Case: 20-10162     Document: 00515544398        Page: 1    Date Filed: 08/28/2020




         United States Court of Appeals
              for the Fifth Circuit
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                    August 28, 2020
                                No. 20-10162                         Lyle W. Cayce
                                                                          Clerk

 BNSF Railway Company; Kansas City Southern Railroad
 Company; CSX Transportation, Incorporated; Grand
 Trunk Western Railroad Company; Norfolk Southern
 Railway Company; Illinois Central Railroad Company;
 Union Pacific Railroad Company; Belt Railway
 Company of Chicago,

                                                        Plaintiffs—Appellees,

                                    versus

 International Association of Sheet Metal, Air, Rail
 and Transportation Workers - Transportation
 Division,

                                                      Defendant—Appellant.


                 Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 4:19-CV-789


 Before Smith, Higginson, and Engelhardt, Circuit Judges.
 Kurt D. Engelhardt, Circuit Judge:
       This appeal arises out of a railway labor dispute between Plaintiffs, a
 group of railroad companies (collectively, “the Railroads”), and Defendant,
 International Association of Sheet Metal, Air, Rail, and Transportation
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                                       No. 20-10162


 Workers-Transportation Division (“SMART-TD”), a labor organization that
 represents the Railroads’ employees who are employed in the craft and/or class
 of train service. This dispute began—as so many other railway labor disputes
 have—when the Railroads proposed new and streamlined procedures for the
 operation of the train, and SMART-TD pumped the brakes on their progress.
 Despite its familiar origins, however, this case presents novel questions
 regarding a court’s authority to intervene in a railway labor dispute. Specifically,
 we consider whether the district court properly issued an injunction requiring
 SMART-TD to bargain on the Railroads’ proposal. We vacate and remand.
                                             I.

         In anticipation of the November 1, 2019 opening of a new round of
 collective bargaining, the Railroads sent a letter to SMART-TD’s President,
 notifying the union that the Railroads intended to seek changes in crew
 consist. It suffices to say that crew consist, the number of workers manning
 a train, has been a topic of fierce debate between the parties over the
 decades. 1 Crew consists in the early 1900s comprised as many as ten workers.
 But with the advent of various technological advances, fewer employees were
 required to operate a train, and the Railroads progressively sought to reduce
 crew size. 2 Invoking safety and efficiency concerns, SMART-TD and its
 predecessors resisted these proposals tooth and nail. Despite their best
 efforts, the current typical crew consist has been reduced to just one or two
 employees.




         1
         For a complete recitation of the storied history of crew consist, see Bhd. of R. R.
 Trainmen v. Akron & B. B. R. Co., 385 F.2d 581, 588-92 (D.C. Cir. 1967).
         2
          For example, when diesel fueled trains became ubiquitous in the 1960s, railroad
 companies sought to reduce crew consist by eliminating firemen—an obsolete position left
 over from the days of steam powered trains.




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         In exchange for reduced crew sizes, the Railroads offered unions
 certain benefits, including special allowance payments, a “productivity
 fund,” and a guarantee that crew size would only be reduced through a
 process of “pure attrition.” “Pure attrition” means that the positions would
 be eliminated only as the employees who held those positions died, retired,
 or voluntarily terminated their employment, rather than eliminating the
 positions through furloughs or layoffs. Because crew size is negotiated on a
 local basis, 3 there are a total of 45 distinct collective bargaining agreements
 (“CBA”) between SMART-TD and the Railroads. Most of these CBAs
 contain a moratorium provision, which bars the parties from making
 proposals to change “specific provisions” in the agreement until all
 employees who were working as of the date of the agreement have left via
 attrition.
         Of the 45 CBAs, 31 have a “standard” moratorium, which generally
 provides:
         The parties to this Agreement shall not serve or progress, prior
         to the attrition of all protected employees, any notice or
         proposal for changing the specific provisions of this Agreement
         governing pure attrition, car limits and train lengths, special
         allowance payment to reduced crew members, employee
         productivity fund deposits and the administration thereof.
 Seven of the CBAs have a moratorium provision that does not track this
 standard language. These moratoria read:




         3
          SMART-TD has a three-tiered structure: (1) the International, which functions
 as the administrative head, (2) General Committees of Adjustment (“GCA”), which are
 semi-autonomous mid-level bodies that are responsible for negotiating and enforcing their
 respective collective-bargaining agreements, and (3) locals, where membership is held.
 Crew consists are customarily bargained at the GCA level.




