                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                      File Name: 07a0303p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                    X
                                                     -
 GRAND TRUNK WESTERN RAILROAD

                               Plaintiff-Appellee, -
 INCORPORATED,
                                                     -
                                                     -
                                                          No. 06-4548

                                                     ,
          v.                                          >
                                                     -
                                                     -
                                                     -
 BROTHERHOOD OF MAINTENANCE OF WAY

                            Defendant-Appellant, -
 EMPLOYEES DIVISION,

                                                     -
                                                     -
                                                     -
 NATIONAL MEDIATION BOARD,
                                       Intervenor. -
                                                    N
                      Appeal from the United States District Court
                      for the Northern District of Ohio at Toledo.
                     No. 06-01749—David A. Katz, District Judge.
                                     Argued: July 19, 2007
                              Decided and Filed: August 9, 2007
              Before: KENNEDY, GIBBONS, and McKEAGUE, Circuit Judges.
                                     _________________
                                          COUNSEL
ARGUED: Richard S. Edelman, O’DONNELL, SCHWARTZ AND ANDERSON, Washington,
D.C., for Appellant. Robert S. Hawkins, BUCHANAN INGERSOLL & ROONEY, Philadelphia,
Pennsylvania, for Appellee. ON BRIEF: Richard S. Edelman, O’DONNELL, SCHWARTZ AND
ANDERSON, Washington, D.C., for Appellant. Robert S. Hawkins, BUCHANAN INGERSOLL
& ROONEY, Philadelphia, Pennsylvania, for Appellee. Holly Taft Sydlow, ASSISTANT UNITED
STATES ATTORNEY, Toledo, Ohio, for Intervenor.
                                     _________________
                                         OPINION
                                     _________________
        JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Brotherhood of Maintenance
of Way Employees Division (“the Union”) appeals the district court’s grant of a preliminary
injunction to plaintiff-appellee Grand Trunk Western Railroad, Inc. (“GTW”) enjoining the Union
from exercising self-help over a dispute concerning changes to the parties’ Collective Bargaining
Agreements (“CBAs”) and enforcing the requirements of the Railway Labor Act, 45 U.S.C. §§ 151-


                                                1
No. 06-4548           Grand Trunk W.R.R. v. Bhd. of Maint.                                    Page 2
                      of Way Employees Div.


164 (“RLA”). The Union argues that the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. (“NLGA”),
deprived the district court of jurisdiction to grant an injunction to GTW because the Union alleges
that GTW has not made every reasonable effort to negotiate a new labor agreement. For the
following reasons, we affirm the decision of the district court.
                                                  I.
        On December 3, 2004, the Union, which represents employees of GTW, served notices under
section 6 of the RLA seeking changes in the CBAs between GTW and the Union. GTW and the
Union met and negotiated with each other from January 2005 to September 2005, exchanging
proposals and counter-proposals. On September 9, 2005, the Union unilaterally terminated
negotiations, announcing that “any further effort to arrange for conferences would be futile and
would . . . accomplish nothing more than further delay.” The Union did not seek mediation and
maintains that it would have had the right to strike after ten days from the termination of
negotiations if GTW had not applied for mediation. GTW expressed an interest in and willingness
for continued negotiation and applied for mediation with the National Mediation Board (“NMB”)
on September 13, 2005. The NMB accepted GTW’s application and has exercised jurisdiction over
the dispute since September 14, 2005. The parties attended mediation sessions on November 8-9,
2005, January 10-13, 2006, and March 14-16, 2006. During these sessions, the Union sought a
release from mediation. At the conclusion of the March 14-16 session, the NMB recessed the
mediation and told the parties that no additional dates would be scheduled until the parties had
reevaluated their respective positions. From March to May 2006, the Union sent numerous letters
to the NMB requesting that additional mediation dates be scheduled, however, the NMB refused
because the parties had yet to modify their positions, which it determined was necessary for
“meaningful negotiations.”
        From May to July 2006, the Union sent numerous letters to GTW, first proposing and then
demanding that GTW meet with the Union to negotiate outside of the mediation. The Union issued
an ultimatum that unless GTW agreed to negotiate outside of the mediation by July 14, 2006, the
Union would “act accordingly.” GTW forwarded the Union’s requests to the NMB and advised the
Union that it was willing to meet with the Union but that it “believe[d] it [wa]s appropriate that the
NMB be involved in setting any future meetings.” On July 17, 2006, the Union filed a complaint
against GTW in the district court alleging that GTW violated the RLA by refusing to meet outside
the mediation. On July 19, 2006, the Union conducted a strike against GTW. Following the strike,
GTW negotiated with the Union outside of the mediation on July 21-22, 2006. The NMB held
mediation sessions on August 6-7, 2006, and August 26-28, 2006. At the conclusion of the August
26-28 session, the NMB again recessed the mediation and told the parties that no additional dates
would be scheduled until the parties had “reassessed their position and [were] prepared to engage
in productive negotiations.” On August 29, 2006, the Union again demanded that GTW negotiate
outside the mediation, promising not to renew its strike against GTW if GTW would do so. GTW
reiterated its willingness to participate in mediation but refused to schedule direct negotiations
outside of the mediation.
        GTW sought a preliminary injunction against the Union, preventing it from exercising self-
help over the dispute while the parties were in mediation with the NMB. The district court granted
the injunction, concluding that a strike by the Union during the mediation would violate the RLA
and that GTW’s refusal to negotiate outside of the mediation while the mediation was recessed did
not violate its obligation to make “every reasonable effort” to settle the dispute.
No. 06-4548           Grand Trunk W.R.R. v. Bhd. of Maint.                                          Page 3
                      of Way Employees Div.


