CSX Transportation, Inc. v. Brotherhood of Maintenance of Way Employees ("BMWE"), Allied Eastern Federation of the Brotherhood of Way Employees, Southeast System Federation BMWE

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR TH E ELEV ENTH C IRCUIT FILED
____________________________ COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
No. 01-15410 APRIL 21, 2003

____________________________ THOMAS K. KAHN
CLERK

D. C. Docket No. 95-00813-CV-3-J-21

CSX TRA NSP ORT ATIO N, IN C.,

Plaintiff-Counter-
Defen dant-A ppellant
Cross- Appe llee,

versus

BROTHERHOOD OF M AINTENANCE OF
WA Y EM PLO YEE S, ("BM WE" ),
ALLIED EASTERN FEDERATION OF THE
BRO THE RHO OD O F WA Y EM PLO YEE S,

Defendants-Counter-
Claimants-Appellees
Cross- Appe llants,

SOU THE AST SYS TEM FED ERA TION , BMW E,

Defendant-Counter-
Claiman t.
 ____________________________
Appe als from the Un ited States District C ourt
for the Middle District of Florida
____________________________
(April 21, 2003)

Before BIRCH and BLACK, Circuit Judges, and PROPST*, District Judge.

BIRCH, Circuit Judge:

In this appeal, we decide whether damages are available under the Railway

Labor Act (“RLA”), 45 U.S.C. §§ 151-164 , to recover costs incurred by a carrier

associated with a su rprise illeg al strike initia ted by a union. B efore rea ching th is

query, we address whether this issue, as it arises between the parties, is precluded

by collateral estoppel. Deciding that it does not preclude our determination of the

case on its merits, we review the nature of the labo r disputes between the parties:

whether they were major or minor within the RLA. Because we hold that the

disputes were minor within the RLA, and thus the union-instituted strike was

illegal, we decide whether the carrier is entitled to recover damages incurred by the

interruption in service because it did not have notice that the strike was impending,

sufficient to permit it to seek injunctive relief prior to the strike. Finding ourselves

*
Honorable Robert B. Propst, United States District Judge for the Northern District of
Alabama, sitting by designation.

2
bound by precedent, now arguably obsolete, we are compelled to find the answer

to be in the negative, yet urge the reconsideration of this proceeding en banc. For

the following reasons, we AFFIRM.

I. BACKGROUND

CSX Transportation, Inc. (“CSXT”) is a national rail carrier, whose labor

relations are governed by the RLA. The Brotherhood of Maintenance of Way

Employees (“BMWE”) is the collective bargaining representative of CSXT

maintenance of way workers. Maintenance of way employees are responsible for

repairing and ma intaining the railroa d track an d supp orting str uctures.

Negotiations between CSXT and BMWE resulted in collective bargaining

agreements (hereinafter “agreements”), which governed rates of pay, work rules

and working conditions, and were subject to the provisions of the RLA. The

collective bargaining agreement at issue (the “Agreement”) was executed and

adminis tered betw een defe ndant S outheas t System Federa tion, a BM WE s ub-un it,1

and CSXT. The Agreement covered what is now the former Louisville and

Nashville Railroad Company (“L&N”) and a part of CSXT’s rail system.

1
Co-defendant Southeast System Federation is a sub-unit of defendant BMWE. Since
the commencement of this litigation, Southeast System Federation merged into Allied Eastern
Federation, which was later substituted as a defendant.

3
 On 11 August 1995, BMWE authorized a strike against CSXT. On 17

August 1995, BMWE initiated a strike across eleven states against CSXT on two

bases: (1) BMW E objected to CSX T’s practice of permitting its supervisors,

responsible for inspecting the tracks, to make minor repairs during the course of

their inspections; and (2) CSXT’s refusal to award a position to Dewey C.

Hamilto n, who claimed s eniority rig ht to the p osition w ithin the se niority dis trict.

The first dispute involved whether BMWE employees had the exclusive

right to make track repairs, regardless of how minor, or whether it was within the

scope of the Agreement that supervisors also could make occasional minor repairs

of defects found during the co urse of their inspections. Rule 1 o f the Ag reemen t,

dated 1 October 197 3 (the “Scope Rule”) prov ides:

RULE 1. SCOPE

Subject to the exc eptions in Rule 2, the rules containe d herein
shall govern the hours of service, working conditions, and rates of pay
for all employes2 in any and all subdepartments of the Maintenance of
Way and Structures Department, represented by the Brotherhood of
Maintenance of Way Em ployes, and such employes sh all perform all
work in the ma intenanc e of wa y and stru ctures de partmen t.

RULE 2. EXCEPTIONS TO RULE 1

2
“Employes” is an alternate spelling for “Employees.” The Random House Dictionary
of the English Language 638 (2d ed. 1987). We will use the latter spelling unless the former
appears in quoted language or in the parties’ names.

4
 These provisions shall not apply to the follow ing, exce pt as to
the retention and exercise of seniority by the individuals as outlined in
the senio rity rules:
...
2(c) Supervisors and assistants, and other employes abo ve that ran k; .
...
R6-140 at JA 27-28, R6-141 at JA 571. 3

Prior to the 17 August 1995 strike, BMWE consistently took the position

that CSXT’s inspectors could not perform any repairs that were maintenance-of-

way w ork bec ause that w as reserv ed to BM WE w orkers. B MW E asserte d this

position in many disputes, most of which were resolved by settlement, withdrawal

or arbitration. The proverbial “last straw” was CSX T’s permitting two supervisors

to perform minor track repairs and abolishing a BMW E member-held truck driver

position. R6-146 at 8. In the past, the truck drivers accompanied the CSXT

supervisors on their inspections and were available to perform any necessary minor

repairs. With the elimination of the position, CSXT inspectors would be

unaccompanied in their inspections and would perform the minor work them selves,

3
On 17 September 1998, the Agreement was amended to permit track inspectors to
“perform inspection of track, as assigned, perform any track work in connection with their
inspections, and complete required reports to insure safe and timely passage of trains and
compliance with the Federal Railroad Safety Act of 1970.” R6-141 at JA 560 (emphasis added).
On 1 October 1998, the parties entered into a side agreement that provided that “[t]he agreement
. . . has no effect upon the dispute between the parties concerning managers performing repairs
as identified in CSX Transportation, Inc. v. Brotherhood of Maintenance of Way Employes et
al., United States District Court, Middle District of Florida, Jacksonville Division, Case No. 95-
0813-CIV-J-21-B.” R6-141 at JA 562. Therefore, the September 1998 agreement has no effect
on this dispute and did not alter the positions of the parties.

5
ostensib ly in the inte rest of eff iciency in a voiding a separate BMW E emp loyee trip

out to the track. BMWE held the view that a CSXT supervisor, if alone in the

field, instead should summon a BM WE employee to make the repair.

The second dispute involved CSXT’s initial refusal to award a track

repairm an positio n to a BM WE m ember b ecause a d ispute ex isted as to h is

seniority rights. Generally, agreements between CSXT and BMW E divided the

rail system into seniority districts, wherein an employee could hold seniority in one

district at a time. Dewey C. Hamilton had seniority in a seniority district on the

former Chesapeake & Ohio Railway (C&O ). He was furloughed for lack of work

on the C&O and permitted to transfer on 23 May 1995 to another district on the

former L&N, which w as also part of CSXT’s system, and given a trackman

position. When a better position became available on the L&N, Hamilton bid on

that position. CSXT initially declined to award him the position because it was

uncertain whether Hamilton properly established seniority on the L&N. BMWE

took the stance that Hamilton should be awarded the position because he was the

only em ployee w ho bid o n it. CSX T and B MW E nego tiated rega rding th e issue.

CSX T took the positio n that “po licy will su persede the agree ment” an d refuse d to

recognize Hamilton’s seniority and position bid. R6-146 at 9. Ultimately, on the

date BMWE commenced the strike, CSXT conceded to award Hamilton the

6
position and applied his seniority retroactive to the date that he transferred to the

L&N seniority d istrict.

Discussions ensued between CSXT and BMWE as a result of these two

issues. Finding no ready resolution, BMWE secretly prepared to engage the

BMW E emp loyees acr oss eleve n states in a strike ov er these tw o issues. Id. at 10-

11. W ithout an y forma l or infor mal notic e to CS XT, B MW E called th e eleven- state

strike on 17 August 1995. Later that same day, CSXT filed suit in the United

States District C ourt for the M iddle District of F lorida and claim ed that BM WE’s

strike violated § 152, First and § 153 of the RLA. CSX T prayed for and was

granted a temporary restraining order halting the strike by BMWE workers. On 28

August 1995, the district court heard argument on whether to grant CSXT’s motion

for a preliminary strike injunction. The same day, the district court issued the

prelimin ary injun ction.

