Burlington Northern & Santa F E Railway C O ., Consolidated Rail Corporation , Csx… v. Brotherhood of Locomotive Engineers

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3626
B URLINGTON N ORTHERN & S ANTA F E R AILWAY
C O ., C ONSOLIDATED R AIL C ORPORATION , CSX
T RANSPORTATION , I NC ., et al.,
Plaintiffs-Appellants,
v.
B ROTHERHOOD OF L OCOMOTIVE E NGINEERS ,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01C7743—Joan B. Gottschall, Judge.
____________
A RGUED A PRIL 1, 2004—D ECIDED M AY 4, 2004
____________
Before F LAUM , Chief Judge, C OFFEY , and E VANS , Circuit
Judges.
F LAUM , Chief Judge. Six freight rail carriers brought this
action under the Railway Labor Act (“RLA”) 45 U.S.C. § 151
et seq., seeking injunctive relief against threatened strikes
by the Brotherhood of Locomotive Engineers (“BLE”). The
BLE threatened to strike in response to the rail carriers’
decisions to adopt remote control technology and to employ
members of a rival union to operate the remote control

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2 No. 03-3626
1 The rail carriers that are parties to this action are the
Burlington Northern and Santa Fe Railway Company;
Consolidated Rail Corporation; CSX Transportation, Inc.; Kansas
City Southern Railway Company; Norfolk Southern Railway
Company; and the Union Pacific Railroad Company.
devices. The district court concluded that the dispute was
a “minor dispute” subject to mandatory arbitration under
§ 3 First of the RLA, 45 U.S.C. § 153 First (i) and granted
a preliminary injunction to preserve the jurisdiction of the
special board of adjustment. The special board of adjust-
ment resolved the dispute predominantly in favor of the rail
carriers. The BLE then moved to dismiss the rail carriers’
complaint. The district court agreed with the BLE that the
preliminary injunction was no longer necessary to maintain
the status quo pending resolution by the special board of
adjustment. The district court entered an order dissolving
the preliminary injunction and dismissing the action. The
rail carriers now appeal and we affirm the decision of the
district court.
I. Background
The Federal Railway Administration issued guidelines
in February 2001 regarding the operation of remote con-
trolled locomotives. Shortly thereafter, the plaintiff rail
carriers 1 announced their intentions to train remote control
operators (“RCOs”) and to implement remote control
operations pursuant to the Federal Railway Administration
guidelines. The rail carriers signed a letter of intent with
the United Transportation Union (“UTU”) in September
2001, indicating their plan to assign RCO positions to
conductors and trainmen represented by the UTU. In
October 2001, the BLE wrote to the rail carriers to commu-
nicate its belief that the BLE’s collective bargaining
agreements with the rail carriers entitled BLE-represented

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No. 03-3626 3
locomotive engineers to the new RCO positions. The BLE
threatened to strike if its demands were not met.
The rail carriers then filed an action in the district court
seeking declaratory and injunctive relief. Before the district
court, the BLE characterized the dispute as a “major” one
under the RLA, arguing that the rail carriers’ failure to
assign the RCO positions to BLE-affiliated locomotive
engineers worked a unilateral change to the existing col-
lective bargaining agreement. The BLE contended that
the rail carriers’ unilateral actions entitled the members of
the BLE to respond with unilateral action in the form of a
strike if the parties were unable to resolve the dispute. The
district court was not persuaded by the BLE’s position. The
district court found that the rail carriers had presented an
arguable contractual justification for their assignment of
RCO positions to non-locomotive engineers. Therefore, the
dispute was “minor” under the RLA and subject to compul-
sory arbitration, the district court held. The district court
preliminarily enjoined the BLE from engaging in any
strikes or other “self-help against the plaintiffs over any
disputes concerning the plaintiffs’ use or plans to use
remote control technology . . . until a hearing is held and
final judgment entered on the complaint herein.”
Burlington Northern and Santa Fe Ry Co., et al. v. Brother-
hood of Locomotive Eng’rs, et al., No. 01 C 7743 (N.D. Il.
Jan. 14, 2002) (order granting preliminary injunction).
Thereafter, the parties submitted the dispute to Special
Board of Adjustment #1114 (“SBA”). In January 2003, the
SBA concluded that the BLE’s collective bargaining agree-
ments with the rail carriers did not require the assignment
of the RCO positions to locomotive engineers represented by
the BLE. The BLE did not violate the anti-strike injunction
during arbitration.
Upon learning of the adverse ruling by the SBA, the BLE
began to publicly oppose the use of remote control technol-

