BNSF Railway Company v. Internal Association of Sheet Metal, Air, Rail and Transportation Workers - Transportation Division

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BNSF RAILWAY COMPANY,

Plaintiff,

v. No. 4:21-cv-0432-P

INTERNATIONAL ASSOCIATION OF SHEET

METAL, AIR, RAIL AND TRANSPORTATION

WORKERS – TRANSPORTATION DIVISION,

Defendant.

MEMORANDUM OPINION & ORDER

“It’s déjà vu all over again”—a railway company, a labor union, and

of course, a dispute between the two.1 This case presents the oft-litigated

issue of whether a particular conflict is either a “major” or “minor”

dispute under the Railway Labor Act (“RLA”). Specifically, at issue is

whether it is a major or minor dispute for Plaintiff BNSF Railway

Company (“BNSF”) to require its road-service employees to use company

vehicles in the performance of their duties.

BNSF argues that the dispute is minor while Defendant

International Association of Sheet Metal, Air, Rail and Transportation

Workers – Transportation Division (“SMART-TD”) argues that it is

major. To those ends, the Parties filed Cross-Motions for Summary

Judgment seeking declaratory judgments adopting their respective

positions. ECF Nos. 27, 30. As explained below, the Court will GRANT

in part BNSF’s Motion for Summary Judgment and DENY SMART-

TD’s Motion for Summary Judgement.

1YOGI BERRA, THE YOGI BOOK: “I REALLY DIDN’T SAY EVERYTHING I SAID!” 45 (1999).

FACTUAL BACKGROUND

A. The Parties

BNSF is a common carrier engaged in interstate commerce and

headquartered in Fort Worth, Texas. ECF No. 1; see also 45 U.S.C. § 151

First (defining “carrier” under the RLA). And SMART-TD, formerly

United Transportation Union, is the duly authorized representative of

the crafts or classes of train-service employees employed by BNSF. ECF

No. 24; see also 45 U.S.C. § 151 Sixth (defining “representative” labor

organization under the RLA).

B. The Agreement

BNSF and SMART-TD have entered into several collective

bargaining agreements governing the terms and conditions of

employment for train-service employees. One such agreement is the

“1985 National Agreement” (“National Agreement”).2 Relevant to the

instant dispute is Article VIII of the National Agreement, which governs

work requirements for both road and yard crews.3 Article VIII provides,

in relevant part:

Section 1 – Road Crews

Road crews may perform the following work in

connection with their own trains without additional

compensation:

(a) Get or leave their train at any location within the

initial and final terminals and handle their own

switches. When a crew is required to report for duty or

is relieved from duty at a point other than the on and

off duty point fixed for that assignment and such point

2The National Agreement was reached between the National Carriers’ Conference

Committee and the United Transportation Union. Because BNSF is a member of the

National Carriers’ Conference Committee and the United Transportation Union is

SMART-TD’s predecessor, the Parties do not dispute that the National Agreement

governs.

3As the Court understands the industry-specific terms, yard-service employees

typically work within a single rail yard’s “switching limits,” which is the geographical

limit of a rail yard and can cover an area miles outside the boundaries of a switching

yard. Road-service employees work primarily outside of a rail yard and are involved in

the transportation of trains from one yard to another over long distances.

is not within reasonable walking distance of the on and

off duty point, transportation will be provided.

. . . .

Section 3 – Incidental Work

(a) Road and yard employees in ground service and

qualified engine service employees may perform the

following items of work in connection with their own

assignments without additional compensation:

(1) Handle switches

(2) Move, turn and spot locomotives and cabooses

(3) Supply locomotives and cabooses except for

heavy equipment and supplies generally

placed on locomotives and cabooses by

employees of other crafts

(4) Inspect cars

(5) Start or shutdown locomotives

(6) Bleed cars to be handled

(7) Make walking and rear-end air tests

(8) Prepare reports while under pay

(9) Use communication devices; copy and handle

train orders, clearances and/or other

messages

(10) Any duties formerly performed by firemen.