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                                     No. 20-10162


        The parties to this agreement shall not serve or progress, prior
        to the attrition of all protected employees, any notice or
        proposal for changing the crew size and or productivity fund
        provided for in this agreement. As it pertains to this Article,
        protected employees are Trainmen with a seniority date as of
        July 28, 2003.
 The remaining seven either have no moratorium provision or one that has
 expired.
         The meaning of these provisions lies at the heart of this dispute.
 According to SMART-TD,
        The purpose of these agreements was to regulate crew size and
        how crew size would be reduced. Crews could only be reduced
        by “pure attrition,” i.e., only when those employees
        voluntarily left their positions. The moratoria bar proposals on
        crew size until the last protected employee left. There is no
        dispute that protected employees are still employed.
 In sum, SMART-TD takes the position that the Railroads are not permitted
 to request any changes in crew consist until the last protected employee
 under the moratorium has voluntarily left the position. Therefore, when the
 Railroads sent notice that they were seeking to change crew consist―while
 protected persons were still employed―SMART-TD refused to negotiate.
        Unsurprisingly, the Railroads disagree about the meaning of the
 standard moratorium. 4 They have interpreted it as a protection to
        [P]revent renegotiation of the quid pro quos given to
        employees in exchange for the last round of crew size
        reductions. Most, if not all, of the modern moratoriums were
        based on the “Milwaukee Road” agreement, which provided

        4
           As to the non-standard agreements, the Railroads served different Section 6
 proposals seeking only the redeployment of existing crews, without any reduction in the
 size or consist of the crews.




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                                  No. 20-10162


        various benefits to employees, such as special allowances,
        productivity funds, furlough protections, limits on train
        lengths, and the like. It is those employee benefits – not new
        changes in “crew consist” – that are the subject of the
        moratoriums.
 According to the Railroads, after SMART-TD was served with notice
 regarding crew consist proposals, collective bargaining was required under
 the applicable provisions of the Rail Labor Act (“RLA”). 45 U.S.C. § 152, et
 seq.
        Accordingly, given this impasse, the Railroads served their complaint
 on SMART-TD on October 25, 2019, alleging that its refusal to bargain over
 crew consist violated the RLA. On November 7, the Railroads moved for a
 preliminary injunction that would require SMART-TD to begin negotiating
 over the crew consist proposals. The district court held a hearing on
 December 19, during which the Railroads requested that the court convert its
 preliminary injunction to a permanent one, should the court find in its favor.
 The court did just that in an order on February 11, 2020. Namely, it
 permanently enjoined SMART-TD (1) “from refusing and/or failing to
 bargain in good faith with each of the Railroads over the November 2019
 Crew Consist Proposals in the manner required by the RLA”; and (2) “from
 refusing and/or failing to bargain in good faith with the multi-carrier group of
 Railroads with respect to the Railroads’ November 2019 Alternative Wage
 Proposal.” SMART-TD timely appealed, and we granted its motion to
 expedite the appeal.




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                                               II.
         A trial court’s grant of a permanent injunction 5 is reviewed for abuse
 of discretion. State v. Ysleta Del Sur Pueblo, 955 F.3d 408, 413 (5th Cir. 2020),
 as revised (Apr. 3, 2020). The district court abuses its discretion if it “(1)
 relies on clearly erroneous factual findings when deciding to grant or deny
 the permanent injunction, (2) relies on erroneous conclusions of law when
 deciding to grant or deny the permanent injunction, or (3) misapplies the
 factual or legal conclusions when fashioning its injunctive relief.” M. D. by
 Stukenberg v. Abbott, 907 F.3d 237, 248 (5th Cir. 2018). The district court’s
 order is entitled to deference, but we review de novo any questions of law
 underlying the decision. Ysleta, 955 F.3d at 413.
                                              III.
         The parties’ entitlement, and the court’s authority, to issue an
 injunction depend upon the type of dispute the court was presiding over, so
 we must first decide whether the district court properly classified the present
 dispute. We hold that it did, but that does not end the analysis. We must
 also determine if the injunction it issued was a proper remedy considering the
 type of dispute present. We hold that it was not.



         5
            There are four traditional criteria considered by the district court in deciding
 whether the movant is entitled to an injunction: (1) irreparable injury; (2) substantial
 likelihood of success on the merits; (3) a favorable balance of hardships; and (4) no
 “disserv[ice]” to the public interest. See Plains Cotton Co-op. Ass’n v. Goodpasture Comput.
 Serv., Inc., 807 F.2d 1256, 1259 (5th Cir. 1987); Enterprise Int’l, Inc. v. Corporacion Estatal
 Petrolera Ecuatoriana, 762 F.2d 464, 471 (5th Cir. 1985). “The district court’s
 determinations as to each of the elements required for a preliminary injunction are mixed
 questions of fact and law, the facts of which we leave undisturbed unless clearly
 erroneous.” Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1462 (5th
 Cir. 1990).




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        A. Classifying the dispute
        The RLA, enacted in 1926, was “an agreement worked out between
 management and labor, and ratified by the Congress and the President.”
 Chicago & N. W. Ry. Co. v. United Transp. Union, 402 U.S. 570, 576 (1971).
 The “heart” of the RLA is the duty imposed by 45 U.S.C. § 152, First upon
 management and labor
        [T]o exert every reasonable effort to make and maintain
        agreements concerning rates of pay, rules, and working
        conditions, and 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.
  Chicago & N. W. Ry. Co., 402 U.S. at 574. To effectuate peaceful dispute
 resolution, the RLA sets out a mandatory and “virtually endless” process of
 “negotiation, mediation, voluntary arbitration, and conciliation.” Burlington
 N. R.R. v. Bhd. of Maint. of Way Emps., 481 U.S. 429, 444 (1987).
        Specifically, the RLA delineates two tracks of resolution, depending
 upon whether the dispute is “major” or “minor.” Consol. Rail Corp. v. Ry.
 Labor Execs. Ass’n, 491 U.S. 299, 302–04 (1989) (“Conrail”). A dispute is
 “major” where a party seeks new agreement terms “affecting rates of pay,
 rules, or working conditions.”     45 U.S.C. § 152, Seventh; § 156. Major
 disputes “relate[] to . . . the formation of collective agreements or efforts to
 secure them.” Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945),
 adhered to on reh’g, 327 U.S. 661 (1946). Therefore, in a major dispute the
 “issue is not whether an existing agreement controls the controversy” or an
 “assertion of rights claimed to have vested in the past” but “[t]hey look to
 the acquisition of rights for the future.” Id.
        To initiate the major dispute procedures under Section 156 of the
 RLA, a party must first serve a Section 6 notice of the proposed changes. 45




