# BNSF Railway Company v. International Association of Sheet Metal Air Rail and Transportation Workers

> District Court, N.D. Texas · February 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10451195

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** February 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10451195

## How later opinions describe it (automated extraction)

- stating that the “purpose of [S]ection 107 is served if the evidence is inherently reliable and there is no harm to the parties”
- noting that the RLA “prohibits all strikes over minor disputes”
- concluding that a dispute is minor based on “the past practices of the parties”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

BNSF RAILWAY COMPANY,

Plaintiff,

v. No. 4:22-cv-0052-P

INTERNATIONAL ASSOCIATION OF SHEET
METAL, AIR, RAIL AND TRANSPORTATION
WORKERS – TRANSPORTATION DIVISION
ET AL.,

Defendants.
OPINION & ORDER
This case arises under the Railway Labor Act (“RLA”). At issue is
whether Plaintiff BNSF Railway Company’s (“BNSF”) unilateral
implementation of the High Visibility (“Hi Viz”) attendance standard is
a “major” or “minor” labor dispute. Whether the Hi Viz attendance
standard is good or bad policy, however, is not at issue for this Court.
BNSF argues that the dispute is minor. Defendants International
Association of Sheet Metal, Air, Rail and Transportation Workers –
Transportation Division (“SMART-TD”) and Brotherhood of Locomotive
Engineers and Trainmen (“BLET”) (collectively, the “Unions”) argue
that it is major.
Each Party filed a Motion for a Preliminary Injunction. BNSF seeks
injunctive relief barring what it argues would be an illegal strike over a
minor dispute; the Unions seek injunctive relief preserving the status
quo as the RLA requires in what they argue is a major dispute. As
explained below, the Court will GRANT BNSF’s Motion and DENY the
Unions’ Motions.
FACTUAL BACKGROUND
A. The Parties
BNSF is a common carrier engaged in interstate commerce and
headquartered in Fort Worth, Texas. ECF No. 5 at 2; see also 45 U.S.C.
§ 151 First (defining “carrier”). SMART-TD, formerly United
Transportation Union, and BLET are duly authorized representatives
of the crafts or classes of train-service employees and locomotive
engineers employed by BNSF. ECF Nos. 35 at 7, 38 at 6; see also 45
U.S.C. § 151 Sixth (defining “representative” labor organization).
B. The Dispute
Over two years ago, the Parties began negotiating new attendance
standards. These specific negotiations were initiated by the service of
Section 6 Notices. Despite these ongoing negotiations, BNSF
unilaterally implemented the Hi Viz attendance standard on February
1, 2022.1 In response, the Unions threatened to strike. Accordingly, this
dispute stems from BNSF’s unilateral implementation of the Hi Viz
attendance standard.
C. The Hi Viz Attendance Standard
Simply stated, the Hi Viz attendance standard is harsh. See generally
ECF Nos. 8 at 178–88, 22-1 at 39–51, 41 at 15–25. Employees start with
30 attendance points and are subject to various point deductions—or no
deduction at all—based on different types of absences.2 If, or when, an
employee exhausts their 30 points, that employee is then subject to
progressive discipline.3 After an employee exhausts their points, their
point total is reset to 15 points.
To help employees avoid exhausting their points and facing potential
discipline, the Hi Viz attendance standard grants employees the