On 2 October 1995, BMWE filed a counterclaim alleging that CSXT violated the

RLA by unilaterally changing working conditions and failing to maintain the

parties’ collective bargaining agreements when it permitted inspectors to perform

repair work exclusively reserved fo r maintenance-of-way em ployees. BMW E also

filed motions to dismiss CSXT’s claim for damages and state-law claim for

tortious in terferenc e with co ntractual r ights.

7
 On 24 February 1997, BMWE moved to dissolve the preliminary injunction

on the basis that the strike was instituted over a major dispute as defined by the

RLA. BM WE argued that “the [National Railroad Adjustment Board (“NRAB”)]

. . . issued an Award construing provisions of the parties’ agreement that are

relevant to this dispute in such a way that the interpretation of the contract offered

by the plaintiff in support of its motion for a preliminary injunction can no longer

be said to be arguable under the terms of that agreement.” R4-84 at 1-2. The

district court denied the motion. On 1 February 1999, the district court dismissed

CSXT’s damages and state-law claims. The district court based this decision,

“[i]rrespective of whether Brown4 is still binding precedent in this Circuit and even

if whether Brown is still vital following Frank lin,5” on “the reasoning of the

Marquar 6 majority, which includes a full consideration of Frank lin, and thu s . . .

[held] that damages are not an appropriate remedy for the violations of RLA § 152,

First or [§] 153, First alleged in this case.” R5-115 at 13. The district court

declined to address the argument by BMWE that the litigation of the damages issue

as between CSX T and BM WE w as precluded by Marquar on collateral estoppel

groun ds.

4
Lousiville & Nashville Railroad Co. v. Brown, 252 F.2d 149 (5th Cir. 1958).
5
Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028 (1992).
6
CSX Transportation Inc. v. Marquar, 980 F.2d 359 (6th Cir. 1992).

8
 After the parties filed cross-motions for summ ary judgment, on 20 A ugust

2001, the district court granted summary judgment in favor of CSXT, finding that

the dispute regarding the inspectors’ repair work was minor within the meaning of

the RLA. The district court noted the other dispute leading to the strike regarding

the seniority rights of Hamilton and treated it as having been resolved rather than

determin e wheth er the sen iority disp ute was major o r minor . Pursu ant to

Consolida ted Rail Corp . v. Railway L abor Exe cutives’ Ass’n, 491 U.S. 299, 109 S.

Ct. 2477 (1989) (“Conra il”), the district court limited its inquiry to whether

CSX T’s action was “arg uably jus tified” by in terpretation of the p arties’ agre ement.

R7-165 at 13 (quoting Conra il, 491 U.S. at 306, 109 S. Ct. at 2482). Finding the

“argument is plausible at minimum,” the district court determined that CSXT met

this low thresho ld and th at the disp ute was minor w ithin the m eaning o f the RL A.

Id. at 12-13. The preliminary injunction was converted to a permanent injunction.

The district court also discussed CSXT’s request for declaratory relief that BMWE

had violated the RLA by failing to give advance notice but declined to decide the

issue because BMWE w as then subject to a general advance notice requirement

arising fr om a cas e pendin g in Tex as, Burlington North & Santa Fe Railway Co. v.

Brotherhood of Maintenance of Way Employes, 143 F. Supp. 2d 672 (N.D. Tex.

9
2001), and damages were not available. From that final order, this appeal

follow ed.

CSX T appe als the distr ict court’s o rder gra nting of BMW E’s mo tion to

dismiss, which held that a damages remedy was not appropriate for violations of

RLA § 152, F irst and § 153. BMWE argues that the damages issue raised by

CSXT is barred by issue preclusion and, if it is not, the district court’s decision was

supported by law within our circuit and consistent with cases decided in other

jurisdictions. BMWE also cross-appeals the district court’s treatment of the

seniority dispute as resolved and argues that the district court failed to apply the

proper test under Conra il and that the facts were disputed such that the district

court’s g rant of su mmary judgm ent in fav or of C SXT was im proper .

We will first address whether issue preclusion principles prevent the

adjudication o f the merits of the parties’ appeals. S econd, w e turn to BM WE’s

cross-appeal of the district court’s determination whether the seniority dispute was

major or minor und er the RLA. A fter we decide that the seniority dispute is also

minor within the meaning of the RLA, thus rendering BMWE’s strike illegal, we

will turn to whether CSXT is entitled to recoup compensatory damages incurred as

a result of the strike.

10
 II. DISCUSSION

The case before us culminates in a specific query: whether CSXT can

recover com pensatory da mages from BMW E, incurred a s a result of BM WE’s

illegal strike over a m inor disp ute, becau se BM WE d id not giv e advan ce notice to

CSXT of its intent to strike. Initially, however, BMWE claims that the doctrine of

collateral estoppel precludes us from deciding this issue because CSX

Transportation Inc. v. Marquar, 980 F.2d 359 (6th Cir. 1992), litigated between

CSX T and B MW E and d ecided ten years ago in the U nited Sta tes Cou rt of Ap peals

for the Sixth Circuit, purportedly reached the same issue to hold that damages are

never re coverab le for an im plied righ t of action under R LA § 152, F irst and § 153.

Thus, because BMWE and CSXT are also parties in this suit, CSXT is precluded

from arguing the same issue before us now. The district court recognized the

argument but did not add ress whether issue preclusion applied in this case becau se

it found itself persuaded by the reasoning of Marquar. BMW E has a heavy burden

to prevail on the ground of issue preclusion; one that we find it cannot carry

because one material factual distinction differentiates this case from Marquar such

that we are not bound to d efer to its decision. After addressing BM WE’s defense

of issue preclusion below, w e reach the merits of the parties’ appeal and cross-

appeal.

11
A. Issue Preclusion

BMW E prof fers a pro vocative , yet unpe rsuasive , argum ent that C SXT is

collaterally estopped from arguing that it is entitled to recover compensatory

damages under RLA § 152, First and § 153 because the Sixth Circuit in Marquar

decided broadly that monetary damages are never recoverable under RLA § 152,

First and § 153.7 In Marquar, CSXT b rought suit against BMW E for declaratory,

7
Because we decide that there exists a material differentiating fact that prevents the
application of issue preclusion, we will not decide whether the issue before us meets an
exception to the issue preclusion doctrine, but will note its potential applicability. Restatement
(Second) of Judgments § 28 lists “Exceptions To The General Rule of Issue Preclusion”:

Although an issue is actually litigated and determined by a valid and final
judgment, and the determination is essential to the judgment, relitgation of the
issue in a subsequent action between the parties is not precluded in the following
circumstances:
...
(2) The issue is one of law and (a) the two actions involve claims that are
substantially unrelated, or (b) a new determination is warranted in order to take
account of an intervening change in the applicable legal context or otherwise to
avoid inequitable administration of the laws . . .

In Montana v. United States, 440 U.S. 147, 99 S. Ct. 970 (1979), the Supreme Court recognized
the “‘unmixed question of law’ in successive action involving substantially unrelated claims”
exception to estoppel principles. Id. at 162, 99 S. Ct. at 978 (quoting United States v. Moser,
266 U.S. 236, 242, 45 S. Ct. 66, 67 (1942):

Where, for example, a court in deciding a case has enunciated a rule of law, the
parties in a subsequent action upon a different demand are not estopped from
insisting that the law is otherwise, merely because the parties are the same in both
cases. But a fact, question or right distinctly adjudged in the original action
cannot be disputed in a subsequent action, even though the determination was
reached upon an erroneous view or by an erroneous application of the law.)
(emphasis added).

The true nature and applicability of this exception is generally uncertain. See Henglein v. Colt
Indus. Operating Co., 260 F.3d 201 (3d Cir. 2001) (“This exception has been discussed by courts

12
injunctive and compensatory relief, claiming that BMW E’s nine-state strike over

the locatio n whe re the w orkers w ere to eat th eir lunch es was u nlawfu l because it

involved a minor dispute. BM WE had threatened strike and CSXT filed suit just

days prior to the strike’s authorization and institution. CSXT, however, did not

obtain a temporary restraining order until hours later on the same day the strike

began. The parties submitted to arbitration, at which the arbitration panel deemed

the dispute minor and resolved the dispute within the arbitration process. CSXT

maintained its action for compensatory relief, claiming that it suffered damages

from the, albeit brief, interruption in its train service. The district court granted

BMW E’s motion to dismiss, finding that damages had never been awarded under

the RL A for u nlawfu l strikes ov er mino r dispute s, nor ha d Con gress aff irmatively

provid ed for su ch reme dy.

