be different if the absent “a finding in each case that the strike
BMWE had not utilized illegal surprise strikes was over an arbitrable issue.” Id. There is no
on so many occasions. If such tactics were such requirement under the RLA.
limited to rare, isolated instances, there might
be no need for an injunction to address the United States Steel’s requirement that
problem, which would be unlikely to recur. In “[e]very order granting an [anti-strike]
the present case, however, a long history of injunction . . . shall be specific in its terms
systematic abuse left the district court with no [and] shall describe in reasonable detail . . . act
choice but to resort to an injunctive remedy. or acts sought to be restrained,” id. at 1245-
There was no other way to prevent the 46, presumably is still applicable to the present
extensive disruption of commerce and damage case. The injunction does not run afoul of it,
to the carriers caused by an ongoing policy of however. The injunction undeniably is
surprise strikes. “specific in its terms,” requiring that the union
provide ten days’ notice of all strikes against
B. the plaintiff carriers. Id. Unlike the situation
BMWE argues, nonetheless, that, under the in United States Steel, in which there was “no
NLGA, the injunction is improper in light of specific act . . . complained of in the motion
United States Steel Corp. v. United Mine for . . . injunction,” here the carriers complain
Workers, 519 F.2d 1236 (5th Cir. 1975). of a longstanding BMWE strategy of calling
There, we did indeed condemn “overbroad surprise strikes that violate the RLA. Id. at
use” of anti-strike injunctions; we required that 1246.
“[e]very order granting an [anti-strike]
injunction . . . shall be specific in its terms, IV.
shall describe in reasonable detail, and not by In summary, BMWE has persisted in un-
reference to the complaint or other document dermining the purposes of the RLA by re-
the act or acts sought to be restrained.” Id. at peatedly engaging in strikes that are plainly
1245-46. unlawful. The district court has carefully tai-
lored a remedy designed to take care of this
United States Steel is readily distinguishable specific factual situation. Following the lead
from the present case. The injunction against of two sister circuits that have approved the
BMWE is much less sweeping than that in availability of injunctions to thwart similar
United States Steel, which “was nothing less violations of law, we AFFIRM the judgment of
than an injunction against striking for the life permanent injunction.
of the contract[,] an order to work every day.”

