Norfolk Southern v. Brotherhood

Filed: July 26, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-1332

(CA-97-2672-6-13)

Norfolk Southern Railway Company,

Plaintiff - Appellant,

versus

Brotherhood of Locomotive Engineers, et al.,

Defendants - Appellees.

O R D E R

The court amends its opinion filed June 22, 2000, as follows:

On page 11, second full paragraph, line 3 -- the comma after

the word “management” is deleted.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORFOLK SOUTHERN RAILWAY

COMPANY,

Plaintiff-Appellant,

v.

BROTHERHOOD OF LOCOMOTIVE

ENGINEERS; CLARENCE V. MONIN,

Individually and as Brotherhood of

Locomotive Engineers President;

P. T. SORROW, Individually and as

Brotherhood of Locomotive

Engineers Vice President; EDWARD

DUBROSKI, Individually and as

Brotherhood of Locomotive

Engineers First Vice President;

RUSSELL W. BENNETT, Individually

No. 98-1332

and as Brotherhood of Locomotive

Engineers Secretary/Treasurer; R. C.

WALLACE, Individually and as

Brotherhood of Locomotive

Engineers General Chairman;

AMERICAN TRAIN DISPATCHERS

DEPARTMENT - BLE; LES A.

PARMELEE, Individually and as

American Train Dispatchers

Department - BLE President;

WILLIAM A. CLIFFORD, Individually

and as American Train Dispatchers

Department - BLE Vice President;

JAMES A. PARKER, Individually and

as American Train Dispatchers

Department - BLE Vice President;

DAVID W. VOLZ, Individually and as

American Train Dispatchers

Department - BLE Vice President

(West); F. LEO MCCANN,

Individually and as American Train

Dispatchers Department

Secretary/Treasurer; S. A.

HUNNICUTT, Individually and as

American Train Dispatchers

Department General Chairman;

E. A. LANHAM, JR., Individually and

as American Train Dispatchers

Department Office Chairman;

C. W. HENDRICKS, Individually and

as American Train Dispatchers

Department Office Chairman;

T. E. RUSSELL, Individually and as

American Train Dispatchers

Department Office Chairman;

M. G. GIDEON, Individually and as

American Train Dispatchers

Department Office Chairman;

W. L. MOSLEY, Individually and as

American Train Dispatchers

Department Office Chairman,

Defendants-Appellees.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

G. Ross Anderson, Jr., District Judge.

(CA-97-2672-6-13)

Argued: March 4, 1999

Decided: June 22, 2000

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

2

Affirmed by published opinion. Judge Michael wrote the opinion, in

which Judge Luttig joined. Judge Widener wrote a separate concur-

ring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Stephen Berlin, SIDLEY & AUSTIN, Washing-

ton, D.C., for Appellant. Michael Stephen Wolly, ZWERDLING,

PAUL, LEIBIG, KAHN, THOMPSON & WOLLY, P.C., Washing-

ton, D.C., for Appellees. ON BRIEF: Mark E. Martin, Edward R.

McNicholas, SIDLEY & AUSTIN, Washington, D.C.; Mark D. Per-

reault, Roanoke, Virginia; Frank H. Gibbes, III, Deborah Casey

Brown, GIBBES, GALLIVAN, WHITE & BOYD, P.A., Greenville,

South Carolina, for Appellant. Daniel G. Orfield, ZWERDLING,

PAUL, LEIBIG, KAHN, THOMPSON & WOLLY, P.C., Washing-

ton, D.C.; Harold A. Ross, ROSS & KRAUSHAAR CO., L.P.A.,

Cleveland, Ohio, for Appellees.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

The question in this appeal is whether there is an implied remedy

under the Railway Labor Act, 45 U.S.C. §§ 151-188 (the RLA or the

Act), for damages caused by a union strike over what is known as a

"minor dispute." We hold that a damages remedy is not available in

this circumstance.

I.

This case arises out of a five-hour strike called on September 3,

1997, by the American Train Dispatchers Department of the Brother-

hood of Locomotive Engineers (the union) against the Norfolk South-

ern Railway Company (the railroad). For several years prior to the

strike, the union and the railroad had been at odds over one aspect of

the railroad's work assignment authority under the collective bargain-

ing agreement. Specifically, the parties disagreed about whether the

3

railroad could assign a dispatcher to work a shift or "desk" other than

his regular one. (In a train dispatchers' office each "desk" governs a

particular region of the railroad's operations.) On August 25, 1997,

Harry G. Shirley reported for duty at the railroad's Birmingham, Ala-

bama, train dispatching office to work at his regular desk. When a

supervisor directed him to work "off assignment," that is, at another

desk in the same office, Shirley said he was too sick to work at the

other desk. Despite warnings from the chief dispatcher and the super-

intendent, Shirley marked off sick and left the office. A week later,

on September 2, 1997, the railroad issued a "notice of charge" to Shir-

ley for insubordination and marking off sick under false pretenses.

The union called a strike in response, and the dispatchers walked off

the job at about 11:00 a.m. on September 3, 1997. The strike lasted

five hours until a federal district judge in South Carolina entered a

temporary restraining order directing the dispatchers to return to

work.

