Natl RR Psngr Corp v. Trans Wrkr Un Amer

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 21, 2004 Decided July 2, 2004

No. 03-7185

NATIONAL RAILROAD PASSENGER CORPORATION,
APPELLANT

v.

TRANSPORT WORKERS UNION OF AMERICA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 03cv02010)

Thomas E. Reinert, Jr. argued the cause and filed the
briefs for appellant.
Edward Himmelfarb, Attorney, U.S. Department of Jus-
tice, argued the cause for amicus curiae United States of
America in support of appellant. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Roscoe C. How-
ard, Jr., U.S. Attorney, William G. Kanter, Attorney, Jeffrey

Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
 2

A. Rosen, General Counsel, U.S. Department of Transporta-
tion, and Paul M. Geiger, Assistant General Counsel.
Richard S. Edelman argued the cause and filed the brief
for appellees.
Before: GINSBURG, Chief Judge, and HENDERSON and
ROGERS, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Amtrak appeals an order of the
district court denying its motion to enjoin five unions from
conducting a one-day strike. Amtrak argues the district
court should have enjoined the strike as a violation of the
Railway Labor Act, 45 U.S.C. §§ 151 et seq. The Unions
argue the RLA is inapplicable because the strike does not
concern matters at issue in bargaining between Amtrak and
the Unions but rather is directed at the Congress and the
President. The United States appears as amicus curiae in
support of Amtrak. Because we reject the factual premise of
the Unions’ argument, we hold the strike must be enjoined
pursuant to the RLA, for which purpose we remand this
matter to the district court.

I. Background
In the fall of 2003 Amtrak announced it would be forced to
shut down if it received a congressional subsidy of less than
$1.8 billion for FY 2004. Meanwhile, the House of Represen-
tatives had passed a bill appropriating $900 million for Am-
trak while the Senate had passed a bill providing $1.3 billion.
After Amtrak’s announcement, five unions representing Am-
trak employees put out press releases saying they would
stage a ‘‘work stoppage’’ in order to protest ‘‘the Bush
Administration and Congress’ refusal to properly fund Am-
trak.’’ The Unions’ stated goal was to publicize Amtrak’s bid
for increased appropriations and to show the public what
would happen if Amtrak were to shut down.
At the time the Unions announced their plan they were (as
they are still) engaged in negotiation or mediation with
Amtrak over the terms of new collective bargaining agree-
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ments. Amtrak sought to enjoin the strike on the ground
that the RLA prohibits self-help during the negotiation of a
new collective bargaining agreement. The Unions agreed to
refrain from the strike until after the district court had
decided Amtrak’s motion for a preliminary injunction. Mean-
while, Amtrak’s President, David Gunn, had told the Con-
gress the railroad needed at least $1.3 billion — $500 million
less than previously claimed — and the House and the Senate
had agreed in conference to provide Amtrak $1.22 billion in
FY 2004.
The district court denied Amtrak’s motion for a preliminary
injunction, stating the RLA ‘‘does not impose an absolute bar
against strikes’’ during collective bargaining but instead ‘‘es-
tablishes procedures for channeling disputes into a dispute
resolution process.’’ Nat’l R.R. Passenger Corp. v. Transp.
Workers Union, 294 F. Supp. 2d 60, 64 (D.D.C. 2003). The
district court held the RLA did not bar this strike because
the Unions’ ‘‘dispute with Congress and with the administra-
tion over Amtrak funding cannot be resolved by negotiation,
mediation, or arbitration with Amtrak.’’ Id. (emphasis in
original). The district court further held the RLA should not
be construed to prohibit ‘‘self-help with respect to any dispute
with anybody for any reason’’ during collective bargaining
because then the railroad would be entitled ‘‘to an injunction
as a matter of law, regardless of the unions’ purpose,’’ id. at
66, that is, even if the strike was directed at the political
process rather than the process of collective bargaining.
Amtrak appealed, and the Unions again agreed to refrain
from striking until this court has ruled.