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                                  No. 20-10162


 U.S.C. § 156. Within thirty days after the notice is served, the parties are
 obligated to begin “conferences.” Id. If no agreement can be reached
 voluntarily through negotiation, “[m]ajor disputes go first to mediation
 under the auspices of the National Mediation Board; if that fails, then to
 acceptance or rejection of arbitration; and finally[,] to possible presidential
 intervention to secure adjustment.”        Elgin, 325 U.S. at 725 (internal
 quotations and citations omitted). During the pendency of a major dispute,
 “the parties are obligated to maintain the status quo, and the employer may
 not implement the contested change in rates of pay, rules, or working
 conditions.” Conrail, 491 U.S. at 302–03. Finally, it is only once “this
 protracted process ends and no agreement has been reached, the parties may
 resort to the use of economic force,” such as striking. Id. at 303.
        Minor disputes, on the other hand, “contemplate[] the existence of a
 collective agreement already concluded” and “relate[] either to the meaning
 or proper application of a particular provision.” Elgin, 325 U.S. at 723. Thus,
 a proposed action creates a minor dispute “if the action is arguably justified
 by the terms of the parties’ collective-bargaining agreement. Where, in
 contrast, the employer’s claims are frivolous or obviously insubstantial, the
 dispute is major.” Conrail, 491 U.S. at 307. A party faces a “relatively light
 burden” to show that a dispute is minor, id., and “if there is any doubt as to
 whether a dispute is major or minor a court will construe the dispute to be
 minor.” Ry. Labor Execs. Ass’n v. Norfolk & W. Ry., 833 F.2d 700, 705 (7th
 Cir. 1987).
        In Section 153, the RLA provides a more streamlined process for
 minor disputes. See Elgin, 325 U.S. at 727–28. After failed negotiation, “[a]
 minor dispute . . . is subject to compulsory and binding arbitration before the
 National Railroad Adjustment Board . . . or before an adjustment board
 established by the employer and the unions representing the employees.”
 Conrail, 491 U.S. at 303–04 (citing 45 U.S.C. § 153). Striking and other self-



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 help tactics arising out of minor disputes are prohibited. Id. at 304. And, in
 a minor dispute, a party is permitted to move unilaterally on its “own
 interpretation of the agreement pending exhaustion of arbitration.” Int’l
 Bhd. of Teamsters v. Sw. Airlines, 875 F.2d 1129, 1133 (5th Cir. 1989)
 (“Teamsters”) (en banc); CSX Transp., Inc. v. United Transp. Union, 879
 F.2d 990, 997 (2d Cir. 1989) (“The status quo provisions of the RLA
 generally do not apply in minor disputes, enabling the carrier to act on its own
 interpretation pending arbitration.”).
        SMART-TD and the Railroads disagree not only about how to classify
 the dispute but are also at loggerheads about how many disputes are present.
 We agree with the Railroads that there are two interrelated, but distinct,
 disputes. The first—what we will call the “moratorium dispute”—involves
 interpreting the moratorium to determine whether the Railroads are
 permitted to propose changes in crew consist before covered employees have
 voluntarily left their employment.           The second—the “crew consist
 dispute”—is the more substantive dispute regarding how many employees
 will be required to man a train in the future. Classifying these disputes
 elucidates their differences.
        Turning first to the moratorium dispute. This dispute is minor if the
 Railroads’ interpretation―that the moratoria permitted the Section 6
 proposals on crew consist―is arguably covered by the provision, or if it is not
 fictitious or merely colorable. See St. Louis Sw. Ry. Co. v. United Transp.
 Union, 646 F.2d 230, 233 (5th Cir. Unit A May 1981) (“UTU”). The district
 court found “the Railroads have met the ‘relatively light burden’ necessary
 to show that their interpretations of the CBAs are arguably justified such that
 the instant dispute is a minor one.” We agree. The standard moratorium
 provisions specifically preclude bargaining over “pure attrition, car limits
 and train lengths, special allowance payment to reduced crew members,
 [and] employee productivity fund deposits.” The plain language of these



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  moratoria does not explicitly preclude bargaining over crew consist,
  providing―at a minimum―a non-fictitious argument that Section 6 crew
  consist proposals are permissible. 6, 7
          In fact, out of the 45 CBAs at issue, 31 contain the moratorium that
  does not specifically list “crew consist” as one of the topics that is off limits
  for bargaining. SMART-TD concedes as much but maintains that “[t]hose
  words did not have to appear because the very essence of these agreements
  [was] about crew size, as noted by the title of the articles themselves.” That
  may well be true. Regardless, SMART-TD’s argument only confirms that this
  dispute “may be conclusively resolved by interpreting the existing agreement,”
  which is “[t]he distinguishing feature of” a minor dispute. Conrail, 491 U.S. at
  305.