(b) Road and yard employees in engine service and

qualified ground service employees may perform the

following items of work in connection with their won

assignments without additional compensation:

(1) Handle switches

(2) Move, turn, spot and fuel locomotives

(3) Supply locomotives except for heavy

equipment and supplies generally placed on

locomotives by employees of other crafts

(4) Inspect locomotives

(5) Start or shutdown locomotives

(6) Make head-end air tests

(7) Prepare reports while under pay

(8) Use communication devices; copy and handle

train orders, clearances and/or other

messages

(9) Any duties formerly performed by firemen.

Section 4 – Construction of Article

Nothing in this Article is intended to restrict any of the

existing rights of a carrier.

ECF Nos. 29 at 12–14; 32 at 6–8.

C. The Dispute

The instant dispute began roughly three years ago when BNSF

informed SMART-TD that it intended to start requiring certain union-

represented employees to drive company vehicles in the performance of

their duties. SMART-TD objected to the proposed driving policy, arguing

that BNSF could not require union-represented employees to drive

company vehicles under the National Agreement. To resolve these

differences, the Parties exchanged draft proposals that, if agreed to,

would have governed union-represented employees driving company

vehicles in the performance of their duties. See ECF No. 32 at 15–16,

19–20. However, the negotiations were fruitless, and the Parties failed

to reach an agreement. Nonetheless, BNSF implemented its plan

requiring union-represented employees to drive company vehicles in the

performance of their duties. To date, BNSF has been requiring union-

represented employees to drive themselves to and from their trains in

various locations.4 ECF Nos. 29 at 10; 32 at 4.

The Parties (unsurprisingly) disagree about how to classify this

dispute regarding BNSF’s contested driving policy. However, the Parties

(surprisingly) disagree about what the instant dispute encompasses.

On one hand, BNSF’s filings focus on both yard- and road-service

employees—seeking, inter alia, a declaratory judgment that the Parties’

dispute over whether train-service employees can be required to drive

4SMART-TD asserts that road-service employees are also required to drive

company vehicles to and from their lodging. The proposal, however, explicitly states

that the “[v]ehicle[s] will not be used for travel to and from lodging.” ECF No. 32 at 22.

Further, BNSF flatly rejected that they are (currently) requiring road-service crews to

drive company vehicles to and from lodging. See ECF No. 40 at 42 (“They’re not driving

to and from lodging. They’re driving in connection with their trains during their tour

of duty to go help.”). Accordingly, the Court does not consider road-service employees

driving company vehicles to and from lodging to be a part of the contested driving

policy that is before the Court.

themselves to their work (rather than be chauffeured to and from those

sites) is minor. See ECF No. 1.

On the other hand, SMART-TD’s filings focus only on road-service

employees—seeking, inter alia, a declaratory judgment that requiring

road-service employees to drive vehicles during the performance of their

duties violates BNSF’s obligations under the RLA. See ECF No. 24.

The Parties clarified this disagreement at the hearing on the Cross-

Motions for Summary Judgment.5 See ECF No. 40. Accordingly, based

on the Parties’ representations, the central issue is whether it is a major

or minor dispute for BNSF to require its road-service employees to drive

company vehicles in the performance of their duties.

PROCEDURAL HISTORY

On March 12, 2021, BNSF filed this civil action seeking declaratory

and injunctive relief against SMART-TD. ECF No. 1. BNSF then filed a

Motion for a Temporary Restraining Order and/or Preliminary

Injunction (“Motion”) on March 16, 2021. ECF Nos. 7–8. Because there

was no imminent threat of a strike, the Court denied the Motion. ECF

No. 17. On June 7, 2021, SMART-TD answered the Complaint and

asserted a counterclaim seeking declaratory and injunctive relief

against BNSF. ECF No. 24. After failing to resolve their differences at

mediation, the Parties filed Cross-Motions for Summary Judgment. See

ECF Nos. 27, 30. The Court held a hearing on the Cross-Motions for

Summary Judgment, see ECF No. 40, which are now ripe for review.