On October 2, 1997, the district court issued a preliminary injunc-

tion prohibiting the strike, concluding that the union had struck the

railroad "over a minor dispute, in violation of the commands of the

Railway Labor Act." The railroad then filed an amended complaint

that added a claim against the union for damages caused by the strike.

The railroad asserted damages of approximately $250,000 for, among

other things, the payment of overtime wages, the payment of wages

to employees who were not productive on the day of the strike, and

costs associated with the delay of freight trains. On the union's

motion under Fed. R. Civ. P. 12(b)(6) the district court dismissed the

railroad's claim for damages, holding that a damages remedy cannot

be implied under the RLA when, as in this case, employees strike

over a minor dispute. Final judgment was then entered, and the rail-

road appealed the dismissal of its claim for damages.

II.

Today's question -- whether a carrier has an implied RLA remedy

for damages resulting from a union strike over a minor dispute -- is

best answered with some history in mind. As the Supreme Court has

said, "[t]he Railway Labor Act `cannot be appreciated apart from the

environment out of which it came and the purposes which it was

designed to serve.'" Burlington N. R.R., Co. v. Brotherhood of Main-

4

tenance of Way Employees, 481 U.S. 429, 444 (1987) (quoting Elgin,

J. & E. Ry. Co. v. Burley, 325 U.S. 711, 751 (1945) (Frankfurter, J.,

dissenting)). History and experience, in other words, dictated the pur-

pose and structure of the RLA, as passed in 1926 and amended in

1934.

Our history lesson begins with World War I, when the federal gov-

ernment took control of the country's railroads. During the war the

railroads were operated under the authority of the U.S. Railroad

Administration, an agency run by a Director General who was

appointed by the President. The Director General and the rail unions

entered into national agreements covering wages and working condi-

tions. See Charles M. Rehmus, Evolution of Legislation Affecting Col-

lective Bargaining in the Railroad and Airline Industries, in The

Railway Labor Act at Fifty 1, 6 (Charles M. Rehmus ed., 1977). The

unions gave a no-strike pledge for the duration of the war. See Frank

N. Wilner, The Railway Labor Act & the Dilemma of Labor Relations

38 (1991). Adjustment boards with equal representation from man-

agement and labor (the Director General voted in case of a tie)

decided grievances arising out of interpretation of the national agree-

ments. See Jacob Seidenberg, Grievance Adjustment in the Railroad

Industry, in The Railway Labor Act at Fifty, supra, at 209, 209-10.

The Railroad Administration controlled wartime freight rates and pas-

senger fares, and the government guaranteed the carriers a set rate of

return. See Wilner, supra, at 39-40.

As World War I drew to a close, Congress became concerned about

the potential for labor-management discord when the railroads were

returned to private management and the unions were free to call

strikes. The consensus in Congress was that continued (and substan-

tial) government involvement in railroad labor relations would be

necessary to preserve the peace in the rail industry. Thus came the

Transportation Act of 1920. See Rehmus, supra, at 6.

To start off, the Transportation Act of 1920 restored possession of

the railroads to their private owners. Title III of the act then imposed

a comprehensive system for the resolution of rail labor disputes. First,

Title III called upon carriers and labor organizations to create local

adjustment boards to decide disputes that "involv[ed] only grievances,

rules, or working conditions." Transportation Act of 1920, tit. III,

5

§ 303, 41 Stat. 456, 470 (repealed 1926). Second, and more impor-

tant, Title III created a Railroad Labor Board (to be appointed by the

President) that was empowered to decide all wage disputes and any

dispute not dealt with by an adjustment board. See title III, §§ 304-

307, 41 Stat. at 470-71. This dispute resolution scheme was character-

ized as "a form of compulsory arbitration," see International Ass'n of

Machinists v. Street, 367 U.S. 740, 756-57 (1961), although the Rail-

road Labor Board could not seek judicial enforcement of its orders,

see Pennsylvania R.R. Co. v. United States R.R. Labor Bd., 261 U.S.

72, 79 (1923). In any event, both labor and management believed that

the 1920 act was seriously flawed because it failed to place primary

reliance on collective bargaining and mediation, the means preferred

by the parties for the resolution of their disputes. See Rehmus, supra,

at 7.

Increasing dissatisfaction with the 1920 act, fueled in part by a

national strike of 400,000 shopcraft workers in 1922, led representa-

tives of rail labor and management to begin discussions aimed at for-

mulating a joint proposal for legislation to replace the 1920 act. In

January 1926, after months of negotiations, a bill worked out between

labor and management was introduced in Congress. The bill -- pub-

licly endorsed by both sides and enacted virtually without change --

became the Railway Labor Act of 1926. See Wilner, supra, at 44-47.

The RLA of 1926, with some amendments, remains on the books

today.