          6
             This court, and others, have similarly found disputes over moratoria to be minor.
  See, e.g., UTU, 646 F.2d at 233; CSX Transp., Inc. v. United Transp. Union, 395 F.3d 365,
  368 (6th Cir. 2005) (“We have previously held that a dispute over whether a moratorium
  provision can be interpreted to bar the serving of Section 6 notices is a minor dispute[.]”);
  Burlington N. Inc. v. R.R. Yardmasters of Am., No. 76 C 1750, 1976 WL 1570, at *3 (N.D. Ill.
  June 21, 1976).
          7
              Further supporting the Railroads’ interpretation is that seven of the CBAs do
  include moratorium provisions that specifically preclude negotiating crew consist. See
  supra at § I. This evidence tends to show that SMART-TD intended to protect crew
  consist in those seven moratoria, but not the others. See Flight Options, LLC v. Int’l Bhd.
  of Teamsters, Local 1108, 863 F.3d 529, 542 (6th Cir. 2017) (“A claim is ‘arguably justified’
  if any reasonable labor arbitrator, applying appropriate principles of contract
  interpretation . . . could find that the contract does justify a party’s claimed right to
  take . . . an action.”).
          Because we have found the existing moratorium arguably allows the Railroads to
  serve their Section 6 crew consist notices, this dispute is distinguishable from Atlas, which
  SMART-TD relies on, and which was “not a case about whether the existing CBA arguably
  permits” an action. Atlas Air, Inc. v. Int’l Bhd. of Teamsters, 928 F.3d 1102, 1110 (D.C. Cir.
  2019) (emphasis added).




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          Because the moratorium dispute is minor and negotiations have failed,
  it is subject to “compulsory and binding arbitration before the National
  Railroad Adjustment Board . . . or before an adjustment board established by
  the employer and the unions representing the employees.” Id. at 303–04.
  The board will conclusively determine whose interpretation of the
  moratorium prevails and, consequently, whether SMART-TD is required to
  bargain crew consist.
          Indeed, if the board finds that proposals to change crew consist are
  permitted, that dispute must be bargained because the crew consist dispute
  is major. This is because changing crew consist involves amending the
  existing CBAs. 8 Atlas, 928 F.3d at 1109 (“A dispute over the terms of a new
  or amended collective bargaining agreement is unequivocally major.”). Before
  these changes can be implemented, the parties must go through the “lengthy
  process of bargaining and mediation” imposed by Section 156 of the RLA, and
  if those procedures fail, the dispute will become subject to self-help measures.
  Conrail, 491 U.S. at 302.
          As presented, this case could involve two disputes: a minor dispute
  involving the interpretation of the moratoria and a major dispute over amending
  the CBAs to change crew consist. See UTU, 646 F.2d at 232 (finding that the
  railroad and union had “both a major and a minor dispute or a dispute having
  both major and minor aspects”). This distinction matters not only because
  it directs the disputes down different paths of resolution, but also because a
  court’s authority to issue an injunction depends, in part, upon the type of
  dispute it is presiding over.



          8
           Changing crew consist is routinely found to be a major dispute. See, e.g., Wheeling
  & Lake Erie Ry. Co. v. Bhd. of Locomotive Eng’rs & Trainmen, 789 F.3d 681, 693 (6th Cir.
  2015); Burlington N. R.R. Co. v. United Transp. Union, 862 F.2d 1266, 1274–75 (7th Cir.
  1988).




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         B. Authority to issue an injunction under the RLA
         Generally speaking, a court’s jurisdiction in a labor dispute is limited
  to preserving and enforcing the RLA’s dispute resolution procedures. There
  are only three scenarios contemplated by the RLA that could have justified
  the injunction, here.
         First, a court has authority to issue an injunction in a minor dispute,
  but only in “exceptional circumstances.” Allied Pilots Ass’n v. Am. Airlines,
  Inc., 898 F.2d 462, 465 (5th Cir. 1990); Int’l Ass’n of Machinists & Aerospace
  Workers, Airline Dist. 146 v. Frontier Airlines, Inc., 664 F.2d 538, 541 (5th Cir.
  1981) (“Frontier”). Namely, where: (1) it is “necessary to preserve the
  jurisdiction of the grievance procedure”; or (2) “a disruption of the status
  quo would result in irreparable injury of such magnitude that it would render
  any subsequent decision meaningless.” Id. (quoting Teamsters, 875 F.2d at
  1136); Frontier, 664 F.2d at 541–42.
         Second, in a major dispute, a court can issue an injunction: (1) to
  reinstate the status quo when a party improperly disrupts it; and (2) to enjoin
  a self-help measure when it is prematurely taken. Conrail, 491 U.S. at 302–
  03; United Air Lines, Inc. v. Int’l Ass’n of Machinist & Aerospace Workers, AFL-
  CIO, 243 F.3d 349, 362 (7th Cir. 2001). And, a court may do so “even without
  the traditional showing of irreparable injury to the other party.” United Air
  Lines, Inc., 243 F.3d at 362.
         Third, Section 152, First’s command “to exert every reasonable effort
  to make and maintain agreements” was “intended to be more than a mere
  statement of policy or exhortation to the parties.” Chicago & N. W. Ry. Co.,
  402 U.S. at 577. Rather, it is “a legal obligation, enforceable by whatever
  appropriate means might be developed on a case-by-case basis.” Id. One of
  those appropriate means is issuing an injunction requiring a party to bargain
  in good faith when it fails to do so. Id.