1Based on employee feedback, several adjustments were made to the Hi Viz
attendance standard prior to its roll-out. See ECF No. 46-1 at 41.
2See ECF No. 49-1 (articulating the various layoff codes and describing, in detail,
how each layoff is treated under the Hi Viz attendance standard).
3The first time an employee exhausts their points, they are subject to a 10-day
suspension with a 12-month review period. The second time an employee exhausts
their points, they are subject to a 20-day suspension with a 24-month review period.
The third time an employee exhausts their points, they are subject to dismissal.
opportunity to earn “good-attendance credits”—a feature not available
under BNSF’s former attendance standard. Specifically, an employee
can earn 4 points for any 14-day period that the employee is available
for work. An employee could potentially make-up for any absence that
caused a point deduction by being available to work for a 14-day period.
PROCEDURAL HISTORY
On January 13, 2022, BNSF filed this civil action seeking declaratory
and injunctive relief against SMART-TD and BLET. ECF Nos. 1, 5.
Because the Unions represented that a strike was imminent, BNSF filed
a Motion for a Temporary Restraining Order on January 18, 2022. ECF
Nos. 6–8. To ensure proper venue, the case was then transferred to the
Fort Worth Division. ECF No. 15.
On January 24, 2022, the Court held a hearing on the Motion for a
Temporary Restraining Order. ECF No. 18. At the hearing, the Parties
cemented their respective positions: BNSF insisted it would implement
the Hi Viz attendance standard on February 1, 2022, and the Unions
insisted they would strike in response. ECF No. 30; see also ECF No. 56
at 13–14 (“Your Honor, we’ve already told the company that if they
implement, then we’ve had that strike vote and we would strike.”
(emphasis added)).
The Court granted the Motion for a Temporary Restraining Order.
ECF No. 30. The Unions then filed their answers to the Complaint and
asserted counterclaims seeking declaratory and injunctive relief. ECF
Nos. 33, 35. Due to the importance of the dispute, the Court ordered
expedited briefing. ECF Nos. 31, 37.
Because the Court’s Temporary Restraining Order would have
expired on February 8, 2022, and the Unions still intended to strike,
BNSF filed a Motion to Extend Temporary Restraining Order (ECF No.
47). To allow full consideration of the Motions for a Preliminary
Injunction, the Court extended the Temporary Restraining Order, which
is now set to expire on February 22, 2022. ECF No. 52. The Motions for
a Preliminary Injunction are ripe for review.
LEGAL STANDARD
A. The Railway Labor Act
“[R]elations between railroads and their workers have often been
stormy.” Burlington N. & Santa Fe Ry. Co. v. Bhd. of Maint. of Way
Emps., 143 F. Supp. 2d 672, 678 (N.D. Tex. 2001) (McBryde, J.). “As
another judge noted, ‘the origins of this matter (as well as many other
disputes) can probably be traced back prior to 1894, when Eugene V.
Debs led members of the American Railway Union in a turbulent strike
against the Pullman Palace Car Company of Illinois.’” Id. (quoting Alton
& S. Ry. Co. v. Bhd. of Maint. of Way Emps., 883 F. Supp. 755, 756
(D.D.C. 1995); see also 1 HARRY S. TRUMAN, MEMOIRS BY HARRY S.
TRUMAN: YEAR OF DECISIONS 500–02 (1995) (discussing the “drastic
measures” that might be necessary to quash railroad labor disputes).
Accordingly, the “major purpose of Congress in passing the Railway
Labor Act was ‘to provide a machinery to prevent strikes’” in order to
“safeguard the vital interests of the country” in uninterrupted rail
service. Tex. & N. O. R.R. Co. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548,
565 (1930); see also 45 U.S.C. § 151a.
At the “heart of the [RLA],” Atlanta & W. Point R. Co. v. United
Transp. Union, 439 F.2d 73, 77 (5th Cir. 1971), is the “duty of all carriers
. . . and employees to exert every reasonable effort to make and maintain
agreements . . . and to settle all disputes . . . between the carrier and the
employees thereof.” 45 U.S.C. § 152 First. To that end, the RLA sets out
a mandatory and “virtually endless” process of “negotiation, mediation,
voluntary arbitration, and conciliation.” Burlington N. R.R. v. Bhd. of
Maint. of Way Emps., 481 U.S. 429, 444 (1987).
Traditionally, labor disputes in the railroad industry have fallen into
two distinct categories: those that are “major” and those that are
“minor.” Consol. Rail Corp. v. Ry. Lab. Execs.’ Ass’n, 491 U.S. 299, 302–
04 (1989) (“Conrail”). Although the terms “major dispute” and “minor
dispute” are not found in the statute, RLA jurisprudence adopted the
phrases “major” and “minor” as “terms of art.” Bhd. of Locomotive Eng’rs
& Trainmen (Gen. Comm. of Adjustment, Cent. Region) v. Union Pac.
R.R. Co., 879 F.3d 754, 757 (7th Cir. 2017).
Major disputes find their statutory basis in 45 U.S.C. § 152 Seventh
and 45 U.S.C. § 156; they “relate[] to disputes over the formation of
collective agreements or efforts to secure them.” Elgin, J. & E. Ry. Co.
v. Burley, 325 U.S. 711, 723 (1945). That is, in a major dispute, the “issue
is not whether an existing agreement controls the controversy.” Id.
Rather, major disputes “arise where there is no such agreement or
where it is sought to change the terms of one,” id., and “[t]hey look to
the acquisition of rights for the future, not to assertion of rights claimed
to have vested in the past.” Wright v. Union Pac. R.R. Co., 990 F.3d 428,
435 (5th Cir. 2021) (quoting Elgin, 325 U.S. at 723).
The process for resolving a major dispute is extensive. And until the
parties exhaust the statutorily mandated procedures, “neither party
may unilaterally alter the status quo” by resorting to illegal self-help.
Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 378
(1969). Should one of the parties unilaterally alter the status quo during
the bargaining and mediation process, however, a court has “subject-
matter jurisdiction to enjoin a violation of the status quo pending
completion of the required procedures.” Conrail, 491 U.S. at 303.
Conversely, minor disputes are based on 45 U.S.C. § 152 Sixth and
45 U.S.C. § 153 First; they “relate either to the meaning or proper
application of a particular provision” with reference to a specific
situation. BNSF Ry. Co. v. Int’l Ass’n of Sheet Metal, Air, Rail and
Transp. Workers – Transp. Div., 973 F.3d 326, 335 (5th Cir. 2020)
(quoting Elgin, 325 U.S. at 723) (cleaned up). In other words, minor
disputes “contemplate the existence of a collective agreement already
concluded,” id. (cleaned up), and the claim central to the dispute is “to
rights accrued, not merely to have new ones created for the future.”
Wright, 990 F.3d at 435 (quoting Elgin, 325 U.S. at 723).
To summarize, “a proposed action creates a minor dispute ‘if the
action is arguably justified by the terms of the parties’ collective
bargaining agreement. Where, in contrast, the employer’s claims are
frivolous or obviously insubstantial, the dispute is major.’” BNSF Ry.
Co., 973 F.3d at 335 (quoting Conrail, 491 U.S. at 307).
Accordingly, the proper inquiry is not who is right or wrong on the
merits of the contract interpretation question, but rather, whether the
carrier’s asserted contractual position is “arguably justified” or
“frivolous.” Conrail, 491 U.S. at 306–07. “And if the dispute is capable
of resolution by reference to the express or implied terms of the Parties’
collective bargaining agreement (i.e., arguably justified), the actual
resolution of the dispute is for the arbitrator—not this Court.” BNSF Ry.
Co. v. Int’s Ass’n of Sheet Metal, Air, Rail & Transp. – Transp. Div., No.
4:21-CV-432-P, 2022 WL 138518, at *5 (N.D. Tex. Jan. 14, 2022)
(Pittman, J.).
B. The Norris-LaGuardia Act
In addition to the RLA, labor disputes are also subject to the Norris-
LaGuardia Act (“NLGA”). Enacted in 1932, the NLGA was meant to
“take the federal courts out of the labor injunction business.”
Jacksonville Bulk Terminals, Inc. v. Int’l Longshoremen’s Ass’n, 457 U.S.
702, 712 (1982); see also 29 U.S.C. § 101, et seq. To that end, Congress
stripped federal courts of “jurisdiction to issue any . . . temporary or
permanent injunction in a case involving or growing out of a labor
dispute, except in . . . strict conformity” with the provisions of the NLGA.
29 U.S.C. § 101.
“If the NLGA totally divested the courts of power to issue an
injunction, however, the RLA’s mandates would ring hollow.” BNSF Ry.
Co., 973 F.3d at 338. As such, a court has “‘jurisdiction and power to
issue necessary injunctive orders’ to enforce compliance with the
requirements of the RLA ‘notwithstanding the provisions of the
[NLGA].’” Pittsburgh & Lake Erie R.R. Co. v. Ry. Labor Execs.’ Ass’n,
491 U.S. 490, 513 (1989) (quoting Bhd. of R.R. Trainmen v. Chi. River &
Ind. R.R Co., 353 U.S. 30, 42 (1957)).
Thus, when an action violates the RLA, the “specific provisions of the
[RLA] take precedence over the more general provisions of the [NLGA].”
Id. (quoting Chi. River, 353 U.S. at 41–42).
C. Preliminary Injunction Standard
To be entitled to a preliminary injunction, a movant must establish:
(1) a likelihood of success on the merits; (2) a substantial threat of
irreparable injury; (3) that the threatened injury if the injunction is
denied outweighs any harm that will result if the injunction is granted;
and (4) that the grant of an injunction will not disserve the public
interest. Ladd v. Livingston, 777 F.3d 286, 288 (5th Cir. 2015) (quoting
Trottie v. Livingston, 766 F.3d 450, 451 (5th Cir. 2014)).
If a party fails to satisfy any one of the four essential elements, a
district court may not grant a preliminary injunction. Miss. Power &
Light Co. v. United Gas Pipeline Co., 760 F.2d 618, 621 (5th Cir. 1985).
A preliminary injunction is an “extraordinary and drastic remedy” that
is to be granted “only when the movant, by a clear showing, carries the
burden of persuasion” as to each element. Digital Generation, Inc. v.
Boring, 869 F. Supp. 2d 761, 772 (N.D. Tex. 2012) (quoting Holland Am.
Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)).
ANALYSIS
The Court’s analysis is five parts. First, the Court determines
whether this dispute is “major” or “minor” under the RLA. Guided by
long-standing precedent, the Court concludes that it is minor. Second,
the Court concludes that BNSF’s unilateral implementation of the Hi
Viz attendance standard does not constitute an independent statutory
violation. Third, the Court concludes that the RLA permits the Court to
enter a preliminary injunction barring an illegal strike over a minor
dispute. Fourth, the Court concludes that entering such a preliminary
injunction does not violate the NLGA. Finally, the Court concludes that
BNSF carried their burden to establish the requirements for a
preliminary injunction.
The Court will therefore GRANT BNSF’s Motion for a Preliminary
Injunction and DENY the Unions’ Motions for a Preliminary Injunction.
A. Whether BNSF can unilaterally implement the Hi Viz
attendance standard is a minor dispute.
Despite the Unions’ arguments that BNSF is violating the RLA, the
Court concludes that the instant dispute can be resolved4 by

