                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED TRANSPORTATION UNION,                      No. 11-73258
                      Petitioner,

                      v.
                                                      OPINION
 ANTHONY FOXX,* U.S. Secretary of
 Transportation; U.S. DEPARTMENT
 OF TRANSPORTATION; JOSEPH C.
 SZABO, Administrator of the Federal
 Railroad Administration; FEDERAL
 RAILROAD ADMINISTRATION,
                        Respondents.


          On Petition for Review of an Order of the
              Federal Railroad Administration

                 Argued and Submitted
          December 3, 2013—Pasadena, California

                           Filed May 8, 2014

        Before: Mary M. Schroeder, John T. Noonan,
           and Richard R. Clifton, Circuit Judges.

                  Opinion by Judge Schroeder

   *
     Anthony Foxx is substituted for his predecessor, Ray H. LaHood, as
Secretary of Transportation. Fed. R. App. P. 43(c)(2).
2               UNITED TRANSP. UNION V. FOXX

                           SUMMARY**


               Federal Railroad Administration

    The panel denied a petition for review of a decision of the
Federal Railroad Administration, and upheld the FRA’s
conclusion that it lacked jurisdiction to decide whether the
Union Pacific Railroad Company had authority under a
collective bargaining agreement to designate terminals for a
new service the railroad had instituted in California.

    The FRA concluded it lacked jurisdiction to resolve the
dispute between the Railroad and the United Transportation
Union because it did not have the statutory authority to
interpret collective bargaining agreements.

    The panel held that the FRA can review an agreement to
determine what the designated terminals are, but it cannot
interpret the agreement to decide how the terminals shall be
designated. The panel held that the parties’ dispute regarded
interpretation of the collective bargaining agreement, and it
was therefore governed by the resolution procedures of the
Railway Labor Act and beyond the adjudicatory powers of
the FRA.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED TRANSP. UNION V. FOXX                  3

                        COUNSEL

Lawrence M. Mann (argued), Alper & Mann, PC, Bethesda,
Maryland, for Petitioner.

Joy K. Park (argued), Trial Attorney, Robert S. Rivkin,
General Counsel, Paul M. Geier, Assistant General Counsel
for Litigation, and Peter J. Plocki, Deputy Assistant General
Counsel for Litigation, United States Department of
Transportation, Washington, D.C.; Michael T. Haley, Acting
Chief Counsel, Thomas J. Herrmann, Assistant Chief Counsel
for Safety Law, Rebecca S. Behravesh, Colleen A. Brennan,
and Matthew T. Prince, Trial Attorneys, Federal Railroad
Administration, Office of the Chief Counsel, Washington,
D.C., for Respondents Anthony Foxx, United States Secretary
of Transportation; et al.


                        OPINION

SCHROEDER, Circuit Judge:

    The United Transportation Union petitions for review of
a decision of the Federal Railroad Administration (“FRA”)
that the agency lacked jurisdiction to decide whether the
Union Pacific Railroad Company had authority under the
Collective Bargaining Agreement to designate terminals for
a new service the railroad had instituted in California. The
Union had contended that terminals could be designated only
through negotiations, while the Railroad had taken the
position that after negotiations failed, the Agreement
authorized it to designate terminals unilaterally on a trial
basis.
4             UNITED TRANSP. UNION V. FOXX

    The FRA concluded it lacked jurisdiction to resolve the
dispute because it did not have statutory authority to interpret
collective bargaining agreements. The Union does not
disagree with that principle of law, but contends that in this
case, “interpretation” of the Agreement was not required
because a cursory “review” establishes that the new terminal
is not a designated terminal.

    The Collective Bargaining Agreement is unquestionably
relevant. Congress has attempted to clarify that the
designation of terminals is to be determined by collective
bargaining agreements, 49 U.S.C. § 21101(1); H.R. Rep. No.
95-1176, at 9 (1974), and this intent has been incorporated in
the FRA Agency policy, see 49 C.F.R. § 228, Appx. A
(2012). Given the positions of the parties in this case, the
Union can prevail in the dispute only if the Railroad’s
interpretation of the Agreement is rejected. We therefore
agree with the FRA that the dispute is outside the purview of
the FRA’s authority. The FRA can review an agreement to
determine what the designated terminals are, but it cannot
interpret the agreement to decide how the terminals shall be
designated. Disputes over how an agreement should be
interpreted are governed by a different statute. Because this
is a dispute regarding interpretation of the Collective
Bargaining Agreement, it is governed by the procedures of
the Railway Labor Act (“RLA”) for disputes requiring
“interpretation or application of agreements covering rates of
pay, rules, or working conditions.” 45 U.S.C. § 151a; see
also id. §§ 152–6. We therefore deny the petition for review.