The RLA of 1926 relies first and foremost on collective bargaining

for the settlement of labor-management disputes. Section 2 (Second)

of the Act imposes a duty to bargain collectively in clear terms: "All

disputes between a carrier and its employees shall be considered, and,

if possible, decided, with all expedition, in conference between repre-

sentatives designated . . . by the carriers and by the employees." Rail-

way Labor Act of 1926, § 2 Second, 44 Stat. 577, 578 (codified as

amended at 45 U.S.C. § 152 Second). Although the 1926 RLA's

structure for dispute resolution was (and is) in all instances bottomed

on collective bargaining, the Act fashioned two tracks, one for dealing

with minor disputes and one for major disputes. Minor disputes are

those "arising out of grievances or out of the interpretation or applica-

tion of agreements covering rates of pay, rules, or working condi-

tions." Id. Major disputes are those"concerning changes in rates of

6

pay, rules, or working conditions." Id. Specifics aside, the Act set up

machinery (available in both dispute categories) for mediation and

voluntary arbitration. See id. §§ 3-9, 44 Stat. at 578-86.

The 1926 Act called for unsettled minor disputes to be referred to

local (or regional) boards of adjustment. (This was an idea borrowed

from the wartime experience and the 1920 act.) The carriers and

employees were to set up these boards, and each side was to have

equal representation. See id. § 3, 44 Stat. at 578-79 (codified as

amended at 45 U.S.C. § 153). If an adjustment board could not reach

a decision, either side could invoke the services of a permanent Board

of Mediation, appointed by the President. Once the board was

engaged, it was to "use its best efforts, by mediation, to bring [the

parties] to agreement." Id. § 5, 44 Stat. at 580 (codified as amended

at 45 U.S.C. § 155). Finally, if mediation failed, the RLA provided a

structure for voluntary arbitration. See id. § 7, 44 Stat. at 582-84 (cod-

ified as amended at 45 U.S.C. § 157).

The 1926 RLA provided a new mechanism for dealing with major

disputes, that is, disputes over potential changes to the collective bar-

gaining agreement affecting rates of pay, rules, or working conditions.

Any discussion of the Act's treatment of major disputes must begin

with a brief note about a unique feature of labor agreements in the rail

industry: the agreements usually do not have an expiration date;

instead, they remain in effect, with either side calling for (and some-

times achieving) amendments from time to time. See William E.

Thoms & Frank J. Dooley, Collective Bargaining Under the Railway

Labor Act, 20 Transp. L.J. 275, 277 (1992).1 The RLA of 1926 built

on this custom, but it requires carriers and unions to give each other

at least thirty days written notice of a proposed change in the agree-

ment "affecting rates of pay, rules, or working conditions." Railway

Labor Act of 1926, § 6, 44 Stat. at 582 (codified as amended at 45

U.S.C. § 156). This notice, called a "Section 6 notice" (after section

6 of the original Act), marks the beginning of the bargaining process

for major disputes. If the dispute is not resolved in private conference

between the parties, either side may call in the Board of Mediation

(see above), and the board then tries to mediate a settlement. If the

_________________________________________________________________

1 The collective bargaining agreement in this case has been in effect,

as amended, since 1949.

7

board fails, it attempts "to induce the parties to submit their [major

dispute] to arbitration." Id. § 5. If there is no resolution in the end,

each side is free to act in its own interests. In other words, the

employees may strike, or the railroad may unilaterally implement its

proposed change to the contract. See Wilner, supra, at 52. This pro-

cess for dealing with major disputes has changed little in the 74 years

since the Act's passage.

In 1934 Congress made several amendments to the Railway Labor

Act. The amendments began with an extensive list of "general pur-

poses" for the Act:

(1) To avoid any interruption to commerce or to the opera-

tion of any carrier engaged therein; (2) to forbid any limita-

tion upon freedom of association among employees or any

denial, as a condition of employment or otherwise, of the

right of employees to join a labor organization; (3) to pro-

vide for the complete independence of carriers and of

employees in the matter of self-organization to carry out the

purposes of this chapter; (4) to provide for the prompt and

orderly settlement of all disputes concerning rates of pay,

rules, or working conditions; (5) to provide for the prompt

and orderly settlement of all disputes growing out of griev-

ances or out of the interpretation or application of agree-

ments concerning rates of pay, rules, or working conditions.

Railway Labor Act of 1934, § 2, 48 Stat. 1185, 1186-87 (codified at

45 U.S.C. § 151a). Consistent with the new statement of purpose, the

amendments added specific language about employees' rights to orga-

nize, declaring that "[n]o 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." Id. § 2

Fourth (codified at 45 U.S.C. § 152 Fourth). The amendments also

made it illegal for a carrier to "contribut[e] to any labor organization,

labor representative, or other agency of collective bargaining, or [to

perform] work therefor." Id. Finally, and most important for this case,

the 1934 amendments changed the Act's treatment of minor disputes.

In considering the 1934 amendments, Congress recognized that the

original Act's local adjustment board system, which had been created

8

to deal with minor disputes, was flawed. In some places, labor and

management forces were unable to agree on the composition of the

local boards. See H.R. Rep. No. 73-1944, at 3 (1934). In others, the

boards were established, but became hopelessly deadlocked once they

began their work. See id.; see also Brotherhood of R.R. Trainmen v.