On appeal, CSX T argued that a damages re medy was appro priate because

the Supreme Court found an implied a right of action under the RLA. BMWE

countered with authority from other circuits which denied damages for unlawful

strikes and argued that the availability of damages would upset the balance of

power b etween labo r and man agement. T he majority accep ted BM WE’s

but none has yet delineated its boundaries very well.”) (citing United States v. Stauffer Chem.
Co., 464 U.S. 165, 170, 104 S. Ct. 575 (1984)). As we understand the exception, the legal issue
in this case arguably manifests an “unmixed question of law” and would appear to fall squarely
within this exception.

13
arguments and held that damages were not available for violation of RLA § 152,

First and § 153, a lthough damag es gener ally were available u nder the RLA in

certain circumstances. The court utilized the framewo rk provided by Franklin v.

Gwin nett Cou nty Pub lic Scho ols, 503 U .S. 60, 1 12 S. C t. 1028 ( 1992) , to

determine whether a damages remedy was available in an implied right of action

for violation of the RLA § 152, First and § 153. The Sixth Circuit held that

Marquar was not an “appropriate case” for damages under the RLA, relying upon

the historical reluctance to award damages for strikes over minor disputes and the

almost ex clusive re liance up on injun ctive rem edies. Marquar, 980 F.2d at 379-80.

That court also found that “[i]n the volatile atmosphere of labor-management

relations, the threat of a damages action could upset the balance intended by the

RLA.” Marquar, 980 F .2d at 38 2. Finally , the majo rity opinio n elected to leave it

within the purview of Congress to create a damages remedy at such an “advanced

stage of the RLA’s development.” Id. (quoting Burlington N. R.R. Co. v. Bhd. of

Maint. of Way Employes, 481 U.S. 429, 435, 107 S. Ct. 1841, 1855 (1987)) (italics

omitted).

Given that the matter before us is a federal question p reviously decided by a

federal co urt, it natur ally follow s that fede ral preclu sion prin ciples app ly in this

case. In Pleming v. Universal-Rundle Corp., 142 F .3d 135 4, 1356 n.1, 136 0 n.6

14
(11th Cir. 1998), we expressed uncertainty whether state or federal preclusion

principles should be applied by the deciding court, citing diverging cases that

employed federal and state law. Although we invited briefing on the issue, it has

not heretofore been forthcoming. We previously held that “[w]hen a federal court

sitting in diversity examines the collateral estoppel or res judicata effect of a prior

federal ju dgmen t, based eith er on div ersity or a f ederal qu estion, it m ust apply

federal common law.” Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499,

1503 ( 11th C ir. 1984 ). We n ow ho ld that fed eral preclu sion prin ciples app ly to

prior federal decisions, whether previously decided in diversity or federal question

jurisdictio n. See Winters v. Diamond Shamrock Chem. Co., 149 F .3d 387 , 393 n.6

(5th Cir. 1998) (“[F]ederal law of issue preclusion applied because the prior

decision had bee n issued by a fede ral court, a lbeit in a div ersity action .”); In re

Docteroff, 133 F.3d 210, 214 (3d Cir. 1997) (“Because the prior judgment was

rendered by a federal court, we apply federal principles of collateral estoppel.”);

Trevino v. Gates, 99 F.3d 911, 923 (9th Cir. 1996) (“Federal law governs the

collateral es toppel ef fect of a ca se decide d by a fed eral cour t.”).

Finding that federal issue preclusion rules apply, we next determine whether

the issue in this case is p redestine d for the same res ult becau se it meets th e criteria

for application of the doctrine. “Collateral estoppel or issue preclusion forecloses

15
relitigation of an issue of fact or law that has been litigated and decided in a prior

suit. There are several prerequisites to the application of collateral estoppel: (1) the

issue at stake must be identical to the one involved in the prior litigation; (2) the

issue must have been actually litigated in the prior suit; (3) the determination of the

issue in the prior litigation must have been a critical and necessary part of the

judgm ent in that a ction; and (4) the p arty again st who m the ear lier decisio n is

asserted must have had a full and fair opportunity to litigate the issue in the earlier

proceeding.” I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F .2d 154 1, 1549 (11th

Cir. 198 6). “Colla teral estop pel . . . has th e dual pu rpose o f protectin g litigants

from the burden of relitigating an identical issue with the same party or his privy

and of promoting judicial economy by preventing needless litigation.” Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 649 (1979).

The adversaries in Marquar and in this appeal are the same: BMWE and

CSXT. BMW E is attempting to assert issue preclusion against CSXT regarding

the issue whether damages are available for an unlawful strike over a minor

dispute, c laiming th at Marquar decided the very same issue against CSXT

approximately ten years ago. The first prerequ isite is whether the issue in this case

is identical to the issue litigated in Marquar. The Marquar court de cided ge nerally

that damages are not available under R LA § 152 , First and § 153, First. We

16
recognize that, depending on the level of abstraction we apply to the Marquar

decision, it would be conceivable to find that, because of the Sixth Circuit’s broad

legal hold ing, we would be preclu ded fro m decid ing the sa me legal q uestion h ere.

The issue preclusion doctrine, however, first directs our attention to the

relative similarity of the facts of each case, and rightfully so. If we were bound by

broad le gal decisio ns by oth er courts at a given level of ab straction o ut of the f acts

of every similar case by the mere fact of an identical caption, the novel defense of

issue preclusion would serve to bind the adjudication of many more cases than

would serve the interests of justice and move outside the scope of the purposes of

collateral es toppel.

That identical parties (or privies) are involved in this case and in Marquar is

but a threshold requirement of issue preclusion. CSXT need only point to one

material differentiating fact that would alter the legal inquiry here and thereby

overcome the preclusive effect of Marquar. Sewell v. Merrill, Lynch, Pierce,

Fenner & Smith, Inc., 94 F.3d. 1514, 1519 (11th Cir. 1996). Admittedly, the

disputes are substantially similar: both involve a dispute that went unresolved

through the arbitration vehicles provided for in the RLA; both involved the

interpretation by BMW E of the dispute as major, thus avoiding the mandatory

arbitration of the d ispute; both inv olved the institution of a strike prior to CSX T’s

17
ability to obtain injunctive relief to avoid the strike; both cases resulted in a

determination that the dispute was minor and, therefore, the strike was deemed

unlawful after the fact; and, finally, both cases involve the very specific issue

whether compensatory damages are available for an unlawful strike by the union

over a minor dispute. CSXT raises, however, one important fact in this case that

did not exist in Marquar: CSXT had no notice, and there was no attempt by

BMW E to giv e notice th at a strike w as impen ding. T his fact, w e will dem onstrate

below, undercuts the preclusive effect of Marquar because it changes the legal

inquiry; to what ex tent and w hether it ch anges th e result is o f no mo ment at th is

juncture .

BMWE argues that the lack of notice was not a controlling fact and not

essential to the resolution in Marquar.8 BMWE relies on the broad legal holding of

Marquar, that damages are never recoverable for unlawful strikes over minor

8
Alternatively, BMWE argues that CSXT cannot claim that surprise is a differentiating
material fact because CSXT claimed in its submissions in Marquar that it did not seek a
restraining order because it was under the impression from assurances by BMWE that a strike
was not imminent, therefore, CSXT also did not have notice in Marquar. Appellee Br. at 16-17
n.7. It is clear from the facts of Marquar that CSXT had some notice, albeit unreliable and
informal, that a strike was impending and was able to file a suit in the district court. That CSXT
did not seek an injunction when it had the time, and thereby suffered the consequence, does not
mean that it did not have any notice of the impending strike, as apparently was the case here.
We acknowledge that notice of impending strikes in the past was not necessarily acquired
through formal communication and account for that in our discussion. Nevertheless, no notice
existed here, in any form, and that is a material, differentiating fact that warrants the benefit of
adjudication of the merits of the case before us.

18
disputes to subsume the fact whether notice existed or not. If the notice, or lack

thereof, did not inform the legal decision of Marquar, then the fact of notice cannot

be used to avoid the preclu sive effec t of the bla nket ho lding. Marquar is a

decision of law on a motion to dismiss and is necessarily based upon the facts as

alleged in the case before it. It is undisputed that some notice, whether informal or

formal, was present in Marquar. Theref ore, to the extent tha t BMW E seeks to

extend the holding of Marquar beyond the scope of facts in that case to the level of

a blanket preclusive effect, regardless of deviation from the facts upon which the

decision was based, gives the dicta of Marquar preclusive effect. Although

Marquar is a legal decision and written in broad terms, we decline to give the broad

holding preclusiv e effect be cause to d o so w ould giv e dicta pre clusive ef fect. See

Restatem ent (Sec ond) o f Judgm ents § 27 h (198 2).

