[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 03-16318 ELEVENTH CIRCUIT
JUNE 30, 2005
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00460-CV-J-32-HTS
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 30, 2005)
Before BARKETT, MARCUS and SUHRHEINRICH*, Circuit Judges.
PER CURIAM:
*
Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
The Brotherhood of Maintenance of Way Employees (BMWE) appeals from
the district court’s order denying summary judgment to BMWE and granting
summary judgment to CSX Transportation, Inc. (CSX) on BMWE’s claim that
CSX violated § 2 First of the Railway Labor Act (RLA), 45 U.S.C. § 152 First.
Because we conclude that the district court lacked subject matter jurisdiction over
the dispute, we vacate its judgment and remand with instructions to dismiss.
I.
BMWE, the designated collective bargaining representative of certain CSX
employees, entered into a collective bargaining agreement with CSX. In a side
letter to the agreement, CSX promised that at least 40% of the BMWE-represented
employees would have “fixed” headquarters, rather than “floating” headquarters;
and those in the latter category would be able to work over a broader geographic
range than those in the former. In the side letter, CSX further agreed that
[t]he percentage of fixed headquartered positions will be determined
on a system-wide basis, using a rolling monthly average comparison
of both the total number of BMWE-represented positions (less SPG
positions) and the number of fixed headquartered positions. The
percentages will be reported to the General Chairman on a quarterly
basis.
CSX did not timely provide the information required by the agreement for
the third and fourth quarters of 1999, the first two quarters for which the
2
information was due. After BMWE complained about the non-compliance, CSX
provided a chart showing the percentages of fixed and floating employees for
February, 2001. When BMWE insisted on the provision of the quarterly reports as
called for in the agreement, CSX wrote back to state the relevant percentages for
the first quarter of 2002. When CSX failed to provide reports for the next two
quarters, BMWE again complained, and CSX responded (several months later) by
stating the percentages for the first quarter of 2003.
Throughout the course of this correspondence, BMWE repeatedly
demanded that CSX supplement the quarterly percentage reports with background
information relating to the calculation of the percentages, such as the dates that the
information was recorded, the identities of the actual work gangs reported, and the
number of employees per gang. CSX refused all such demands, stating that the
agreement did not require the provision of any background information.
After BMWE filed a complaint in the United States District Court for the
Middle District of Florida, seeking declaratory and injunctive relief, CSX
provided the percentages for each period from the third quarter of 1999 through
the second quarter of 2003. Again, however, CSX refused to give the requested
background information.
3
II.
We review the district court’s order granting summary judgment de novo,
applying the same legal standards as the district court did and viewing all facts in
the light most favorable to the non-moving party. See, e.g., Higdon v. Jackson,
393 F.3d 1211, 1218 (11th Cir. 2004). Summary judgment is appropriate when
“the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
A.
CSX argues at the outset that because it has provided the quarterly
percentage reports for the requested quarters and has acknowledged its obligation
to do so in the future, BMWE’s claims as to those percentages are moot.1 We
disagree.
The Supreme Court has held that “[m]ere voluntary cessation of allegedly
illegal conduct does not moot a case; if it did, the courts would be compelled to
leave the defendant . . . free to return to his old ways.” United States v.
1
Notably, CSX does not assert that BMWE’s claim concerning provision of the background
information is moot.
4
Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203, 89 S. Ct. 361, 21
L. Ed. 2d 344 (1968) (citation and internal quotation marks omitted). While “[a]
case might become moot if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur,” a
defendant’s mere statement that there is no evidence that it will violate the law in
the future “cannot suffice to satisfy the heavy burden of persuasion which [the
Supreme Court] ha[s] held rests upon those in [a defendant’s] shoes.” Id. “[A]
defendant claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S. Ct. 693, 145 L. Ed.
2d 610 (2000) (citing Concentrated Phosphate, 393 U.S. at 203).
As the district court put it, “CSX[]’s compliance with the percentage
reporting requirements . . . was slipshod at best.” Order at 16 n.7. CSX repeatedly
failed to provide the required information; by its own admission, it had reported
percentages for only three quarters between May 11, 1999 (when the agreement
was signed) and April 11, 2003 (when BMWE filed suit). This production
amounted only to three out of fifteen of the required reports. In fact, the
repetitiousness of past conduct is a significant factor that may point towards the
5
likelihood of recurrence. See Horton v. City of St. Augustine, 272 F.3d 1318,
1328 (11th Cir. 2001) (finding that a city’s “history of legislating repeatedly” to
regulate certain activity indicated that such legislation was likely to recur, and thus
that a recent amendment to the challenged portion of the legislation did not render
the challenge moot). That CSX did not begin reporting regularly until after
BMWE brought suit casts still further doubt on the notion that its compliance was
“voluntary” and unlikely to resume once the threat of litigation had passed. CSX
has thus fallen far short of meeting the “formidable burden” described in Laidlaw.