4Under the RLA and the Conrail framework, the Court does not resolve the merits
of a dispute. Indeed, the Court lacks jurisdiction to decide that question; instead, a
case involving a minor dispute is “subject exclusively to resolution by arbitration under
the RLA.” Allied Pilots Ass’n v. Am. Airlines, Inc., 898 F.2d 462, 465 (5th Cir. 1990).
interpreting the Parties’ current agreements—i.e., BNSF’s Hi Viz
attendance standard is “arguably justified” by the implied and express
terms of the Parties’ current agreements, as interpreted through past
practice. BNSF has thus met the “relatively light burden” necessary to
show that the instant dispute is minor.
Before analyzing the arguments of the Parties, however, the Court
addresses this dispute from a macro level to frame the Court’s analysis.
As noted, this dispute involves BNSF’s unilateral implementation of the
Hi Viz attendance standard. The action at issue—and what must be
arguably justified by the terms of the Parties’ agreement—is BNSF’s
unilateral implementation of the new attendance standard.
Analyzing whether BNSF’s action is arguably justified, however,
must be kept separate and distinct from analyzing whether the result of
that action—here, the Hi Viz attendance standard—violates a specific
term of the Parties’ agreements. The former is for this Court; the latter
goes to the merits of the issue and is solely for the arbitrator.
1. The Parties’ implied terms—as interpreted through established
past practice—provide an arguable basis for the Hi Viz
attendance standard.
The Court concludes that BNSF’s contested attendance standard is
“arguably justified” by the “implied contractual terms, as interpreted
through established past practice.” Gen. Comm. of Adjustment, United
Transp. Union, W. Md. Ry. Co. v. CSX R.R. Corp., 893 F.2d 584, 591–92
(3d Cir. 1990).
Because “collective-bargaining agreements may include implied as
well as express terms,” the Court must consider both the express and
implied provisions to determine whether an action is arguably justified
by the terms of the agreement. Conrail, 491 U.S. at 311. To that end,
the Parties’ “practice, usage[,] and custom” is significant in interpreting
the agreement. Id.; see also Bhd. of Locomotive Eng’rs & Trainmen, 879
F.3d at 758 (“[T]he relevant terms of an agreement are not only those

Importantly, being subject to arbitration does not mean the railroad’s interpretation is
correct. “The very fact of arbitration presupposes that the railroad’s interpretation will
not always prevail . . . .” Ry. Lab. Execs. Ass’n v. Chesapeake W. Ry., 915 F.2d 116, 120
(4th Cir. 1990).
that are written down; they also include the parties’ past practice, usage,
and custom as they carry out their agreement.”).
Accordingly, “either express or implied contractual terms, as
interpreted through established past practice, will serve to classify a
dispute as minor.” Gen. Comm. of Adjustment, 893 F.2d at 591–92; see
also Bhd. of Ry. Carmen (Div. of TCU) v. Atchison, Topeka & Santa Fe
Ry. Co., 894 F.2d 1463, 1469 (5th Cir. 1990) (concluding that a dispute
is minor based on “the past practices of the parties”).
“The type of past practice relied on need not be identical to the
challenged practice to satisfy the carriers’ burden of showing arguable
contractual justification.” Bhd. Ry. Carmen of U.S. & Can., Div. of
Transp. Commc’ns Union v. Mo. Pac. R. Co., 944 F.2d 1422, 1429 (8th
Cir. 1991); see also Conrail, 491 U.S. at 315–20 (railroad’s past practice
of requiring drug testing only when a drug problem was known or
suspected satisfied the railroad’s burden of showing an arguable
justification for requiring routine drug screening of employees).
Here, BNSF argues that “the railroad has a long and well-established
practice of unilaterally altering attendance standards.” ECF No. 40 at
5. The record contains numerous examples of BNSF “unilaterally
establishing, modifying, and applying attendance standards.” ECF No.
7 at 19–21; see also ECF Nos. 8, 40 at 5–6.
In response, SMART-TD5 argues that BNSF’s reliance on past-
practice “mischaracterize[s] the current situation” and demonstrates
nothing more than examples of “mere alternations to an existing policy.”
ECF No. 50 at 10. Because the Hi Viz attendance standard is “a new and
distinct availability policy,” id., not merely an alteration, the contested
attendance standard cannot be “arguably justified” the past practice
between the Parties.
“The Court, however, is not deciding the merits of whether the past
practice does in fact allow BNSF’s contested [Hi Viz attendance
standard]. Rather, the Court is deciding only whether the evidence in

