concurring in the denial of rehearing en banc:
I concur in the denial of rehearing en banc, but wish to set forth my understanding of the scope of the issues both that may yet be litigated by the plaintiffs seeking a permanent injunction and that may be presented to the System Board.
As I read the panel opinion, the district court on remand is free to take testimony and otherwise further develop the factual record for purposes of applying the dual motivation principles of Wright Line, 251 N.L.R.B. 1083 (1980), enf't granted, NLRB v. Wright Line, 662 F.2d 899 (1st Cir.1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848 (1982), to the disputed employee furloughs. In other words, I do not read the panel opinion to foreclose further litigation over whether Eastern Air Lines would have instituted the operational changes and furloughs absent its anti-union motivations. See panel opinion, at 913. (“we remand the claims under § 2 to the district court so that it may receive such evidence and entertain such claims for permanent injunctive relief as plaintiffs may choose to present.”). On reviewing the district court’s opinion, I confess some doubt as to whether the district court actually found that “financial reasons constituted an independent and sufficient motive for the [challenged] cutbacks” (although the evidence presented so far would seem to support such a finding). Supra, at 903. Nevertheless, because the panel opinion, in my view, does not purport finally to decide this question, the proper construction of the district court’s original findings is of little moment.
Similarly, with respect to the dispute between Eastern and the Transport Workers Union (“TWU”), I do not think the panel opinion should be read as obliging the System Board, in the event the union seeks arbitration of the parties’ “minor” dispute, to conclude that the furloughs are authorized by the agreement in force. The holding on that point is merely that “the record compels a finding that Eastern’s proposal was covered by the collective bargaining agreement and the course of dealing between the company and TWU,” supra at 898 (emphasis added), thus leaving the issue of whether the agreement actually authorized the furloughs to the System Board. I gather Judge Edwards agrees with me in this respect.
As to whether the dispute between Eastern and the unions with expired agreements is major or minor under the RLA, I, like the panel, do not believe our sister circuits correct in assuming that the expiration of the collective agreement together with the service of a section 6 notice renders all disputes between union and em*238ployer major under the Act. See International Ass’n of Machinists & Aerospace Workers v. Aloha Airlines, 776 F.2d 812 (9th Cir.1985); Air Cargo Inc. v. Local 851, Int’l Bhd. of Teamsters, 733 F.2d 241, 245-46 (2d Cir.1984). As the panel observed, the Supreme Court’s decision in Elgin, Joliet & Eastern Ry. Co. v. Burley makes plain that off-the-contract disputes founded on entitlements “independent of those covered by the collective agreement,” 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945), may be taken to the RLA’s apparatus for settlement of minor disputes — the System Board — and there is no sound reason why expiration of the collective agreement should occasion a different route for these disputes. Indeed, in another case heard only a month ago,1 the Air Line Pilots Association (“ALPA”), one of the petitioning unions here, implicitly argued against the views expressed by the Ninth Circuit — that once a contract expires (and a section 6 notice is given) all disputes are major. Thus, while we should surely pause before we create a conflict between the circuits, especially in the instant setting where divergent rules may prompt parties to forum-shop, the Aloha reasoning seems to me to be wrong.2
Nevertheless, I think the rule drawn by the panel — that the minor or major character of a dispute in the post-expiration context is governed largely by whether the disputed action is consistent with the parties' “settled past practices” under the expired agreement — is problematic as well. While Burley establishes the propriety of System Board adjudication of disputes not involving the interpretation of provisions of a collective agreement, it clearly confines System Board jurisdiction to claims concerning “rights accrued.” Id. In other words, only if the System Board has law to apply — be it a formal agreement, enduring understandings between employer and union, or even state tort law principles — can the dispute properly be termed minor. Here, the agreements between Eastern and ALPA and the International Association of Machinists (“Machinists”) have expired, and while “settled past practice” may be used to interpret contract terms much as legislative history is used to interpret statutes, or may be relevant in determining whether a party's action deviates from the status quo, ordinarily, by itself, past practice is unlikely to constitute a legal norm of sufficient force to create an entitlement. Cf. Flight Eng. Int’l Ass’n v. Eastern Air Lines, 359 F.2d 303, 310-11 (2d Cir.1966) (holding that expiration of agreement releases employer from obligation to submit to System Board otherwise minor disputes turning on provisions of extinct agreement); but see Nolde Bros. v. Local 358, Bakery Workers Union, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977) (holding that duty to arbitrate exists with respect to entitlements based on and surviving expired agreement). According virtually no weight to the fact that the labor agreement has expired appears out-of-step with Burley, much as the Aloha rule affronts Burley for different reasons. I therefore doubt that the panel’s characterization of i the dispute between Eastern and the Airline Pilots and Machinists as minor is correct. Under the panel opinion, however, I see no reason why those unions would not have a right to seek arbitration of the issue by the System Board just as do the Transport Workers.3
Even assuming the dispute is major, I believe the panel’s conclusion that the challenged furloughs were consistent with the parties’ expired agreements and practices *239under those agreements to be justifiable. See panel opinion at 899-900. As the panel held in the first iteration of its opinion, this makes an injunction for violation of the status quo under section 6 of the Act unavailable to the union (although, given the theory of the panel’s revised opinion, it does not decide necessarily the merits of a subsequent proceeding before the System Board).