Simply put, the question of CSX’s obligation to provide the quarterly
percentage reports is not moot.
B.
CSX also argues that since BMWE’s claim is based on an alleged violation
of the collective bargaining agreement, it creates a “minor dispute,” over which
the district court lacked subject matter jurisdiction. We agree.
Disputes arising under the RLA are divided into two types: major disputes
and minor disputes. See generally Consol. Rail Corp. v. Ry. Labor Executives’
Ass’n, 491 U.S. 299, 109 S. Ct. 2477, 105 L. Ed. 2d 50 (1989). As the Supreme
Court has observed:
6
“In the event of a major dispute, the RLA requires the parties to
undergo a lengthy process of bargaining and mediation. Until they
have exhausted those procedures, the parties are obliged to maintain
the status quo, and the employer may not implement the contested
change in rates of pay, rules, or working conditions. The district
courts have subject matter jurisdiction to enjoin a violation of the
status quo pending completion of the required procedures, without the
customary showing of irreparable injury. . . . In contrast, the minor
dispute category is predicated on § 2 Sixth and § 3 First (i) of the
RLA . . . A minor dispute . . . is subject to compulsory and binding
arbitration before the National Railroad Adjustment Board, § 3, or
before an adjustment board established by the employer and the
unions . . . . § 3 Second. The Board . . . has exclusive jurisdiction
over minor disputes. Judicial review of the arbitral decision is
limited.”
Id. at 302-03 (emphasis added) (footnote and citations omitted). See also
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253, 114 S. Ct. 2239, 129 L. Ed.
2d 203 (1994); CSX Transp. Inc. v. Bhd. of Maint. of Way Employees, 327 F.3d
1309, 1320 (11th Cir. 2003).
Consolidated Rail established a standard for distinguishing between minor
disputes and major disputes. In that case, the Court focused primarily on minor
disputes. Beginning with the language of RLA § 3 First (i), which addresses
disputes arising “out of grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working conditions,” the Court
repeated the language found in its earlier decision in Elgin, Joliet & Eastern
7
Railway Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945),
which explained that this category of disputes
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. The
dispute relates . . . to the meaning or proper application of a particular
provision with reference to a specific situation . . . . [T]he claim is to
rights accrued, not merely to have new ones created for the future.
Id. at 723.
The Court summarized the Burley test as “look[ing] 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,” and added that “[t]he
distinguishing feature of such a [minor dispute] is that the dispute may be
conclusively resolved by interpreting the existing agreement.” Consol. Rail, 491
U.S. at 305. Condensing the Burley formulation even further, the Court provided
a shorthand version of the test: “major disputes seek to create contractual rights,
minor disputes to enforce them.” Id. at 302 (citing Burley, 325 U.S. at 723). See
also Hawaiian Airlines 512 U.S. at 258; Atchison, Topeka & Santa Fe Ry. Co. v.
Buell, 480 U.S. 557, 564-65, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987).
Similarly, in Hawaiian Airlines, the Supreme Court described the “minor
dispute” category as encompassing all controversies involving rights created
8
solely by collective bargaining agreements. The Court stated that the term
“‘grievances,’ like disputes over ‘the interpretation or application’ of CBA’s
[collective bargaining agreements], refers to disagreements over how to give effect
to the bargained-for agreement,” and observed that “[t]he use of ‘grievance’ to
refer to a claim arising out of a CBA is common in the labor-law context in
general.” 512 U.S. at 254. The Court further noted that “[o]ur case law confirms
that the category of minor disputes contemplated by § 151a are those that are
grounded in the CBA,” id. at 256, and that “‘minor disputes’ subject to RLA
arbitration are those that involve duties and rights created or defined by the CBA,”
id. at 258. Finally, the Court explained that “[o]bviously, to say that a minor
dispute can be ‘conclusively resolved’ by interpreting the CBA is another way of
saying that the dispute does not involve rights that exist independent of the CBA.”
Id. at 265.2 The crucial inquiry is thus whether the source of the plaintiff’s
asserted legal right is the collective bargaining agreement.