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         C. Authority to issue an injunction under the NLGA
         Further limiting a court’s authority to issue an injunction in a railway
  labor dispute is the Norris-LaGuardia Act (“NLGA”). 29 U.S.C. § 108, et
  seq. Congress enacted the NLGA in 1932 intending to “tak[e] the federal
  courts out of the labor injunction business.” Jacksonville Bulk Terminals, Inc.
  v. Int’l Longshoremen’s Ass’n, 457 U.S. 702, 712 (1982) (quoting Marine Cooks
  & Stewards v. Panama S.S. Co., 362 U.S. 365, 369 (1960)) (emphasis omitted).
  By narrowing the courts’ jurisdiction to enjoin labor disputes, Congress
  hoped to stop courts from indiscriminately awarding injunctions against
  striking employees—a practice that had become commonplace across federal
  courts. See Nat’l Woodwork Mfrs. Ass’n v. N.L.R.B., 386 U.S. 612, 620 (1967)
  (stating that “[f]ederal court injunctions freely issued against all manner of
  strikes and boycotts under rulings that condemned virtually every collective
  activity of labor as an unlawful restraint of trade”). For example, Section 8
  of the NLGA precludes injunctions except where the plaintiff has “ma[d]e
  every reasonable effort to settle such dispute either by negotiation or with the
  aid of any available governmental machinery of mediation or voluntary
  arbitration.” § 108.
         If the NLGA totally divested the courts of power to issue an
  injunction, however, the RLA’s mandates would ring hollow.                 “To
  accommodate the competing demands of the RLA and the Norris-LaGuardia
  Act, our cases establish that the Norris-LaGuardia Act does not deprive the
  federal court of jurisdiction to enjoin compliance with various mandates of
  the Railway Labor Act.” Burlington N. R.R. Co., 481 U.S. at 445 (citing
  cases). But this exception is a limited one. “[W]hen a violation of a specific
  mandate of the RLA is shown, courts should hesitate to fix upon the
  injunctive remedy . . . unless that remedy alone can effectively guard the
  plaintiff’s right.” Id. at 446.




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         D. The District Court’s Injunction
         Here, the district court enjoined SMART-TD from (1) refusing
  and/or failing to bargain in good faith with each of the Railroads over the
  November 2019 Crew Consist Proposals in the manner required by the RLA;
  and (2) from refusing and/or failing to bargain in good faith with the multi-
  carrier group of Railroads with respect to the Railroads’ November 2019
  Alternative Wage Proposal. On appeal, SMART-TD challenges only the
  first part of the injunction, so our review is limited accordingly.
         We have already established that there is a major dispute over crew
  consist and a minor dispute over the interpretation of the moratorium. We
  must next determine whether either of these disputes triggered the court’s
  authority to issue an injunction. Predictably, the parties disagree about what
  type of injunction the court issued. SMART-TD contends that the district
  court erroneously issued a status quo injunction, which is a major dispute
  remedy, in the moratorium dispute, which is minor. The Railroads insist that
  the injunction was issued under the major crew consist dispute and was
  ordered to enjoin SMART-TD’s violation of Section 152, First.
         The parties do seem to agree that the injunction was not granted as a
  minor dispute remedy. We concur, as the court made no findings that the
  injunction was either (1) necessary to preserve the jurisdiction of the
  grievance procedure; or (2) that disruption of the status quo would result in
  irreparable injury of such magnitude that it would render any subsequent
  decision meaningless. Teamsters, 875 F.2d at 1136. Without these necessary
  findings, we cannot affirm the district court’s injunction as a properly issued
  remedy in a minor dispute.
         Nor can we say that the injunction was warranted as a major dispute
  remedy. The district court concluded that the injunction “is necessary to
  preserve the status quo[,]” which, along with enjoining premature strikes, is