5BLET does not attempt to rebut BNSF’s apparent past practice.
the record provides an arguable basis for the contested [Hi Viz
attendance standard].” BNSF Railway Co., 2022 WL 138518 at *7.
As other courts have noted, “[t]he type of past practice relied on need
not be identical to the challenged practice.” See, e.g., Bhd. Ry. Carmen,
944 F.2d at 1429. Accordingly, a court should not parse the past practice
to determine whether it supports only “mere alterations to an existing
policy” or whether it also supports unilateral implementation of “a new
and distinct availability policy.” ECF No. 50 at 10. Under Conrail, it is
sufficient for a court to find that the evidence of past practice in the
record is credible and is similar in kind to the contested action.
Here, the Court finds that “BNSF and its predecessors have a history
of implementing policies regarding availability for work, attendance,
and absenteeism through implementing various policies, practices, and
works rules for at least twenty years.” Burlington N. & S.F. Ry. Co. v.
Bhd. of Locomotive Eng’rs, No. 4:99-CV-675-R (N.D. Tex. Sept. 8, 1999).
Any argument over what the past practice between the Parties allows
demonstrates that the heart of the dispute is over whether a right has
accrued based on the Parties’ past practice, not whether a new right is
being created for the future. See Conrail, 491 U.S. at 303. And while it
is indeed arguable that the Parties’ past practice allows only unilateral
alterations—not new and distinct availability standards—the opposite
argument is not frivolous.
The Court thus concludes that BNSF has met the “relatively light
burden” necessary to show that contested Hi Viz attendance standard is
arguably justified by the Parties’ implied terms, as interpreted through
established past practice.
The implied terms, however, do not exist in a vacuum. Thus, if the
Hi Viz attendance standard directly repudiates any express terms, then
the dispute is major despite the attendance standard being “arguably
justified” by the Parties’ implied terms. If, however, the Hi Viz
attendance standard is also “arguably justified” by the express terms,
the dispute is minor.
The Court thus analyzes whether the Hi Viz attendance standard is
“arguably justified” by the express terms. Or whether, as the Unions
argue, the attendance standard directly repudiates those same terms.
2. BNSF’s Hi Viz attendance standard does not directly repudiate
any of the Parties’ express terms.
Because the Hi Viz attendance standard is “arguably justified” by the
“implied terms, as interpreted through established past practice,” BLET
argues that the Hi Viz attendance standard directly repudiates certain
express terms between the Parties. Essentially, BLET argues that
BNSF’s repudiation of those terms is an attempt to unilaterally change
the express terms of the Parties’ agreement, which would be a major
dispute under Conrail.
Simply stated, a major dispute “arise[s] where there is no such
agreement or where it is sought to change the terms of one.” Elgin, 325
U.S. at 723. Violating the terms of an agreement, however, is not the
same as repudiating (or “unilaterally changing”) those same terms. That
is, a repudiation cannot be equated with a violation of certain
contractual terms. See, e.g., Air Line Pilots Ass’n, Int’l v. E. Air Lines,
Inc., 869 F.2d 1518, 1523 (D.C. Cir. 1989); IBT/HERE Emp.
Representatives’ Council v. Gate Gourmet Div. Ams., 377 F. Supp. 2d 54,
61 (D.D.C. 2005). Thus, even if a court is convinced that an express term
prohibits a party’s actions, it may not infer that the party repudiated
those express terms. Air Line Pilots Ass’n, 869 F.2d at 1523. A contrary
conclusion would allow a court to conclude that a dispute was major
solely on its view of the merits—“usurping the role of the arbitrator in
interpreting and applying the contract.” Id.
Analyzing the instant dispute through this framework leads the
Court to the same conclusion: the Hi Viz attendance standard is
“arguably justified by the [express] terms of the parties’ [agreements].”
Conrail, 491 U.S. at 303. And while it is arguable that the Hi Viz
attendance standard violates a term of the Parties’ agreements, there is
nothing to indicate that BSNF is attempting to unilaterally “change the
terms” of the agreements or to acquire new “rights for the future.”
Wright v. Union Pac. R.R. Co., 990 F.3d 428, 435 (5th Cir. 2021) (quoting
Elgin, 325 U.S. at 723).
a. It is arguable that the Hi Viz attendance standard does not
penalize union officials for laying off work for union business.
BLET argues that the Hi Viz attendance standard repudiates Section
1.2 of the Parties’ 2003 Agreement. Although it is arguable that BNSF
has violated—rather than repudiated—Section 1.2, it is likewise
arguable that the Hi Viz attendance standard comports with Section 1.2.
Generally, Section 1 of the 2003 Agreement permits “a duly-elected
local chairman, acting local chairman, local president or local secretary-
treasurer of [BLET]” to “lay[] off to attend a bona-fide union meeting,
represent an employee in a formal investigation, or meet with Carrier
official(s) on items such as discussing time, claims, grievances, and/or
related schedule matters . . . .” ECF No. 21 at 3. Specifically, Section 1.2
provides: “In the application of the foregoing a union officer laying off
for the purposes stipulated will not be considered as laying off or missing
a call.” Id.
BLET argues this “unambiguous language” prohibits “BNSF from
considering a Union official who removes himself from availability for
an assignment for the stipulated purposes as ‘laying off.’” ECF No. 44-1
at 5. And because a union official’s good-attendance credit is reset when
they lay off or miss a call for official union business, the Hi Viz
attendance standard directly repudiates Section 1.2. Any argument to
the contrary, BLET argues, is frivolous. Id. at 5–6.
BNSF responds with evidence that the Hi Viz attendance standard
does not consider a union official who removes himself from availability
for union business as “laying off.” ECF No. 55 at 6. Accordingly, the Hi
Viz attendance policy deducts attendance points when a union official
lays off or misses call for an unexcused reason; but, when that same
union official lays off or misses a call for union business, no attendance
points are deducted. Id. Thus, because a union official’s attendance
points are not deducted for union business, the Hi Viz attendance
standard is “arguably justified” by the express terms of Section 1.2. It is
immaterial, BNSF argues, that a union official cannot earn good-
attendance credit while “laying off’ or “missing a call” for union business
because that is not a penalty.6 ECF No. 40 at 7–8.
BLET’s argument fails for two reasons. First, there is no evidence
that BNSF is attempting to either directly repudiate Section 1.2 or to
change its terms via the Hi Viz attendance standard. Second, BLET
presumes Section 1.2 must be interpreted as barring a union official’s
good-attendance credit from being reset and that resetting a union
official’s good-attendance credit must be interpreted as a penalty.
But good-attendance credits were not a consideration of either Party
when Section 1.2 was adopted. Thus, missing from BLET’s interpretive
presumption, is any authority demanding BLET’s interpretation that a
union official has a right to their good-attendance credit and that the
resetting of those credits is a penalty. And without persuasive authority
completely foreclosing an alternative interpretation of Section 1.2—
especially as it applies in conjunction with the Hi Viz attendance
standard and the creation of a good-attendance credit—the Court cannot
conclude that BNSF’s argument is frivolous.
This portion of the instant dispute clearly pertains to how an existing
term must be enforced or applied to a new attendance standard. And it
is at least arguable that the Hi Viz attendance standard comports with
Section 1.2 of the Parties’ 2003 Agreement, which is all Conrail requires.
b. It is arguable that the Hi Viz attendance standard comports
with the Parties’ agreement that gives employees 24 hours to
select a new assignment when displaced by a senior engineer.
Although an employee’s good-attendance credit is reset if they fail to
select a new assignment in less than 2 hours, the contested attendance