2
See also Ry. Labor Executives’ Ass’n v. Boston & Maine Corp., 808 F.2d 150, 159 (1st Cir.
1986) (“It would seem that any breach of an existing collective bargaining agreement, whether
‘anticipatory’ or otherwise, is precisely what an arbitrable ‘minor’ dispute is concerned with.”);
Wolfe v. Norfolk S. Ry. Co., 2003 WL 2007936, at **3 (6th Cir. Apr. 29, 2003) (“Minor disputes
include claims involving the meaning or application of an existing collective bargaining agreement
provision to a specific situation or case.”); Childs v. Pa. Fed’n Bhd. of Maintenance of Way
Employees, 831 F.2d 429, 437 (3d Cir. 1987) (“[M]inor disputes involve the application of a valid
agreement to a specific grievance); Chicago & N.W. Transp. Co. v. Ry. Labor Executives’ Ass’n,
908 F.2d 144, 148 (7th Cir. 1990) (“[A] grievance is merely a complaint that arises under the
agreement....”) (internal citation omitted).
9
In Consolidated Rail, the Supreme Court limited the ability of an RLA
defendant to convert a statutory claim into a “minor dispute” by merely asserting
that the challenged conduct is permitted by an applicable collective bargaining
agreement. The Court held that the contested action must be “arguably” justified
by the parties’ agreement before the minor dispute rule can apply:
“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’ collective-bargaining agreement. Where,
in contrast, the employer’s claims are frivolous or obviously
insubstantial, the dispute is major.”
Consol. Rail, 491 U.S. at 307. Thus, merely claiming a contractually based right
to take or resist the action in question does not render the dispute a minor dispute.
However, we have previously observed that the Consolidated Rail standard for
“arguability” is low, and stated that “if a reasonable doubt exists as to whether the
dispute is major or minor, we will deem it to be minor.” CSX Transp., 327 F.3d at
1321 (citation omitted). Moreover, Consolidated Rail did not involve a situation
in which the plaintiff’s claim was itself based on a collective bargaining
agreement.
BMWE argues that CSX’s violation of the obligations imposed or allegedly
imposed by the agreement rises to the level of a violation of § 2 First. BMWE
repeatedly emphasizes § 2 First’s duty to “maintain agreements”; the implication
10
is simply that by failing to provide the quarterly percentage reports and
background information, CSX has failed to maintain the agreement with BMWE.
According to BMWE, such an alleged statutory violation renders irrelevant the
question of whether the dispute is major or minor. We remain unpersuaded.
BMWE relies heavily on Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l,
238 F.3d 1300 (11th Cir. 2001). BMWE says that the plaintiff’s § 2 First claim in
that case was “based in part on an agreement commitment,” and that the court
addressed the plaintiff’s claim regardless. Therefore, the argument goes, a district
court should assert jurisdiction to hear and decide claims under § 2 First, even if
those claims could also give rise to a minor dispute. This argument not only
collides with the ruling in Consolidated Rail, but also misapprehends the holding
in Delta itself.
In Delta, a group of airline pilots began collectively to decline to work
overtime while their employer and their union were engaged in negotiations to
replace their existing collective bargaining agreement with a new agreement. The
employer sued under § 2 First, seeking to enjoin the pilots’ collective action.
Since the pilots’ conduct was intended to “pressure [the employer] into making
concessions in the negotiations for a new” agreement, the statutory claim raised a
major dispute, over which the district court had jurisdiction. Id. at 1303. The
11
union asserted that the existing agreement “arguably” allowed the pilots to refuse
to work overtime, and thus that the employer’s claim should be dealt with as a
minor dispute. We, however, found that the agreement did not “arguably” permit
the pilots’ behavior, and thus that the case did not involve a minor dispute.
Indeed, we noted that classification of the case as a minor dispute “would have
rendered [the dispute] subject to mandatory and exclusive arbitration under the
RLA.” Id. at 1307.
BMWE’s claim as to the quarterly reports raises a minor dispute. First,
CSX is not attempting to create new rights or to eliminate existing duties under the
agreement. Indeed, its argument regarding mootness is premised on the very fact
that it has complied with the relevant obligation by (belatedly) providing the
requested percentages. Second, BMWE is seeking a declaratory judgment stating
that CSX’s failure to provide the percentages violates the very agreement before
the Court -- in effect, a formal interpretation or application of the agreement.