LEGAL STANDARD

A. Summary Judgment Standard

Summary judgment is appropriate where the movant demonstrates

“there is no genuine dispute as to any material fact and the movant is

5SMART-TD concedes that the contested driving policy—as applied to yard-service

employees—is a minor dispute. ECF No. 40 at 9–10. The Court therefore analyzes

whether the contested driving policy—as applied to road-service employees—is either

a major or minor dispute. Narrowing the controversy before the Court to entail only

road-service employees does not alter the Court’s analysis, and SMART-TD’s

concession regarding yard-service employees does not go towards the merits. Instead,

that concession merely acknowledges that whether BNSF can require yard-service

employees to drive a company vehicle is a decision left for an arbitrator—not the Court.

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine

dispute of material fact exists “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); see also Bazan ex rel. Bazan v.

Hidalgo Cnty., 246 F.3d 481, 489 (5th Cir. 2001) (“An issue is ‘genuine’

if it is real and substantial, as opposed to merely formal, pretended, or

a sham.”). To demonstrate an issue as to material facts, the nonmoving

party “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party must show

sufficient evidence to resolve issues of material fact in its favor.

Anderson, 477 U.S. at 249.

When evaluating a motion for summary judgment, the Court views

the evidence in the light most favorable to the nonmoving party. Id. at

255. However, it is not incumbent upon the Court to comb through the

record in search of evidence that creates a genuine issue as to a material

fact. See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). The

nonmoving party must cite the evidence in the record that establishes

the existence of genuine issues as to the material facts. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). Finally, when parties file cross

motions for summary judgment, the court “review[s] each party’s motion

independently, viewing the evidence and inferences in the light most

favorable to the nonmoving party.” See, e.g., Six Dimensions, Inc. v.

Perficient, Inc., 969 F.3d 219, 224 (5th Cir. 2020) (quoting Green v. Life

Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014)).

B. 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. Texas & 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).

In the railroad industry, labor disputes have traditionally 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”). Accordingly, the RLA 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). Stated another way: 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).

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 merely 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.

ANALYSIS

The Court will analyze the Cross-Motions for Summary Judgment in

three parts. First, the Court determines whether the instant dispute is

either “major” or “minor” under the RLA. As explained below, the Court

concludes that this dispute is minor. Second, the Court concludes that it

is appropriate to enter a declaratory judgment that the dispute in this

case is minor. Finally, because there is no threat of an imminent strike,

the Court declines to grant injunctive relief.

BNSF’s Motion for Summary Judgment will therefore be GRANTED

in part; SMART-TD’s Motion for Summary Judgment, however, will be

DENIED.

A. Whether BNSF Can Require Workers to Drive Company

Vehicles in the Performance of their Duties is a Minor

Dispute.

Despite SMART-TD’s argument that BNSF is violating their

obligations under the RLA, the Court concludes that BNSF’s contested

driving policy is “arguably justified” by the terms of the National

Agreement. BNSF has therefore met the “relatively light burden”

necessary to show that their actions are arguably justified such that the

instant dispute is minor.

1. The National Agreement’s express terms—in particular, Article

VIII—provide an arguable basis for BNSF’s contested driving

policy.

BNSF’s contested driving policy is “arguably justified by the

[express] terms of the parties’ [National Agreement].” Id. at 303. The

instant dispute between the Parties is therefore minor.

Section 2 of Article VIII applies to road-service employees and speaks

to their transportation. It states, in relevant part:

When a crew is required to report for duty or is relieved

from duty at a point other than the on and off duty point

fixed for that assignment and such point is not within

reasonable walking distance of the on and off duty point,

transportation will be provided.

ECF No. 32 at 16 (emphasis added). Importantly, this clause neither

articulates nor requires a specific mode of transportation; instead,

Section 2 merely states that transportation will be provided in some

unspecified form or fashion. Id. Because the plain language requires

only that transportation be provided, it is undoubtedly arguable that

providing a company vehicle to be driven by road-service employees can

satisfy BNSF’s obligations under the National Agreement.