Becaus e we ha ve conc luded th at the facts in this case ar e materially

different, to give Marquar preclusive effect is inappropriate, and we need not

further track the issue preclusion requirements. A material difference in fact

necessarily leads us to conclude here that the issue was not “actually litigated” and

could not possibly have been “critical and necessary” to the judgment. Although

we cannot point to explicit “contrary precedent,” nor do we need to because of the

factual dif ferences , we w ill note that e mergen t case law , infra, steers the legal

19
inquiry sufficiently to persuade us that it is appropriate to adjudicate the issue

before us in light of that law.

Clearing the poten tial hurdle of issue p reclusion , we no w add ress the m erits

of the cro ss-appe al and ap peal befo re us. W e first add ress BM WE’s cross-ap peal,

which argues that the seniority dispute is a major dispute, that the issue was not

actually decided by the district court and, furthermore, that summary judgment was

not appropriate because a material fact remained in dispute.

B. The Seniority Dispute - Major or Minor?

BMWE appeals the district court’s grant of summary judgment in favor of

CSXT, arguing that the district court erred in its failure to apply the Conra il test to

the seniority dispute between BMWE and CSXT , about which BMWE maintains

disputed facts exist regarding whether the dispute was minor within the definition

of the RLA. B efore we can reach the dam ages issue in this case, we first must

address wheth er the district court er red in gr anting su mmary judgm ent to CS XT in

and failing to determine whether the seniority dispute between the parties was

minor.9 If we fin d that the d istrict cour t erred, B MW E wo uld be in a position to

argue that the seniority dispute was major and justified self-help in the form of a

9
BMWE does not appeal the district court’s determination that the inspector track
repairs dispute was “minor” within the meaning of the RLA.

20
strike, thu s there w ould be no illegal s trike from which CSX T could allege a claim

for compensatory dam ages.

BMW E argues, first, that the district court did not make the required

findings mandated by Conra il and, seco nd, that th ere existed disputed facts

preclud ing a dec ision on summ ary judg ment. B MW E subm its that the ca se shou ld

be remand ed to the district cou rt on this issue. C SXT responds th at BMW E’s

cross-appeal is moot, as admitted by BMWE in the proceedings before the district

court. In addition, CSXT maintains that the record clearly supports that the

seniority d ispute w as mino r under the RL A.

“If the appeal is moot, this court lacks jurisdiction to decide the case because

it fails to me et the case o r contro versy req uiremen t set forth in the U.S . Const. a rt.

III, § 2.” National Broad. Co. v. Communications Workers of Am., AFL-C IO, 860

F.2d 1022, 1023 (11th Cir. 1988) (“NBC”). The district court found that the

inspector-repair dispute was minor within the meaning of the RLA. The parties do

not dispute this r esult. The district co urt’s discussion of the seniority d ispute’s

character ization, ho wever , was rele gated to a cursory footno te. The district court

ostensibly regarded the issue as settled and without need of further decision

because the matter was resolved by the parties just prior to the Temporary

Restraining Order hearing. We conclude that we are not precluded from deciding

21
the classification of the seniority dispute for mootness reasons even though it was

resolved before the decision by the district court. Despite the fact the dispute had

been settled, the legal determination whether the seniority dispute was minor or

major was relevant and necessary to the resolution of the case going forward. The

decision was relevant because a classification of the seniority dispute as major

would then mean that the strike was not necessarily instituted over only a minor

dispute. Thus, BMWE possibly would have a defense to CSXT’s claim for

damag es from an illegal str ike over a minor dispute if the strike w as also leg ally

instituted over a major dispute - the seniority issue. The issue whether the

seniority dispute was major or minor remained controverted and, as we mentioned

supra, is relevan t to whe ther the str ike was illegal at the time it was initiated. Thus,

that the dispute was settled between the parties prior to the hearing is of no

conseq uence.

Moreover, underlying labor disputes presumably remain “live,” although

they might be settled or abandoned by the parties in the meantime. In NBC, we

noted th at

[t]he Supreme Court has acknowledged that labor conflicts are the sort of
disagree ments lik ely to be re peated in the futur e. See, e.g., Buffalo Force
Co. v. U. Steelworkers of America, AFL-CIO , 428 U.S. 397, 403 & n.8, 96
S. Ct. 31 41, 314 5-46 & n.8 . . . (19 76). See also, Jacksonville, Etc. v. Intern.
Longsh oremen’s A ss’n, 457 U .S. 702 , 704 n.1 , 102 S . Ct. 267 2, 2676 n.1 . . .
(1982 ) . . .; 13A C. Wr ight, A. M iller & E . Coop er, Federal Practice and

22
 Procedure § 3533.3 at 287 (1984) (“labor disputes . . . provide clear
illustration of the private disputes that are preserved from mootness by the
prospe ct of futu re repetitio n.”).

860 F.2d at 1024 n.2 (finding case was not moot because it was capable of

repetition). Accordingly, we will not refuse to ad judicate the case on mootness

groun ds becau se, not on ly does th e issue rem ain releva nt betw een the p arties, but it

is the exact type of issue that would recur on a regular basis and perpetually escape

review.

The RLA distinguishes between two types o f disputes in labor relations -

major and minor. D epending on the classification of the dispute, each party mu st

follow certain procedures mandated by the RLA. If a dispute is “minor” the parties

are prohibited from striking and must submit to compulsory arbitration of the

dispute by the NRAB. 45 U.S. C. § 153, First. During the arbitration, however,

neither p arty is prev ented fro m imple menting the dispu ted policy . Conra il, 491

U.S. at 304, 109 S. Ct. 2481. If the dispute is “major” within the meaning of the

RLA , on the o ther han d, the par ties are sub ject to a leng thy and in volved dispute

resolution process, during which the parties are obligated to maintain the status

quo. See 45 U.S.C. §§ 152, Seventh, 155 & 156. “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

23
irreparable injury.” Conra il, 491 U .S. at 303 , 109 S . Ct. at 248 0. If the p arty

proceeds to implement the disputed policy, in breach of the status quo, the other

party is en titled to reso rt to self-h elp, i.e., a un ion can c all a strike. Id.

Each party, acting in its own interest, will have different motives to assign a

certain classification to the dispute. For example, a union will typically claim a

dispute is major because it is permissible to strike if the carrier insists on

implementing a certain policy. Conversely, a carrier will insist the dispute is minor

because it can pro ceed w ith the po licy while the parties are com pelled to n avigate

the arbitra tion pro cess. Ac cording ly, the distric t court is p laced in th e position to

determine the nature of the dispute, without necessarily reaching the merits of the

dispute. Conra il, 491 U .S. at 306 , 109 S . Ct. at 248 2. “[T]he re is a dan ger in

leaving the characterization of the dispute solely in the hands of one party. In a

situation in which the party asserting a contractual basis for its claim is ‘insincere’

in so do ing, or its ‘p osition [is ] found ed upo n . . . insub stantial gro unds,’ th e result

of honoring that party’s characterization would be to undercut ‘the prohibitions of

[the RLA]’ against unilateral imposition of new contractual terms. . . . In such

circumstances, protection of the proper functioning of the statutory scheme

requires the court to substitute its characterization for that of the claimant.” Id.

(alteration and first omission in original) (internal citations omitted).

24
 The district court’s classification of a dispute as major or minor under the

RLA is a question of law we review de novo. Bhd. of Maint. of Way Employees

v. Atchison, Topeka & Santa Fe Ry. Co., 138 F.3d 635, 639 (7th Cir. 1997);

United T ransp. Un ion v. Sou th Carolina P ublic Ry. Co mm’n, 130 F.3d 627,

631(4 th Cir. 19 97); Fry v. A irline Pilo ts Ass’n , Int’l , 88 F.3d 831, 835 (10th Cir.

1996); General Comm’n of Adjustment, United Transp. Union v. CSX R. R. Corp.,

893 F .2d 584 , 589 (3 d Cir. 19 90); Sheet Metal Workers’ Int’l Ass’n v. Burlington

N. R.R. Co., 893 F.2d 199, 201 (8th Cir. 1990).

A major dispute:

“relates to d isputes o ver the fo rmation of collectiv e agreem ents
or efforts to secure them. 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 contr oversy. T hey look to the acq uisition o f rights
for the future, not to assertion of rights claimed to have vested
in the past.”

Conra il, 491 U.S. at 302, 109 S. Ct. at 2480 (quoting Elgin, J. & E. Ry. Co. v.

Burley, 325 U.S. 711, 723, 65 S. Ct. 1282, 1290 (1945)).