6Although BLET’s interpretation of Section 1.2 might be correct, the following
example demonstrates that BNSF’s position is not frivolous, which is all Conrail
requires. Consider two union officials: the first union official lays off or misses a call
for an unexcused reason; the second lays off or misses a call for union business. Under
the Hi Viz attendance standard, the former would lose attendance points and have
their good-attendance credit reset. The latter, however, would only have their good-
attendance credit reset. Accordingly, it is at least arguable that the union officer that
lays off or misses a call for union purposes is not “considered as laying off or missing a
call” because they do not lose attendance points like the union official that lays off or
misses a call for an unexcused reason. In other words, the two union officials in this
example are not treated the same, which is arguably all Section 1.2 requires.
standard is nonetheless arguably justified by the express terms of the
Parties’ agreement.
The 2007 Agreement, in pertinent part, states:
An engineer displaced from a run or assignment by a senior
engineer or whose assignment is reduced or abolished as
part of a board adjustment in accordance with schedule
rules and/or agreements will have displacement rights to
any assignment/board on which he holds active engineer’s
seniority. This displacement must be exercised within 24
hours of notification of displacement. In the event
displacement is not exercised within 24 hours, such
engineer will be required to displace the junior engineer
working at the location. For those engineers who are
displaced while off for any reason, the notification process
will begin upon markup and they must also place within 24
hours of notification.
ECF No. 21 at 53. In layman terms, the 2007 Agreement “gives an
employee who is displaced up to 24 hours to select a new assignment,
and if no new assignment is selected in that 24 hours, the employee then
bumps the most junior engineer at the location as default.” ECF No. 44-
1 at 14.
BLET argues that the Hi Viz attendance standard repudiates this
term because it resets an employee’s good-attendance credit if that
employee either exercises their right to select a new assignment or
simply defaults to a new assignment after the 24 hours. Id. BNSF argues
that the Hi Viz attendance standard does not penalize an employee for
exercising their rights under the 2007 Agreement. ECF No. 53 at 10.
The Court concludes that BLET’s argument fails for the same two
reasons discussed above.
First, there is no evidence that BNSF is attempting to either directly
repudiate the 2007 Agreement or to change its terms via the Hi Viz
attendance standard. Second, BLET presumes that the 2007 Agreement
must be interpreted as barring an employee’s good-attendance credit
from being reset and that resetting an employee’s good-attendance
credit must be interpreted as a penalty. Again, BLET fails to present
any authority demanding that the 2007 Agreement or the Hi Viz
attendance standard be interpreted according to their argument.
Without any persuasive authority foreclosing any other
interpretation of the Hi Viz attendance standard resetting an
employee’s good-attendance credit, or any authority guaranteeing a
right to the good-attendance credit, the Court cannot conclude that
BNSF’s argument is frivolous.
This portion of the dispute (again) clearly pertains to how an existing
term must be enforced. The Court concludes is at least arguable that the
Hi Viz attendance standard comports with the 2007 Agreement, which
is all Conrail requires.
c. It is arguable that the Hi Viz attendance standard comports
with the Parties’ agreement guaranteeing reasonable lay-off
privileges for employees.
Contrary to BLET’s argument, the Hi Viz attendance standard does
not directly repudiate the Parties’ agreement guaranteeing reasonable
lay off privileges for employees. Section 1(a) of the Parties’ 1994
Agreement provides, in relevant part, that “[t]he Carrier shall maintain
a sufficient number of engineers to permit reasonable lay off privileges
and to protect the service including vacations and other extended
vacancies.” ECF No. 21 at 49.
BLET argues that the “change in the number of days employees . . .
may be off in any given year from the prior BNSF attendance policy is
outrageous [and] shocks the conscience.” ECF No. 44-1 at 13. To that
end, BLET submits evidence that the “Hi Viz policy will require
employees to be available over 90% of the time.” ECF No. 49-1 at 18. As
a result, the Hi Viz attendance standard strips employees of their
reasonable lay off privileges, which are contractually guaranteed.
BNSF responds that BLET mischaracterizes the way the Hi Viz
attendance standard works. Under BNSF’s view, “[b]y increasing
availability and reducing the number of employees who take excessive
unplanned time off, BNSF employees overall should have more time at
home with their families because they will be called upon to cover shifts
or travel less.” ECF No. 41 at 28. BNSF therefore argues that BLET’s
calculations cannot establish that BNSF’s argument is frivolous.
The Court agrees with BNSF. First, there is no evidence that BNSF
is attempting to either directly repudiate Section 1(a) of the Parties’
1994 Agreement or to change its terms via the Hi Viz attendance
standard. Second, the Parties submitted dueling affidavits arguing
whether the Hi Viz attendance standard complies with an existing term.
Accordingly, the record—pertaining to the 1994 Agreement—centers on
whether the Hi Viz attendance standard complies with Section 1(a).
Seeking to enforce an existing term is axiomatically a minor dispute. See
Conrail, 491 U.S. at 302 (citing Elgin, 325 U.S. at 711). And interpreting
the scope of a right that vested in the past is the exact question that
Conrail directs to binding arbitration.7 See generally ECF No. 8 at 63–
74.
Simply stated, the dispute is whether the Hi Viz attendance standard
permits the reasonable lay off privileges required by Section 1(a) of the
1994 Agreement. And it is at least arguable that the Hi Viz attendance
standard comports with the 1994 Agreement, which is all Conrail
requires.
d. It is arguable that the Hi Viz policy comports with the
employees’ contractual vacation and personal-leave rights.
Because the Hi Viz attendance standard does not repudiate the
employees’ right to contractually granted vacation, the Hi Viz
attendance standard is arguably justified by the Parties’ express terms.
The 1947 National Agreement, as modified by other agreements,
grants BLET represented employees vacation rights based upon years
of service. ECF No. 21 at 52–55. BLET argues that an employee might
reject a call to work that might come right before their contractually
granted vacation or personal-leave time. Because that rejection would
cause the employee to lose both attendance points and have their good-
attendance credit reset, the Hi Viz attendance standard directly
repudiates their ability to exercise their contractual right to vacation.

7On this point, the Court has no metric to determine what would qualify as
“reasonable lay-off privileges” in the railroad industry. To avoid Courts analyzing
industry-specific terms, Congress directs minor disputes to those with “accepted
expertise in the field.” Gunther v. San Diego & Ariz. E. Ry., 382 US. 257, 262 (1965).
The Court rejects BLET’s argument. First, although BLET alleges
that BNSF is repudiating this express term, there is no evidence that
BNSF is attempting to either directly repudiate the 1947 Agreement or
to change its terms via the Hi Viz attendance standard. Second, besides
conjuring up a hypothetical employee scheduling a hypothetical
vacation and having to reject a hypothetical call prior to their
hypothetical vacation, BLET provides no evidence for this Court to
conclude that the Hi Viz attendance standard even violates the Parties’
express terms.
Based on the record at this stage in the proceedings, the Hi Viz
attendance standard appears to place the employees in the same
hypothetical predicament as the previous attendance standard. Thus,
the Hi Viz attendance standard is arguably justified by the express
terms of the Parties’ agreement.
Again, this aspect of the dispute clearly pertains to how an existing
term must be enforced. And it is at least arguable that the Hi Viz
attendance standard comports with the 1947 Agreement, which (again)
is all Conrail requires.
e. It is arguable that the Hi Viz policy comports with the Family
Medical Leave Act.
Whether the instant dispute is major or minor does not turn on
whether the Hi Viz policy violates the Family Medical Leave Act
(“FMLA”). But even if that was a proper consideration under Conrail,
the Hi Viz attendance standard arguably comports with the FMLA.
BLET argues that, because the Hi Viz attendance standard violates
the FMLA, BNSF cannot possibly assert an arguable basis for the
contested action.8 The dispute must therefore be major. BNSF argues

8The canon of constitutional avoidance provides that “[w]hen ‘a serious doubt’ is
raised about the constitutionality of an act of Congress, ‘ . . . [c]ourts will first ascertain
whether a construction of the statute is fairly possible by which the question may be
avoided.’” Nielson v. Preap, 139 S. Ct. 954, 971 (2019) (citing Jennings v. Rodriguez,
138 S. Ct. 830, 842 (2018)). Essentially, BLET’s theory would require this Court to
adopt a canon of statutory avoidance that mandates a dispute be classified as major
based on a potential statutory violation separate from the RLA. As explained above,
there is no basis for such a canon of statutory avoidance under the RLA or the Conrail
framework. And even if there was a basis, the Court rejects the opportunity to sail into
uncharted waters and create such a cannon for labor disputes brought under the RLA.
that Conrail directs courts to consider only whether the instant dispute
can be resolved by interpreting the Parties’ agreements—it does not
direct courts to consider separate statutory violations. The Court agrees
with BNSF.
Conrail is clear: “Where an employer asserts a contractual right to
take the contested action, the ensuing dispute is minor if the action is
arguably justified by the terms of the collective-bargaining agreement.”
Conrail, 491 U.S. at 307. Thus, under the plain language of the Conrail
test, the Court does not analyze whether the contested action violates a
separate statute.9 As such, an alleged FMLA violation cannot transform
a minor dispute into a major one.
If, however, a separate statutory violation could create a major
dispute under Conrail, this is not case. Stated another way, the Hi Viz
attendance standard arguably comports with the FMLA. To avoid this
conclusion, the Unions argue that a recent Sixth Circuit decision
forecloses any arguable basis to support the unilateral implementation
of the Hi Viz attendance standard. BNSF argues the opposite.
BLET’s argument presumes that a Sixth Circuit decision controls
this dispute. See Dyer v. Ventra Sandusky, 934 F.3d 472 (6th Cir. 2019).
But if the Sixth Circuit cannot create binding precedent for courts in the
Fifth Circuit, how can a Sixth Circuit decision demand that an argument
for the opposite result be frivolous?10 Further, even if the Sixth Circuit
could resolve a question so clearly that arguments for a different result
would be frivolous, Dyer is not the case.

