Csx Transp., Inc. v. Brotherhood of Maintenance, No. 01-15410.

• Citation: 327 F.3d 1309
• Decision Date: 21 April 2003
• Docket Number: No. 01-15410.
• Parties: CSX TRANSPORTATION, INC., Plaintiff-Counter-Defendant-Appellant Cross-Appellee, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, ("BMWE"), Allied Eastern Federation of the Brotherhood of Way Employees, Defendants-Counter-Claimants-Appellees Cross-Appellants, Southeast System Federation, BMWE, Defendant-Counter-Claimant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

327 F.3d 1309

CSX TRANSPORTATION, INC., Plaintiff-Counter-Defendant-Appellant Cross-Appellee, v. BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, ("BMWE"), Allied Eastern Federation of the Brotherhood of Way Employees, Defendants-Counter-Claimants-Appellees Cross-Appellants, Southeast System Federation, BMWE, Defendant-Counter-Claimant.

No. 01-15410.

United States Court of Appeals, Eleventh Circuit.

April 21, 2003.

COPYRIGHT MATERIAL OMITTED

James F. Moseley, Stanley Maurice Weston, Moseley, Warren, Prichard & Parrish, P.A., Jacksonville, FL, Ronald Maurice Johnson, Michael E. Ferrans, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, DC, for CSX Transp., Inc.

Richard S. Edelman, Washington, DC, for Defendants-Counter-Claimants-Appellees Cross-Appellants.

Appeals from the United States District Court for the Middle District of Florida.

Before BIRCH and BLACK, Circuit Judges, and PROPST^*, District Judge.

BIRCH, Circuit Judge:

In this appeal, we decide whether damages are available under the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-164, to recover costs incurred by a carrier associated with a surprise illegal strike initiated by a union. Before reaching this query, we address whether this issue, as it arises between the parties, is precluded by collateral estoppel. Deciding that it does not preclude our determination of the case on its merits, we review the nature of the labor disputes between the parties: whether they were major or minor within the RLA. Because we hold that the disputes were minor within the RLA, and thus the union-instituted strike was illegal, we decide whether the carrier is entitled to recover damages incurred by the interruption in service because it did not have notice that the strike was impending, sufficient to permit it to seek injunctive relief prior to the strike. Finding ourselves bound by precedent, now arguably obsolete, we are compelled to find the answer to be in the negative, yet urge the reconsideration of this proceeding en banc. For the following reasons, we AFFIRM.

I. BACKGROUND

CSX Transportation, Inc. ("CSXT") is a national rail carrier, whose labor relations are governed by the RLA. The Brotherhood of Maintenance of Way Employees ("BMWE") is the collective bargaining representative of CSXT maintenance of way workers. Maintenance of way employees are responsible for repairing and maintaining the railroad track and supporting structures. Negotiations between CSXT and BMWE resulted in collective bargaining agreements (hereinafter "agreements"), which governed rates of pay, work rules and working conditions, and were subject to the provisions of the RLA. The collective bargaining agreement at issue (the "Agreement") was executed and administered between defendant Southeast System Federation, a BMWE sub-unit,¹ and CSXT. The Agreement covered what is now the former Louisville and Nashville Railroad Company ("L&N") and a part of CSXT's rail system.

On 11 August 1995, BMWE authorized a strike against CSXT. On 17 August 1995, BMWE initiated a strike across eleven states against CSXT on two bases: (1) BMWE objected to CSXT's practice of permitting its supervisors, responsible for inspecting the tracks, to make minor repairs during the course of their inspections; and (2) CSXT's refusal to award a position to Dewey C. Hamilton, who claimed seniority right to the position within the seniority district.

The first dispute involved whether BMWE employees had the exclusive right to make track repairs, regardless of how minor, or whether it was within the scope of the Agreement that supervisors also could make occasional minor repairs of defects found during the course of their inspections. Rule 1 of the Agreement, dated 1 October 1973 (the "Scope Rule") provides:

RULE 1. SCOPE

Subject to the exceptions in Rule 2, the rules contained herein shall govern the hours of service, working conditions, and rates of pay for all employes² in any and all subdepartments of the Maintenance of Way and Structures Department, represented by the Brotherhood of Maintenance of Way Employes, and such employes shall perform all work in the maintenance of way and structures department.

RULE 2. EXCEPTIONS TO RULE 1

These provisions shall not apply to the following, except as to the retention and exercise of seniority by the individuals as outlined in the seniority rules:

. . .

2(c) Supervisors and assistants, and other employes above that rank;....