On the other hand, a minor dispute is “a dispute arising or growing ‘out of

grievances or out of the interpretation or application of agreements concerning

rates of pay, rules, or working conditions.’” Conra il, 491 U.S. at 303, 109 S. Ct. at

25
2480 ( quoting 45 U.S .C. § 15 3, First (i) ); see 45 U.S.C. §§ 152, Second & 153,

First (i). To elaborate:

“[A minor dispute] contemplates the existence of a collective
agreem ent alread y conclu ded or, a t any rate, a s ituation in
which no effort is made to bring about a formal change in terms
or to create a new one. The dispute relates either to the
meanin g or pro per app lication of a particula r provis ion with
reference to a specific situation or to an omitted case. In the
latter event the claim is founded upon some incident of the
employment relation, or asserted one, indepen dent of those
covered by the co llective agr eement, e.g., claims on account of
personal injuries. In either case the claim is to rights accrued,
not mer ely to hav e new o nes create d for the future.”

Conra il, 491 U.S. at 303, 109 S. Ct. at 2480-81 (quoting Burley, 325 U.S. at 723,

65 S. C t. at 1289 -90).

Thus, the formal demarcation between major and minor
disputes does not turn on a case-by-case basis determination of
the impo rtance of the issue p resented or the like lihood th at it
would prompt the exercise of economic self-help. . . . Rather,
the line drawn in Burley looks to whether a claim has been
made that the terms of an existing agreement either establish or
refute the presence of a right to take the disputed action. The
distinguishing feature of such a case is that the dispute may be
conclus ively reso lved by in terpreting the existin g agreem ent.

Id. at 305, 109 S. Ct. at 2481-82 (internal citations omitted).

The Supreme Court articulated the standard for differentiating between

major and minor disputes in Conra il. “Where an employer asserts a contractual

right to tak e the con tested actio n, the ens uing dis pute is m inor if the action is

26
arguab ly justified b y the term s of the p arties’ collec tive-barg aining ag reemen t.

Wher e, in contr ast, the em ployer’s c laims are f rivolou s or obv iously ins ubstantia l,

the dispute is major.” Id. at 307, 109 S. Ct. at 2483. The Court noted that the

threshold to bind the parties to the “exclusive arbitral jurisdiction” accompanying a

minor d ispute is a lo w one . Id., 109 S . Ct. at 248 2. “Add itionally, if a r easonab le

doubt exists as to whether the dispute is major or minor, we will deem it to be

minor.” Dement v. Richmond, Fredericksburg & Potomac R.R. Co., 845 F.2d 451,

463 (4th Cir. 1988) (citing Atchison, Topeka & Santa Fe Ry. Co., 768 F.2d at

920)).

BMW E argues that there exists a genuine issue of material fact as to whether

the seniority dispute was minor, thereby precluding the award of summary

judgment in favor of CSXT. BM WE urges us to remand the issue to the district

court for adjudication on its facts. Because the issue whether the dispute is minor

or major is one of law, and because the facts as presented to us in the record do not

present a disputed material fact issue, we are in a position to resolve the matter at

this time. See Celotex Corp. v . Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2554

(1986). Although BMW E asserts that disputed facts exist that make summary

judgment improper, the issue is facile; that is, whether CSXT recognized

Hamilton’s seniority and position bid prior to or after BMWE initiated the strike.

27
The timing of possible resolution of the dispute between the parties is immaterial

to whether the dispute was major or minor under the RLA and does not change the

perspec tive from which we inter pret the n ature of th e dispute betwee n the par ties to

make that determination. However, we recognize that, if we determined the

dispute to be major, which we do not, the disputed issue of when a settlement was

reached mig ht then be relev ant to decide w hether BM WE h ad a defense to CSX T’s

claim for damages because if the dispute was not settled before the strike, BMWE

would have a potential defense that the strike was warranted over the major

dispute.

We conclude that CSXT’s position regarding the seniority dispute was

“arguably justified” by the terms of the Agreement and thus the dispute is minor

under the RLA. CSXT argues that the resolution of the dispute depended on the

interpretation of Rules 6, 16, and 26 of the ex isting L&N A greement. BMW E also

cited these provisions and the fact that Hamilton was the only person to bid on the

position to argue that he w as entitled to it. When Hamilton transferred from one

seniority d istrict to ano ther, it wa s unclear under th e Agre ement w hether th e date

of his sen iority beg an at the tim e that he sta rted wo rk und er the first s eniority

district and that time transferred when he was furloughed and rehired in a different

district, or whether he was a “new employee” and his seniority computation began

28
at the time th at he beg an wo rking in the new position in the seco nd senio rity

district. Furthermore, Rule 26(d) of the Agreement provided dispute resolution

procedures in the event that “an employe[e] is denied a position under

circums tances w hich he d eems err oneou s.” R2-2 0, Ex. 1 .

It is clear from the parties’ arguments and the nature of the dispute that the

resolution of the matter depended on the existence and interpretation of the

Agreement. CSXT’s denial of the position to Hamilton was “arguably justified”

by the terms of the Agreement, because there existed uncertainty as to the

interpretation of its terms and, therefore, as to which point his seniority was

computed. Contrary to BMWE’s insistence that CSXT unilaterally changed the

Agreement by denying Hamilton’s position bid, we find that CSXT’s position

regarding Hamilton’s seniority rights was a justifiable interpretation of the

Agreement provisions that would be ultimately resolved by a resolution of the

correct interpretation of the Agreement’s seniority provisions. Because the

resolution of the seniority dispute necessarily involved an interpretation of the

Agreement, the dispute is minor within the meaning of the RLA under the Conra il

test. We will not discuss whether CSXT’s interpretation is a correct one; it is not

within the scope of our review to decide the merits of the dispute before us, but

29
merely to classify it as m ajor or m inor. See Conra il, 491 U.S. at 306, 109 S. Ct. at

2482.

Accordingly, we find that the BMWE-instituted strike was predicated on not

just one but two minor disputes and was thus illegal under the RLA. We now turn

to whe ther CS XT is e ntitled to re cover co mpens atory dam ages incu rred as a r esult

of the illegal strike.

C. Availability of Compensatory Damages Incurred from an Illegal Strike Initiated
by BMWE without Notice to CSXT

Although the issue as to whether damages are recoverable for an illegal

strike ov er a mino r dispute is not new , there is rela tively spar se case law especially

considering the long history of the RLA, such that we are not convinced that the

issue has been fully examined nor has it been developed to establish well-settled

principles. The reason for this is unclear, but we are satisfied to presume that

generally the RLA is accomplishing the purposes for which it was envisioned, and

is success ful to suc h a degr ee that gen erally unio ns and c arriers are settling the ir

disputes within the constructs of the RLA and using the courts as a last resort in the

few instances the law has been ineffective. Thus, we find ourselves confronted

with a question that, if not carefully reviewed and adjudicated with the history and

purposes of the RLA in mind, could serve to upset the precarious balance in labor

30
relations between unions and carriers and undermine the historical success of the

RLA.

After Brotherhood of Railroad Trainmen v. Chicago River & Indiana

Railroad Co., 353 U.S. 30, 77 S. Ct. 635 (1957) (“Chicago River”), there exists an

implied r ight of ac tion und er the RL A for u nions an d carriers to enfor ce its

provisio ns throu gh the co urts. Sp ecifically, Chicago River held that the district

court “‘ha s jurisdictio n and p ower to issue nec essary inju nctive or ders’” to e njoin

strikes tha t were d eemed ille gal und er the RL A. Id. at 42, 77 S. Ct. at 641 (quoting

Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 774, 72 S. Ct. 1022, 1025

(1952 )).

There are two statutory bases by which CSXT alleged a violation of the

RLA by BMW E and can maintain a private right of action. First, the fomentation

of an illegal strike over a minor dispute violates the mandate that every minor

dispute be subjected to compulsory arbitration under § 152, Second and § 153,

First. 10 A unio n is proh ibited fro m strikin g over a minor d ispute. Chicago River,

10
Section 152, Second of the RLA states:

All disputes between a carrier or carriers and its or their employees shall
be considered, and, if possible, decided, with all expedition, in conference
between representatives designated and authorized so to confer,
respectively, by the carrier or carriers and by the employees thereof
interested in the dispute.

45 U.S.C. § 152, Second.

31
353 U.S. at 34, 77 S. Ct. at 637. Second, that BMWE instituted the strike without

notice to C SXT of its intent to strike v iolates the d uty to “exe rt every re asonab le

effort . . . to s ettle all dispu tes” und er § 152 , First. 11 The United States Court of

Appe als for the Fifth C ircuit recen tly articulated the identic al propo sition:

BMW E’s deliberate policy of repeatedly calling surprise
strikes violates the statutory requirement that railroads and
unions “exert eve ry reason able effo rt . . . to settle all d isputes . .
.in order to avoid any interr uption to comm erce.” 45 U.S.C . §
152 F irst. A su rprise strik e makes it difficult o r impos sible to
resolve the underlying dispute between labor and management
without “interruption to commerce.” Id. Because management

Section 153, First (i) of the RLA provides:

The disputes between an employee or group of employees and a carrier or
carriers growing out of grievances or out of the interpretation or
application of agreements concerning rates of pay, rules, or working
conditions, . . . shall be handled in the usual manner up to and including
the chief operating officer of the carrier designated to handle such
disputes; but, failing to reach an adjustment in this manner, the disputes
may be referred by petition of the parties or by either party to the
appropriate division of the Adjustment Board with a full statement of the
facts and all supporting data bearing upon the disputes.