Third, and more generally, the obligation in question clearly derives from the
agreement itself, rather than from some external statutory source. The
Consolidated Rail Court’s “shorthand” definition of minor disputes as those in
12
which a party seeks “to enforce” a collective bargaining agreement surely
encompasses the present action.3
BMWE’s claim as to the background information also raises a minor
dispute. The obligation to provide such information, if it existed at all, was
implicit in and derived from the side letter’s provision requiring the quarterly
reports. The determination of whether such an obligation existed plainly requires
interpretation of the agreement and the side letter.
BMWE also suggests that because the side letter obliged CSX to report the
quarterly percentages, § 2 First required CSX to provide (upon request) the backup
information used to calculate those percentages. Such backup information,
according to BMWE, was necessary to ensure that CSX was not merely providing
3
The dissent suggests that there is no practical reason to refer this case to arbitration before
the Board, since the primary advantage of such arbitration -- the Board’s expertise in interpreting
collective bargaining agreements -- is not needed to resolve the question of whether the quarterly
reports were required. Because CSX concedes that point, the argument goes, the Board’s only
function would be to issue an award confirming the obvious, and BMWE would then have to return
to the district court in order to seek enforcement of the award. Under this view, it would be more
efficient simply to require the district court to issue the declaratory judgment now, and to skip the
extra procedural steps.
The relevant question, however, is not whether the district court is the more efficient forum
(as it may well be), but whether it has jurisdiction to act. The district court’s jurisdiction does not
turn on the ease or difficulty of the interpretive question, but rather on whether the dispute is over
rights created and defined by the collective bargaining agreement. Because the Board’s jurisdiction
over minor disputes like the one at hand is exclusive, the district court is without the authority simply
to resolve the claim - - which BMWE has brought in the wrong forum - - in the name of efficiency.
For us to hold otherwise would enable a party to sidestep the arbitration process whenever it may
be convenient.
13
baseless or “sham” percentage figures, while secretly reducing the number of
“fixed” employees to a point below the agreed-upon figure. Under this view, the
provision of such information and the enabling of basic compliance verification
was necessary for CSX to demonstrate a “reasonable effort” to maintain the
agreement and to settle the dispute.
BMWE’s reading of the statute, however, effectively circumvents
Consolidated Rail’s minor dispute rule. Indeed, under this reading, every specific
right or duty imposed by a collective bargaining agreement would generate
additional rights or duties in the statute. Virtually any dispute over the meaning of
a term of an agreement could be recast as a dispute over the corresponding § 2
First requirements, opening the door to federal subject matter jurisdiction.
Moreover, the inference of such additional statutory requirements could
undermine the parties’ negotiation of collective bargaining agreements, since the
addition of new agreement terms could lead to the imposition of unforeseeable
statutory liability in future cases. It would thus be difficult for the parties to define
and control with precision their respective obligations, even through the most
careful of drafting efforts.
Simply put, any obligation to provide either the quarterly percentage reports
or the requested background information can only have derived from the
14
agreement and the side letter. And, the identification of these obligations requires
the interpretation and application of the side letter, a function to be performed by
the Board. Therefore, we are constrained to conclude that the district court lacked
subject matter jurisdiction over BMWE’s claims. Accordingly, we vacate and
remand the case to the district court, with instructions to dismiss for lack of
subject matter jurisdiction.
VACATED AND REMANDED.
15
BARKETT, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority’s conclusion in Part II.A that BMWE’s claims
regarding the quarterly percentage reports are not moot, and its conclusion in Part
II.B that BMWE’s claim as to the provision of background information is a “minor
dispute” over which we lack jurisdiction. However, I disagree with its holding
that BMWE’s quarterly percentage reports claim is also a “minor dispute”. That
conclusion rests, in my opinion, on a misreading of the distinction between minor
and major disputes laid out in Consolidated Rail Corp. v. Railway Labor
Executives’ Ass’n, 491 U.S. 299, 109 S. Ct. 2477, 105 L. Ed. 2d 250 (1989), and
Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L.
Ed. 1886 (1945). When, as in this case, a carrier refuses to comply with an
undisputed provision in a collective bargaining agreement, effecting a unilateral
change in the agreement’s terms, the resulting dispute is major, not minor.
Under Consolidated Rail, when a party to a collective bargaining agreement
“asserts a contractual right to take the contested action,” the dispute is minor “if
the action is arguably justified by the [agreement’s] terms.” Consol. Rail Corp.,
491 U.S. at 307. On the other hand, if the party’s contractual justification is
“obviously insubstantial or frivolous, [or] made in bad faith,” the dispute is major.