                      BACKGROUND

   This dispute over designating terminals has significance
because under the railroad safety laws, known as the Hours of
              UNITED TRANSP. UNION V. FOXX                    5

Service Laws (“HSL”), if an employee is released from work
for more than four hours at a designated terminal, the
employee is not on duty. If an employee is released at a place
other than at a designated terminal, the employee is on duty.
49 U.S.C. § 21103(b)(5)–(6). These are provisions of the
HSL that the FRA administers. See id. at § 103(g).

    The HSL are intended to ensure that employees have
adequate rest to perform their work, and therefore on-duty
hours are limited. Id. at § 21103. To accomplish this, the
HSL calculates duty time with reference to when the
employee begins and is released from duty. On-duty time
begins when an employee reports for duty and ends when an
employee is released from duty. Id. at § 21103(b)(1). It is
common practice in the railroad industry, however, to release
employees from duty at a terminal different from the one at
which they begin their service day. The HSL thus includes
provisions indicating whether time spent after such a release
is calculated as on duty or off duty. Id. at § 21103(b)(5)–(6).
Specifically, an employee is on duty when released for “[a]n
interim period available for rest at a place other than a
designated terminal . . . [and a]n interim period available for
less than 4 hours rest at a designated terminal.” Id. As a
result, in order to determine whether an employee is on or off
duty after release, it must first be determined whether the
terminal of release was a “designated terminal.”

     The concept of “designated terminal” has always been
critical, but the term was not originally defined. In the 1970s,
a circuit split developed, with this court holding that the
designation was controlled by the collective bargaining
agreement. See United States v. Atchison, Topeka & Santa
Fe Ry. Co., 525 F.2d 1184, 1190 (9th Cir. 1975) (defining
“designated terminal” as a terminal designated as the home or
6             UNITED TRANSP. UNION V. FOXX

away-from-home terminal “in or under collective bargaining
agreements”). Under the view of the Eighth Circuit, on the
other hand, the “designation” was effectively placed within
the control of the employer. See United States v. St. Louis-
San Francisco Ry. Co., 572 F.2d 1224, 1228–29 (8th Cir.
1978) (defining “designated terminal” as a place where
suitable food and lodging are available for employees).

    Congress attempted to resolve the problem in 1978 by
amending the statute to define “designated terminal” as “the
home or away-from-home terminal for the assignment of a
particular crew,” 49 U.S.C. § 21101(1), with accompanying
legislative history noting that “such locations shall be
determined by reference to collective bargaining agreements
applicable to particular crew assignments,” H.R. Rep. No. 95-
1176, at 9. The FRA’s Statement of Agency Policy and
Interpretation explains that a designated terminal is a terminal
designated “in or under a collective bargaining agreement”
and, further, that it must have “suitable facilities for food and
lodging.” 49 C.F.R. § 228, Appx. A.

    This dispute originated in early 2010 when the Union
Pacific Railroad Company submitted notice to the United
Transportation Union that the Railroad was planning to
establish a new rail service between Big Rock/Wash and Sun
Valley, California. The notice to the Union quoted a relevant
portion of the Collective Bargaining Agreement that provided
for negotiations:

            An individual carrier may establish
        interdivisional service in freight or passenger
        service, subject to the following procedure.
              UNITED TRANSP. UNION V. FOXX                   7

           Section 1 - Notice

           An individual carrier seeking to establish
       interdivisional service shall give at least
       twenty days’ written notice to the organization
       of its desire to establish service, specify the
       service it proposes to establish and the
       conditions, if any, which it proposes shall
       govern the establishment of such service.

           ....

           Section 3 - Procedure

           Upon the serving of a notice under Section
       1, the parties will discuss the details of
       operation and working conditions of the
       proposed runs during a period of 20 days
       following the date of the notice. If they are
       unable to agree, at the end of the 20-day
       period, with respect to runs which do not
       operate through a home terminal or home
       terminals of previously existing runs which
       are to be extended, such run or runs will be
       operated on a trial basis until completion of
       the procedures referred to in Section 4
       [Arbitration].