9Under the RLA and the Conrail framework, the analysis is a jurisdictional—not
a merits-based—inquiry. As such, if the dispute is minor, a court (generally) dismisses
the case for lack of jurisdiction. Thus, a court typically has no opportunity to analyze
the merits of the dispute. To analyze the FMLA as a means of classifying the dispute
as major or minor would require the Court to analyze the merits of the dispute so that
it could then analyze whether it has jurisdiction over that dispute. The RLA is clear:
in a minor dispute, the merits are reserved for arbitration, not this Court. The Court
therefore rejects the invitation to analyze the merits of this dispute under the FMLA
as a means of determining whether the dispute is major or minor under the RLA.
10On this point, the prevalence of circuit splits illustrates that (generally) an
argument to the contrary is far from frivolous.
In Dyer, the Sixth Circuit merely found that a fact-issue existed on
the question of whether the attendance policy at issue interfered with
an employee’s FMLA rights. Id. at 478. The Sixth Circuit did not hold,
as a matter of law, that the attendance policy violated that employee’s
FMLA rights. Id. A genuine issue of material fact that could affect the
outcome of a case is practically the quintessential example of an
“arguable basis.” Thus, no matter how the Sixth Circuit decision is
viewed, it is not so conclusive that BNSF’s argument is frivolous.
In sum, resolution of this dispute turns on the application or
interpretation of the express or implied terms of Parties’ agreements—
i.e., the instant dispute is comprehended within the existing agreements
between the Parties. The Court therefore concludes that BNSF has met
the “relatively light burden” of establishing that this dispute is minor
under the RLA.11
B. The Hi Viz attendance standard does not constitute an
independent statutory violation.
Recognizing that the Hi Viz attendance standard is arguably
justified by the express and implied terms of the Parties’ Agreements,

11Like other courts, the Court rejects the argument that the service of a Section 6
Notice converts a minor dispute into a major one. See, e.g., Bhd. Ry. Carmen of U.S. &
Can., Div. of Transp. Commc’ns Union v. Mo. Pac. R. Co., 944 F.2d 1422, 1427–28 (8th
Cir. 1991); Ry. Lab. Execs. Ass’n v. Chesapeake W. Ry., 915 F.2d 116, 120 (4th Cir.
1990), cert. denied, 499 U.S. 921 (1991); Chi. & N.W. Transp. Co. v. Ry. Labor Execs.
Ass’n, 908 F.2d 144, 151 (7th Cir.1990), cert. denied, 498 U.S. 1120 (1991); CSX
Transp., Inc. v. United Transp. Union, 879 F.2d 990, 1000–01 (2d Cir. 1989); Air Line
Pilots Ass’n Int’l v. Eastern Air Lines, Inc., 863 F.2d 891, 900 (D.C.Cir. 1988).
The Court also denies the invitation to issue an injunction preventing the carrier
from disrupting the status quo during a minor dispute. Typically, “once the court finds
that an employer’s actions are arguably justified under the terms of existing
agreements, the status quo issue is mooted.” Bhd. Ry. Carmen v. Mo. Pac. R.R. Co., 944
F.2d 1422, 1428 (8th Cir.1991); see also CSX Transp. Inc. v. UTU, 879 F.2d 990, 999
(2d Cir.1989), cert. denied, 493 U.S. 1020 (1990) (same). Here, the Unions failed to
establish that BNSF “disrupting the status quo would result in irreparable injury of
the magnitude that would render a decision in favor of the unions virtually
meaningless.” Int’l Ass’n of Machinists & Aerospace Workers, Airline Dist. 146 v.
Frontier Airlines, Inc., 664 F.2d 538, 542 (5th Cir. 1981). This does not, however, imply
that minor disputes are unimportant or insignificant. Indeed, minor disputes—like
this dispute—involve disagreements of great practical or economic significance. Int’l
Bhd. of Teamsters v. Sw. Airlines Co., 875 F.2d 1129, 1133 (5th Cir.1989) (en banc).
the Unions attempt to frame the dispute as an independent statutory
violation.12
1. The Hi Viz attendance standard does not violate Section 2 Third
and 2 Fourth of the Railway Labor Act.
The Court concludes that there is no violation of Section 2 Third or 2
Fourth of the RLA for two reasons: First, the Hi Viz attendance standard
is not a fundamental attack on the union or union representation, and
second, the RLA’s dispute resolution procedures are available for the
Parties.
The Unions argue that the Hi Viz attendance standard violates
Sections 2 Third or 2 Forth of the RLA. Section 2 Third states, in
pertinent part:
Representatives . . . shall be designated by the respective
parties without interference, influence, or coercion by
either party over the designation of representatives by the
other; and neither party shall in any way interfere with,
influence, or coerce the other in its choice of
representatives.
45 U.S.C. § 152 Third. Further, Section 2 Fourth states, in pertinent
part:
Employees shall have the right to organize and bargain
collectively through representatives of their own choosing.
. . . No carrier, its officers, or agents shall deny or in any
way question the right of its employees to join, organize, or
assist in organizing the labor organization of their choice,
and it shall be unlawful for any carrier to interfere in any
way with the organization of its employees, or to use the
funds of the carrier in maintaining or assisting or
contributing to any labor organization, labor
representative, or other agency of collective bargaining, or
in performing any work therefor, or to influence or coerce
employees in an effort to induce them to join or remain or
not to join or remain members of any labor
organization . . . .

12Unlike minor disputes, this Court has jurisdiction to resolve any independent
statutory violation. At this early stage in the case, however, the Court cannot conclude
that such an independent statutory violation exists.
Id. § 152 Fourth.
Despite these statutory guarantees, federal courts have typically
applied Sections 2 Third and Fourth to disputes arising in the pre-
certification context. Trans World Airlines, Inc. v. Indep. Fed. of Flight
Attendants, 489 U.S. 426, 440 (1989) (limiting post-certification
jurisdiction). In “exceptional circumstances,” however, “a federal court
may exercise jurisdiction over violations of the [RLA] without regard to
the court’s characterization of the dispute as major or minor.” Bhd. of
Ry., Airline & S.S. Clerks, Freight Handlers, Express & Station Emps.
v. Atchison, Topeka & Santa Fe Ry. Co., 847 F.2d 403, 408 (7th Cir.
1988). Essentially, there are two instances where jurisdiction is trigged:
(1) cases where extrajudicial dispute-resolution is unavailable or
ineffective, and (2) cases where the employer evinces a specific intent to
weaken or destroy a union. Bhd. of Ry. Carmen (Div. of TCU), 894 F.2d
at 1468 n.10, cert. denied, 498 U.S. 846 (1990); see also Ruby v. TACA
Int’l Airlines, S.A., 439 F.2d 1359, 1364 (5th Cir. 1971).
The Unions argue that BNSF’s actions surrounding the Hi Viz
attendance standard “strike a fundamental blow to union or employer
activity and the collective bargaining process itself,” and that BNSF is
attempting to destroy the Unions.13 At this stage of the proceedings, the
Unions’ arguments can neither withstand scrutiny nor establish an
independent statutory violation. Indeed, nothing the Unions have
alleged demonstrates that this case presents any sort of “exceptional
circumstance.” Ass’n of Pro. Flight Attendants v. Am. Airlines, Inc., 843
F.2d 209, 211–12 (5th Cir. 1988).
The Unions argue that the Hi Viz attendance standard penalizes
union officials who lay off or miss a call for union business. This
discriminatory treatment of union business, according to the Unions, is
evidence of anti-union animus and interferes with an employee’s choice
of representative. The Unions cite Atlas Air, Inc. v. Air Line Pilots Ass’n
in support. 232 F.3d 218 (D.C. Cir. 2000). There, “Atlas Air adopted a
facially discriminatory policy that penalized employees by terminating