Id. § 153, First (i).
11
Section 152, First provides:

It shall be the duty of all carriers, their officers, agents, and employees to
exert every reasonable effort to make and maintain agreements concerning
rates of pay, rules, and working conditions, and to settle all disputes,
whether arising out of the application of such agreement or otherwise, in
order to avoid any interruption to commerce or to the operation of any
carrier growing out of any dispute between the carrier and the employees
thereof.

45 U.S.C. § 152, First.

32
 is unaware that a strike is impending, it cannot take steps that
might prevent it. In cases where the con templated surprise
strike is illegal under the RLA, the carrier cannot obtain an
injunction against it until after the strike has begun and an
“interrup tion to co mmerc e” has alre ady occu rred.

Burlington N. & Santa Fe Ry. Co. v. Bhd. of Maint. of Way Employees, 286 F.3d

803, 80 6 (5th C ir. 2002 ), cert. denied, — U .S. — , 123 S . Ct. 999 (2003 ). We

agree. If a strike is imminent, regardless of whether it is over a major or minor

dispute, it would seem incumbent upon the union to at least notify the carrier that

the strike is impending. The form and timing of the notice is prescribed by the

“every reasonable effort” language, which presumably requires that such notice

will give the carrier adequate opportunity to seek an injunction from the district

court, if appropriate to the facts of the dispute. 45 U.S.C. § 152, First. CSXT

sugges ts that ten d ays is an ap propria te time fram e to cons titute suffic ient notice .

While we decline to assign a bright temporal line applicable to the facts of every

future d ispute, w e will ack nowle dge that, f or mos t situations , a ten-day windo w to

preven t an impe nding s trike is ma nifestly “rea sonable .”

We co nclude th at BM WE v iolated bo th bases f or liability under the RLA .

First, although determinable in hindsight, BMWE illegally initiated a strike over

two m inor disp utes - the in spector/s upervis or repair dispute a nd the se niority

dispute. Second, BMWE failed to provide CSXT with any notice, either formal or

33
informal, that a strike was impending over these disputes, thereby depriving CSXT

of the op portun ity to seek an injunc tion. Th us, BM WE p urpose fully abd icated its

responsibility to exert “every reasonable effort” to avoid the strike, as required by

the RLA. We note, as did the district judge for the United States District Court for

Northern District of Texas, that BMWE’s behavior is not unique to the case before

us. See Burlington N. & Santa Fe Ry. Co., 143 F. Supp. 2d at 678-85 (citing not

less than eighteen times in the prior seven years when BMWE at least threatened

strike, nine times when the threat came into fruition, and not less than four

instances in the prio r year w hen BM WE p lanned a secret strik e with th e intent to

implement it before the carrier could obtain an injunction).12 It appear s that in

recent his tory, BM WE h as impo sed econ omic ha rm on c arriers by exploitin g, with

impunity, this inherent loophole in the RLA; which, combined with the putative

unavailability of remedial damages, permits the union to label any dispute as

“major,” s ecretly call a s trike, and avoid an y liability for the econ omic ha rm it

imposes. BMWE con ducted itself in a manner that violates the RLA, for which

CSX T can m aintain a p rivate righ t of action .

12
The district court in Burlington N. & Santa Fe Ry. granted plaintiffs’ request for a
permanent injunction and ordered BMWE to “provide at least ten days’ notice to the affected
plaintiff carrier prior to authorizing, encouraging, permitting, calling, or engaging in any strike,
work stoppage, picketing, or other self help against such carrier . . . over any minor dispute or
over any major dispute before the dispute resolution procedures prescribed by the RLA have
been exhausted.” 143 F. Supp. 2d at 696, aff’d, 286 F.3d 803 (5th Cir. 2002), cert. denied, —
U.S. —, 123 S. Ct. 999 (2003).

34
 The next issue is what remedies accompany an implied right of action for

violation of RL A §§ 1 52, Firs t and 15 3, First.

[T]he question of what remedies are available under a statute that
provides a private right of action is “analytically distinct” from the
issue of whether such a right exists in the first place. . . . Thus,
although we examine the text and history or a statute to determine
whether Congress intended to create a right of action, we presume the
availability o f all appro priate rem edies un less Con gress ha s expressly
indicated otherw ise. . .
The general rule, therefore, is that absent clear direction to the
contrary by Congress, the federal courts have the power to award any
appropriate relief in a cognizable cause of action brought pursuant to a
federal statute.

Frank lin, 503 U.S. at 65-66, 70-71, 112 S. Ct. at 1032, 1035 (internal citations

omitted). In Frank lin, the Supreme Court extended this longstanding jurisdictional

rule to ap ply to insta nces w hen the r ight of ac tion is imp lied and p resume d that,

because there was no indication otherwise, Congress enacted the statute from

which a right of action is im plied w ith this gen eral rule in mind. Id. at 72, 112 S.

Ct. at 1036 (“the same contextual approach used to justify an implied right of

action more than amply demonstrates the lack of any legislative intent to abandon

the traditio nal presu mption in favor of all availa ble reme dies”).

In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S.

Ct. 1989 (1998), the Supreme Court elaborated on Frank lin, which recognized the

availability o f damag es in an im plied righ t of action , and too k the op portun ity “to

35
delimit the circumstances in which a damages remedy should lie.” Id. at 284, 118

S. Ct. at 1996. The Court acknowledged that the inquiry inherently involved some

element o f conjectu re. Id. It applied the same approach to determining the scope

of the implied right to determining the scope of the available remedies: “we

generally examin e the relev ant statute to ensure th at we do not fash ion the sc ope . .

. at odds with the statutory structure and purpose.” Id. The ge neral rule that all

remedies are available “‘yields where necessary to carry out the intent of Con gress

or to avoid frustrating the purposes of the statute involved.’” Id. at 285, 1 18 S. C t.

at 1996 (quoting Guard ians As s’n v. Civ il Serv. C omm’n of New York City, 463

U.S. 582, 595, 103 S. Ct. 3221, 3228-29 (1983)). In Gebser, the Court considered

to what extent damages were available in a Title IX implied action by

“‘attempt[ing] to infer how . . . Congress [at the time the statute was enacted]

would have add ressed the issue had the . . . action been included as an express

provision in the statute.’” Id., 118 S. Ct. at 1997 (quoting Central Bank of Denver,

N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 178, 114 S. Ct. 1438,

1448 (1994)) (limiting the instances where damages were available to situations

where those ch arged h ad actual n otice of th e discrim inatory p ractices, in lin e with

the basic objectives of the statute).

36
 Section 152, First “was intended to be more than a mere statement of policy

or exhortation to the parties; rather, it was designed to be a legal obligation,

enforceable by whatever ap propriate means might be dev eloped on a case-by-case

basis.” Chicago & N.W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 577, 91

S. Ct. 1731, 1735 (1971) (“United Transportation”). Given that CSXT can

maintain a private r ight of ac tion und er the RL A § § 1 52, Firs t and 15 3, First, it

lies within our jud icial pow er to fash ion the ap propria te remed y. Frank lin, 503

U.S. at 65-66; 112 S. Ct. at 1032.

We are bound by our precedent in Louisville & Nashville Railroad Co. v.

Brown, 252 F.2d 149 (5th Cir. 1958). In Brown, we held that:

The Supreme Court has held that a major purpose of [the
RLA] was to provide a machinery for settling railway labor
disputes in a man ner that w ould pr event or minimiz e strikes.
That this was a p urpose of the A ct is not dis puted. H owev er, it
does not follow that Congress has, by this announcement of
policy, even though stated in the terms of “duty,” intended to or
succeeded in setting up a statutory right of action for damages
for a breach of this duty. Where Congress sought to set up a
right of action for damages for breach of duty in other
manag ement lab or situatio ns, it enacte d a statute e xpressly
spelling o ut the natu re of the r ight of ac tion. See 29 U.S .C.A. §
187, an d so also in creating a right of action in th e civil righ ts
field. 42 U.S.C.A. § § 1983, 1985, 1986. We do not think that
Congress here intended to or did create a new statutory right of
action for damages of the nature declared upon by the plaintiff .
...