    The Union and the Railroad did meet, but were unable to
come to an agreement as to the terminals. The Union, in May
of 2011, asked the FRA Administrator to issue an order to
prevent the Railroad from taking “illegal unilateral action” to
create a terminal at Big Rock/Wash. The Union took the
position that the designated terminal could be established
8             UNITED TRANSP. UNION V. FOXX

only by agreement between labor and management. The
Union was concerned that the proposed terminal was located
in a remote location without food or lodging.

    The FRA then contacted the Railroad for its position, and
the Railroad responded that the terms of the Collective
Bargaining Agreement stated that, if negotiations failed, the
Railroad could begin service on the new line. The FRA
concluded, however, that resolution of the dispute required
interpretation of the Agreement which the FRA lacked the
authority to do. Its letter decision concluded that such a
dispute over interpretation had to be governed by the
resolution procedures authorized in the RLA, 45 U.S.C. § 151
et seq.

    There is no serious disagreement that under the statutory
provisions of the HSL and the provisions of the Collective
Bargaining Agreement, the parties were expected to designate
the terminals through collective bargaining negotiations.
This is confirmed by the actual conduct of the parties in
entering into negotiations. If they had agreed on terminals,
the FRA would have been in a position to review the
Collective Bargaining Agreement to determine whether the
hours laws were being complied with.

    Since the parties did not agree on any designated
terminals, however, the Union has not asked the FRA simply
to “review” the Collective Bargaining Agreement to see what
terminals were negotiated. It has asked the Administrator, in
effect, to declare that absent any agreement as to the Big
Rock/Wash terminal, it cannot be treated as a designated
terminal. If it is not treated as a designated terminal, then all
crew time at Big Rock/Wash is on-duty time. The underlying
issue is therefore what the Collective Bargaining Agreement
              UNITED TRANSP. UNION V. FOXX                     9

requires in the absence of an agreement by the parties as to
the designated terminal.

     The position of the Railroad is that under the terms of the
Collective Bargaining Agreement the Railroad can designate
a terminal on an interim basis pending arbitration. The
Agreement itself is not crystal clear. The question before us,
however, is not whether the Railroad’s interpretation of the
Agreement is the correct interpretation. The question before
us is whether the FRA was correct that the underlying issue
is one of interpretation of the bargaining agreement. We have
little difficulty in determining that it is.

     We reach this conclusion without having to consider any
issue as to the degree of deference owed the FRA concerning
the application of the HSL or its own jurisdiction. The
underlying dispute is a contractual dispute. It is one which
the provisions of the RLA are designed to resolve. 45 U.S.C.
§ 151a (“The purposes of the chapter are . . . to provide for
the prompt and orderly settlement of all disputes growing out
of . . . the interpretation or application of agreements covering
rates of pay, rules, or working conditions.”); see also Elgin,
J. & E.R. Ry. v. Burley, 325 U.S. 711, 722–25 (1945)
(describing the RLA’s dispute resolution procedures). The
Supreme Court has long recognized that those provisions are
mandatory, and may not be bypassed. Andrews v. Louisville
& Nashville R.R. Co., 406 U.S. 320, 322–24 (1972); Slocum
v. Delaware, L. & W.R. Co., 339 U.S. 239, 242–44 (1950).

    The Union, nevertheless, contends that our decision
nearly 40 years ago in Atchison, Topeka & Santa Fe Ry.
supports their view that the FRA can interpret collective
bargaining agreements to determine how a terminal is to be
designated. That case was decided before Congress enacted
10            UNITED TRANSP. UNION V. FOXX

Section 21101 to define “designated terminal.” Our court
held that the term refers to terminals designated pursuant to
a collective bargaining agreement. Our court was interpreting
the statute, however, not the terms of an agreement. It is true
that, according to its brief in that case, the government’s
position as to how the statute should be interpreted was
formed after the government attorneys had reviewed both the
legislative history and a multitude of collective bargaining
agreements. The government has never taken the position,
however, that the FRA interprets collective bargaining
agreements.

    The record in this case reflects that the FRA has
consistently taken the position that its duty is to enforce the
HSL and not to interpret collective bargaining agreements to
determine whether the agreements have been violated. The
position of the Union in this case is fundamentally that the
Railroad violated the Collective Bargaining Agreement in
unilaterally establishing a designated terminal; the position of
the Railroad is that it has not violated the contract. The FRA
correctly determined that this is fundamentally an issue of
contract interpretation beyond its adjudicatory powers.

     Petition for review DENIED.
