Burlington Northern, et al v. BMWE

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-10538
_______________
BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY;
CONSOLIDATED RAIL CORPORATION; CSX TRANSPORTATION, INC.;
KANSAS CITY SOUTHERN RAILWAY COMPANY;
NORFOLK SOUTHERN RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY,
Plaintiffs-
Counter Defendants-
Appellees,
VERSUS
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,
Defendant-
Counter Claimant-
Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
April 4, 2002
Before SMITH and DEMOSS, Circuit Judges,
and DUPLANTIER,* District Judge.
JERRY E. SMITH, Circuit Judge:
I.
A union appeals an injunction issued under
the Railway Labor Act (“RLA”). The six ap-
pellee railroad carriers have obtained, on sum-
mary judgment, an injunction against appellant
Brotherhood of Mai ntenance of Way
Employees (“BMWE”) requiring it to give ten
days’ notice before initiating a “strike, work
*District Judge of the Eastern District of
Louisiana, sitting by designation.

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stoppage, picketing or other self help” against
any of the carriers. Burlington N. & Santa Fe
R.R. v. BMWE, 143 F. Supp. 2d 672, 696
(N.D. Tex. 2001) (“Burlington Northern”).
In that published Memorandum Opinion and
Order, the district court provides an
impressive and detailed evaluation of the facts
and law and a persuasive explanation of its
reasons for entering the injunction. Finding no
error, we affirm, essentially on the basis of the
district court’s well-crafted opinion, except to
the extent that we provide further analysis
below.
As the district court found, the BMWE has
a long history of launching strikes without
warning, including many that are illegal under
the RLA. See id. at 694 (finding that “[t]he
court can, and does, infer from the facts thus
found that BMWE has a pattern, practice, and
policy of authorizing, encouraging, permitting,
calling or engaging in strikes, work stoppages,
picketing, and other self-help against plaintiffs
and their subsidiaries over what BMWE claims
are unilateral changes in agreements . . . .
[T]he conduct of the BMWE in engaging in
activities of that kind without giving the
affected carrier advance notice . . . violate[s]
BMWE’s duties under § 152 First.”). Since
1993, “BMWE has struck, attempted to strike,
or threatened to strike plaintiffs at least
eighteen times, including nine cases in which
pickets went up and/or operations were dis-
rupted until the affected plaintiff was able to
obtain a temporary restraining order.” Id. at
679.
In the year preceding the injunction,
“BMWE . . . accelerated its practice of strikes
against the plaintiffs, with four incidents” be-
tween February 2000 and early 2001. Id. “In
each case, BMWE planned its strike in secret
and made every effort to implement the strike
before the affected carrier could obtain a tem-
porary restraining order.” Id.1
BMWE claims that its policy of surprise
strikes does not violate the RLA and that the
injunction is forbidden by the Norris-
LaGuardia Act (“NLGA”). We conclude that
the BMWE’s actions violated its duties under
the RLA and that the NLGA does not bar an
injunction under the specific circumstances of
this case.
II.
A.
We first consider the BMWE’s duties under
the RLA. It is well established that “the major
purpose of Congress in passing the Railway
Labor Act was to provide a machinery to pre-
vent strikes.” Tex. & New Orleans R.R. v.
Bhd. of Ry. & Steamship Clerks, 281 U.S.
548, 565 (1930) (quotations omitted). To fur-
ther this goal, § 152 First of the RLA
comprehensively requires that labor and
management “exert every reasonable effort . . .
to settle all disputes . . . in order to avoid any
interruption to commerce or to the operation
of any carrier growing out of any dispute
between the carrier and the employees
thereof.” 45 U.S.C. § 152 First (1994)
(emphasis added). “[T]he obligation under
§ [152] First is central to the effective working
of the Railway Labor Act,” and compliance
1 The district court made these factual findings
without an evidentiary hearing; it provides a
detailed explanation of why it believes no hearing
was required. Burlington Northern, 143 F. Supp.