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4 No. 03-3626
ogy, but it did not strike. The rail carriers allege that the
BLE has demonstrated its opposition to the award in the
following ways: (1) the BLE website announced the BLE’s
intention to set up “urgent meetings” with the Federal
Railroad Administration and National Carriers Conference
Committee to resolve the controversy created by the imple-
mentation of remote control technology; (2) an article in a
trade journal communicated the BLE’s belief that remote
control would continue to be controversial despite the SBA’s
award; (3) the BLE filed a request for clarification of the
arbitration award with the SBA; (4) the BLE’s New York
State Legislative Board informed the Superintendent of the
CSX Railroad that the BLE believed remote control to pose
an immediate threat to the safety of locomotive engineers,
and that the CSX Railroad must address the BLE’s safety
concerns or face the possibility of a strike by the BLE of the
CSX Railroad; (5) the BLE organized rallies to secure the
adoption of local ordinances banning remote control; (6) the
BLE encouraged its members to document the use of remote
control in particular circumstances and to take pictures of
accidents involving remote-controlled locomotives; and (7)
the BLE organized a national “informational picket” against
the use of remote control.
Several weeks after the SBA entered its order, the BLE
submitted to the district court a motion to dismiss the rail
carriers’ complaint as moot. The BLE claimed that the SBA
had fully and finally resolved the dispute and that “there no
longer is any threat of a strike against any of the railroads.”
The rail carriers opposed the motion, arguing that remote
control “remains perhaps the most contentious issue in
labor relations in the railroads today.” The district court
reasoned that the sole purpose of the preliminary injunction
was to preserve the status quo pending resolution of the
dispute by the arbitrator and concluded that this purpose
was effectuated after the final arbitration award issued.
Additionally, the district court concluded that the sole

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No. 03-3626 5
controversy presented by the complaint— whether the
dispute was major or minor for purposes of the RLA—had
been resolved. The district court dissolved the preliminary
injunction and dismissed the case on September 15, 2003.
II. Analysis
On this appeal we are asked to review the decision of the
district court to dissolve the preliminary injunction barring
the BLE from engaging in economic self-help against the
rail carriers regarding the implementation of remote control
technology. This Court applies the same standard of review
to an order dissolving a preliminary injunction as to an
order granting or denying a preliminary injunction, Centu-
rion Reinsurance Co., Ltd. v. Singer, 810 F.2d 140, 143 (7th
Cir. 1987), that is, the highly deferential abuse of discretion
standard. qad. inc. v. ALN Associates, Inc., 974 F.2d 834,
837 (7th Cir. 1992). No deference is due to a “decision to
deny a preliminary injunction that is premised on an error
of law.” United Air Lines, Inc. v. Int’l Ass’n of Machinist and
Aerospace Workers, 243 F.3d 349, 361 (7th Cir. 2001). The
district court’s determinations of law are reviewed de novo
and its determinations of fact are reviewed for clear error.
Centurion Reinsurance, 810 F.2d at 143.
The rail carriers argue that the district court applied an
inappropriate legal standard and abused its discretion in
dissolving the preliminary injunction. The district court’s
order states that the sole reason that it had granted the
preliminary injunction was to “maintain the status quo
until an arbitrator could resolve the dispute . . . . Because
the final arbitration award has been issued . . . the court
dissolves the preliminary injunction.” Burlington Northern
and Santa Fe Ry Co., et al. v. Brotherhood of Locomotive
Eng’rs, et al., No. 01 C 7743 (N.D. Il. Sept. 15, 2003) (order
dissolving preliminary injunction and dismissing the case)
(internal citation omitted). In the rail carriers’ view, the

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6 No. 03-3626
district court’s order demonstrates that the district court
underestimated the scope of the federal court’s power to
enjoin strikes under the RLA. They submit that, because
the RLA prohibits a union from striking over a minor
dispute regardless of the status of arbitration, Brotherhood
of Locomotive Eng’rs v. Louisville and Nashville R.R. Co.,
373 U.S. 33, 40-41 (1963), the district court erred in con-
cluding that the preliminary injunction had served its pur-
pose merely because the SBA had issued an award. The rail
carriers urge that the preliminary injunction remains
appropriate notwithstanding the SBA’s award because the
BLE continues to describe the remote control issue as
“contentious” and to publicly criticize its implementation.
We agree with the rail carriers that a strike by the BLE
over remote control—whether instigated before or after the
conclusion of arbitration—would frustrate the intention of
the RLA to avoid “any interruption to commerce or to the
operation of any carrier engaged therein” and to secure the
“prompt and orderly settlement of all disputes growing out
of . . . the interpretation or application of agreements
covering . . . working conditions.” See 45 U.S.C. § 151(a).
But the existence of the minor dispute, alone, cannot justify
an injunction in perpetuity. A federal court may enjoin a
labor strike arising out of a minor dispute in order to assure
compliance with the mandatory arbitration procedures of
the RLA, notwithstanding the anti-injunction section of the
Norris-LaGuardia Act, 29 U.S.C. §§ 101-105, but “courts
should hesitate to fix upon the injunctive remedy for
breaches of duty owing under the labor laws unless that
remedy alone can effectively guard the plaintiff’s right.”
Chicago & N. W. Ry. v. United Transp. Union, 402 U.S. 570,
582 (1971) (quotation omitted.) “This clearly implies that
where there are other effective means available to accom-
plish that end, injunctions should not issue.” United Air
Lines, 243 F.3d at 363.

