                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 01-1508
                                 ___________

Brotherhood of Maintenance of Way     *
Employees,                            *
                                      *
                  Appellant,          * Appeal from the United States
                                      * District Court for the District
      v.                              * of Minnesota.
                                      *
Burlington Northern Santa Fe          *      [PUBLISHED]
Railroad,                             *
                                      *
                  Appellee.           *
                                 ___________

                           Submitted: October 17, 2001

                                Filed: October 24, 2001
                                 ___________

Before McMILLIAN, FAGG, and BEAM, Circuit Judges.
                            ___________

PER CURIAM.

      The Brotherhood of Maintenance of Way Employees (the Union) and
Burlington Northern Santa Fe Railroad (BNSF or the Railroad) disagree on the
meaning of Article A of their August 1999 Collective Bargaining Agreement (CBA).
The CBA provides:

      Employees force assigned to a headquartered position which is located
      greater than 75 highway miles from both the employee’s residence and
      the employee’s home station will be eligible for double occupancy
      lodging under the BNSF corporate lodging program on each day service
      is performed at the away-from-home headquarter location. Employees
      utilizing Carrier provided lodging under this provision will receive a
      meal allowance of $15.00 for each day on which service is performed
      and the employee is housed at Carrier expense at the away-from-home
      headquarter location.

(J.A. at 49). The Union contends an employee is entitled to five $15.00 meal
allowances when the employee works Monday through Friday at a location greater
than seventy-five highway miles from both the employee’s residence and home
station and utilizes Carrier-provided lodging Monday night through Friday morning.
The Railroad initially paid employees five meal allowances per week for this work
arrangement. In February 2000, the Railroad began paying employees four meal
allowances per week for this arrangement, contending the CBA did not obligate the
Railroad to pay a fifth meal allowance when the employee utilized Carrier-provided
lodging for only four nights.

       After the Union and the Railroad failed to reach an agreement interpreting the
meal allowance provision, the Union filed suit, contending the Railroad had effected
a unilateral change of the CBA in violation of the Railway Labor Act (RLA). See 45
U.S.C. § 152 Seventh (1994). The Railroad filed a motion to dismiss, claiming the
dispute was minor and subject to arbitration, thus the district court lacked subject
matter jurisdiction. See 45 U.S.C. § 153 First (i) (1994); Jenisio v. Ozark Airlines,
Inc. Retirement Plan for Agent & Clerical Employees, 187 F.3d 970, 973-74 (8th Cir.
1999) (citing Bhd. of Locomotive Eng’rs v. Louisville & Nashville R.R., 373 U.S. 33,
39 (1963)). The district court* granted the Railroad’s motion to dismiss. The Union
appeals. Having reviewed the record and briefs de novo, accepted the allegations
contained in the complaint as true, and considered the facts and all reasonable

      *
      The Honorable Donald D. Alsop, United States District Judge for the District
of Minnesota.

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inferences that can be drawn from them in the light most favorable to the Union, we
affirm. See Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001)
(reviewing motion to dismiss de novo); Jenisio, 187 F.3d at 972 (reviewing question
of subject matter jurisdiction de novo).

       Under the RLA, a dispute is classified as either major, involving the creation
of new contractual rights, or minor, involving the interpretation and enforcement of
existing CBAs. See Consol. Rail Corp. v. Ry. Labor Executives Ass’n, 491 U.S. 299,
302, 305 (1989) (Conrail). The distinction is important when establishing jurisdiction
because minor disputes must be submitted to binding arbitration. See Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 252-53 (1994). Although there is no bright
line to differentiate between major and minor disputes, a dispute that is arguably
justified by the terms of the CBA is minor. See United Transp. Union v. Kansas City
Southern Ry. Co., 172 F.3d 582, 585-86 (8th Cir. 1999). In addition, if doubt arises
about the classification of a dispute, the dispute is also considered to be minor. See
Jenisio, 187 F.3d at 973.

       We conclude the district court correctly found each party’s position is arguably
justified by the language of the CBA and the dispute is minor. See Hawaiian
Airlines, 512 U.S. at 256 (holding disputes grounded in the CBA are minor); see, e.g.,
Bhd. of Maint. of Way Employees v. Atchison, Topeka & Santa Fe Ry. Co., 138 F.3d
635, 643 (7th Cir. 1997) (holding dispute over travel expenses minor). Resolution
of the dispute will turn on the meaning of the CBA clause requiring employees to
utilize Carrier-provided lodging before the employee is entitled to a meal allowance.
Because minor disputes must be resolved through arbitration, we conclude the district
court correctly determined it lacked jurisdiction. See Jenisio, 187 F.3d at 973-74.

       We reject the Union’s contention that the Railroad’s past practice of paying
five meal allowances per week shows the Railroad’s current contrary position is
frivolous or insubstantial. Although the Railroad’s past practice is relevant to the

                                         -3-
merits of interpreting the contested CBA provision, it does not alter the minor nature
of the dispute. See Conrail, 491 U.S. at 311, 318-19; Alton & Southern Lodge No.
306 Bhd. Ry. Carmen v. Alton & Southern Ry. Co., 849 F.2d 1111, 1114 (8th Cir.
1988) (holding evidence of past practice is not dispositive in the face of contrary
CBA language). Contrary to the Union’s assertion, the district court treated the
Railroad’s motion to dismiss as a facial attack on the complaint, not a factual attack;
thus the Union received the benefit of the presumption its allegations were true and
all favorable inferences were drawn in the Union’s favor.

      Because the dispute is minor and subject to arbitration, we affirm the district
court’s decision dismissing the complaint for lack of subject matter jurisdiction.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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