R6-140 at JA 27-28, R6-141 at JA 571.³

Prior to the 17 August 1995 strike, BMWE consistently took the position that CSXT's inspectors could not perform any repairs that were maintenance-of-way work because that was reserved to BMWE workers. BMWE asserted this position in many disputes, most of which were resolved by settlement, withdrawal or arbitration. The proverbial "last straw" was CSXT's permitting two supervisors to perform minor track repairs and abolishing a BMWE member-held truck driver position. R6-146 at 8. In the past, the truck drivers accompanied the CSXT supervisors on their inspections and were available to perform any necessary minor repairs. With the elimination of the position, CSXT inspectors would be unaccompanied in their inspections and would perform the minor work themselves, ostensibly in the interest of efficiency in avoiding a separate BMWE employee trip out to the track. BMWE held the view that a CSXT supervisor, if alone in the field, instead should summon a BMWE employee to make the repair.

The second dispute involved CSXT's initial refusal to award a track repairman position to a BMWE member because a dispute existed as to his seniority rights. Generally, agreements between CSXT and BMWE divided the rail system into seniority districts, wherein an employee could hold seniority in one district at a time. Dewey C. Hamilton had seniority in a seniority district on the former Chesapeake & Ohio Railway (C&O). He was furloughed for lack of work on the C&O and permitted to transfer on 23 May 1995 to another district on the former L&N, which was also part of CSXT's system, and given a trackman position. When a better position became available on the L&N, Hamilton bid on that position. CSXT initially declined to award him the position because it was uncertain whether Hamilton properly established seniority on the L&N. BMWE took the stance that Hamilton should be awarded the position because he was the only employee who bid on it. CSXT and BMWE negotiated regarding the issue. CSXT took the position that "policy will supersede the agreement" and refused to recognize Hamilton's seniority and position bid. R6-146 at 9. Ultimately, on the date BMWE commenced the strike, CSXT conceded to award Hamilton the position and applied his seniority retroactive to the date that he transferred to the L&N seniority district.

Discussions ensued between CSXT and BMWE as a result of these two issues. Finding no ready resolution, BMWE secretly prepared to engage the BMWE employees across eleven states in a strike over these two issues. Id. at 10-11. Without any formal or informal notice to CSXT, BMWE called the eleven-state strike on 17 August 1995. Later that same day, CSXT filed suit in the United States District Court for the Middle District of Florida and claimed that BMWE's strike violated § 152, First and § 153 of the RLA. CSXT prayed for and was granted a temporary restraining order halting the strike by BMWE workers. On 28 August 1995, the district court heard argument on whether to grant CSXT's motion for a preliminary strike injunction. The same day, the district court issued the preliminary injunction.

On 2 October 1995, BMWE filed a counterclaim alleging that CSXT violated the RLA by unilaterally changing working conditions and failing to maintain the parties' collective bargaining agreements when it permitted inspectors to perform repair work exclusively reserved for maintenance-of-way employees. BMWE also filed motions to dismiss CSXT's claim for damages and state-law claim for tortious interference with contractual rights.

On 24 February 1997, BMWE moved to dissolve the preliminary injunction on the basis that the strike was instituted over a major dispute as defined by the RLA. BMWE argued that "the [National Railroad Adjustment Board (`NRAB')] ... issued an Award construing provisions of the parties' agreement that are relevant to this dispute in such a way that the interpretation of the contract offered by the plaintiff in support of its motion for a preliminary injunction can no longer be said to be arguable under the terms of that agreement." R4-84 at 1-2. The district court denied the motion. On 1 February 1999, the district court dismissed CSXT's damages and state-law claims. The district court based this decision, "[i]rrespective of whether Brown⁴ is still binding precedent in this Circuit and even if whether Brown is still vital following Franklin,⁵" on "the reasoning of the Marquar⁶ majority, which includes a full consideration of Franklin, and thus ... [held] that damages are not an appropriate remedy for the violations of RLA § 152, First or [§] 153, First alleged in this case." R5-115 at 13. The district court declined to address the argument by BMWE that the litigation of the damages issue as between CSXT and BMWE was precluded by Marquar on collateral estoppel grounds.

After the parties filed cross-motions for summary judgment, on 20 August 2001, the district court granted summary judgment in favor of CSXT, finding that the dispute regarding the inspectors' repair work was minor within the meaning of the RLA. The district court noted the other dispute leading to the strike regarding the seniority rights of Hamilton and treated it as having been resolved rather than determine whether the seniority dispute was major or minor. Pursuant to Consolidated Rail Corp. v. Railway Labor Executives' Ass'n, 491 U.S. 299, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989) ("Conrail"), the district court limited its inquiry to...