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  a proper ground to issue an injunction in a major dispute. Conrail, 491 U.S.
  at 302–03. The problem is that the injunction the court issued does not
  preserve the status quo. Compare with Chicago & N. W. Ry. Co. v. United
  Transp. Union, 471 F.2d 366, 368 (7th Cir. 1972). 9 During a major dispute, the
  status quo refers to “those actual, objective working conditions and practices,
  broadly conceived, which were in effect prior to the time the pending dispute
  arose and which are involved in or related to that dispute.” Detroit & Toledo
  Shore R.R. Co. v. United Transp. Union, 396 U.S. 142, 153 (1969). According to
  the Railroads, here, “the ‘status quo’ requirement prohibits the carriers from
  unilaterally changing crew consist rules to eliminate or redeploy
  conductors―and prohibits SMART-TD from striking in response to the
  carriers’ proposals―until the bargaining process is complete.” The district
  court’s injunction does neither of those things. If purported to be a major
  dispute remedy to preserve the status quo, therefore, it was improper.
  Conrail, 491 U.S. at 302–03.
          Section 152, First is the only remaining ground that may validate the
  district court’s order. When the Supreme Court first established that Section
  152, First’s duty to bargain in good faith was judicially enforceable, it



          9
           The Seventh Circuit affirmed the district court’s injunction after it found that an
  injunction was necessary to maintain the status quo
          [B]ecause a strike would (1) moot the appeal; (2) irreparably injure CNW
          and the public, because it would suspend the transportation of freight and
          passengers resulting in the loss of hundreds of thousands of dollars in
          revenue each day to CNW; (3) deprive the public of transportation,
          including 90,000 commuters daily, as well as mail, freight, etc.; (4)
          seriously impair government services, including both military and civilian
          personnel, supplies, material, etc.; (5) threaten the health and welfare of a
          whole section of the country because of a shortage of food, medicines, etc.;
          and (6) stop essential transportation services to millions of people.
  Chicago & N. W. Ry. Co., 471 F.2d at 367 n.2.




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                                     No. 20-10162


  observed “that ‘whether action taken or omitted is in good faith or
  reasonable, are everyday subjects of inquiry by courts in framing and
  enforcing their decrees.’” Chicago & N. W. Ry. Co., 402 U.S. at 579 (quoting
  Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 548 (1937)). It therefore
  found “no reason to believe that the district courts are less capable of making
  the inquiry in the one situation than in the other.” Id. This focus on a court’s
  ability to make a good faith determination in the context of a railway labor
  dispute signifies that good faith is a threshold inquiry as to whether a party
  violated Section 152, First. Cf. Ass’n of Flight Attendants, AFL-CIO v.
  Horizon Air Indus., Inc., 976 F.2d 541, 544 (9th Cir. 1992) (“Horizon”) (citing
  Chicago & N. W. Ry. Co., 402 U.S. at 579) (“Thus the Court clearly held the
  duty to ‘exert every reasonable effort’ imposed by the RLA requires at least
  ‘the avoidance of bad faith as defined’ under the NLRA.’”).
          The district court stated that it “made findings and conclusions . . . that
  SMART-TD has refused to engage in good-faith bargaining as required by the
  RLA,” but identified no factual determinations in the opinion to support such a
  conclusion. It is true that many of the conventional factors bearing on good faith
  bargaining, such as “obstinate and unyielding” or “extremely harsh” demands,
  “movement toward the position of the other side,” or engaging in “take-it-or-
  leave-it” bargaining, are inapplicable, here, where there was no bargaining at all.
  Trans Int’l Airlines, Inc. v. Int’l Bhd. of Teamsters, 650 F.2d 949, 958 (9th Cir.
  1980); Indep. Fed’n of Flight Attendants v. Trans World Airlines, Inc., 682 F. Supp.
  1003, 1026 (W.D. Mo. 1988), aff’d, 878 F.2d 254 (8th Cir. 1989); Chicago & N.
  W. Ry. Co. v. United Transp. Union, 330 F. Supp. 646, 650 (N.D. Ill. 1971). But
  also relevant to the good faith question is “the proffered reasons for regressive
  bargaining,” Chicago Local No. 458–3M v. Nat’l Labor Relations Bd., 206 F.3d
  22, 33 (D.C. Cir. 2000), and whether a “withdrawal of a proposal by an
  employer without good cause is evidence of a lack of good faith bargaining,” Mead
  Corp. v. N.L.R.B., 697 F.2d 1013, 1022 (11th Cir. 1983) (emphasis added). The




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                                          No. 20-10162


  district court did not analyze SMART-TD’s reasons for its positional bargaining
  or whether its reliance on the moratorium constituted good cause for refusing to
  negotiate. 10 Because the requisite good-faith inquiry and accompanying factual
  findings are omitted, we are unable to affirm the injunction as proper under
  Section 152, First.

          But the Railroads are not entitled to an injunction requiring SMART-
  TD to bargain crew consist for additional reasons: (1) they cannot prove that
  an injunction is the only means of enforcing Section 152, First; (2) they
  cannot prove that there is a threat of an interruption to commerce; and (3)
  they cannot overcome the NLGA’s policy against injunctions.
          First, the Supreme Court has admonished that a court should avoid
  “freewheeling judicial interference in labor relations,” and should issue an
  injunction only where it is “the only practical, effective means of enforcing
  the command of § 2 First.” Chicago & N. W. Ry. Co., 402 U.S. at 582–83.
  Issuing an injunction is one way to force SMART-TD to bargain, but it is not
  the only way. To wit, the arbitration board may conclude―in a binding
  decision―that the Railroads’ interpretation of the moratorium is correct,