2d at 45-55. We do not consider whether this was
error, because BMWE does not raise the issue as
a ground for reversal. “We liberally construe
briefs in determining issues presented for review;
however, issues not raised at all are waived.”
Carmon v. Lubrizol Corp., 17 F.3d 791, 794 (5th
Cir. 1994).

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3
therefore can be enforced by injunction.
Chicago & N.W. Ry. v. United Transp. Union,
402 U.S. 570, 578-79 (1971).
BMWE contends that the legislative history
of the RLA mandates a narrower construction
of the RLA than the text alone would dictate.
Even if the BMWE’s view of the legislative
history is sound, this argument is unavailing,
because “[l]egislative history is relegated to a
secondary source behind the language of the
statute in determining congressional intent;
even in its secondary role legislative history
must be used cautiously.” Aviall Serv., Inc. v.
Cooper Indus., Inc., 263 F.3d 134, 140-41
(5th Cir.) (internal citations omitted), vacated
for rehearing en banc, 278 F.3d 416 (5th Cir.
2001).2
BMWE’s deliberate policy of repeatedly
calling surprise strikes violates the statutory
requirement that railroads and unions “exert
every reasonable effort . . . to settle all dis-
putes . . . in order to avoid any interruption to
commerce.” 45 U.S.C. § 152 First. A
surprise strike makes it difficult or impossible
to resolve the underlying dispute between
labor and management without “interruption
to commerce.” Id. Because management is
unaware that a strike is impending, it cannot
take steps that might prevent it. In cases
where the contemplated surprise strike is
illegal under the RLA, the carrier cannot
obtain an injunction against it until after the
strike has begun and an “interruption to
commerce” has already occurred.
In addition to violating § 152 First, many of
BMWE’s surprise strikes were held to be in
violation of the requirement that unions can
resort to strikes in a dispute over “minor” is-
sues only if they first have exhausted the
RLA’s compulsory dispute resolution mechan-
isms. Burlington Northern, 143 F. Supp. 2d at
680-85 (describing seven cases in which
BMWE was enjoined from striking the
appellees because the dispute at issue was mi-
nor).3 This circumstances strengthens the con-
clusion that BMWE was engaged in a pattern
of illegal activity.
B.
Precedent from other circuits supports this
conclusion. Judge Leventhal, writing for the
District of Columbia Circuit, held that “the
continuing duty of responsible bargaining un-
der the [RLA] fairly embraces reasonable no-
tice of a strike or lockout or other self help.”
Del. & Hudson Ry. v. United Transp. Union,
450 F.2d 603, 622 (D.C. Cir. 1971).
BMWE’s argument that Delaware & Hudson
was not decided under § 152 First is irrelevant,
because the reasoning of the court is based on
a generalized RLA “duty of responsible
bargaining” that applies to § 152 First as
readily as to other provisions of the Act.4 Id.
2 Cf. Garcia v. United States, 469 U.S. 70, 75
(1984) (holding that “only the most extraordinary
showing of contrary intentions would justify a limi-
tation on the ‘plain meaning’ of the statutory lan-
guage”).
3 See Burlington N.R.R. v. BMWE, 961 F.2d
86, 89 (5th Cir. 1992) (describing RLA dispute re-
solution procedures for “minor” disputes and hold-
ing that resort to them before striking is
mandatory).
4 It is also incorrect to claim, as BMWE does,
that Delaware & Hudson’s language requiring no-
tice is mere dictum. The language occurs in the
same part of the opinion as do the instructions to
the district court, which had “continuing
jurisdiction” over the dispute “for such further
proceedings as may become appropriate, not
(continued...)