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No. 03-3626 7
The district court did not err in concluding that the pur-
poses of the RLA would not be effectuated by continuing the
anti-strike injunction against the BLE. The BLE has
complied with the arbitration award. It has not threatened
to strike or engage in other economic self-help over the re-
mote control issue since it was enjoined from doing so in
January 2002. In light of the BLE’s withdrawal of strike
threats, this litigation is not analogous to Brotherhood of
Locomotive Engineers, wherein the Supreme Court upheld
the issuance of an anti-strike injunction after the conclusion
of arbitration. In that case, the union announced a “definite
strike deadline” after arbitration had concluded. See
Brotherhood of Locomotive Eng’rs, 373 U.S. at 35, 40-42.
Similarly, in Chicago & N. W. Transportation Co. v. Rwy.
Labor Executive’s Ass’n, 908 F.2d 144 (7th Cir. 1990), where
this Court upheld a permanent injunction against a strike
concerning a minor dispute, the union was actively threat-
ening to strike.
None of the evidence that the rail carriers cite in order to
demonstrate BLE’s ongoing “bitterness and resistance to
remote control” convinces us that the BLE intends to violate
its statutory duty to refrain from engaging in economic self-
help. To the contrary, all of the BLE’s actions of which the
rail carriers complain are outside the scope of the activities
previously enjoined by the district court. As the rail carriers
conceded at oral argument, the preliminary injunction did
not bar the BLE from lobbying the Federal Railroad
Administration or state and municipal regulatory bodies,
engaging in informational picketing, or negatively charac-
terizing the arbitration award on its website. Further,
neither the BLE’s communication with the CSX Railroad
regarding actions that the BLE believed were inconsistent
with the arbitration award, nor the BLE’s encouragement
of documentation of remote control-related accidents and
injuries, demonstrates any intention to engage in economic
self-help. Finally, of the two alleged strike threats, one was

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8 No. 03-3626
clarified by the BLE to be not a strike threat, while the
other was made without the imprimatur of the national
office of the BLE, and both were resolved peacefully. These
instances do not exhibit a current or anticipated breach of
the BLE’s contractual duties to the rail carriers or statutory
duty under the RLA to refrain from economic self-help.
Rather, the BLE’s post-arbitration actions demonstrate that
the BLE has abandoned hope of a contractual remedy, and
has adopted a new strategy for protecting the jobs of its
membership: the reduction or elimination of remote control
at the regulatory level. The RLA injunction power does not
extend to mere “labor strife” about industry practice.
Because the BLE has complied with the arbitration award
and has not threatened to strike, it is clear that a strike
injunction is not “the only practical, effective means of
enforcing the [union’s] duty to exert every reasonable effort
to make and maintain agreements.” Chicago & N. W. Ry.,
402 U.S. at 583.
The rail carriers also claim that the district court erred
because it failed to subject the BLE’s motion to dissolve the
preliminary injunction to sufficiently rigorous scrutiny. As
discussed above, the district court determined that there
was no longer any basis for the injunction because the
SBA’s jurisdiction had been preserved throughout its
resolution of the minor dispute. The rail carriers maintain
that the district court reached an erroneous result because
it did not apply the appropriate test. In their view, the dis-
trict court should have evaluated whether the BLE had
demonstrated that the harm caused by the injunction out-
weighed the continuing need for it in light of changed
circumstances. Stewart v. General Motors, Corp., 756 F.2d
1285, 1291 (7th Cir. 1989). The BLE contends that this
analysis would have compelled a ruling in their favor
because there has been no change in circumstances, as
demonstrated by the ongoing contentiousness over remote
control, nor was the preliminary injunction causing the

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No. 03-3626 9
BLE any hardship, since no strike in regards to the minor
dispute would be lawful under the RLA.
We disagree. Despite the BLE’s continuing frustration
with the implementation of remote control technology, the
BLE’s withdrawal of strike threats and compliance with the
arbitration award represent legally significant changes in
the circumstances from those existing at the preliminary
injunction hearing. Further, the rail carriers have not
persuaded us that the BLE continues to perceive the minor
dispute as ongoing, despite its compliance with the SBA
award and withdrawal of strike threats. The BLE’s lobbying
efforts to eradicate remote control actually undermine the
rail carriers’ view that the BLE still perceives a contractual
right to the RCO positions: if the BLE were to prevail before
the regulatory agencies, the rail carriers would be forced to
abandon remote control, and the BLE would have no RCO
positions to gain for its membership. As the BLE is no
longer suggesting that it will violate its statutory duty to
refrain from striking over the implementation of remote
control technology, the Chicago River exception to the
Norris-LaGuardia Act’s prohibition of interference by the
federal courts no longer applies. “Judicial intervention in
labor disputes is not favored; and no order is needed to
compel what is already being done.” Chicago & N. W.
Transportation Co., 908 F.2d at 153.
III. Conclusion
The judgment of the district court is A FFIRMED .

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10 No. 03-3626
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-4-04

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