dissenting.
The district court denied BN’s motion for a preliminary injunction against UTU’s *865threatened strike, disclaiming jurisdiction to enjoin the strike on account of the Norris-LaGuardia Act (NLGA). See 29 U.S.C. § 104. I do not share the district court’s view that injunctive relief is unavailable to protect an ICA order from disruption by a union strike that in essence challenges the terms of that order.
The court correctly observes that when the NLGA and the ICA overlap, they “must be accommodated and harmonized.” Ante at 861. This accommodation is necessary because neither statute “may meaningfully be read in isolation * * * for they are in fact, an integrated plan of railroad regulation. And if, as is frequently the case in such undertakings, there be over-lappings, ‘[w]e must determine * * * how far Congress intended activities under one of these policies to neutralize the results envisioned by the other.’ ” Order of R.R. Telegraphers v. Chicago & N.W. Ry., 362 U.S. 330, 352, 80 S.Ct. 761, 772, 4 L.Ed.2d 774 (1960) (quoting Allen Bradley Co. v. Local Union No. 3, Int’l Bhd. of Elec. Workers, 325 U.S. 797, 806, 65 S.Ct. 1533, 1538, 89 L.Ed. 1939 (1945)) (Whittaker, J., dissenting).
There is no dispute the ICC has discretionary authority to impose labor protective conditions in this type of transaction. See 49 U.S.C. § 10901(c)(1)(A)(ii); Railway Labor Executives’ Ass’n v. Pittsburgh & Lake Erie R.R., 831 F.2d 1231, 1235 (3d Cir.1987); Winter v. ICC, 828 F.2d 1320, 1323 (8th Cir.1987). It is also clear the ICC has the power to grant or deny UTU’s pending request for those conditions, ante at 858, and UTU will have access to judicial review of an adverse decision, see 28 U.S.C. § 2321(a). Simply stated, Congress has charged the ICC with the responsibility to impose protective labor conditions that are “necessary in the public interest” in section 10901 transactions. 49 U.S.C. § 10901(c)(1)(A)(ii).
The court holds, however, that when labor protective conditions are discretionary rather than mandatory, the ICA cannot displace the NLGA’s antiinjunction provisions because that situation presents no “direct incompatibility” between the NLGA and the ICA. Ante at 862. I believe the court and the Third Circuit have drawn an illusory distinction between mandatory and discretionary conditions. See Railway Labor Executives’ Ass’n, 831 F.2d at 1334-37. This approach to the issue has led the court mistakenly to conclude the district court was correct in deciding it was without jurisdiction to enjoin the UTU strike, and it is at this point that I respectfully part company with the court.
What is really involved in this case is this: whether UTU, displeased with ICC approval of BN’s sale of a section of its rail lines to MRL, may bypass the ICC and direct its displeasure at BN for the singular purpose of extracting concessions that are at odds with the terms of the ICC order. I think not, and I believe my view is at the heart of the decision in Missouri Pacific Railroad v. United Transportation Union, 782 F.2d 107 (8th Cir.1986) (per curiam), cert. denied, — U.S. -, 107 S.Ct. 3209, 96 L.Ed.2d 696 (1987) (Mo-Pac). In adopting the district court’s decision permitting the injunction, the court in MoPac stated:
[Allowing UTU to strike would be tantamount to saying that UTU has carte blanche authority to frustrate and avoid a material term of a consolidation approved by the ICC. Congress did not intend that affected employees have such power to block consolidations which are in the public interest. * * * [l]t is inconceivable that Congress intended that a labor union would be able to participate in ICC approval proceedings and then, if the union was dissatisfied with the result or a part thereof, strike a carrier to obtain the advantage it desired.
Id. at 112.
It is apparent a UTU strike here would be aimed at obtaining the essential equivalent of the same labor protective conditions UTU is actively seeking from the ICC. I am persuaded that in these circumstances, just as in cases in which protective conditions are mandatory, the NLGA cannot be used to thwart an ICC order approving the BN-MRL transaction. When viewed from this perspective the potential conflict, while *866undoubtedly relating to BN’s relationship with its employees, does not bear the characteristics of an NLGA section 104 labor dispute. I believe Congress, through the ICA, has granted the ICC authority (subject to judicial review) to resolve conclusively the issues UTU seeks to raise by way of the threatened strike.
In sum, the UTU strike threat amounts to an unacceptable neutralization of congressional policy in favor of the ICC’s exercise of expert authority to serve the public interest in the area of railroad service. I believe the provisions of the ICA embody the greater interest when a dispute involving a railroad and its employees has been triggered by an order of the ICC. In these circumstances, the competing aspects of the ICA and the NLGA should have been resolved by the district court in favor of the ICA. Thus, I would reverse the district court’s order disclaiming jurisdiction to consider BN’s injunction request.