As I understand the Railway Labor Act, unlike Gaul, all bargaining disputes are divided into two parts, major or minor, with entirely different procedures provided for the resolution of each. The System Board has primary jurisdiction (indeed given the limited standard of judicial review of the Board, almost exclusive jurisdiction) to resolve the latter, and the former are reserved to collective bargaining, with the federal judiciary empowered only to prevent changes in the status quo before the collective bargaining procedures are exhausted. If a union claims that a given employer’s action deprives employees of an entitlement, the dispute is minor because the union alleges that the employer has violated a legal norm presently governing the relationship between the employer and its employees. That dispute must be resolved through System Board arbitration. It is called minor presumably because the parties have already agreed on the appropriate legal norm and the only question to be decided is whether the employer’s action comports with that norm.
After a contract expires and section 6 notices are given, the parties are assumed to be engaged in bargaining to create a new legal norm through a new collective bargaining agreement. During this period, the employer may not unilaterally impose a change in wages, hours or working conditions — a change in the status quo — until the statutory procedures are exhausted. That is not because the status quo is itself a legal norm, for if it were, major and minor dispute concepts would merge. Rather, it is because a unilateral change in the status quo undermines the bargaining process. The structure of the statute makes clear to me, and all courts to date have apparently assumed, that if the employer’s action is constrained — even after expiration of the agreement — by a legal norm arising out of the bargaining relationship, there is no need to consider whether the employer has improperly changed the status quo. In other words, a claimed violation of a legal norm (a minor dispute) trumps a claim of a unilateral change in the status quo (during a major dispute). The statute’s bar to a change in the status quo, which is only in effect during the pendency of section 6 bargaining, should not be applied to employer action which deprives employees of a legal entitlement, for the challenged action is independently forbidden.
As such, I do not see how a given dispute can be, as Judge Edwards suggests, both major and minor at the same time, for the premises behind the twin assertions of the existence of major and minor disputes are fundamentally inconsistent. Moreover, I think Judge Edwards’ approach implies a hopeless intermixture of jurisdictional lines between tribunals and is thus unworkable.4
Even though I differ somewhat with the panel, I do not vote for the en banc petition for several reasons. First, the case comes to us on a grant of a motion for preliminary injunction and, insofar as the panel might have misunderstood the district judge’s “finding” as to the business purpose for the company’s action, the judge is free to take further evidence and clarify the application of Wright Line, as the panel indicated. Second, even if the panel is incorrect in treating as minor the bargaining dispute between Eastern and the two unions whose contracts have expired, the panel’s original resolution of the status quo issue seems to me to apply the correct law. Therefore, an injunction would not be available in any event (although the panel’s holding that the disputes are minor appears to give the unions an arbitration remedy). In any event, given the multiplicity of views accompanying this order, I doubt *240whether we could easily assemble a majority for any coherent en banc holding in the case.
. Air Line Pilots Ass’n, Int'l, et al. v. Delta Air Lines, Inc., 863 F.2d 87, 91 n. 2 (D.C.Cir.1988).
. Judge Edwards and Judge Starr make a valid point in suggesting that an inter-circuit conflict is ordinarily an important factor to consider in determining whether a case is en banc -worthy; typically, such a conflict will have a significant correlative impact on this circuit. See Bartlett v. Bowen, 824 F.2d 1240, 1246 (D.C.Cir.1987) (Silberman, J., concurring in the denial of rehearing en banc).
.I am perplexed by Judge Edwards’ rather obvious misreading of my position. I have absolutely no idea what is the "hiatus" to which he refers nor do I understand his reference to the union’s "failure” to raise arbitrable claims. As I understand the panel opinion, all three unions may now raise arbitrable claims.
. It is analytically possible for employer actions during a major dispute to. give rise to one or more minor disputes, but the same facts cannot create or constitute both major and minor disputes.