Chicago River & Indiana R.R. Co., 353 U.S. 30, 36 (1957). The 1934

amendments did not disturb the Act's reliance on collective bargain-

ing as the first step in the process of minor dispute resolution. How-

ever, at the second step, local boards of adjustment were abolished.

In their place, Congress established a National Railroad Adjustment

Board, with four divisions, "making it unnecessary for parties to agree

to establish their own boards." Id. at 36.2 The new Adjustment Board

divisions have equal representation from labor and management, and

in case of deadlock the appropriate division can add a neutral referee

to its ranks. See id. at 36-37. If the division cannot agree on a referee,

one is appointed by the National Mediation Board.3 Either side may

submit a minor dispute to the Adjustment Board when negotiations

fail. The relevant adjustment board division then has authority to

decide the dispute: "The awards of the several divisions of the Adjust-

ment Board . . . shall be final and binding upon both parties to the dis-

pute." Railway Labor Act of 1934, § 3, 48 Stat. at 1191 (codified at

45 U.S.C. § 153). In devising this system,"Congress considered it

essential to keep these so-called `minor' disputes within the Adjust-

ment Board and out of the courts." Union Pacific R.R. Co. v. Sheehan,

439 U.S. 89, 94 (1978). Once the Adjustment Board has made an

_________________________________________________________________

2 If labor and management can agree to establish a local board of

adjustment, the 1934 amendments give them this option. However, this

option is bypassed if either party "elect[s] to come under the jurisdiction

of the Adjustment Board." Railway Labor Act of 1934, § 3 Second, 48

Stat. at 1193 (codified as amended at 45 U.S.C.§ 153 Second).

3 The 1934 amendments replaced the old Board of Mediation with the

National Mediation Board. The amendments do not allow the parties to

call the new mediation board into a minor dispute. See Chicago River,

353 U.S. at 37 n.14. The amendments, however, gave the new board con-

tinued authority to mediate major disputes. Finally, the 1934 amend-

ments authorized the board to hear and decide representation disputes.

See Railway Labor Act of 1934, §§ 2, 4-5, 48 Stat. at 1187-89, 1193-97

(codified as amended at 45 U.S.C. §§ 152, 154-155).

9

award, however, there is a provision for judicial enforcement. See 45

U.S.C. § 153 First (p).4

Although Congress, through the 1934 amendments, imposed a duty

to arbitrate minor disputes before the Adjustment Board, the amend-

ments did not provide a cause of action or remedy for a breach of this

duty. The Supreme Court filled in the gap in Chicago River, making

one remedy available. The specific question in Chicago River was

whether a rail union could call a strike over a minor dispute pending

before the Adjustment Board. See Chicago River , 353 U.S. at 31. The

Court held that allowing such a strike "would render meaningless

those provisions in the Act [the 1934 amendments] which allow one

side to submit a dispute to the Board, whose decision shall be final

and binding on both sides." Id. at 34 (emphasis omitted). The Act, in

other words, requires the compulsory arbitration of minor disputes

before the Adjustment Board, and strikes in that "limited field" are

prohibited. See id. at 39.

The Court noted that its interpretation of the 1934 amendments was

supported by the legislative history: "there was general understanding

between both the supporters and the opponents of the 1934 amend-

ment that the provisions dealing with the Adjustment Board were to

be considered as compulsory arbitration." Id. at 39; see also Railway

Labor Act Amendments: Hearings on H.R. 7650 Before the Comm. on

Interstate and Foreign Commerce, 73d Cong. 47 (1934) (testimony

of Joseph B. Eastman, Federal Coordinator of Transportation) (noting

that unions had conceded the right to strike over minor disputes in

_________________________________________________________________

4 The Railway Labor Act has been amended several times since 1934.

For example, subsequent amendments have brought airlines within the

Act's jurisdiction, see Act of Apr. 10, 1936, ch. 166, 49 Stat. 1189 (codi-

fied at 45 U.S.C. §§ 181-188); authorized dues checkoff and union shop

agreements, see Act of Jan. 10, 1951, 64 Stat. 1238 (codified at 45

U.S.C. § 152 Eleventh); and established special procedures for commuter

rail disputes, see Omnibus Budget Reconciliation Act of 1981, Pub. L.

No. 97-35, tit. XI, § 1157, 95 Stat. 357, 681-82 (codified at 45 U.S.C.

§ 159a). None of these amendments, however, has effected substantial

changes to the Act's core sections. See Rehmus, supra, at 14 ("The 1934

amendments to the 1926 Act represent the last changes of major impor-

tance in the collective bargaining legislation affecting railroads . . . .").

10

return for the establishment of a national rail adjustment board); To

Amend the Railway Labor Act: Hearings on S. 3266 Before the

Comm. on Interstate Commerce, 73d Cong. 35 (1934) (testimony of

George Harrison, spokesman for railway labor organizations) ("These

railway labor organizations have always opposed compulsory deter-

mination of their controversies. . . . [W]e are now ready to concede

that we can risk having our grievances to a board and get them deter-

mined . . .