II. Analysis
The issue on appeal is whether the Unions’ proposed strike
violates the RLA. If it does, then the district court must
enjoin it; if it does not, then the Norris–LaGuardia Act, 29
U.S.C. § 101 et seq., precludes the district court from enjoin-
ing it. See Bhd. of R.R. Trainmen v. Chicago River &
Indiana R.R. Co., 353 U.S. 30, 42 (1957) (‘‘[T]he specific
 4

provisions of the [RLA] take precedence over the more
general provisions of the Norris–LaGuardia Act’’).
The goal of the RLA is ambitious: ‘‘to provide for the
prompt and orderly settlement of all disputes concerning
rates of pay, rules, or working conditions,’’ 45 U.S.C.
§ 151a(4), in order to ‘‘avoid any interruption to commerce or
to the operation of any carrier engaged therein.’’ 45 U.S.C.
§ 151a(1). To that end § 2 First of the RLA, 45 U.S.C.
§ 152 First, obligates carriers and the unions that represent
their employees to ‘‘exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules, and
working conditions, and to settle all disputes TTT 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.’’ See Detroit & Toledo Shore Line
R.R. Co. v. United Transp. Union, 396 U.S. 142, 153 (1969)
(‘‘The obligation of both parties TTT is to preserve and
maintain unchanged those actual, objective working condi-
tions and practices, broadly conceived, which were in effect
prior to the time the pending dispute arose and which are
involved in or related to that dispute’’).
The RLA applies to two types of disputes between a carrier
and a union representing its employees. A ‘‘major dispute’’
concerns changes in ‘‘rates of pay, rules, or working condi-
tions,’’ 45 U.S.C. § 151a(4), and relates to ‘‘the formation of
collective bargaining agreements or efforts to secure them.’’
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994).
A ‘‘minor dispute’’ involves a controversy over the ‘‘interpre-
tation or application of [an] agreement[ ] covering rates of
pay, rules, working conditions.’’ 45 U.S.C. § 151a(5). In
short, ‘‘major disputes seek to create contractual rights,
minor disputes to enforce them.’’ Hawaiian Airlines, 512
U.S. at 253 (quoting Consol. Rail Corp. v. Ry. Labor Execu-
tives’ Ass’n, 491 U.S. 299, 302 (1989)). Amtrak and the
Unions are presently engaged in a ‘‘major dispute’’ over the
content of new collective bargaining agreements.
The RLA establishes a sequence of mandatory procedures
for the resolution of a major dispute. The initial step is
 5

negotiation between the carrier and the union. See 45 U.S.C.
§ 152 Second. If negotiation fails, then the dispute is re-
ferred to the National Mediation Board. See 45 U.S.C. § 156.
If the NMB fails to mediate the dispute and if it determines
the dispute ‘‘threaten[s] substantially to interrupt interstate
commerce to a degree such as to deprive any section of the
country of essential transportation service,’’ then the Presi-
dent may create an emergency board to arbitrate the dispute
and to ‘‘report [to the President] respecting such dispute.’’
45 U.S.C. § 160. If arbitration fails, then there is a mandato-
ry 30-day ‘‘cooling-off’’ period during which ‘‘no change’’ may
be made by either side to ‘‘the conditions out of which the
dispute arose.’’ Id. These exhaustive provisions ‘‘form an
integrated, harmonious scheme for preserving the status quo
from the beginning of the major dispute through the final 30-
day ‘cooling-off’ period.’’ Detroit & Toledo Shore Line R.R.,
396 U.S. at 152. If, and only if, negotiation, mediation,
arbitration, and the cooling-off period fail to produce an
agreement, may the parties resort to self-help — the employ-
er by unilaterally changing rates of pay, rules, or working
conditions, the union by striking. See Air Line Pilots Ass’n,
Int’l v. Northwest Airlines, Inc., 199 F.3d 477, 479 (D.C. Cir.
1999).
In this case, the Unions argue their proposed strike does
not ‘‘grow[ ] out of’’ their on-going ‘‘major dispute’’ with
Amtrak, 45 U.S.C. § 152 First, and therefore is not subject to
the status quo provisions of the RLA. More specifically, they
claim the status quo provisions of the RLA are inapplicable
because the subject of the work stoppage ‘‘is not the subject
matter of pending bargaining or mediation,’’ and ‘‘is not about
rates of pay, rules, or working conditions involved in or
related to the dispute subject to bargaining or mediation.’’
The Unions contend the strike is instead directed at policy
decisions made by the Congress and the President.
We think it clear that, insofar as the subject matter of the
Unions’ proposed strike is the level of congressional appropri-
ations for Amtrak, the strike does ‘‘grow[ ] out of’’ the major
dispute between Amtrak and the Unions over the formation
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of new collective bargaining agreements concerning, among
other things, rates of pay and working conditions.
The amount the Congress appropriates for Amtrak’s opera-
tions determines both the number of employees Amtrak
retains and any increases in the level of pay and benefits
those employees may receive. This had been the Unions’
expressed view prior to the present litigation. For example,
Charles Moneypenny, Railroad Division Director of the
Transport Workers Union, stated in a letter to the local TWU
chapters that the proposed work stoppage
is not a pro-Amtrak event. It is a pro-railroad worker
event. If passenger rail is not properly subsidized TTT
there just will not be any jobs for our hard-working,
long-suffering Amtrak members. The collapse of our
national passenger rail system would also cripple our
Railroad Retirement System.
The Unions also related appropriations for repairs and
other capital improvements in Amtrak’s equipment and tracks
to the safety of union members on the job. Thus, Mr.
Moneypenny testified before the district court that the TWU
was ‘‘concerned about how [the appropriations process] could
affect the safety of employees.’’ In their press release the
Unions also quoted the statement by Amtrak President David
Gunn: ‘‘[O]n any given day something could fail — as it
already has — and large parts of the system could be shut
down.’’ The press release further warned Amtrak employees,
‘‘Some of the cars you ride in today contain asbestos; it’s
there because Amtrak cannot afford to remove it safely.’’
Finally, a letter written by Sonny Hall, President of the
TWU, to David Gunn demonstrates that the Unions’ effort to
secure increased congressional appropriations for Amtrak
grows out of its dispute over ‘‘rates of pay’’ and ‘‘working
conditions.’’ The TWU, he wrote, expected the appropriation
sought by Amtrak would provide ‘‘not only [for] the maintain-
ing and improvement of the physical structure of Amtrak, but
the human structure as well’’; it should ‘‘result in a fair, and
honest new Labor agreement with rail unions and a commit-
ment to Amtrak employees that they are at least as important
 7