6
DUPLANTIER, District Judge, dissenting: Id. at 303.

The Railway Labor Act, 45 U.S.C. §151, None of the statutes regulating the rela-
et seq., (RLA) regulates in great detail the tionship between railroads and the unions rep-
relationship between railroads and the unions resenting railroad employees requires advance
which represent railway employees. Section notice of a union’s intention to strike, and
152 First of the RLA provides that carriers during the many years since the enactment of
and their employees have a duty “to exert those statutes, no railroad has sought a
every reasonable effort . . . to settle all dis- statutory amendment to require such notice.5
putes . . . in order to avoid any interruption to
commerce or to the operation of any carrier This suit, which was not filed in response to a
strike or in anticipation of a threatened strike,
growing out of any dispute between the car- represents in effect an attempt by the railroads to
rier and the employees thereof.” Because I amend the RLA through judicial interpretation rather
conclude that a court has no authority to add than legislative amendment, a tactic one carrier has
to that duty a requirement that a railway union previously tried unsuccessfully.6
provide advance notice before engaging in a
strike, work stoppage, or other job action The six railroad appellees initiated this suit,
seeking a declaratory judgment to the effect that
against a carrier, I respectfully dissent. BMWE has violated §152 First, by authorizing,
encouraging, permitting, calling, or engaging in self-
Appellant Brotherhood of Maintenance of help, including strikes, without notice, over disputes
Way Employees (BMWE) is a labor union involving what BMWE characterizes as unilateral
which represents those employees of numer- changes in agreements, and by engaging in such
conduct as a pattern, practice, or policy. The rail-
ous railroads who are responsible for main-
roads also sought an injunction requiring BMWE in
taining, repairing and rehabilitating railroad the future to give ten days advance notice of its intent
tracks throughout the United States. Since to commence any job action against any of the
1993 BMWE has engaged in twelve strikes or plaintiff railroads, thereby giving the railroad the
planned strikes, each one against at least one opportunity to obtain a restraining order in advance of
of the six railroads who are plaintiffs in this
suit. In each instance, the union gave no
5
advance notice to the railroad of its intent to At oral argument, counsel for the railroads
commence a strike. The railroad in question advised that in the 76 years since the RLA’s
ultimately obtained injunctive relief against enactment no railroad had ever sought such an
each of the strikes, on the ground that the amendment from Congress.
dispute which gave rise to the strike was a 6
In 1998, Burlington Northern and Santa Fe
“minor dispute,” as to which a strike is un-
Railway Company, an appellee herein, filed suit in
lawful. See Consolidated Rail Corp. v. Rail-
the Northern District of Texas seeking, among
way Labor Executives Assn., 491 U.S. 299, other things, a mandatory injunction requiring the
304 (1989). In each injunction suit brought union to give 3 days advance notice of future
by the railroad, the union contended that the strikes. Burlington N. & Santa Fe Ry. Co. v.
strike or planned strike was lawful, primarily Brotherhood of Maintenance of Way Employees,
because the disagreement between the parties 93 F.Supp. 2d 751 (N.D. Tex.2000) The district
involved a major dispute. Where a major dis- judge denied the railroad that relief but suggested
pute is involved, a party may resort to a strike that on a different record such an injunction
after exhausting the bargaining and mediation regulating futur e conduct by the union might be
process mandated by §§5 and 6 of the RLA. justified. Id. at 760. The district court’s denial of
the injunction was not appealed.
the threatened union action. The railroads urged that relationship between railway unions and railroad
the advance notice requirement was warranted to carriers, such as the RLA, the statute cannot be
prevent significant economic losses resulting from an construed to impose such an obligation upon a union.
illegal strike, losses for which the railroads cannot
recover damages from the unions. See Louisville & I agree with the majority that the district court’s
Nashville Railroad Company v. Brown, 252 F.2d 149, opinion provides “a persuasive explanation of its
155 (5th Cir. 1958). reasons for entering the injunction,” but I disagree
that it supports the judgment granting the injunction.
The district court granted the railroads’ motion for A requirement of advance notice of intent to strike
summary judgment, based in large part upon the may well be sound public policy; however, the
decisions in eighteen prior suits7 between the imposition of such a requirement is for Congress, not
railroads and BMWE over an eight year period in the court.
nine different federal district courts. Each of these
suits resulted ultimately in a grant of a railroad’s The procedural history of the RLA is significant
petition for an injunction halting an ongoing strike or and somewhat unusual. After extensive negotiations,
prohibiting what was perceived as a threatened strike. the railway unions and the railroads presented a
In granting the injunction on appeal before us, the proposed statute to Congress, which enacted into law
district court also relied upon statements made by the precise agreement submitted by the unions and the
union executives in depositions and press releases. carriers. Thus the RLA strikes a delicate balance
Upon this summary judgment record the railroads between the competing interests of the unions and the
convinced the district court that BMWE had dem- carriers. The advance notice requirement imposed by
onstrated a pattern, practice, and policy of engaging the district court forever shifts the balance embodied
in illegal self-help activities. Based upon that finding, in the RLA, as between the plaintiff railroads and the
the district judge in effect amended the RLA (as BMWE.
applicable to parties to this litigation), to add a
requirement that the union must give the railroad ten The importance of maintaining the delicate
days advance notice before initiating any job action, balance embodied in the RLA has been consistently
including a strike. The injunction contained no recognized. In both Norfolk Southern Ry. Co. v.
temporal or geographic limitation, nor was it Brotherhood of Locomotive Engineers, 217 F.3d 181,
restricted only to union actions taken in response to 190 (4th Cir. 2000) and CSX Transportation, Inc. v.
specific circumstances. Marquar, 980 F.2d 359, 380 (6th Cir. 1992), the court
relied upon the desirability of maintaining this
While advance notice of a union’s intent to strike delicate balance between the railroads and the railway
or to utilize any self-help action may be a laudable unions as the rationale for denying railroads the right
objective in any comprehensive statute regulating the to recover damages from unions which had breached
their duty to arbitrate a minor dispute by engaging in
an illegal strike. As noted above, the railroads
7
contend they should be granted an injunction because
In his Memorandum Opinion and Order the they cannot recover damages for an unlawful strike.
district judge refers to eighteen suits in which a The very reason for denial of damages applies equally
temporary restraining order or an injunction was to an injunction: “[d]amages awards between railroads
issued against the union. Burlington N. & Santa and unions . . . threaten the delicate balance intended
Fe Ry. v. BMWE, 143 F.Supp. 2d 672, 679-685 by the RLA.” Id. So too would the court-created
(N.D. Tex. 2001). However, only nine involved advance notice requirement at issue here.
actual strikes by the union. The other nine in-
Had Congress wanted to impose a duty of advance
volved either what the railroads perceived as a
notice on unions, it certainly knew how to do so. In
threatened strike, including what the district court
my view, the district court usurped the legislative
characterized as situations where “BMWE refused function of Congress by imposing a duty that may well
to provide assurance that it would not strike,” or be beneficial for the common good, but is not au-
a counterclaim filed by the carrier seeking an thorized by §152 First or any other statute.
injunction in a suit initiated by the union.