Finally, with respect to remedy, the Supreme Court in Chicago

River held that federal courts may enjoin rail strikes, notwithstanding

the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, when those strikes

are called in connection with minor disputes. See 353 U.S. at 40-42.

The background from World War I through Chicago River (1957)

may be summarized as follows. The Railway Labor Act of 1926 was

passed with the full support of labor and management in reaction to

the heavy role the government had played in railroad labor relations

beginning with World War I. The RLA of 1926 provided a dispute

resolution structure that was bottomed on collective bargaining. The

1934 amendments kept this focus. To strengthen the process, how-

ever, Congress added compulsory arbitration for minor disputes if

negotiations failed. Federal court involvement was to be minimal,

although the Supreme Court in Chicago River held that strikes over

minor disputes may be enjoined because the Act requires compulsory

arbitration for these disputes. What remains an open question (at least

in this circuit) is whether a carrier may file a lawsuit for damages

when it claims injury as a result of a strike over a minor dispute. We

turn to that question now.

III.

Although it did not say so directly, the Supreme Court in Chicago

River recognized an implied right of action under the RLA to enforce

the duty to arbitrate minor disputes. See Chicago River, 353 U.S. at

39-42. The Court held that the duty could be enforced through the

implied remedy of injunctive relief (the strike over grievances was

enjoined), see id., but it went no further in prescribing remedies. The

Supreme Court has never said whether a damages remedy is available

when the duty to arbitrate minor disputes is breached by a strike, but

11

the two circuits (the Fifth and Sixth) to decide the issue have held that

damages are inappropriate in such a case. See CSX Transp., Inc. v.

Marquar, 980 F.2d 359 (6th Cir. 1992); Burlington N. R.R. Co. v.

Brotherhood of Maintenance of Way Employees, 961 F.2d 86 (5th

Cir. 1992); Louisville & Nashville R.R. Co. v. Brown, 252 F.2d 149

(5th Cir. 1958).

Two Supreme Court cases of recent vintage, Franklin v. Gwinnett

County Public Schools, 503 U.S. 60 (1992), and Gebser v. Lago Vista

Independent School District, 524 U.S. 274 (1998), provide guidance

for determining what remedies are available in a suit brought to

enforce an implied right. In the first case, Franklin, the Supreme

Court reiterated the traditional presumption "that absent clear direc-

tion to the contrary by Congress, the federal courts have the power to

award any appropriate relief in a cognizable cause of action brought

pursuant to a federal statute." Franklin, 503 U.S. at 70-71. Franklin

went on to say that in determining whether Congress intended for the

presumption to apply when the cause of action is implied, "we evalu-

ate the state of the law when the legislature passed" the statute. Id. at

71.

In the second case, Gebser, the Supreme Court reconfirmed the tra-

ditional presumption in favor of all appropriate relief, but the Court

emphasized that it had "made no effort in Franklin to delimit the cir-

cumstances in which a damages remedy should lie." Gebser, 524 U.S.

at 284. The Court then proceeded to set the limits of the presumption:

Because the private right of action under [the statute] is

judicially implied, we have a measure of latitude to shape a

sensible remedial scheme that best comports with the stat-

ute. That endeavor inherently entails a degree of specula-

tion, since it addresses an issue on which Congress has not

specifically spoken. To guide the analysis, we generally

examine the relevant statute to ensure that we do not fashion

the parameters of an implied right in a manner at odds with

the statutory structure and purpose.

Those considerations, we think, are pertinent not only to

the scope of the implied right, but also to the scope of the

available remedies. We suggested as much in Franklin,

12

where we recognized the general rule that all appropriate

relief is available in an action brought to vindicate a federal

right, but indicated that the rule must be reconciled with

congressional purpose. The general rule, that is, yields

where necessary to carry out the intent of Congress or to

avoid frustrating the purposes of the statute involved.

Id. at 284-85 (citations and quotation marks omitted). The Gebser

Court said finally that in situations where the cause of action is

implied, "we attempt to infer how the . . . Congress [at the time of

enactment] would have addressed the issue [of available remedies]

had the action been included as an express provision in the statute."

Id. at 285 (citations, quotation marks and alteration omitted). The

Gebser Court conducted this exercise by looking at whether a dam-

ages remedy would "frustrate the purposes" of the statute. Id.

As we have indicated, when the RLA was passed in 1926 and

amended in 1934, Congress did not specify any cause of action for

breach of the duty to arbitrate minor disputes. Because an implied

right of action was recognized in Chicago River, we presume that any

appropriate remedy is available, unless the remedy (here, damages)

runs counter to the purpose and structure of the Act. See Gebser, 524

U.S. at 284-85.

In part II we discussed the purpose and structure of the RLA (par-

ticularly with respect to minor dispute resolution), and we return to

that topic to look for clues about what enforcement remedies are

appropriate to carry out congressional intent. The overriding purpose

of the RLA is to provide for the prompt and orderly settlement of all

labor-management disputes in the rail industry and avoid interruption

to commerce. See 45 U.S.C. § 151a. Thus, the primary duty that the

Act imposes upon both labor and management is to "settle all dis-

putes" so that rail service is not disrupted. 45 U.S.C. § 152 First.