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The Eleventh Circuit recently has held that
“[w]hen the public interest, commerce, and a
clear statutory provision are implicated, we
will not shy away from holding the parties to
their duties under the RLA so as to avoid ‘any
interruption to commerce.’” Delta Air Lines,
Inc. v. Air Line Pilots Ass’n, Int’l, 238 F.3d
1300, 1308 (11th Cir.) (quoting § 152 First),
cert. denied, 532 U.S. 1019 (2001). That
court held that § 152 First’s requirement that
the parties “exert every reasonable effort to
make and maintain” agreements qualified as a
“clear statutory provision” that could be en-
forced by injunction whenever there is a threat
of “any interruption to commerce.” Id. The
same reasoning applies to the section’s
mandate that labor and management “exert
every reasonable effort . . . to settle all
disputes . . . in order to avoid any interruption
to commerce,” which occurs in the same
sentence of § 152 First as does the provision
enforced by the Eleventh Circuit.
Because we are persuaded by the plain text
of the statute, by the reasoning of the District
of Columbia and Eleventh Circuits, and by the
desirability of avoiding a circuit split, we easily
conclude that the BMWE did indeed violate its
statutory duties under § 152 First. We need
not, however, go as far as the District of Col-
umbia Circuit did in concluding that any “de-
liberate timing of a strike without prior
warning” violates the statute. Delaware &
Hudson, 450 F.2d at 622. For purposes of the
present case, we decide only that the statute
forbids an ongoing, repeated practice of
surprise strikes that are doomed later to be
held illegal and enjoined. See Burlington
Northern, 143 F. Supp. 2d at 679-85
(describing extensive history of surprise strikes
by the BMWE against appellees that later were
enjoined). We need not and do not address
the question whether the RLA forbids all
surprise strikes. Nor do we need to reach the
Eleventh Circuit’s holding that anti-strike in-
junctions are appropriate any time a union’s
violation of a “clear statutory provision”
threatens “interruption to commerce.” Delta,
238 F.3d at 1308.
C.
BMWE argues that recognizing an en-
joinable statutory duty to avoid surprise strikes
under § 152 First also would allow courts to
enjoin a variety of other union and
management practices that arguably evidence
a failure to “exert every reasonable effort . . .
to settle all disputes.” 45 U.S.C. § 152 First.
For example, BMWE claims that a broad
4(...continued)
inconsistent with the opinion of this Court.”
Delaware & Hudson, 450 F.2d at 623.
The District of Columbia Circuit evidently ex-
pected that, although it had overturned an earlier
injunction, an anti-strike injunction, possibly in-
cluding a notice provision, might become
necessary. Indeed, the language asserting a
requirement of notice immediately follows the
court’s condemnation of an earlier union effort to
“call a strike . . . without direct notice to the
railroads.” Id. at 622.
The circuit court likely feared that such action
might be repeated. It noted that the union’s earlier
strike activity was “lawful” only because of “an as-
sumption of good faith as to its stated purpose of
the strike” and warned that “[t]he District Court
has continuing jurisdiction to reappraise the
union’s good faith in the light of either substantial
evidence not previously available or developments
as to tactics and methods following notice to the
carriers of the strike call.” Id. at 623 (emphasis
added). The latter passage suggests that the circuit
court may have expected that the district court
would not allow future strikes without prior “notice
to the carriers of the strike call.” Id.

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5
interpretation of § 152 First would allow
courts to enjoin carriers’ refusals to settle a
minor dispute or to maintain the status quo
pending arbitration.
These and other similar examples are readi-
ly distinguishable from surprise strikes,
because § 152 First applies only to actions that
cause “interruption to commerce or to the op-
eration of any carrier growing out of any dis-
pute between the carrier and the employees
thereof.” 45 U.S.C. § 152 First. The actions
posited by BMWE, while they may make dis-
pute resolution more difficult, do not, in and of
themselves, interrupt commerce, while surprise
strikes undeniably do. And strike prevention,
not dispute resolution per se, was “the major
purpose of Congress in passing the Railway
Labor Act.” Texas & New Orleans, 281 U.S.
at 565.