Despite the language of Section 2, SMART-TD argues that road-

service crews have never been required to drive company vehicles to or

from their trains. ECF No. 31 at 4–6. Although SMART-TD may be

correct regarding the past practice—which is ultimately a question for

the arbitrator—the plain language of Section 2 does not require the use

of third-party contractors or BNSF clerks. In fact, any argument that

road-service crews must be driven to and from their point of duty cannot

be based on the plain language of the National Agreement. More to the

point, if the National Agreement does not expressly require a specific

mode of transportation for road-service employees, then it is at least

arguable that BNSF can require road-crews to drive themselves in

company-provided vehicles. Therefore, despite the past practice of

utilizing third-party contractors or BNSF clerks, the plain language of

Section 2 provides an arguable basis for contested driving policy.

Unlike Section 2, which applies only to road-service employees,

Sections 3 and 4 of Article VIII apply to both yard- and road-service

employees. Specifically, Section 3 articulates an “incidental work rule,”

which lists various tasks that an employee may be required to complete

without additional pay. SMART-TD argues that Section 3 “clearly

delineates an exclusive list of job duties that BNSF can require of its

road service employees without additional compensation.” Id. at 10. And

because “[d]riving company vehicles is not included,” BNSF has failed

to assert an arguable basis for its contested driving policy. Id. When read

in isolation, SMART-TD (correctly) asserts that Section 3 enumerates a

list of job duties. However, SMART-TD (incorrectly) bases the assertion

that the list is exhaustive “on limiting language that is not in Article

[VIII].” ECF No. 40 at 9–10.

It is black-letter law that a collective bargaining agreement is not an

ordinary contract. Rather, “it is a generalized code to govern a myriad of

cases which the draftsmen cannot wholly anticipate.” Conrail, 491 U.S.

at 311–12. As a collective bargaining agreement, the National

Agreement is such a “generalized code” that governs a “myriad of cases.”

Further, Section 3 of this “generalized code” contains no clear limiting

language. It is therefore arguable that there is other incidental work

(not enumerated in Section 3) that BNSF can require both yard- and

road-service employees to perform without unilaterally altering the

National Agreement.

This is supported by the fact that Section 4 explicitly provides:

“Nothing in this Article is intended to restrict any of the existing rights

of a carrier.” ECF Nos. 29 at 14; 32 at 8. By its express terms, the

National Agreement thus acknowledges that BNSF maintains rights

that are not restricted, unless explicitly done so by the express terms of

Article VIII. Id. More to the point, Section 3 does not contain any

limiting language requiring road-service employees to be chauffeured to

and from their job sites or prohibiting road-service employees from

driving company vehicles. Accordingly, it is at least arguable that

Section 3 allows the contested driving policy as a form of incidental work

not enumerated in the National Agreement.

The Court thus concludes that BNSF has met the “relatively light

burden” necessary to show that contested driving policy is arguably

justified by the National Agreement’s express terms such that the

dispute is minor.

2. The National Agreement’s implied terms—as interpreted through

established past practice—provide an arguable basis for the

contested driving policy.

Even without the National Agreement’s express terms, BNSF’s

contested driving policy 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,” a Court must consider both the express and

implied provisions when determining 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 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 “claims

based on implied terms—specifically, the past practices of the

parties . . . —do have some arguable basis sufficient to render this a

minor dispute”).

“The type of past practice relied on need not be identical to be 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, e.g., Conrail, 491 U.S. at 315–20 (railroad’s past practice

of requiring drug testing as part of employee physicals only when a drug

problem was known or suspected satisfied railroad’s burden of showing

arguable contractual justification when it began requiring routine drug

screening of employees).

As expected, BNSF argues that the Parties’ past practice provides an

arguable basis for the contested driving policy while SMART-TD argues

that it does not. Specifically, SMART-TD argues that the past practice

relates solely to yard-service employees and has no applicability in the

road-service-employee context. To those ends, the Parties submitted

dueling affidavits as evidence of the Parties’ past practice. See ECF Nos.

35, 38. The Court, however, is not deciding the merits of whether the

past practice does in fact allow BNSF’s contested driving policy. Rather,

the Court is deciding only whether the evidence in the record provides

an arguable basis for the contested driving policy.