as safe equipment and track bids [sic].’’ Even in their brief
to this court the Unions characterize this letter as ‘‘a state-
ment that Amtrak should not come looking to the unions for
concessions because it had just reduced its request for appro-
priations by $500 million.’’ In sum, there can be no doubt the
planned strike over the level of the congressional appropria-
tion for Amtrak ‘‘grow[s] out of’’ the dispute over pay and
working conditions presently in negotiation or mediation be-
tween Amtrak and the unions. Because the proposed strike
grows out of a major dispute concerning rates of pay and
working conditions, the parties must exhaust the procedures
of the RLA before either may resort to self-help such as a
strike.
The planned strike is also addressed in part to a non-
mandatory subject of bargaining, namely, curtailment or com-
plete discontinuance of Amtrak’s operations. In fact, the
Unions’ proclaimed purpose for striking was to show the
Congress and the public what life would be like if Amtrak
were shut down due to lack of funding by the Congress. The
Unions, which considered the Congress’s failure fully to fund
Amtrak’s request ‘‘a death sentence’’ for the railroad, planned
their work stoppage in part to dissuade the Congress from
‘‘kill[ing] Amtrak.’’ A decision either by Amtrak itself or by
the Congress to curtail or to eliminate Amtrak’s operations,
however, is a non-mandatory subject of bargaining, within the
sole discretion of management. See Pittsburgh & Lake Erie
R.R. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490, 507–08,
509 (1989) (elimination of operations is ‘‘not a change in the
conditions of employment forbidden by the status quo provi-
sion of § 156’’); see Ry. Labor Executives’ Ass’n v. CSX
Transp., 938 F.2d 224, 229 (D.C. Cir. 1991) (‘‘the railroad’s
‘freedom to leave the market’ TTT by terminating an operation
or selling assets, is a matter of managerial prerogative’’).
Under the NLRA, ‘‘a strike or other economic action in
support of a proposal on a nonmandatory subject of bargain-
ing is unlawful.’’ Detroit Newspaper Agency, 327 NLRB 799,
800 (1999); see NLRB v. McClatchy Newspapers, Inc., 964
F.2d 1153, 1154 (D.C. Cir. 1992) (Edwards, concurring) (‘‘uni-
lateral action may not be taken with respect to nonmandatory
 8