          10
              Clearly, not all refusals to bargain violate the RLA. For instance, Section 152,
  First applies only to disputes “concerning rates of pay, rules, and working conditions.” If
  the Railroads had made a proposal outside of these topics, SMART-TD would have
  grounds—in good faith—to refuse to bargain. Additionally, because the RLA is not
  intended to allow for “perpetual warfare,” parties may “bind themselves against reopening
  [contract negotiations] for a period reasonable under the particular circumstances at
  issue.” Seaboard World Airlines v. Transport Workers Union of Am., AFL-CIO, 443 F.2d
  437, 439 (2d Cir. 1971) (citing, e.g., Flight Eng’s’ Int’l Ass’n v. Am. Airlines, Inc., 303 F.2d
  5, 13 (5th Cir. 1962)). Thus, a moratorium would provide another good faith ground for a
  party to refuse to negotiate. Indeed, that the Railroads did not serve the same Section 6
  notices on the seven properties with the moratoriums that explicitly include “crew
  consist” indicates that the Railroads believe SMART-TD would be justified in refusing to
  bargain on the reduction of crew size for those properties. Thus, the Railroads’ assertion
  that all refusals to bargain violate the RLA and are subject to injunction lacks merit.




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                                         No. 20-10162


  that the moratorium does not preclude bargaining over crew consist, and that
  SMART-TD is therefore required to bargain crew consist. Conrail, 491 U.S.
  at 310 n.8 (finding that arbitrators have broad authority to “fashion an
  appropriate compensatory remedy which takes account of the delay”).
  Because this alternative path to enforce Section 152, First still exists, we
  vacate and remand. Until the Railroads have exhausted the procedures set
  forth in the RLA, including arbitration, we cannot say that an injunction is
  “the only practical, effective” means of enforcing the command of Section
  152, First. Chicago & N. W. Ry. Co., 402 U.S. at 582–83.
          Second, we have found that Section 152, First applies only to actions
  that cause “interruption to commerce or to the operation of any carrier.”
  Burlington N. & Santa Fe Ry. Co. v. Bhd. of Maint. of Way Emps., 286 F.3d
  803, 807 (5th Cir. 2002) (quoting 45 U.S.C. § 152, First). For that reason,
  injunctions granted under Section 152, First have been issued almost
  exclusively to enjoin a union’s strike that would have interrupted the service
  of transportation to the public. See, e.g., Piedmont Aviation, Inc. v. Air Line
  Pilots Ass’n, Int’l, 416 F.2d 633, 637 (4th Cir. 1969). 11
          The Railroads assert that the delay in bargaining is disrupting
  industrial peace by “threaten[ing] the course of bargaining throughout the
  rail industry.”      But they make no allegation that there is a threat of
  interruption to commerce or to their operations. The RLA encourages
  negotiations because “we [] assume that negotiation, as required by the
  decree, will [] result in agreement,” and as a result, evade disruptions to the



          11
             See also Chicago & N. W. Ry. Co., 330 F. Supp. at 648–49; Aircraft Serv. Int’l Inc.
  v. Int’l Bhd. of Teamsters AFL CIO Local 117, 742 F.3d 1110, 1120 (9th Cir. 2014), on reh’g
  en banc 779 F.3d 1069 (9th Cir. 2015) (issuing injunction where “Employees are unwilling
  to even ‘go through the motions’ under the RLA; rather, they wish not to bargain but to
  strike.”); but see Horizon, 976 F.2d 541.




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                                   No. 20-10162


  industry. Virginian Ry. Co., 300 U.S. at 552. But this policy does not apply
  here, where it is not inevitable that disruptive self-help measures will ever
  become available to the parties. In other words, the district court’s order
  requires the parties to start down the major dispute bargaining process,
  where self-help measures could become available before the arbitration board
  determines such a process is necessary. In this rare circumstance, requiring
  the parties to bargain nudges the dispute closer to a strike, undermining the
  RLA’s principal goal of avoiding labor strikes. Burlington N. & Santa Fe Ry.
  Co., 286 F.3d at 807 (quoting Texas & N.O.R. Co. v. Bhd. of Ry. & S.S. Clerks,
  281 U.S. 548, 565 (1930) (“[S]trike prevention, not dispute resolution per se,
  was ‘the major purpose of Congress in passing the Railway Labor Act.’”)).
         The Supreme Court’s guidance in Conrail supports our decision.
  There, the Court rejected the idea that a minor dispute could be transformed
  into a major dispute if a party implemented the proposed change before
  arbitration. 491 U.S. at 308 (dismissing “the Union’s position [] that, while
  a dispute over the right to make the change would be a minor dispute, the
  actual making of the change transforms the controversy into a major
  dispute.”). Because the Court found the dispute “is properly deemed a
  minor dispute within the exclusive jurisdiction of the Board,” it refused to
  issue an injunction. Id. at 312. The Court recognized that “[t]he effect of
  this ruling . . . will be to delay collective bargaining in some cases until the
  arbitration process is exhausted.” Id. at 310. But it found “no inconsistency
  between that result and the policies of the RLA” because “[d]elaying the
  onset of that process until the Board determines on the merits that the
  employer’s interpretation of the agreement is incorrect will assure that the
  risks of self-help are not needlessly undertaken.” Id. at 309–10.
         So too, here.     By vacating the injunction, we defer the minor
  moratorium dispute to the exclusive jurisdiction of the board, allow it to first
  decide whether SMART-TD is required to bargain, and potentially avoid