8
 In affirming the district court, the majority relies pleadings, depositions, answers to interrogatories, and
in part upon the desire to avoid a split between the admissions on file, together with the affidavits, if any,
circuits. I submit that denial of the injunction sought show that there is no genuine issue as to any material
by the railroads would not create a circuit split. fact and that the moving party is entitled to judgment
Neither case cited by the majority involved the as a matter of law." Fed. R. Civ.Pro. 56(c). A
situation presented here: an injunction for an genuine issue of fact exists where the evidence is such
unlimited period of time, involving future activity that a reasonable party could return a verdict for the
under unspecified circumstances, in a suit filed at a non-moving party. See Anderson v. Liberty Lobby,
time when no adverse activity by the union is pending Inc., 477 U.S. 242, 248 (1986). The moving party
or then threatened. In Delta Air Lines, Inc. v. Air must “demonstrate the absence of a genuine issue of
Line Pilots Ass’n. Int’l, 238 F.3d 1300, 1311 (11th Cir. material fact.” Celotex Corp. v. Catrett, 477 U.S.
2001), the court limited the injunctive relief to 317, 323 (1986). If the moving party satisfies that
directing the union “to take further steps to end the burden, then the non-movant must go beyond the
pilots’ no-overtime campaign” then pending. In Del. pleadings and identify specific facts demonstrating
& Hudson Ry. Co. v. United Transp. Union, 450 F.2d that there is a genuine issue of material fact for trial.
603 (D.C. Cir. 1971), the court of appeals reversed the Id. at 324. Factual controversies are resolved in favor
district court’s order enjoining the union then of the non-moving party. Little v. Liquid Air Corp.,
involved in a wage and rule dispute with various 37 F.3d 1069, 1075 (5th Cir. 1994).
railroads from conducting a selective strike against
fewer than all of the plaintiff railroads. The court The majority declines to consider whether it was
concluded that the district judge granted the in- error for the district court to make “factual findings
junction based upon an erroneous legal premise. The without an evidentiary hearing . . . because BMWE
court of appeals remanded the case, subject to the does not raise the issue as a ground for reversal.”
continuing jurisdiction of the court of appeals, noting What the union clearly does raise on appeal is that the
that the obligation of a carrier and a union “to treat summary judgment record does not support the
with each other through responsible conduct of the district court’s characterization of the union’s prior
process of collective bargaining . . . is not consistent activities as an unlawful "pattern, practice, and policy
with such actions as a deliberate timing of a strike of authorizing, encouraging, permitting, calling, or
without prior warning, with the purpose of enhancing engaging in strikes, work stoppages, picketing, or
plant damage, or some other garrotte of jungle other self-help" against the railroads. BMWE’s briefs
warfare.” Id. at 622 (internal quotation and citation clearly challenge the district court’s findings of
omitted,). I respectfully disagree with the majority’s undisputed facts to support summary judgment.
conclusion that the quoted statement is not dicta. Indeed, the record excerpts submitted on appeal by
Needless to say, the denial of an injunction in the BMWE include the affidavits of Steven V. Powers, the
instant case could not cause a split with another assistant to the president of the BMWE, in which he
circuit which also denied an injunction. Moreover, sets forth specific facts disputing various “undisputed
Del. & Hudson Ry. v. United Transp. Union did not material facts” relied upon by appellees in moving for
involve a request for an injunction such as the one at summary judgment.
issue in this case. There, unlike here, there was a To conclude that BMWE’s pattern of behavior
specific disagreement and a specific threatened act warrants imposing a requirement that it provide
triggering a request for specific injunctive relief. advance notice of its intent to utilize self-help, it is not
enough simply to look at the union’s “won-loss”
Moreover, assuming arguendo that §152 First record in previous litigation. To reach such a
authorizes a court to impose a duty of advance notice conclusion it would be necessary to examine the back-
upon a union which has demonstrated in the past a ground of each suit to determine whether the union
pattern, practice or policy of illegally engaging in self- undertook the challenged activity with a reasonable
help, the summary judgment evidence before the dis- belief that the dispute giving rise to the challenged or
trict court does not support its conclusion that threatened activity constituted a major dispute
appellant has engaged in such illegal activities. between the parties, which would have justified the
strike which was the subject of the suit. That inquiry
Summary judgment is proper only “if the is essential because, as the Supreme Court has