                                                  II.
         The Union’s sole argument on appeal is that the district court lacked jurisdiction to enter the
preliminary injunction because GTW failed to satisfy the requirements of section 8 of the NLGA
by refusing to negotiate outside of the mediation. The NLGA withdraws jurisdiction from the
federal courts to issue an injunction in a case involving or growing out of a labor dispute, except in
strict conformity with the provisions of the NLGA. 29 U.S.C. § 101. The court “review[s] de novo
the existence of subject matter jurisdiction as a question of law; factual determinations regarding
jurisdictional issues are reviewed for clear error.” Wright v. Gen. Motors Corp., 262 F.3d 610, 613
(6th Cir. 2001) (internal quotation marks omitted); see also Westmoreland Coal Co. v. Int’l Union,
United Mine Workers, 910 F.2d 130, 135 (4th Cir. 1990) (reviewing jurisdiction under the NLGA
de novo).
       Section 8 of the NLGA states:
       No restraining order or injunctive relief shall be granted to any complainant who has
       failed to comply with any obligation imposed by law which is involved in the labor
       dispute in question, or who has failed to make every reasonable effort to settle such
       dispute either by negotiation or with the aid of any available governmental
       machinery or mediation or voluntary arbitration.
29 U.S.C. § 108. The Union argues that GTW’s conduct fails to satisfy section 8 for two reasons:
(1) it constitutes a failure to comply with an obligation imposed by law because it violates section
2, First and Second, of the RLA, 45 U.S.C. § 152, subd. 1 & 2, and (2) it constitutes a failure to
make “every reasonable effort” to settle the dispute. Section 2, First and Second, of the RLA states:
       First. Duty of carriers and employees to settle disputes
       It shall be the duty of all carriers, their officers, agents, and employees to exert every
       reasonable effort . . . to settle all disputes . . . .
       Second. Consideration of disputes by representatives
       All disputes between a carrier or carriers and its or their employees shall be
       considered, and, if possible, decided, with all expedition, in conference between
       representatives designated and authorized so to confer, respectively, by the carrier
       or carriers and by the employees thereof interested in the dispute.
45 U.S.C. § 152, subd. 1 & 2 (emphasis added). The statute requires “the employer to meet and
confer with the authorized representative of its employees, to listen to their complaints, to make
reasonable effort to compose differences—in short, to enter into a negotiation for the settlement of
labor disputes such as is contemplated by section 2, First.” Bhd. of Ry. & S.S. Clerks v. Ass’n for
the Benefit of Non-Contract Employees, 380 U.S. 650, 658 (1965) (quoting Virginian Ry. Co. v. Sys.
Fed’n No. 40, 300 U.S. 515, 548 (1937)); see also Rutland Ry. Corp. v. Bhd. of Locomotive Eng’rs,
307 F.2d 21, 40 (2d Cir. 1962) (concluding that, to the extent the second subdivision imposed a duty
to confer different from the duty to negotiate, the duty to negotiate subsumed the duty to confer).
Section 8 of the NLGA imposes “almost identical” requirements on a party seeking an injunction.
Local 553, Transp. Workers Union v. E. Air Lines, Inc., 695 F.2d 668, 679 (2d Cir. 1982). A party
seeking an injunction is required “to make every reasonable effort to settle such dispute either by
negotiation or with the aid of any available governmental machinery or mediation or voluntary
arbitration.” 29 U.S.C. § 108 (emphasis added). The statute requires a party to “make all reasonable
effort, at the least by the methods specified if they are available, though none may involve
complying with any legal duty.” Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, Peoria &
W.R.R., 321 U.S. 50, 57 (1944). The methods specified must be exhausted “not singly or
No. 06-4548          Grand Trunk W.R.R. v. Bhd. of Maint.                                    Page 4
                     of Way Employees Div.


alternatively, but conjunctively or successively, when available.” Id. at 58. Therefore, the court
need not analyze the requirements of the RLA and the NLGA separately; if GTW has made “every
reasonable effort,” it will have satisfied the requirements of both statutes.
         As there are no factual disputes regarding what efforts GTW has made to settle the dispute,
it is solely a legal question whether those efforts constitute “every reasonable effort.” The Union
frequently asserts, without any support, that GTW has failed to make “every reasonable effort” by
refusing to negotiate outside of the mediation. In fact, the evidence shows that direct negotiation
between the Union and GTW outside of the mediation is not a “reasonable effort” that GTW is
required to undertake at this time. GTW has twice engaged in direct negotiations with the Union.
Immediately after the Union requested changes to the CBAs, GTW and the Union met and
negotiated for nine months before the Union unilaterally terminated negotiations and declared them
“futile.” Despite a desire to continue negotiations at that time, GTW was forced to request
mediation to prevent a possible strike by the Union. Mediation proved no more successful at
resolving the dispute, as the Union sought to be released from mediation, and the NMB concluded
that negotiations would not be meaningful until the parties modified their positions. After the
Union’s strike, and despite a lack of any change in the positions of the parties, GTW again
negotiated directly and engaged in mediation with the Union, arriving at the same result. The
negotiations were unsuccessful in resolving the dispute, and the NMB concluded that negotiations
would not be productive until the parties modified their positions. As the positions of the parties
remain unchanged, it would not be reasonable to require GTW to engage in a third round of direct
negotiations that are unlikely to succeed where two previous rounds of direct negotiation and
mediation have failed. See Bhd. of Maint. of Way Employees v. Union Pac. R. Co., 358 F.3d 453,
458 (7th Cir. 2004) (“[T]he law requires that a party make every reasonable effort, not every
conceivable one.”). Therefore, GTW has satisfied any requirements imposed by section 8 of the
NLGA, and the district court had jurisdiction to enter the preliminary injunction.
                                                III.
       For the foregoing reasons, we affirm the district court’s decision.