III.
A.
Having concluded that the BMWE’s
actions violated the RLA, we turn to the
question whether the injunction is barred by
the NLGA. That statute “expresses a basic
policy against the injunction of the activities of
labor unions.” Int’l Bhd. of Machinists v.
Street, 367 U.S. 740, 772 (1961) (citing 29
U.S.C. § 101). Nonetheless, “the [NLGA]
does not deprive the federal courts of
jurisdiction to enjoin compliance with various
mandates of the Railway Labor Act.” Id.
When considering requests for injunctive
relief under the RLA, “courts should hesitate
to fix upon the injunctive remedy unless that
remedy alone can effectively guard the
plaintiff’s right.” Chicago & North Western,
402 U.S. at 582. The Supreme Court,
however, also has said that the NLGA does
not bar injunctive relief under § 152 First,
reasoning that “[w]e find it quite impossible to
say that no set of circumstances could arise
where a strike injunction is the only practical,
effective means of enforcing the command of
§ [152] First.” Id.
BMWE’s strategy of calling numerous sur-
prise strikes is precisely the sort of violation of
the RLA for which an injunction “is the only
practical, effective” remedy. Id. BMWE re-
peatedly has demonstrated its willingness to
call surprise strikes that violate its obligations
under the RLA. Normally, such illegal
conduct could be deterred through after-the-
fact actions for damages. This court, though,
specifically has held that there is no damage
remedy for violations of § 152 First. See
Burlington N. R.R. v. BMWE, 961 F.2d 86, 89
(5th Cir. 1992); Nashville R.R. v. Brown, 252
F.2d 149, 155 (5th Cir. 1958).
Preemptive injunctive relief is the only
available remedy for illegal surprise strikes by
the BMWE. An injunction issued only after an
illegal strike has begun cannot undo the
damage caused to the carriers from the
beginning of the strike to the issuance of the
injunction.
More importantly, an after-the-fact injunc-
tion cannot prevent the “interruption of
commerce” that will have occurred during this
period; stopping such disruption is, as we have
seen, the main purpose of the RLA. 45 U.S.C.
§ 152 First. Finally, after-the-fact injunctions
would not give the BMWE any incentive to re-
frain from illegal strikes in the first place, be-
cause it still would receive the benefit of any
damage to the carriers inflicted before the in-
junction went into effect.
To be sure, the district court could have
chosen to enjoin only unambiguously illegal

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6
surprise strikesSSthose that are over “minor”
issues. But if the carrier learns of the strike
only after the fact, it cannot litigate the
“major-minor” issue until after the strike has
begun. At that point, if the carriers prevail in
court, they still will not receive compensation
for the disruption of operations inflicted by the
strike while it lasted.
The case might well be different if the
BMWE had not utilized illegal surprise strikes
on so many occasions. If such tactics were
limited to rare, isolated instances, there might
be no need for an injunction to address the
problem, which would be unlikely to recur. In
the present case, however, a long history of
systematic abuse left the district court with no
choice but to resort to an injunctive remedy.
There was no other way to prevent the
extensive disruption of commerce and damage
to the carriers caused by an ongoing policy of
surprise strikes.
B.
BMWE argues, nonetheless, that, under the
NLGA, the injunction is improper in light of
United States Steel Corp. v. United Mine
Workers, 519 F.2d 1236 (5th Cir. 1975).
There, we did indeed condemn “overbroad
use” of anti-strike injunctions; we required that
“[e]very order granting an [anti-strike]
injunction . . . shall be specific in its terms,
shall describe in reasonable detail, and not by
reference to the complaint or other document
the act or acts sought to be restrained.” Id. at
1245-46.
United States Steel is readily distinguishable
from the present case. The injunction against
BMWE is much less sweeping than that in
United States Steel, which “was nothing less
than an injunction against striking for the life
of the contract[,] an order to work every day.”
