           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 13, 2009

                                     No. 08-11149                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



BNSF RAILWAY COMPANY

                                                   Plaintiff-Appellee

BROTHERHOOD OF LOCOMOTIVE ENGINEERS & TRAINMEN

                                                   Intervenor
v.

UNITED TRANSPORTATION UNION

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:07-CV-274


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
       United Transportation Union (“UTU”) appeals from the district court’s
grant of summary judgment in favor of BNSF Railway Co. (“BNSF”). For the
reasons set forth below, we affirm.
                           FACTS AND PROCEEDINGS


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-11149

      This dispute arises out of contracts entered into by BNSF with two unions.
The material facts are not in dispute. BNSF is an interstate railroad carrier.
As part of its operations, BNSF employs engineers and ground-service personnel.
UTU is the exclusive bargaining representative for BNSF ground-service
employees while BNSF engineers are represented by the Brotherhood of
Locomotive Engineers and Trainmen (“BLET”).           In 2002 and 2007, BNSF
entered into collective bargaining agreements with UTU and BLET, respectively.
All the parties disagree as to the proper interpretation and scope of these
agreements, disputing which union’s members have the right to perform certain
work for BNSF.
      In 2007, UTU filed suit against BNSF claiming that the 2007 contract with
BLET infringed upon UTU-represented employees’ rights to perform duties for
BNSF and unilaterally altered the 2002 agreement with UTU in violation of the
Railway Labor Act (“RLA”), 45 U.S.C. § 151. BLET intervened, asserting its
rights under the 2007 contract and seeking to enjoin UTU from interfering with
that agreement. All parties moved for summary judgment. The district court
agreed with BNSF that the case could be resolved by interpreting the two
existing agreements and, as a result, involved a “minor dispute,” making the
case subject to mandatory arbitration under the RLA. Accordingly, the district
court granted summary judgment in favor of BNSF. UTU appeals. BLET
intervenes to clarify its position with respect to its agreement with BNSF.
                          STANDARD OF REVIEW
      A district court’s grant of summary judgment is reviewed de novo. See
Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005).
Summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” F ED. R. C IV. P. 56(c). Questions of whether a dispute is “minor” or “major”

                                        2
                                 No. 08-11149

under the RLA are legal in nature and therefore subject to de novo review. See,
e.g., Gen. Comm. of Adjustment, United Transp. Union, W. Md. Ry. Co. v. CSX
R.R. Corp., 893 F.2d 584, 589 (3rd Cir. 1990); Int’l Ass’n. of Machinists, Dist.
Lodge No. 19 v. Soo Line R.R. Co., 850 F.2d 368, 374 (8th Cir. 1988) (en banc);
Bhd. of Locomotive Eng’rs v. Burlington N. R.R. Co., 838 F.2d 1087, 1089 (9th
Cir. 1988).
                                DISCUSSION
        The RLA was enacted “to provide a machinery to prevent strikes.” Texas
& N.O.R. Co. v. Bhd. of Ry. & S.S. Clerks, 281 U.S. 548, 565 (1930) (quotation
marks omitted). Under the act, there a “two distinct procedures to promote the
resolution of labor disputes.” Bhd. of Ry. Carmen v. Atchison, Topeka & Santa
Fe Ry. Co., 894 F.2d 1463, 1466 (5th Cir. 1990). “Major” disputes deal with “the
formation of collective agreements or efforts to secure them. They arise where
there is no such agreement or where it is sought to change the terms of one, and
therefore the issue is not whether an existing agreement controls the
controversy.” Elgin, J.& E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945). By
contrast, a dispute is “minor” if it “contemplates the existence of a collective
agreement already concluded or, at any rate, a situation in which no effort is
made to bring about a formal change in terms or to create a new one. The
dispute relates either to the meaning or proper application of a particular
provision.” Id. In essence, “major disputes seek to create contractual rights,
minor disputes to enforce them.”       Consolidated Rail Corp. v. Ry. Labor
Executives’ Assn., 491 U.S. 299, 302 (1989). If a dispute is major, the RLA has
left “settlement entirely to the processes of noncompulsory adjustment.” Burley,
325 U.S. at 724.     A minor dispute is “subject to compulsory and binding
arbitration before the National Railroad Adjustment Board” which has
“exclusive jurisdiction over minor disputes.” Bhd. of Ry. Carmen, 894 F.2d at
1467.

                                       3
                                  No. 08-11149

      UTU asserts that the 2002 agreement with BNSF gave ground-service
employees the exclusive right to perform certain duties which BNSF unilaterally
attempted to change through its 2007 contract with BLET, delegating the right
to perform some of these same duties to the engineers’ union. Because UTU
interprets the 2007 contract as an attempt to change an existing collective
bargaining agreement, it asserts that this is a “major” dispute. BNSF and BLET
offer alternate interpretations of the two contracts and both assert that the
dispute is “minor.”   Both BNSF and BLET argue that the 2002 and 2007
contracts assigned to each union the duties traditionally performed by its
members.
      UTU’s arguments are without merit. The Supreme Court has noted that
“[i]f the disputed action of one of the parties can ‘arguably’ be justified by the
existing agreement or . . . if the contention that the labor contract sanctions the
disputed action is not ‘obviously insubstantial’, the controversy is a minor
dispute.” Consolidated Rail Corp., 491 U.S. at 306–307 (quotation and
alterations omitted).     Thus, we cannot ignore the alternate, credible
interpretation of the contracts offered by BNSF and BLET. Furthermore, UTU,
BNSF, and BLET disagree as to the proper scope of their collective bargaining
agreements. There is no dispute that these agreements exist and create certain
contractual rights. The parties simply disagree as to the scope of these rights
and UTU’s suit is an attempt to enforce its rights under the 2002 contract. This
is the classic “minor” dispute and “within the exclusive province of the National
Railroad Adjustment Board.” Id. (quotation omitted).
                                CONCLUSION
      The judgment of the district court is AFFIRMED.




                                        4