9
recognized, “distinguishing between major disputes concerning whether the union acted in good faith in
and minor disputes” can be a “difficult task.” undertaking the job actions in the prior suits between
Consolidated Rail Corp. v. Railway Labor Executive the union and a carrier. The summary judgment
Assn., 491 U.S. at 310. The validity of that record developed before the district court does not
observation is borne out by the following analysis of support its conclusion that the union has demonstrated
the prior suits between appellant and appellees. a pattern, practice, and policy of illegally engaging in
self-help activities.
In two of the nine suits involving actual strikes,
the union prevailed at the district court level, only to The foregoing analysis of the district court’s
lose on appeal.8 Additionally, in Atchison, Topeka & decision to issue an injunction on summary judgment
Santa Re Ry. Co, v. Brotherhood of Maintenance of is not intended to weaken the conclusion that the
Way Employees, No. 94C2765 (N.D. Ill. May 4, injunction sought by appellees should not issue in any
1994), in granting the railroad a temporary event.
restraining order after concluding that a minor
dispute was involved, the district court acknowledged I would reverse the summary judgment entered by
that “BMWE raise[d] a substantial argument” that the the district court and remand to the district court for
dispute at issue was properly characterized as a major further proceedings not inconsistent herewith.
dispute. The railroads do not challenge the union’s
contention that in three additional situations the
railroads voluntarily ceased the action giving rise to
the strike.9

The district court also relied in part upon the
union’s stated policy that it “will do what it has to do”
to protect its members. That policy is simply a
statement that the union will do its duty toward its
members; it does not support a conclusion that the
union planned to engage in unlawful activity in the
future.

The district court developed an insufficient record

8
Brotherhood of Maintenance of Way Em-
ployees v. Atchison, Topeka & Santa Fe Ry. Co.,
No. 96-1515, 96-1524, (C.D. Ill. December 17,
1996, reversed on appeal 138 F.3d 635 (7th Cir.
1998); Brotherhood of Maintenance of Way
Employees v. Union Pacific Railroad Co., No.
00-2-396 (D. Colo. 2000), reversed No. 00-1105
(10th Cir. December 21, 2000).
9
CSX Transp., Inc. v. Brotherhood of Main-
tenance of Way Employees, No. 95-813 (M.D.
Fla. August 28, 1995); Norfolk Southern Ry. Co.
v. Brotherhood of Maintenance of Way Em-
ployees, (W.D. Va.. November 8, 1996); Con-
solidated Rail Corp. v. Brotherhood of Main-
tenance of Way Employees, No. 98-CV- 4277
(E.D. Pa. August 14, 1998).

10