Id. at 307-10. CSX admitted at oral argument that it could not arguably justify its
16
refusal to provide the reports under the agreement’s terms. (“By repeatedly failing
to comply with this obligation to provide the reports, CSX-T[ransportation]
effectively read the obligation to provide the reports out of the agreement, and
changed the agreement.”).1 Thus, this refusal must constitute a major dispute,
even under the low standard of “arguability” of CSX Transportation, Inc. v.
Brotherhood of Maintenance of Way Employees, 327 F.3d 1309, 1321 (11th Cir.
2003). See Ass’n of Flight Attendants, AFL-CIO v. United Airlines, Inc., 976
F.2d 102, 104 (2d Cir. 1992) (noting that “a unilateral and enjoinable change in
the collective agreement” would constitute a major dispute, and contrasting it with
“a legitimate disagreement over an ambiguity in a collective agreement” subject to
arbitration that formed the focus of the case).
Despite acknowledging this language in Consolidated Rail, the majority
ultimately decides that this dispute was minor based on the Supreme Court’s
“shorthand” formulation of the minor-major dispute test in the same case, which
explains that “major disputes seek to create contractual rights, minor disputes to
enforce them.” Consol. Rail Corp., 491 U.S. at 302 (citing Burley, 325 U.S. at
1
This undermines the majority’s conclusion that “CSX is not attempting to create new rights
or to eliminate existing duties under the agreement.” Ante at __. In fact, by holding that this claim
is not moot, the majority implicitly recognizes that CSX may attempt to write this provision out of
the agreement again in the future.
17
723). Because the obligation to provide the quarterly reports derives from a
provision in the agreement, the majority reasons, the dispute concerns the
enforcement of a contractual right, and therefore must be a minor dispute subject
to arbitration.
“Shorthand” formulations of Supreme Court jurisprudence do not always
capture the precision or totality of the Supreme Court’s holdings, and I do not
believe they do so in this case. The majority’s conclusion ignores the language
that the “shorthand” test summarizes, which classifies disputes “where it is sought
to change the terms of [an agreement]” as major disputes. Burley, 325 U.S. at 723.
In contrast, the Court described minor disputes as:
contemplat[ing] 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. The [minor]
dispute relates either to the meaning or proper application of a particular
provision with reference to a specific situation or to an omitted case.
Id. (emphasis added). By refusing to comply with a provision in the collective
bargaining agreement without justification, CSX made an “effort…to bring about
a formal change in [its] terms.” Id. And because CSX admits that it could not
arguably justify its refusal under the agreement’s terms, the dispute does not
“relate[] either to the meaning or the proper application of a particular provision
18
with reference to a specific situation.” Id. CSX concedes that the agreement
required it to provide the reports; it simply refused to comply.
Moreover, classifying this dispute as minor clashes with Consolidated
Rail’s observation that under Burley, the “distinguishing feature” of a minor
dispute is that it “may be conclusively resolved by interpreting the existing
agreement.” Consol. Rail. Corp., 491 U.S. at 305. In such situations, the
arbitrators, who are “experts in the interpretation of agreements,” Air Line Pilots
Ass’n, Int’l v. UAL Corp., Int’l Ass’n of Machinists & Aerospace Workers, 874
F.2d 439, 444 (7th Cir. 1989), play a valuable role. Because collective bargaining
agreements are complicated contracts that “cannot define every minute aspect of
the complex and continuing relationship” between carrier and union, see Gateway
Coal Co. v. United Mine Workers of America, 414 U.S. 368, 378, 94 S. Ct. 629,
38 L. Ed. 2d 583 (1974) (commenting in context of the Labor Management
Relations Act); United Steelworkers of America v. Warrior & Gulf Navigation
Co., 363 U.S. 574, 578-80, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960) (same),
arbitrators’ expertise in “the common law of [the] particular industry” makes them
19
specially able to interpret their provisions. Consol. Rail Corp., 491 U.S. at 310
(quoting Warrior & Gulf Navigation Co., 363 U.S. at 579).2
2
Relying on Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S. Ct. 2239, 129 L. Ed. 2d
203 (1994), the majority asserts that the “crucial inquiry” in classifying a dispute as major or minor
is “whether the source of the plaintiff’s asserted legal right is the collective bargaining agreement.”