United States Steel, 519 F.2d at 1245. Here,
the court merely required ten days’ notice of a
strike and did not come close to enjoining the
right to strike itself.
Second, United States Steel is
distinguishable because it was decided under
Supreme Court precedent that forbids
enjoining any strike under the Taft-Hartley Act
absent “a finding in each case that the strike
was over an arbitrable issue.” Id. There is no
such requirement under the RLA.
United States Steel’s requirement that
“[e]very order granting an [anti-strike]
injunction . . . shall be specific in its terms
[and] shall describe in reasonable detail . . . act
or acts sought to be restrained,” id. at 1245-
46, presumably is still applicable to the present
case. The injunction does not run afoul of it,
however. The injunction undeniably is
“specific in its terms,” requiring that the union
provide ten days’ notice of all strikes against
the plaintiff carriers. Id. Unlike the situation
in United States Steel, in which there was “no
specific act . . . complained of in the motion
for . . . injunction,” here the carriers complain
of a longstanding BMWE strategy of calling
surprise strikes that violate the RLA. Id. at
1246.
IV.
In summary, BMWE has persisted in un-
dermining the purposes of the RLA by re-
peatedly engaging in strikes that are plainly
unlawful. The district court has carefully tai-
lored a remedy designed to take care of this
specific factual situation. Following the lead
of two sister circuits that have approved the
availability of injunctions to thwart similar
violations of law, we AFFIRM the judgment of
permanent injunction.

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DUPLANTIER, District Judge, dissenting:
The Railway Labor Act, 45 U.S.C. §151,
et seq., (RLA) regulates in great detail the
relationship between railroads and the unions
which represent railway employees. Section
152 First of the RLA provides that carriers
and their employees have a duty “to exert
every reasonable effort . . . to settle all dis-
putes . . . in order to avoid any interruption to
commerce or to the operation of any carrier
growing out of any dispute between the car-
rier and the employees thereof.” Because I
conclude that a court has no authority to add
to that duty a requirement that a railway union
provide advance notice before engaging in a
strike, work stoppage, or other job action
against a carrier, I respectfully dissent.
Appellant Brotherhood of Maintenance of
Way Employees (BMWE) is a labor union
which represents those employees of numer-
ous railroads who are responsible for main-
taining, repairing and rehabilitating railroad
tracks throughout the United States. Since
1993 BMWE has engaged in twelve strikes or
planned strikes, each one against at least one
of the six railroads who are plaintiffs in this
suit. In each instance, the union gave no
advance notice to the railroad of its intent to
commence a strike. The railroad in question
ultimately obtained injunctive relief against
each of the strikes, on the ground that the
dispute which gave rise to the strike was a
“minor dispute,” as to which a strike is un-
lawful. See Consolidated Rail Corp. v. Rail-
way Labor Executives Assn., 491 U.S. 299,
304 (1989). In each injunction suit brought
by the railroad, the union contended that the
strike or planned strike was lawful, primarily
because the disagreement between the parties
involved a major dispute. Where a major dis-
pute is involved, a party may resort to a strike
after exhausting the bargaining and mediation
process mandated by §§5 and 6 of the RLA.
Id. at 303.
None of the statutes regulating the rela-
tionship between railroads and the unions rep-
resenting railroad employees requires advance
notice of a union’s intention to strike, and
during the many years since the enactment of
those statutes, no railroad has sought a
statutory amendment to require such notice.5
This suit, which was not filed in response to a
strike or in anticipation of a threatened strike,
represents in effect an attempt by the railroads to
amend the RLA through judicial interpretation rather
than legislative amendment, a tactic one carrier has
previously tried unsuccessfully.6
The six railroad appellees initiated this suit,
seeking a declaratory judgment to the effect that
BMWE has violated §152 First, by authorizing,
encouraging, permitting, calling, or engaging in self-
help, including strikes, without notice, over disputes
involving what BMWE characterizes as unilateral
changes in agreements, and by engaging in such
conduct as a pattern, practice, or policy. The rail-
roads also sought an injunction requiring BMWE in
the future to give ten days advance notice of its intent
to commence any job action against any of the
plaintiff railroads, thereby giving the railroad the
opportunity to obtain a restraining order in advance of
5 At oral argument, counsel for the railroads
advised that in the 76 years since the RLA’s
enactment no railroad had ever sought such an
amendment from Congress.