Here, the Court has no reason to doubt the veracity of the affidavits

of either Party. Further, the affidavits—arguing over whether the

Parties’ past practice gives rise to an implied term applicable to road-

service employees—demonstrate 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 past practice

specific to yard-service employees does not establish an implied term

that supports the contested driving policy, the opposite is also arguable.

In sum, resolution of the instant dispute will turn on the application

or interpretation of the express or implied terms of Article VIII of the

National Agreement—i.e., the instant dispute is comprehended within

an existing agreement 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.

B. A Declaratory Judgment That the Instant Dispute is a Minor

Dispute is Appropriate.

Because the Parties’ dispute is neither conjectural nor hypothetical,

the Court concludes that it is appropriate to enter a declaratory

judgment that the dispute is minor. See, e.g., BNSF Ry. Co. v. Int’l Assoc.

of Sheet Metal, Air, Rail and Transp. Workers – Transp. Div., No. 3:15-

CV-1029-M, 2016 WL 1242627, at *3 (N.D. Tex. Mar. 30, 2016) (“In the

Fifth Circuit, the issue of whether a dispute between a railroad carrier

and an employee union is properly classified under the RLA as a major

or minor dispute is clearly a controversy subject to resolution under the

Declaratory Judgment Act.”).

To start, there is a genuine dispute as to whether BNSF’s actions are

arguably justified by the Parties’ National Agreement. And which

dispute-resolution procedures are available to the Parties can be

determined only by classifying this dispute as either major or minor.

Thus, “given the nature of dispute-resolution proceedings under the

RLA, the Parties would suffer hardship should the Court withhold

consideration.” BNSF Ry. Co. v. Bhd. of Locomotive Eng’rs & Trainmen,

595 F. Supp. 2d 722, 735 (N.D. Tex. 2008), aff’d sub nom., BNSF Ry. Co.

v. United Transp. Union, 337 F. App’x 409 (5th Cir. 2009). Accordingly,

a judicial decision by this Court will allow the Parties to properly resolve

the instant dispute pursuant to the RLA. BNSF’s Motion will thus be

GRANTED in part to the extent that it seeks a declaratory judgment

that this dispute is “minor” under the RLA.

C. Injunctive Relief is Not Appropriate.

Although the Court concludes that it is appropriate to enter a

declaratory judgment, it declines to grant injunctive relief. The record

before the Court does not establish an immediate threat of a strike.

While SMART-TD has yet to give assurances that it agrees that the

instant dispute is a minor dispute, it has also failed to make credible

representations that the union-represented employees plan to strike

over the dispute. Merely taking the position that the dispute is major

should not be equated with the threat of a strike. Rather, SMART-TD’s

litigation position should be viewed in the context of the RLA, which

encourages hard bargaining. See, e.g., Fed. Exp. Corp. v. Air Line Pilots

Assn, 67 F.3d 961, 964-65 (D.C. Cir. 1995) “Employers and unions can

be expected to take aggressive bargaining positions and freely threaten

dire consequences when they are rejected.”). BNSF’s Motion will thus be

DENIED in part to the extent that it seeks injunctive relief.

ORDER

As explained above, the Court concludes that the instant dispute can

be resolved by interpreting the Parties’ 1985 National Agreement—.e.,

BNSF’s contested driving policy is “arguably justified” by the express or

implied terms of the National Agreement. Accordingly, the Court

concludes that the instant dispute between the Parties is a minor

dispute subject to the mandatory arbitration provisions of the RLA.

Accordingly, the Court ORDERS that BNSF’s Motion for Summary

Judgment is GRANTED in part to the extent that it seeks a

declaratory judgment that this dispute is “minor” under the Railway

Labor Act.

The Court further ORDERS that BNSF’s Motion for Summary

Judgment is DENIED in part to the extent that it seeks injunctive

relief.

The Court further ORDERS that SMART-TD’s Motion for Summary

Judgment is DENIED.

SO ORDERED on this 14th day of January, 2022.

Dare 7 betta

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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