subjects of bargaining’’). Although ‘‘[e]ven rough analogies
[between the RLA and the NLRA] must be drawn circum-
spectly,’’ Brotherhood of Railroad Trainmen v. Jacksonville
Terminal, Co., 394 U.S. 369, 383 (1969), ‘‘the use of the
mandatory-permissive distinction under the RLA is entirely
consistent with its statutory framework,’’ Air Line Pilots
Association International v. United Air Lines, Inc., 802 F.2d
886, 902 (7th Cir. 1986), and has been adopted by several
circuits, including this one. See Northwest Airlines, 199 F.3d
at 479; United Air Lines, 802 F.2d at 902; Japan Air Lines
Co. v. Int’l Ass’n Machinists & Aerospace Workers, 538 F.2d
46, 52 (2d Cir. 1976). Therefore, ‘‘[i]nsofar as the [U]nions
want to strike merely to protest a transaction’’ that ‘‘does not
violate any of their statutory or contractual entitlements, they
are using an unauthorized self-help remedy, which violates
the Act and is therefore enjoinable.’’ Chicago & N.W.
Transp. Co. v. Ry. Labor Executives’ Ass’n, 908 F.2d 144, 157
(7th Cir. 1990). To permit the Union to strike with regard to
that non-mandatory subject, at least during the pendency of a
major dispute, would be to subvert the rationale of Pittsburgh
& Lake Erie, which is to preserve managerial discretion over
these matters. See 491 U.S. at 507-08.
In any event, as the Government correctly points out, even
if the strike were ‘‘designed to influence [only] the Govern-
ment,’’ and not the formation of new collective bargaining
agreements, a politically motivated strike has the ‘‘same
adverse effect on interstate commerce’’ as a ‘‘strike motivated
by more conventional labor concerns.’’ Call it a political
protest rather than a strike; no matter: When the RLA
prohibits a strike it also prohibits any union tactic ‘‘which has
the consequences of a strike.’’ Air Line Pilots Ass’n, Int’l v.
United Air Lines, Inc., 802 F.2d 886, 906 (7th Cir. 1986).
This strike — which the Unions admitted at oral argument
could, if it is lawful, be called not for a day but until such time
as the Congress meets the Unions’ demands — would put
‘‘severe economic pressures on [Amtrak], thereby undermin-
ing its bargaining position during the period of negotiation
and mediation. This is precisely the kind of action that the
RLA status quo provisions seek to prevent.’’ United Air
 9

Lines, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers,
243 F.3d 349, 365 (7th Cir. 2001).
The Unions also argue that ‘‘if a dispute is not amenable to
resolution through the dispute resolution processes provided
by the RLA, then there is no RLA bar on concerted activity
and no status quo obligation applies.’’ The Government,
supported by Amtrak, responds with the ‘‘possibility that a
politically tinged dispute cannot be ‘resolved’ by negotiation
does not warrant a wholesale exception to the mandates of
the RLA.’’
Insofar as the Unions’ planned strike grows out of the
major dispute between Amtrak and the Unions, however, it is
indeed subject to resolution through RLA procedures, start-
ing with bargaining between the Unions and Amtrak over
rates of pay and working conditions. Insofar as the strike
also relates, in part, to a non-mandatory subject of bargain-
ing, namely, the Employer’s prerogative either to curtail or to
eliminate operations, the RLA prohibits the Unions from
striking even though the dispute is not amenable to resolution
via the procedures of the RLA. If the strike did not grow out
of a major dispute or concern a management prerogative —
like the protest regarding the Soviet invasion of Afghanistan
at issue in Jacksonville Bulk Terminals, Inc. v. International
Longshoremen’s Association, 457 U.S. 702 (1982) — then the
Unions would not be restrained by the status quo provision
for major disputes. That is simply not the case here, howev-
er, because Amtrak and the Unions are in the midst of a
major dispute, the strike in fact grows out of that dispute,
and is in part directed to the Employer’s prerogative to cease
operations.

III. Conclusion
For the foregoing reasons, we hold the Unions’ proposed
strike must be enjoined pursuant to the RLA. The order of
the district court is therefore reversed and this matter is
remanded to the district court for the entry of appropriate
relief.
So ordered.