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                                         No. 20-10162


  major dispute procedures and the availability of self-help measures all
  together. 12
          Finally, our conclusion also keeps in mind the policy of the NLGA,
  which “suggests that the 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.” Int’l Ass’n of Machinists v.
  Street, 367 U.S. 740, 773 (1961). Indeed, Section 8 of the NLGA precludes
  injunctions except where the plaintiff has “ma[d]e every reasonable effort to
  settle such dispute either by negotiation or with the aid of any available
  governmental machinery of mediation or voluntary arbitration.” 29 U.S.C. §
  108. The Railroads maintain that they complied with this provision by
  sending SMART-TD (1) “a letter offering to bargain over crew consist on a
  voluntary basis, without prejudice to either side” and (2) “a written claim, in
  which they offered to conference this matter, i.e., to try to resolve it, and
  proposed arbitration.” And, because SMART-TD failed to respond to these
  overtures, the Railroads assert they were not required to do anything further
  to comply with Section 8 of the NLGA.
          While the Railroads made valiant efforts to negotiate with SMART-
  TD, the fact remains that there is an administrative avenue provided by the
  RLA that has not been deployed: arbitration. Bhd. of R.R. Trainmen, Enter.
  Lodge, No. 27 v. Toledo, P. & W. R. R., 321 U.S. 50, 65 (1944) (“Arbitration


          12
              The Railroads contend that their right to move unilaterally in the minor
  moratorium dispute “eliminates any excuse for refusing to bargain over the pending crew
  consist Section 6 notices.” But asking the court to allow the Railroads to move unilaterally
  is a request to enforce Section 153’s minor dispute procedures. However, the Railroads
  failed to argue, and have therefore waived any argument, that such an injunction was (1)
  necessary to preserve the jurisdiction of the grievance procedure; or (2) that disruption of
  the status quo would result in irreparable injury of such magnitude that it would render any
  subsequent decision meaningless. Teamsters, 875 F.2d at 1136; Gann v. Fruehauf Corp., 52
  F.3d 1320, 1328 (5th Cir. 1995).




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                                         No. 20-10162


  under the Railway Labor Act was available, afforded a method for settlement
  Congress itself has provided, and until respondent accepted this method it
  had not made ‘every reasonable effort to settle’ the dispute, as Section 8
  requires.”). And because this unexhausted remedy remains, an injunction is
  not the only effective way to guard the Railroads’ right to bargain in good
  faith with SMART-TD. 13
                                              IV.
          The permanent injunction is VACATED. We VACATE and
  REMAND for additional proceedings consistent with this opinion. We rule



          13
             This unexhausted remedy is also what distinguishes this case from both Virginian
  Ry. Co., 300 U.S. at 552 and Horizon, 976 F.2d 541, the only cases the Railroads identity
  where a court issued an injunction under Section 152, First without an imminent threat of
  a strike. First, in Virginian Ry. Co. the Supreme Court was faced with a carrier’s refusing
  negotiation in violation of Section 152, First and of Section 152, Third’s “duties not to
  maintain a company union and not to negotiate with any representative of the employees
  other than respondent and the affirmative duty to treat with respondent.” 300 U.S. at 550.
  The newly formed union in Virginian had already sought and obtained certification by the
  National Mediation Board; thus, it, unlike the Railroads, had no procedural remedies left
  in the RLA to enforce its rights under Section 152, First and Third. Id. at 539.
           Similarly, in Horizon, the union endured two years of negotiations, including an
  intervention by the National Mediation Board, before the union sought an injunction under
  Section 152, First. 976 F.2d at 543. In contrast, the Railroads served SMART-TD with
  this lawsuit on October 25, 2019―before the new round for collective bargaining even
  began. Moreover, the district court in Horizon made specific factual findings that the
  carrier’s dilatory tactics were motivated by its bad-faith predisposition against
  unionization. Id. 546–47 (discussing the district court’s findings, including preferential
  treatment to non-unionized pilots and a handbook for supervisory employees that included
  a section on “union avoidance”); Ass’n of Flight Attendants v. Horizon Air Indus., Inc., No.
  89-465-MA, 1990 WL 300312, at *3 (D. Or. Aug. 13, 1990) (discussing statement by the
  carrier that “unlike the flight attendants, the pilots were not organized, were not in an
  adversary relationship, and were Horizon’s ‘people.’”). The district court here made no
  similar findings regarding the motivation behind SMART-TD’s refusal to bargain. For
  these reasons, Horizon does not compel a conclusion that the district court’s order was
  proper under Section 152, First.




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                                 No. 20-10162


  only on the instant permanent injunction. We place no limitation on the
  decisions that the district court may make on remand, and we intimate no
  view on the ultimate merits of any issue. Finally, we commend the district
  court for conscientiously addressing the complex issues presented by this
  case.




                                     22