Moreover, the Act is designed to give each side relatively equal

power in the bargaining process. To this end the RLA of 1926 guaran-

teed both sides independence in the selection of their bargaining rep-

resentatives. See Railway Labor Act of 1926, § 2 Third, 44 Stat. 577,

578 (codified as amended at 45 U.S.C. § 152 Third). The organiza-

tional and bargaining rights of rail employees were made more spe-

cific in the 1934 amendments. Thus, (1) "[e]mployees shall have the

13

right to organize and bargain collectively," (2) "[t]he majority of any

craft or class of employees shall have the right to determine who shall

be [their] representative," and (3) "[n]o carrier . . . 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." Railway Labor Act

of 1934, § 2 Fourth, 48 Stat. 1185, 1187 (codified at 45 U.S.C. § 152

Fourth).

After establishing the duty to negotiate, and attempting to put the

parties on equal footing, the RLA provides a structure for dispute res-

olution. First, the parties must attempt to settle their disputes by nego-

tiation in a conference of their representatives. See 45 U.S.C. § 152

Sixth. Second, with respect to minor disputes, if one-on-one bargain-

ing fails to bring about a settlement, either side may refer the dispute

to compulsory arbitration before the Adjustment Board. See 45 U.S.C.

§ 153. The Act's scant reference to the courts makes clear that the dis-

pute resolution process is to be carried out with a minimum of judicial

involvement. See Union Pacific R.R. Co. v. Sheehan, 439 U.S. 89, 94

(1978).

The specific question for us is whether allowing damages for a

strike over a minor dispute is consistent with the RLA's purpose and

structure. We conclude that a damages remedy in this situation is at

odds with the Act. In the RLA context, litigation about damages

allegedly caused by a minor dispute strike would be a sideshow that

detracts from the bargaining and arbitration required by the Act. The

aim of the RLA is to channel the parties' efforts toward resolution of

their labor disputes within the Act's carefully devised framework. See

45 U.S.C. § 151a. If we imply a statutory damages remedy in the case

of minor dispute strikes, the parties will be drawn into contentious

and time-consuming litigation in a separate venue when they should

be devoting their energies to face-to-face bargaining or arbitration to

resolve the underlying labor dispute. This result would be at cross

purposes with the Act. In short, litigating about damages in a judicial

forum would divert the parties' attention from the Act's comprehen-

sive process for dispute resolution. The injunction remedy, on the

other hand, is appropriate because it quickly returns the parties to the

process provided in the Act: bargaining and (if necessary) arbitration

to resolve a minor dispute. See Chicago River, 353 U.S. at 33-35.

Today's case illustrates the point. The railroad moved swiftly under

14

the Act to obtain a temporary restraining order. As a result, the strike

was over in five hours, and the union was forced to negotiate or arbi-

trate if it wished to press its grievance about desk assignments for dis-

patchers.

The railroad argues that regardless of whether a damages remedy

under the RLA would help resolve a particular dispute, the availabil-

ity of monetary relief would, in the long run, deter strikes over minor

disputes. Any benefit this would bring is outweighed by other consid-

erations. First, Congress, in enacting the RLA with labor-management

consent, sought to strike a careful balance of power between the two

sides as it devised a scheme to govern the resolution of disputes. See

Marquar, 980 F.2d at 380-81. Handing the railroads a statutory dam-

ages club in strikes over minor disputes could upset that balance.

After all, in the 74-year history of the RLA not one circuit court has

held that damages are an appropriate remedy in this situation. We are

hesitant after all these years to do anything that might upset the deli-

cate balance, particularly since the Act is structured to keep judicial

involvement at a minimum. Second, as the Supreme Court has recog-

nized, "distinguishing between major disputes and minor disputes"

can be a "difficult task." Consolidated Rail Corp. v. Railway Labor

Executives' Ass'n, 491 U.S. 299, 310 (1989). Circuit decisions con-

firm that the distinction is not always clear. See CSX Transp., Inc. v.

Marquar, 980 F.2d 359, 382 (6th Cir. 1992) ("The problem is particu-

larly acute in a case such as this where the union cannot know with

certainty at the time it calls a strike whether a court will later decide

that the dispute was minor or major."); Rutland Ry. Corp. v. Brother-

hood of Locomotive Eng'rs, 307 F.2d 21, 33 (2d Cir. 1962) ("We

readily recognize that here, as in other areas of jurisprudence, the dif-

ference, on the one hand, between the interpretation and the applica-

tion of an existing agreement, and, on the other hand, a change in an

original intended basis of agreement is often a question of degree.");

cf. International Bhd. of Teamsters v. Southwest Airlines Co., 875

F.2d 1129, 1132 (5th Cir. 1989) (en banc) (holding en banc that dis-

pute was minor after panel and district court had held that it was

major). As the Sixth Circuit has said, "[i]f damages were available

and the union guessed wrong [in calling a strike over what was later

adjudged a minor dispute], it would be liable for damages that could

deplete the union treasury and impair its effectiveness as the collec-

tive bargaining agent." Marquar, 980 F.2d at 382. Weakening a union

15

in this way would run counter to the RLA provisions aimed at ensur-

ing that the parties are evenly matched as they pursue negotiations.5

In sum, we conclude that a damages remedy for a minor dispute

strike is at odds with the structure and purpose of the RLA. In particu-

lar, the remedy would detract from the Act's requirement that minor

disputes be resolved through bargaining or compulsory arbitration.