37
Brown, 252 F.2d at 155 (recognizing, however, the right to injunctive relief

pursuant to Chicago River) (first internal citation omitted). The Brown decision on

this issue ostensibly regarded the availability of damages in other labor situations

but not in the RL A as co nclusive of Con gress’s in tent. It buttr essed this

assumption by analogizing a cause of action for damages under 42 U.S.C. § 1983.

Interven ing Su preme C ourt pre cedent, h owev er, argua bly belies th is

assumption and its blanket application to any and all claims for damages under the

RLA § 152, F irst. Frank lin, Gebser, and United Transportation, in the aggregate,

give us sufficient cause to consider revisiting the issue and temper the far reaching

effects of a broad precedent with overinclusive results. The aforementioned cases

direct us to approach the issue of available remedies for implied private rights of

action as a separate inquiry from the existence of the action itself, to do so in light

of the underlying structure and purpose of the statute, and to make such

determination on a “case-by-case” basis. Because Brown was decided many years

prior to the development of a comprehensive scheme of implied rights of action

and the assumption of availability of judicially crafted remedies in the absence of

express Congressional mandate otherwise, its facial rejection of a damages remedy

under RLA § 152, First has the effect of, at least here, depriving CSXT of any

adequate remedy and undermines the purposes of the RLA.

38
 Generally, a remedy at law is the preferred aven ue of addressing parties’

disputes and only if damages prove inadequate to address the wrong, will the

equitable powe rs of the c ourts be tapped to fill the void . Frank lin, 503 U.S. at 75-

76, 112 S. Ct. at 1038. Under the RLA, however, in an effort to avoid the financial

crippling of either party, injunctive relief is the favored vehicle for resolving labor

disputes betwee n parties w hen the s tructures of the R LA fa il to do so . See

Marquar, 980 F.2d at 380-81 (noting only four published cases in the history of the

RLA approving the use of a damages remedy for RLA violations outside the

context of breach of duty of fair representation). We accept that, on a general

basis, injunctive relief is the first resort of courts when a union and carrier come

before the court with an impending illegal strike threatening to disrupt carrier

service. Nevertheless, as manifested by the situation of the parties before us, the

law that damages are never available for violations of § 152,13 although an

accepted notion by other circuits, perpetuates an unscrupulous practice by unions

13
We have not specifically decided whether damages are never available under § 153,
which prohibits an illegal strike over a minor dispute; however, other courts have extended the
Brown reasoning prohibiting damages under § 152 to decide just that. See Norfolk S. Ry. Co. v.
Bhd. of Locomotive Eng’rs, 217 F.3d 181, 190-91 (4th Cir. 2000) (finding no damages remedy
for illegal strikes); Marquar, 980 F.2d 359 (same); Burlington N. R.R. Co. v. Bhd. Maint. of
Way Employes, 961 F.2d 86, 89 (5th Cir. 1992) (extending Brown to apply to § 153). It would
be disingenuous to attempt to circumvent Brown and inconsistently permit an award damages for
a violation of § 153, when the underlying reasoning in Brown inescapably translates to § 153 as
well. Accordingly, we decline to develop incongruous law within our circuit and instead
encourage our colleagues to address the issue in toto upon rehearing en banc.

39
that is antithetical to the purposes of the RLA. The unavailability of damages was

considered to further the purposes of the RLA and in Brown we dec ided in

congruence with that approach. Accordingly, CSXT may not recover damages

against BMW E for the apparent violations of RL A §§ 152 an d 153. Because

injunctive relief was not a viable option for CSXT, it will remain a casualty of

BMWE’s exploitation of the RLA’s shortcomings as currently interpreted in our

circuit.

Were we w riting on a clean slate, we would hold that, given the ca se-by-case

determin ation of th e appro priate rem edies for an implie d right o f action as set forth

in Frank lin and its progeny, this case is the quintessential “appropriate” case for an

action fo r damag es unde r the RL A for v iolations o f §§ 15 2 and 1 53.

In Marquar, Judge Batchelder filed an extensive dissent opposing the

majority’s broad categorical holding, which we regard as instructive on the

inherent shortcomings of Brown. The dissent advocated a case-by-case

determin ation w hether a d amages remedy was ap propria te, and tho ught it

necessar y to rema nd the ca se to the d istrict cour t to develo p the factu al record to

make such a determination. The dissent was particularly perplexed about the

potential that a party victimized by an intentional violation of the RLA would be

left witho ut recou rse if dam ages w ere neve r available . Marquar, 980 F.2d at 374

40
(“I am no t prepare d to say th at an injun ction, altho ugh an importa nt remed y, will

always be adequate to prevent and to compensate for illegal strikes by unions.”)

(Batchelder, J., dissenting). Judge Batchelder was u npersuaded that Cong ress

should be left to decide at this juncture in the development of the RLA whether a

damages remedy was available. Judge Batchelder read Frank lin to presume the

availability of all appropriate remedies, unless Congress expressly indicates

otherw ise, whic h it had n ot. Id. at 377 (“What is relevant is whether C ongress

explicitly rejected a damages remedy under the RLA, which it has not, and whether

a damages remedy is appropriate, which I believe it is.”). The dissent concluded

that

[t]he blanket statement that the majority makes - that damages are not
available to a railway for a un ion’s illega l strike - ign ores the m andate
that a panel of this Court set out in Kasch ak [v. C onsolid ated Rail
Corp., 707 F.2d 902, 906 (6th Cir. 1983)]: that the appropriateness of
a remed y under the RL A mu st be deter mined o n a case-b y-case ba sis.
Becaus e this case is only at the motion to dismis s stage, I b elieve it is
wrong to hold that the railway has failed to demonstrate why damages
are appropriate in this fact situation. Therefore, I would reverse the
district court’s granting of the motion to dismiss and reman d the case
to the distr ict court fo r further proceed ings.

Id. at 379. We will not attempt to repeat Judge Batchelder’s eloquent explication

of the legislative history, purposes of the RLA, or policy arguments for the

availability of damages under the RLA as appropriate; however, we

enthusiastically endorse the reasoning.

41
 As set fo rth, supra, the evolving jurisprudence of implied rights of action

requires a case-by-case determination of the appropriate remedies, faithful to the

structure s and pu rposes o f the statute as legislated by Con gress. C ongres s clearly

articulated the purposes of the RLA:

(1) To avoid any interruption to commerce or to the operation of any
carrier en gaged therein; (2) to forbid any limitation upon freedom of
association among employees or any denial, as a condition of
employment or otherwise, of the right of employees to join a labor
organization; (3) to provide for the complete independence of carriers
and of employees in the matter of self-organization to carry out the
purpo ses of this chapter; ( 4) to pro vide for the prom pt and o rderly
settlement of all disputes concerning rates of pay, rules, or working
conditio ns; (5) to provid e for the p rompt a nd ord erly settlem ent of all
disputes growing out of grievances or out of the interpretation or
application of agreements covering rates of pay, rules, or working
conditions.

45 U.S.C. § 151a (emphasis added). In addition, Congress did not provide for any

means of enforcing the RLA,14 which was later interpreted by Chicago River to

create a private right of action to enforce it. Obviously then, Congress was silent

as to the available remedies. Of particular moment, how ever, Congress remained

silent after Frank lin regarding the available remedies under the RLA; therefore, we

are perm itted to pre sume, u ntil explicitly instructed otherw ise, that all av ailable

remedies remain, subject to the constraints of approp riateness.

14
There is only one criminal enforcement provision, which makes it a misdemeanor if a
carrier does not follow certain requirements of § 152 . See 45 U.S.C. § 152, Tenth.

42
 The primary purpose of the RLA to settle disputes and avoid strikes and the

interruption of commerce is, for the most part, adequately served by the preemptive

remedy of injunctive relief. Given adequate notice of a union’s impending strike

over a purported major dispute, a disagreeing carrier who has implemented a

disputed policy can seek the determination whether the dispute is major or minor

and obtain an injunction if it becomes evident that the union is illegally initiating a

strike over a minor dispute. When that notice is not given by the union, however,

the possibility of obtaining an injunction before an interruption in commerce

occurs is nonex istent. W hat recou rse then d oes a carr ier, victimiz ed by eco nomic

force, have to vindicate its damages against an errant union? Conversely, what

incentive does the union have to participate in settlement negotiations when it has

the proverbial club to extort from the carrier the result it seeks; a club fashioned

out of a risk-free semantic label of “major” rather than “minor”?

“It canno t be denie d but tha t congre ss had th e pow er to com mand th at act to

be done; and the power to enforce the performance of the act must rest somewhere,

or it will p resent a ca se whic h has of ten been said to inv olve a m onstrou s absurd ity

in a well organized government, that there should be no remedy, although a clear

and undeniable right should be shown to exist.” Kend all v. Un ited States ex rel.