6 In 1998, Burlington Northern and Santa Fe
Railway Company, an appellee herein, filed suit in
the Northern District of Texas seeking, among
other things, a mandatory injunction requiring the
union to give 3 days advance notice of future
strikes. Burlington N. & Santa Fe Ry. Co. v.
Brotherhood of Maintenance of Way Employees,
93 F.Supp. 2d 751 (N.D. Tex.2000) The district
judge denied the railroad that relief but suggested
that on a different record such an injunction
regulating futur e conduct by the union might be
justified. Id. at 760. The district court’s denial of
the injunction was not appealed.

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the threatened union action. The railroads urged that
the advance notice requirement was warranted to
prevent significant economic losses resulting from an
illegal strike, losses for which the railroads cannot
recover damages from the unions. See Louisville &
Nashville Railroad Company v. Brown, 252 F.2d 149,
155 (5th Cir. 1958).
The district court granted the railroads’ motion for
summary judgment, based in large part upon the
decisions in eighteen prior suits7 between the
railroads and BMWE over an eight year period in
nine different federal district courts. Each of these
suits resulted ultimately in a grant of a railroad’s
petition for an injunction halting an ongoing strike or
prohibiting what was perceived as a threatened strike.
In granting the injunction on appeal before us, the
district court also relied upon statements made by
union executives in depositions and press releases.
Upon this summary judgment record the railroads
convinced the district court that BMWE had dem-
onstrated a pattern, practice, and policy of engaging
in illegal self-help activities. Based upon that finding,
the district judge in effect amended the RLA (as
applicable to parties to this litigation), to add a
requirement that the union must give the railroad ten
days advance notice before initiating any job action,
including a strike. The injunction contained no
temporal or geographic limitation, nor was it
restricted only to union actions taken in response to
specific circumstances.
While advance notice of a union’s intent to strike
or to utilize any self-help action may be a laudable
objective in any comprehensive statute regulating the
relationship between railway unions and railroad
carriers, such as the RLA, the statute cannot be
construed to impose such an obligation upon a union.
I agree with the majority that the district court’s
opinion provides “a persuasive explanation of its
reasons for entering the injunction,” but I disagree
that it supports the judgment granting the injunction.
A requirement of advance notice of intent to strike
may well be sound public policy; however, the
imposition of such a requirement is for Congress, not
the court.
The procedural history of the RLA is significant
and somewhat unusual. After extensive negotiations,
the railway unions and the railroads presented a
proposed statute to Congress, which enacted into law
the precise agreement submitted by the unions and the
carriers. Thus the RLA strikes a delicate balance
between the competing interests of the unions and the
carriers. The advance notice requirement imposed by
the district court forever shifts the balance embodied
in the RLA, as between the plaintiff railroads and the
BMWE.
The importance of maintaining the delicate
balance embodied in the RLA has been consistently
recognized. In both Norfolk Southern Ry. Co. v.
Brotherhood of Locomotive Engineers, 217 F.3d 181,
190 (4th Cir. 2000) and CSX Transportation, Inc. v.
Marquar, 980 F.2d 359, 380 (6th Cir. 1992), the court
relied upon the desirability of maintaining this
delicate balance between the railroads and the railway
unions as the rationale for denying railroads the right
to recover damages from unions which had breached
their duty to arbitrate a minor dispute by engaging in
an illegal strike. As noted above, the railroads
contend they should be granted an injunction because
they cannot recover damages for an unlawful strike.