Ante at __. I disagree. The crucial inquiry is not whether the collective bargaining agreement is the
basis for the plaintiff’s claim, but whether it provides a colorable, non-frivolous defense to the
contested action. See Consol. Rail Corp., 491 U.S. at 307 (“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’ collective-bargaining agreement. Where, in contrast, the employer’s claims
are frivolous or obviously insubstantial, the dispute is major.”). If it does, then the dispute is suited
for resolution by arbitrators, who are experts at the special skill of interpreting collective bargaining
agreements. If it does not, then arbitration serves no purpose, and dispute resolution is best handled
by a court.
Consistent with Consolidated Rail, Hawaiian Airlines merely reiterates that the crucial
inquiry is whether the dispute “may be conclusively resolved by interpreting the existing [collective
bargaining agreement].” 512 U.S. at 265 (quoting Consol. Rail Corp., 491 U.S. at 305). If the
dispute involves interpretation of the agreement, the dispute is minor; if it does not, the dispute is
major. Id. Thus, the Hawaiian Airlines Court noted that under Consolidated Rail, a carrier’s attempt
to unilaterally add a term to an existing collective bargaining agreement would constitute a major
dispute. Id. (citing Consol. Rail Corp., 491 U.S. at 303).
This case presents the materially indistinguishable situation wherein the carrier attempts to
unilaterally delete an express provision of a collective bargaining agreement. In both cases, the
carrier has unilaterally modified the terms of the contract. No interpretation of the agreement is
required in either situation, because the carrier cannot advance a non-frivolous argument that the
agreement permits the contested modification. See Consol. Rail Corp., 491 U.S. at 307. Instead,
the carrier has attempted to create or eliminate provisions in the collective bargaining agreement
without resorting to the bargaining process required by the Railway Labor Act. Unilateral
modifications to the agreement thus constitute “major disputes” because (1) no contractual
interpretation is necessary to resolve them, and (2) classifying them as minor would impermissibly
“undercut the prohibitions of § 2, Seventh, and § 6 of the Act against unilateral imposition of new
contractual terms.” Id. at 306 (internal quotation marks and citations omitted).
This logic is in no way at odds with the observation in Hawaiian Airlines that minor disputes
“[do] not involve rights that exist independent of the [collective bargaining agreement].” 512 U.S.
at 265. When the offending party unilaterally modifies the terms of the collective bargaining
agreement, it implicates its independent duty “to exert every reasonable effort to make and maintain
agreements” under § 2 First of the Act, 45 U.S.C. § 152 First (2005), and “the prohibitions of § 2,
Seventh, and § 6 of the Act against unilateral imposition of new contractual terms.” Consol. Rail
Corp., 491 U.S. at 306 (internal quotation marks and citations omitted). Therefore, a major dispute
may still arise even though the plaintiff has asserted a legal right under the collective bargaining
20
But there is nothing to interpret in this case. Both CSX and BMWE agree
that the agreement requires CSX to produce quarterly reports. Accordingly, I do
not believe that Congress intended for arbitrators to handle such disputes.
Frankly, I do not even see what role an arbitrator can play in this scenario.
Because both parties agree that the agreement requires CSX to produce the
reports, the arbitral panel’s only job will be to issue a decision commanding CSX
to comply, a decision that BMWE will have to take back to federal court to
enforce. We can more easily settle this dispute now, by entering a declaratory
judgment requiring CSX to produce the quarterly reports, without engaging in
contractual interpretation of any sort.
Finally, I note that a carrier’s bad-faith refusal to comply with an undisputed
provision in a collective bargaining agreement “present[s] the large issues about
which strikes ordinarily arise with the consequent interruptions of traffic the Act
sought to avoid,” and thus is appropriately categorized as a major dispute. Burley,
325 U.S. at 723-24. Far from quibbling over what a particular provision means,
CSX flatly refused to abide by an agreement that forms the cornerstone of its
relationship with its employees. See Warrior & Gulf Navigation Co., 363 U.S. at
agreement, if the defendant either does not assert a contractual right to take the contested action, or
asserts a contractual right that is “frivolous or obviously insubstantial.” See id. at 307.
21
579 (“The collective agreement covers the whole employment relationship.”).
That sort of unilateral action risks “undermin[ing] the confidence so indispensable
to adjustment by negotiation, which is the vital object of the Act.” Burley, 325
U.S. at 756 (Frankfurter, J., dissenting); cf. Air Line Pilots Ass’n, Int’l, 874 F.2d at
444 (“[I]f one party to a labor agreement refuses to bargain with the other, this is
an ominous sign that a strike is looming.”).
For the above reasons, I respectfully dissent from the majority’s
determination that BMWE’s claim as to the quarterly reports constitutes a minor
dispute.
22