13Neither Union argues that the extrajudicial dispute-resolution is unavailable or
ineffective. The Court’s analysis is therefore limited to whether this is a case “where
the employer evinces a specific intent to weaken or destroy a union.”
their participation in profit sharing for no other reason than their
decision to unionize.” Id. at 225 (emphasis added).
Here, the Parties’ history forecloses any argument that BNSF
unilaterally implemented the Hi Viz attendance standard “for no other
reason than their decision to unionize.” Id. Thus, Atlas Air is inapposite.
And while “actions against unionized labor by an employer can in and of
itself provide evidence of the animus generating those acts,” the Unions
cannot point to any actions for the Court to draw such a conclusion. Id.
Accordingly, at this early stage, the Unions cannot establish that BNSF
was motivated by anti-union animus.
Further, the Unions cannot establish that the Hi Viz attendance
standard is discriminatory and will interfere with an employee’s choice
of representative. To this point, any potential evidence would be the
Unions speculating as to how union officials will react to, or operate
under, the Hi Viz attendance standard. Also, the Unions’ argument
requires that resetting a union official’s good-attendance credit be
considered a penalty. As discussed above, there is no persuasive
authority to conclude that resetting an employee’s good-attendance
credit must be considered a penalty. And without establishing this, the
Unions cannot establish that the alleged discriminatory nature of Hi Viz
attendance standard creates an independent statutory violation.
Thus, the Court cannot conclude—based on speculation—that the Hi
Viz attendance standard is an attempt to “destroy the Unions through
acts of discrimination, coercion, or intimidation.” Instead, the record
indicates that the “purpose of Hi Viz is to set a clear standard for full-
time employment; allow employees to easily, accurately, and
contemporaneously determine where they stand in comparison to BNSF
attendance standards; and to provide employees with an opportunity to
improve their standing through regular, steady attendance.” ECF No.
41 at 7. Although the Unions could uncover compelling evidence of “anti-
union animus” or an “intent to interfere with employees’ choice of
representative” during discovery, the Unions cannot produce evidence,
at this stage in the proceedings, to prove those were motivating factors
in the Hi Viz attendance standard.
The Unions also argue that the Hi Viz attendance standard
interferes with the collective bargaining process. As discussed above, the
Court concludes that the Parties are engaged in a minor dispute. BNSF
therefore had no obligation to serve Section 6 Notices over two years ago.
See, e.g., CSX Transp., Inc. v. United Transp. Union, 879 F.2d 990, 1000
(2d Cir. 1989). And because there is no obligation to maintain the status
quo during a minor dispute, the Unions cannot argue that implementing
the Hi Viz attendance standard interferes with the collective bargaining
process. On the contrary, an illegal strike over a minor dispute would
interfere with the collective bargaining process.
The Court concludes, based on the record before the Court, that the
Hi Viz attendance policy does not constitute an independent statutory
violation under the RLA.
2. SMART-TD cannot bring an independent claim under the Family
Medical Leave Act.
SMART-TD argues that the Hi Viz attendance standard violates the
FMLA. SMART-TD, however, is not an “eligible employee” within the
meaning of the FMLA; thus, it cannot bring an independent FMLA
claim.
The FMLA provides a private right of action to “any one or more
employees for and in behalf of (A) the employees; or (B) the employees
and other employees similarly situated.” 29 U.S.C. § 2617(a)(2). The
FMLA contains two definitions for employees. First, the FMLA
expressly adopts the Fair Labor Standard Act’s (“FLSA”) definition of
“employee.” Id. § 2611(3). Under the FLSA, an “employee” is “any
individual employed by an employer.” Id. § 203(e)(1). Second, the FMLA
defines “eligible employee” as an individual “who has been employed (i)
for at least 12 months by the employer . . . ; and (ii) for at least 1,250
hours of service with such employer during the previous 12 month
period.” Id. § 2617(a)(2).
Based on the plain language, a union does not qualify as either an
“employee” or “eligible employee.” See Sturges v. Crowninshield, 17 U.S.
(4 Wheat.) 122, 202 (1819) (Marshall, C.J.) (“It would be dangerous in
the extreme, to infer from extrinsic circumstances, that a case for which
the words of an instrument expressly provide, shall be exempted from
its operation.”). Therefore, the FMLA does not provide a cause of action
for a union to bring a claim on its own or on behalf of its members. See,
e.g., Port Auth. Police Benevolent Ass’n, Inc. v. Port Auth. of N.Y. & N.J.,
283 F. Supp. 3d 72, 90 (S.D.N.Y. Oct. 24, 2017); Burrell v. AT&T Corp.,
No. 3-CV-2490, 2005 WL 2656124, at *3 (S.D.N.Y. Oct. 18, 2005); Local
100, Serv. Emps. Int’l Union, AFL-CIO v. Integrated Health Servs., 96
F. Supp. 2d 537, 539 (M.D. La. 2000), order vacated on other grounds,
2000 WL 33948946 (M.D. La. Sept. 19, 2000).
Accordingly, a union cannot bring a claim on its own or on behalf of
its members. The Court therefore rejects SMART-TD’s attempt to seek
injunctive relief pursuant to the FMLA.
C. The Court has authority to issue an injunction under the
RLA.
A court’s jurisdiction in a labor dispute is limited to preserving and
enforcing the RLA’s dispute resolution procedures. BNSF Ry. Co., 973
F.3d at 338. As such, a court has authority to issue an injunction in a
minor dispute, but only in “exceptional circumstances” Allied Pilots
Ass’n, 898 F.2d at 465. As the Fifth Circuit has explained, an injunction
in a minor dispute is appropriate where: (1) it is “necessary to preserve
the jurisdiction of the grievance procedure”; or (2) “a disruption of the
status quo would result in irreparable injury of such magnitude that it
would render any subsequent decision meaningless.” BNSF Ry. Co., 973
F.3d at 337.
Here, the Court concludes that the dispute is minor. Thus, a strike
over the Hi Viz attendance standard would violate the RLA. See Ry. Exp.
Agency, Inc. v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, 437
F.2d 388, 392 (5th Cir. 1971) (noting that the RLA “prohibits all strikes
over minor disputes”). Accordingly, this Court is empowered to issue a
strike injunction to “compel compliance with the provisions of the [RLA]”
and to “preserve the jurisdiction of the grievance procedure.” BNSF Ry.
Co., 973 F.3d at 337.
D. The Norris-LaGuardia Act does not bar an injunction.
Like the RLA, the Norris-LaGuardia Act (“NLGA”) also limits a
court’s authority to issue injunctions in railway labor disputes. 29 U.S.C.
§ 108, et seq. “By narrowing the courts’ jurisdiction to enjoin labor
disputes, Congress hoped to stop courts from indiscriminately awarding
injunctions against striking employees—a practice that had become
commonplace across federal courts.” BNSF Ry. Co., 973 at 337 (citing
Nat’l Woodwork Mfrs. Ass’n v. N.L.R.B., 386 U.S. 612, 620 (1967)).
Although the NLGA is phrased in absolute language, the Supreme
Court has held that the “competing demands of the RLA and the
[NLGA]” must be “accommodate[d].” Burlington N. R.R. Co., 481 U.S.
429, 445 (1987). “To accommodate the competing demands of the RLA