The very reason for denial of damages applies equally
to an injunction: “[d]amages awards between railroads
and unions . . . threaten the delicate balance intended
by the RLA.” Id. So too would the court-created
advance notice requirement at issue here.
Had Congress wanted to impose a duty of advance
notice on unions, it certainly knew how to do so. In
my view, the district court usurped the legislative
function of Congress by imposing a duty that may well
be beneficial for the common good, but is not au-
thorized by §152 First or any other statute.
7 In his Memorandum Opinion and Order the
district judge refers to eighteen suits in which a
temporary restraining order or an injunction was
issued against the union. Burlington N. & Santa
Fe Ry. v. BMWE, 143 F.Supp. 2d 672, 679-685
(N.D. Tex. 2001). However, only nine involved
actual strikes by the union. The other nine in-
volved either what the railroads perceived as a
threatened strike, including what the district court
characterized as situations where “BMWE refused
to provide assurance that it would not strike,” or
a counterclaim filed by the carrier seeking an
injunction in a suit initiated by the union.

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In affirming the district court, the majority relies
in part upon the desire to avoid a split between the
circuits. I submit that denial of the injunction sought
by the railroads would not create a circuit split.
Neither case cited by the majority involved the
situation presented here: an injunction for an
unlimited period of time, involving future activity
under unspecified circumstances, in a suit filed at a
time when no adverse activity by the union is pending
or then threatened. In Delta Air Lines, Inc. v. Air
Line Pilots Ass’n. Int’l, 238 F.3d 1300, 1311 (11th Cir.
2001), the court limited the injunctive relief to
directing the union “to take further steps to end the
pilots’ no-overtime campaign” then pending. In Del.
& Hudson Ry. Co. v. United Transp. Union, 450 F.2d
603 (D.C. Cir. 1971), the court of appeals reversed the
district court’s order enjoining the union then
involved in a wage and rule dispute with various
railroads from conducting a selective strike against
fewer than all of the plaintiff railroads. The court
concluded that the district judge granted the in-
junction based upon an erroneous legal premise. The
court of appeals remanded the case, subject to the
continuing jurisdiction of the court of appeals, noting
that the obligation of a carrier and a union “to treat
with each other through responsible conduct of the
process of collective bargaining . . . is not consistent
with such actions as a deliberate timing of a strike
without prior warning, with the purpose of enhancing
plant damage, or some other garrotte of jungle
warfare.” Id. at 622 (internal quotation and citation
omitted,). I respectfully disagree with the majority’s
conclusion that the quoted statement is not dicta.
Needless to say, the denial of an injunction in the
instant case could not cause a split with another
circuit which also denied an injunction. Moreover,
Del. & Hudson Ry. v. United Transp. Union did not
involve a request for an injunction such as the one at
issue in this case. There, unlike here, there was a
specific disagreement and a specific threatened act
triggering a request for specific injunctive relief.
Moreover, assuming arguendo that §152 First
authorizes a court to impose a duty of advance notice
upon a union which has demonstrated in the past a
pattern, practice or policy of illegally engaging in self-
help, the summary judgment evidence before the dis-
trict court does not support its conclusion that
appellant has engaged in such illegal activities.
Summary judgment is proper only “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment
as a matter of law." Fed. R. Civ.Pro. 56(c). A
genuine issue of fact exists where the evidence is such
that a reasonable party could return a verdict for the
non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party
must “demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party satisfies that
burden, then the non-movant must go beyond the
pleadings and identify specific facts demonstrating
that there is a genuine issue of material fact for trial.
Id. at 324. Factual controversies are resolved in favor
of the non-moving party. Little v. Liquid Air Corp.,
37 F.3d 1069, 1075 (5th Cir. 1994).
The majority declines to consider whether it was
error for the district court to make “factual findings
without an evidentiary hearing . . . because BMWE
does not raise the issue as a ground for reversal.”