Stokes, 37 U.S . 524, 62 4, 12 P et. 524 (1 838); see Marbury v. Madison, 5 U.S. 137,

43
163 (1 Cranch 137, 163) (1803) (“‘[I]t is a general and indisputable rule, that

where there is a legal right, there is also a legal remedy by suit or action at law

whenever that right is invaded’”) (qu oting 3 William Blackstone, Co mmentaries *

23). H ere, CS XT h as a right v ested by th e RLA , yet Brown precludes the just

remedy of compensatory damages for a surprise strike imposed by BMWE, who

knew full well, based in measure on its prior use of this tactic, that a preemptive

injunction was impossible and damages were not recoverable. The result resonates

of injustice.

While we recognize that there are valid arguments against the general

availability o f damag es unde r the RL A, thos e argum ents are in apposite here. Fir st,

the primary argument against a damages remedy is that it would upset the balance

of pow er so care fully main tained be tween th e carriers a nd the u nions. See

Marquar, 980 F .2d at 38 2. We n eed not e xpoun d in furth er detail w hy this

argument fails to pass muster here. Rather, as manifested in the facts here, the

unavailability of damages in the event that a union does not give notice of an

authorized strike actually undermines the continued balance of power between the

carrier and union. Moreover, the animosity generated by use of such a tactic places

the parties in postu res less am enable to settlemen t.

44
 The balance of power between a carrier and a union is maintained, even

though damag es wou ld be ava ilable in this limited situ ation, bec ause the u nion is

in the po wer-p osition to decide w hether it w ill give no tice of the s trike or n ot. If it

does, the carrier would have its crack at the injunctive remedy, the preferred

remedy , and the u nion w ould no t be in any superio r or infer ior positio n as a resu lt.

The union would still be able to label a strike as major, argue the issue before the

court if n ecessary, a nd seek self-help as it may fo r a carrier’s failure to maintain

status qu o durin g a majo r dispute . The car rier, on th e other h and, w ould be able to

avoid the economic harm and interruption in service necessarily accompanying a

strike, if it can present a viable cas e for inju nctive relie f. Other wise, eac h party

remains on par w ith regard to their rela tive barg aining p ositions a nd availa ble

remedies.

Hence, the chilling effect noted in Marquar, is non-e xistent. 980 F.2d at

382. Unions remain able to exercise their rights as available within the RLA

because they still po ssess the r ight to strik e over m ajor disp utes wh en status q uo is

not maintained; now the carrier merely has the ability to contest at the outset

whether the dispute is major or minor. If the dispute is minor, it is illegal for the

union to strike and it will be prevented from doing so.

45
 Availability of damages in this case will not serve as an incentive to byp ass

the procedures of the RLA. Instead, the potential for damages if the union does not

give notice will serve as an incentive for the parties to adhere to the RLA

procedural requirements because it will not be to the benefit or detriment of either

party to d o otherw ise. Rem oving th is wild ca rd will en courag e the partie s to

bargain and negotiate within the structures of the RLA, as originally intended, and

will releg ate the cou rts to their approp riate and in tended s tatus of las t resort.

III. CONCLUSION

We hold, albeit reluctantly, that CSXT cannot maintain an action for

damages under the RLA as mandated by the current law in our circuit. We urge

our colleagues to reconsider the law en banc in light of the considerations outlined

herein to reconcile the available remedies of the RLA with the purposes of the

RLA and the in terest of ju stice.

AFFIRMED.

46
BLAC K, Circuit Judge, concurring sp ecially:

I agree with the majority that the doctrine of collateral estoppel does not

preclud e us from deciding the issue o f wheth er mon etary dam ages are a vailable

under th e RLA for an illeg al strike. F urtherm ore, I agr ee with th e majority that in

Louisville & Nashville Railroad Company v. Brown, 252 F.2d 149 (5th Cir. 1958),

we addressed this issue and answered it in the negative.1 Thus, we are bound by

our pre cedent to affirm th e district co urt’s rulin g. All oth er issues a re moo t.

I specially concur with the result in this case because I respectfully disagree

with the majority’s call for the court to reconsider the Brown decision en banc. It

is true that since Brown was decided the Supreme Court has clarified the

framework for determining what remedies are available under a statute that

provides a private right of action. See Franklin v. Gwinnett County Pub. Sch., 503

U.S. 6 0, 112 S . Ct. 102 8 (199 2); Gebse r v. Lag o Vista I ndep. S ch. Dist., 524 U.S.

274, 118 S. Ct. 1989 (1998). However, I do not think these precedents of

relatively re cent vinta ge prese nt a suffic ient reaso n to revis it Brown. I agree w ith

the majority that were we writing on a clean slate and deciding this issue after

Frank lin and Gebser, we mig ht find th at mone tary dam ages w ere appr opriate

1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981.

47
under the RLA for violations of §§ 152 and 153. However, we are not writing on a

clean slate.

The Brown court has already addressed this issue and resolved it. Parties

have relied on this ruling for 45 years. In the 77-year history of the RLA, not one

court of appeal h as held th at damag es are an a pprop riate reme dy in this s ituation.

The three courts of appeals to address the issue since Brown have all followed

Brown’s holdin g, noting that to reco gnize a m onetary r emedy a t this late stag e in

the RLA’s development would threaten to disrupt the balance that has developed

betwee n railroad s and un ions. See Norfolk Southern Ry. Co. v. Bhd. of Locomotive

Eng’rs, 217 F .3d 181 ,190 (4 th Cir. 20 00) (“W e are hesita nt after all th ese years to

do anyth ing that m ight ups et the delica te balance , particular ly since the Act is

structure d to keep judicial inv olveme nt at a min imum.” ); CSX Transp. v. Marquar,

980 F.2d 359, 381-82 (6th Cir. 1992) (“After 66 years, a court should be reluctant

to chang e the balan ce that has been stru ck betw een railro ads and unions .”); See

also Burlington Northern R.R. Co. v. Bhd. of Maint. of Way Employes, 961 F.2d 86

(5th Cir. 1992).

Perhaps the majority is correct that BMW E is “exploiting, with impunity,

this inherent loophole in the RLA” by repeatedly calling surprise strikes over

minor disputes knowing that, under Brown, BMWE would not be liable for

48
monetary damages. (Opinion at 34.) Given BMWE’s recent history of such

practices, perhaps the balance of power between railroads and unions should be

realigned to preve nt union s from u sing sur prise strik es as a “pro verbial clu b to

extort fro m the car rier the res ults it seeks .”2 (Opinion at 43.) This change in the

law, ho wever , should be accom plished b y an act of Cong ress. See Burlington

Northern R.R. Co. v. Bhd. of Maint. of Way Employes, 481 U.S. 429, 452-53, 107

S. Ct. 1841 , 1855 (19 87) (declining , “at this advanced s tage of the RL A’s

development,” to find a newly recognized limit on secondary picketing; reasoning

that if Congress should now find that unions have abused their power, “it is for the

Congress, and not the Courts, to strike the balance between the uncontrolled power

of management and labor to further their respective interests.”) (internal quotes and

citations omitted).3

2
In Burlington Northern & Santa Fe Ry. Co. v. Bhd. of Maint. of Way Employes, 286 F.3d
803, 808 (5th Cir. 2002), the Fifth Circuit described BMWE’s deliberate policy of repeatedly
calling illegal surprise strikes. Id. at 804-805, 808. The Fifth Circuit found BMWE’s “long
history of systemic abuse” justified a permanent, preemptive injunction requiring BMWE to give
ten days’ notice before initiating a strike against any of the carriers (which included CSXT). Id.
at 808. Thus, if BMWE continues its practice of initiating illegal surprise strikes, it presumably
will be subject to penalties for violating the injunction.
3
The majority argues that since Congress remained silent on the issue of monetary
remedies under the RLA after the Supreme Court’s decision in Franklin (in which the Court
found monetary remedies available under Title IX), we can presume that Congress intended
monetary remedies to be available under the RLA. (Opinion at 42.) We might just as well
presume from the congressional silence following Brown–and the three other court of appeals
decisions finding monetary remedies not available under the RLA for an illegal strike–that
Congress is content with the use of injunctive relief to enforce the RLA.

49
 Principles underlying the doctrine of stare dec isis outweigh any dou bts I

have about the correctness of the decision in Brown. “Adherence to precedent

promotes stability, predictability, and respect for judicial authority.” Hilton v.

South Carolina Public Ry. Comm’n., 502 U.S. 197, 202, 112 S. Ct. 560, 564

(1991 ). Add itionally, “stare dec isis is most compelling” where, as here, “a pure

question of statuto ry constr uction” is involve d. Id. at 205, 1 12 S. C t. at 565.

Therefore, I respectfully disagree with the majority’s suggestion that the court take

this case en banc and overrule Brown.

50