and the Norris-LaGuardia Act, our cases establish that the Norris-
LaGuardia Act does not deprive the federal court of jurisdiction to enjoin
compliance with various mandates of the Railway Labor Act.” BNSF Ry.
Co., 973 at 338 (quoting Burlington N. R.R. Co., 481 U.S. at 445). Thus,
when an action violates the RLA, the “specific provisions of the [RLA]
take precedence over the more general provisions of the [NLGA].” Id.
(quoting Chicago River, 353 U.S. at 41–42).
Here, the Court concludes that the proper accommodation of the
NLGA with the RLA in this dispute causes the procedural requirements
of the NLGA to not be prerequisites to the relief requested by BNSF
against the Unions. See, e.g., Burlington N. & Santa Fe Ry. Co., 143 F.
Supp. 2d at 691.
However, the Court’s findings still give effect to the NLGA’s specific
procedural requirements. First, the Parties do not dispute the reliability
of the evidence submitted in support of each Motion for a Preliminary
Injunction. See Ry. Exp. Agency, Inc., 437 F.2d at 395; Delta Air Lines,
Inc. v. Air Line Pilots Ass’n Int’l, 238 F.3d 1300, 1311 (11th Cir. 2001)
(stating that the “purpose of [S]ection 107 is served if the evidence is
inherently reliable and there is no harm to the parties”). Second, the
Parties expressly waived an evidentiary hearing. See, e.g., Ry. Express
Agency, Inc., 437 F.2d at 395. Third, because the general preliminary
injunction standard overlaps with the requirements of the NLGA, the
procedural requirements of Section 107 are satisfied. Finally, there is
no evidence in the record to suggest any Party failed to “make every
reasonable effort to settle such dispute either by negotiation or with the
aid of any available governmental machinery of mediation or voluntary
arbitration.” 29 U.S.C. § 108.
Accordingly, based on the record currently before the Court, the
NLGA does not impede the Court’s ability to grant injunctive relief.
E. BNSF has established the requisite factors for a preliminary
injunction.
“To be entitled to a preliminary injunction, a movant must establish:
(1) a likelihood of success on the merits; (2) a substantial threat of
irreparable injury; (3) that the threatened injury if the injunction is
denied outweighs any harm that will result if the injunction is granted;
and (4) that the grant of an injunction will not disserve the public
interest.” Ladd v. Livingston, 777 F.3d 286, 288 (5th Cir. 2015) (quoting
Trottie v. Livingston, 766 F.3d 450, 451 (5th Cir. 2014)).
BNSF has established the four essential elements for a preliminary
injunction; the Court will therefore GRANT BNSF’s Motion.
1. Likelihood of Success on the Merits
As explained above, the Court concludes that: (1) the instant dispute
is minor, and (2) the Unions failed to establish that this dispute involves
an independent statutory violation. Thus, BNSF has established a
likelihood of success on the merits of its claim that the Unions’
threatened strike over a minor dispute violates the mandatory dispute
resolution procedures set forth in the RLA.
Because the Unions failed to carry their burden to show that they
are likely to succeed on the merits of their claims, the Court will DENY
their Motions for a Preliminary Injunction. See, e.g., Miss. Power &
Light Co. v. United Gas Pipeline Co., 760 F.2d 618, 621 (5th Cir. 1985).
2. Substantial Threat of Irreparable Injury
Having considered the record, the Court concludes that BNSF has
carried its burden to show a substantial threat of irreparable injury.
Under this inquiry, the Court “focu[es] on the plaintiff—and our ability
to remedy the plaintiff’s injury—not the identity of the defendant.”
Sambrano v. United Airlines, Inc., 19 F.4th 839, 841–42 (5th Cir. 2021)
(Ho, J., dissenting).
As explained above, the instant dispute is minor, meaning that any
strike over the Hi Viz attendance standard would be unlawful under the
RLA. On this point, the Fifth Circuit is clear: A carrier has no cause of
action under the RLA for damages caused by illegal strike due to a minor
dispute. Am. Airlines, Inc. v. Allied Pilots Ass’n, 228 F.3d 574, 584–85
(5th Cir. 2000), cert denied, 531 U.S. 1191 (2001); Louisville & Nashville
R.R. Co. v. Brown, 252 F.2d 149 (5th Cir. 1958). Thus, without a cause
of action to recover damages caused by an illegal strike, there is no
adequate remedy at law and any harm is irreparable. Cf Sambrano v.
United Airlines, Inc., No. 21-11159, 2022 WL 486610, at *16 (5th Cir.
Feb. 17, 2022) (Smith, J., dissenting) (“Preliminary injunctive relief is
unavailable where there’s an adequate remedy at law.”).
And to the potential harm, BNSF presents evidence as to the
devastating impact an illegal strike would have on its operations across
the entire United States. See ECF Nos. 7 at 26–27, 8 at 174–77, 40 at
23, 41 at 1–2, 27–28, 55 at 10. And even if the shutdown was only
temporary, the disruption in service would still result in permanent and
irreparable loss for BNSF, as well as the public-at-large. The Court
therefore concludes that the substantial threat of irreparable injury
favors a preliminary injunction.
3. Balancing the Harms
Two things are clear: BNSF faces irreparable harm, and any strike
would be unlawful under the RLA. Thus, the harm that BNSF and the
public-at-large would suffer from an illegal strike far outweighs any
harm the Unions would face from the Court enjoining an illegal strike.
Even with an injunction, the Unions are not without recourse. The
Unions remain free to follow the appropriate dispute resolution
procedures set forth in the RLA. The Court therefore concludes that the
balance of the harms favors an injunction.
4. Public Interest
Because there is no credible suggestion that the public interest would
be harmed by the issuance of an injunction, the Court concludes that the
public interest favors issuance of a preliminary injunction. An illegal
strike over a minor dispute would produce severe repercussions for
numerous individuals and industries that rely on BNSF. Arguably, an
illegal strike would adversely impact every single American. The public
interest therefore favors an injunction that bars a strike over a minor
dispute and requires the Unions to abide by the RLA.
ORDER
As explained above, the Court concludes that BNSF has established
the four essential elements for a preliminary injunction. The Court
therefore GRANTS BNSF’s Motion for a Preliminary Injunction (ECF
No. 39) and DENIES the Unions’ Motions for Preliminary Injunction
(ECF Nos. 44—45).
Accordingly, the Court ORDERS that SMART-TD and BLET—as
well as their divisions, lodges, locals, officers, agents, employees,
members, and all persons acting in concert or participation with any of
them—are hereby RESTRAINED and ENJOINED from authorizing,
encouraging, permitting, calling, or otherwise engaging in any strikes,
work stoppages, picketing, slowdowns, sickouts, or other self-help
against BNSF or its operating rail subsidiaries over any dispute relating
to the Hi Viz attendance standards.
The Court further ORDERS that this preliminary injunction will
remain in effect for the pendency of the present case unless rescinded or
otherwise modified by the Court. The Court further concludes that the
current bond is sufficient and will not be increased.
SO ORDERED on this 22nd day of February, 2022.

Mark T. Pittman
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10451195. Public record. Not legal advice.