Allowing the remedy would also run the risk of upsetting the balance

of power between labor and management that has been maintained in

the 74 years since the RLA was passed. Accordingly, we hold that

monetary damages are not available under the RLA to remedy a strike

over a minor dispute.6 The judgment of the district court is therefore

AFFIRMED.

_________________________________________________________________

5 The circuit court decisions that have allowed employees to obtain

damages (under the RLA) against carriers that interfered with the

employees' right to organize and bargain collectively, see Lebow v.

American Trans Air, 86 F.3d 661, 670-72 (7th Cir. 1996); Burke v. Com-

pania Mexicana de Aviacion, S.A., 433 F.2d 1031, 1034 (9th Cir. 1970),

and that have allowed employees to request damages for alleged

breaches of the duty of fair representation, see Steele v. Louisville &

Nashville R.R. Co., 323 U.S. 192, 204, 207 (1944); Brady v. Trans World

Airlines, Inc., 401 F.2d 87, 96-100, 102-03 (3d Cir. 1968), are distin-

guishable. These cases deal with threats to the integrity of the collective

bargaining process itself, and the RLA is fundamentally about that pro-

cess. As we have emphasized, litigation to recover damages allegedly

caused by a minor dispute strike is a diversion from the process of dis-

pute resolution.

6 There is a no-strike clause in the collective bargaining agreement

between the union and the railroad. This leads us to note that our holding

deals only with the unavailability of a damages remedy under the RLA

for a minor dispute strike. What we have said has no bearing on whether

the railroad might have sought contract damages in arbitration before the

Adjustment Board. As the union points out, "[w]hether the [no-strike]

clause includes an implicit damages remedy is grist for a Section 3

adjustment board because the question involves the interpretation or

application of a collective bargaining agreement." Br. for Appellees at

32. See also Local 553, Transp. Workers Union of America v. Eastern

Air Lines, Inc., 695 F.2d 668, 675 (2d Cir. 1982) (noting that Adjustment

Board "can interpret contract clauses and award monetary damages").

16

WIDENER, Circuit Judge, concurring:

Because I agree with the majority that a damages remedy for a

minor dispute is "at odds with the structure and purpose of the RLA,"

slip 16, I concur in the result. However, I disagree with the majority's

depending as it does on implied rights of action under the Railway

Labor Act and suggesting the obtaining of damages for breach of con-

tract of a no-strike clause in an arbitration proceeding before the

Adjustment Board for a strike over a minor dispute. See slip 13-16,

16 n.6.

In 1934, Congress created the statutory provision requiring com-

pulsory arbitration before the Adjustment Board for minor disputes.

See Railway Labor Act of 1934, 45 U.S.C. § 153. The compulsory

arbitration provision forbade the use of a strike as a remedy for a

minor dispute between a union and the railroad. 1 Arbitration before

the Adjustment Board was the only right or remedy available. I agree

with the majority that the 1934 amendments to the Act imposed a

duty upon the railroads and the unions to arbitrate their minor dis-

putes, but I do not agree that it is necessary to imply a right of action

to enforce this duty. See slip 10-11.

As the the majority correctly notes, the Supreme Court in Brother-

hood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353

U.S. 30 (1957), did not "say so directly" that an implied right of

action or remedy exists under the Act to enforce the duty to arbitrate.2

Rather, it simply upheld its earlier conclusion in Brotherhood of R.R.

Trainmen v. Howard, 343 U.S. 768 (1952), that the federal courts had

jurisdiction and power to enforce the Railway Labor Act by injunc-

_________________________________________________________________

1 The unions conceded their right to strike over minor disputes, and did

so as a contribution to the national transportation system. See Brother-

hood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S.

30, 36-39 (1956) (examining the legislative history in Congress).

2 Apparently, the phrase "implied right of action" or "implied cause of

action" was first used in this context in CSX Transp. Inc. v. Marquar,

980 F.2d 359, 363-64 (6th Cir. 1992) (stating that the Supreme Court

implied a right of action under the Act for a union's illegal strike by

holding that federal courts could compel compliance with the Act).

17

tion. Chicago River, 353 U.S. at 42. I would go no further than the

Supreme Court has gone.

Moore v. Illinois Central R.R. Co., 312 U.S. 630 (1941), overruled

by, Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320 (1972),

presented a parallel issue regarding the Railway Labor Act. Moore

involved an individual railroad employee's suit against the railroad

for damages due to wrongful discharge in violation of the collective

bargaining agreement. See Moore, 312 U.S. at 631-32 (the aggrieved

employee brought suit before exhausting his remedies under the Act).

The Supreme Court, in Moore, construed the Act's provisions for

minor dispute resolution as optional rather than compulsory. See

Moore, 312 U.S. at 635-36 (examining the language in 45 U.S.C.