What the union clearly does raise on appeal is that the
summary judgment record does not support the
district court’s characterization of the union’s prior
activities as an unlawful "pattern, practice, and policy
of authorizing, encouraging, permitting, calling, or
engaging in strikes, work stoppages, picketing, or
other self-help" against the railroads. BMWE’s briefs
clearly challenge the district court’s findings of
undisputed facts to support summary judgment.
Indeed, the record excerpts submitted on appeal by
BMWE include the affidavits of Steven V. Powers, the
assistant to the president of the BMWE, in which he
sets forth specific facts disputing various “undisputed
material facts” relied upon by appellees in moving for
summary judgment.
To conclude that BMWE’s pattern of behavior
warrants imposing a requirement that it provide
advance notice of its intent to utilize self-help, it is not
enough simply to look at the union’s “won-loss”
record in previous litigation. To reach such a
conclusion it would be necessary to examine the back-
ground of each suit to determine whether the union
undertook the challenged activity with a reasonable
belief that the dispute giving rise to the challenged or
threatened activity constituted a major dispute
between the parties, which would have justified the
strike which was the subject of the suit. That inquiry
is essential because, as the Supreme Court has

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recognized, “distinguishing between major disputes
and minor disputes” can be a “difficult task.”
Consolidated Rail Corp. v. Railway Labor Executive
Assn., 491 U.S. at 310. The validity of that
observation is borne out by the following analysis of
the prior suits between appellant and appellees.
In two of the nine suits involving actual strikes,
the union prevailed at the district court level, only to
lose on appeal.8 Additionally, in Atchison, Topeka &
Santa Re Ry. Co, v. Brotherhood of Maintenance of
Way Employees, No. 94C2765 (N.D. Ill. May 4,
1994), in granting the railroad a temporary
restraining order after concluding that a minor
dispute was involved, the district court acknowledged
that “BMWE raise[d] a substantial argument” that the
dispute at issue was properly characterized as a major
dispute. The railroads do not challenge the union’s
contention that in three additional situations the
railroads voluntarily ceased the action giving rise to
the strike.9
The district court also relied in part upon the
union’s stated policy that it “will do what it has to do”
to protect its members. That policy is simply a
statement that the union will do its duty toward its
members; it does not support a conclusion that the
union planned to engage in unlawful activity in the
future.
The district court developed an insufficient record
concerning whether the union acted in good faith in
undertaking the job actions in the prior suits between
the union and a carrier. The summary judgment
record developed before the district court does not
support its conclusion that the union has demonstrated
a pattern, practice, and policy of illegally engaging in
self-help activities.
The foregoing analysis of the district court’s
decision to issue an injunction on summary judgment
is not intended to weaken the conclusion that the
injunction sought by appellees should not issue in any
event.
I would reverse the summary judgment entered by
the district court and remand to the district court for
further proceedings not inconsistent herewith.
8 Brotherhood of Maintenance of Way Em-
ployees v. Atchison, Topeka & Santa Fe Ry. Co.,
No. 96-1515, 96-1524, (C.D. Ill. December 17,
1996, reversed on appeal 138 F.3d 635 (7th Cir.
1998); Brotherhood of Maintenance of Way
Employees v. Union Pacific Railroad Co., No.
00-2-396 (D. Colo. 2000), reversed No. 00-1105
(10th Cir. December 21, 2000).
9 CSX Transp., Inc. v. Brotherhood of Main-
tenance of Way Employees, No. 95-813 (M.D.
Fla. August 28, 1995); Norfolk Southern Ry. Co.
v. Brotherhood of Maintenance of Way Em-
ployees, (W.D. Va.. November 8, 1996); Con-
solidated Rail Corp. v. Brotherhood of Main-
tenance of Way Employees, No. 98-CV- 4277
(E.D. Pa. August 14, 1998).

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