§ 153(i)-- "`may be referred to . . . the Adjustment Board'"). Despite

contrary language by the Court in Moore, in 1965 this court held in

Walker v. Southern Railway Co., 354 F.2d 950 (4th Cir. 1965), that

Moore had been overruled by implication by Republic Steel Corp. v.

Maddox, 379 U.S. 650 (1965). The Supreme Court, however,

reversed this court in a per curiam opinion in Walker v. Southern

Railway Co., 385 U.S. 196 (1966). Although the Court declined to

overrule Moore in Walker, it did state that the "[p]rovision for arbitra-

tion of a discharge grievance, a minor dispute, is not a matter of vol-

untary agreement under the Railway Labor Act; the Act compels the

parties to arbitrate minor disputes before the National Railroad

Adjustment Board established under the Act." Walker, 385 U.S. at

198.

Later, in Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320

(1972), the Court explicitly overruled Moore holding that "the notion

that the grievance and arbitration procedures provided for minor dis-

putes in the Railway Labor Act are optional, to be availed of as the

employee or carrier chooses, was never good history and is no longer

good law." Andrews, 406 U.S. at 322. Applicable to this case are the

Court's statements that "in some situations the Act makes the [RLA]

remedy exclusive," and "[i]n such a case [as here] the proceeding

afforded by 45 U.S.C. § 153 First(i) will be the only remedy available

to the aggrieved party." Andrews, 406 U.S. at 325 (emphasis added)

(meaning that compulsory arbitration for minor disputes is the only

remedy available).

18

It is significant that the Court did not state in the Chicago River

decision, or in any subsequent decision, that an "implied right of

action" is available under the Act for minor disputes. Despite its

acknowledgment that "[the Court] did not say[an implied right of

action exists under the RLA] directly," slip 11, the majority insists

upon labeling the Supreme Court's holding in Chicago River as the

Court's recognition of an implied right of action under the Act. I sug-

gest that no support for this conclusion exists.

I am more troubled by the majority's suggestion that the railroad

may obtain money damages in arbitration before the Adjustment

Board for the union's breach of a no-strike clause in the parties' col-

lective bargaining agreement. See slip 16 n.6. Although not explicitly

defined in the Railway Labor Act, it is well established that a minor

dispute is one which turns on the application of the parties' collective

bargaining agreement's terms. See Elgin, Joliet & E. Ry. Co. v. Bur-

ley, 325 U.S. 711, 723 (1945). Grievances for actions like wrongful

discharge or other disputes regarding the interpretation of a collective

bargaining agreement are minor disputes which must be arbitrated

before the Adjustment Board. See Andrews, 406 U.S. at 323-24

(1972). In the case before us, the minor dispute is about "one aspect

of the railroad's work assignment authority under the collective bar-

gaining agreement." Slip 3. The majority recognizes that there is a

minor, not major, dispute in this case, but then goes on to suggest that

the union's breach of the no-strike clause by striking might also qual-

ify as a minor dispute to be arbitrated before the Adjustment Board.

See slip 16 n.6. I disagree with this suggestion.

The Adjustment Board may award monetary damages for a minor

dispute, like one for wrongful discharge, see 45 U.S.C. § 153(o),

however, the suggestion that money damages could be awarded in

arbitration before the Adjustment Board for a strike occasioned by a

minor dispute is not supported within the Railway Labor Act's statu-

tory scheme. The union may not strike over a minor dispute; it must

resolve the dispute in arbitration as dictated by the Railway Labor

Act. That union members illegally engaged in a strike over a minor

dispute in violation of their statutory duty to arbitrate was not a "dis-

pute[ ] between an employee or group of employees and a carrier or

carriers growing out of grievances or out of the interpretation or

application of agreements concerning rates of pay, rules, or working

19

conditions" under 45 U.S.C. § 153(i), as was held in Louisville &

Nashville R.R. Co. v. Brown. 252 F.2d 149, 154 (5th Cir. 1958)

(explaining that the legality of a strike over a minor dispute is not a

dispute for the Adjustment Board, but that the courts have jurisdiction

to enjoin such illegal strikes).

Finally, I note that the case the majority relies upon, Local 553,

Transp. Workers Union of Am. v. Eastern Airlines, Inc., 695 F.2d 668

(2d Cir. 1982), in my opinion, does not stand for the proposition that

a union's strike over a minor dispute in violation of a no-strike clause

constitutes the type of minor dispute to be adjudicated by the Adjust-

ment Board. Rather, in its discussion of determining whether a dis-

pute is a major dispute or a minor dispute, the Second Circuit

recognized that "[i]f a carrier proposes to take action arguably permit-

ted by the contract, opposition by the union based on a differing inter-

pretation of the contract is a minor dispute subject to binding

adjudication by the appropriate Adjustment Board, which can inter-

pret contract clauses and award monetary damages." Local 553, 695

F.2d at 674-75. Because engaging in a strike over a minor dispute is

forbidden by the Railway Labor Act, see Chicago River, 353 U.S. at

39-42, such a strike is not a matter of differing interpretations of a

contract. It is not a minor dispute.

20