                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 05a0029p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                     X
                                                      -
 CSX TRANSPORTATION, INC.; CONSOLIDATED RAIL

                             Plaintiffs-Appellants, -
 CORPORATION,
                                                      -
                                                      -
                                                          No. 03-4345

                                                      ,
          v.                                           >
                                                      -
                                                      -
                                                      -
 UNITED TRANSPORTATION UNION; GENERAL

                            Defendants-Appellees. -
 COMMITTEES OF ADJUSTMENT,

                                                      -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
              No. 02-02394—Kathleen McDonald O’Malley, District Judge.
                                    Argued: October 29, 2004
                              Decided and Filed: January 19, 2005
                      Before: KEITH, CLAY, and COOK, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Ronald M. Johnson, AKIN, GUMP, STRAUSS, HAUER & FELD, Washington, D.C.,
for Appellants. Clinton J. Miller, III, OFFICE OF GENERAL COUNSEL, UNITED
TRANSPORTATION UNION, Cleveland, Ohio, for Appellees. ON BRIEF: Ronald M. Johnson,
AKIN, GUMP, STRAUSS, HAUER & FELD, Washington, D.C., John B. Lewis, BAKER &
HOSTETLER, Cleveland, Ohio, for Appellants. Clinton J. Miller, III, Kevin C. Brodar, OFFICE
OF GENERAL COUNSEL, UNITED TRANSPORTATION UNION, Cleveland, Ohio, for
Appellees.
        KEITH, J., delivered the opinion of the court, in which COOK, J., joined. CLAY, J. (pp. 6-
8), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
        DAMON J. KEITH, Circuit Judge. This case centers around a labor dispute between
Plaintiffs CSX Transportation, Inc., and Consolidated Rail Corporation (“CSX and Conrail”) and
Defendants United Transportation Union, et al. (“UTU”). At issue is whether the district court erred
in determining that the dispute, which is over the substantive scope of a national moratorium on
contractual negotiations between the parties, is a “major” dispute under the terms of the Railroad

                                                 1
No. 03-4345              CSX Transportation, Inc., et al. v. United                                         Page 2
                         Transportation Union, et al.


Labor Act (“RLA”). 45 U.S.C. § 151. Upon our review of the law and the record, we believe this
matter is a “minor” dispute and must be resolved via the arbitration procedures set forth for
resolving such disputes in the RLA. Id. §153. We therefore REVERSE the district court’s
determination.
                                                I. Background
A. The Railway Labor Act
        The RLA provides mandatory procedures for resolving disagreements between railroad
companies and the unions representing their employees. 45 U.S.C. § 151(a). Under the RLA, a
dispute must first be classified as either “major” or “minor” and will then be resolved in accordance
with procedures set for that classification. A dispute is considered “major” if the parties are
changing terms of an existing collective bargaining agreement and is considered “minor” if it is1
merely a dispute over the application or interpretation of provisions in existing agreements.
Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 302 (1989) (“Conrail”) (citing
Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 723 (1945)). In a major dispute, the party who wishes
to amend a bargaining agreement must serve the other party notice of an intended change. This is
known as a “Section 6 notice.” 45 U.S.C. § 156. If the parties are unable to reach an agreement
after negotiation, either may seek mediation with the National Mediation Board (“NMB”). Id.
§ 155. Should that mediation fail, a Presidential Emergency Board may be appointed. Id. §160.
Throughout the entire process, the existing agreement remains intact. Detroit & Toledo Shore Line
R.R. v. United Transp. Union, 396 U.S. 142, 150 (1969).
       Unlike major disputes, the RLA mandates that minor disputes be handled in the company’s
or union’s typical manner for handling claims and grievances that occur on railroad property. 45
U.S.C. § 153 First (I). If the grievance cannot be settled through those means, either party can
remove the case to binding arbitration before the National Railroad Adjustment Board (“NRAB”)
or another agreed-upon arbitration board. Conrail, 491 U.S. at 303-04.
B. Facts
        Plaintiffs CSX and Conrail are two large unionized railroad companies. The train operators
and support staff that they locally employ are represented by Defendants UTU. The dispute between
the parties began when CSX and Conrail issued a notice of their    intent to begin using “push cars”
on their Northern District railway lines on March 21, 2002.2 In response, UTU served Section 6
notices requesting, among other things, to bargain about the use of push cars to CSX and Conrail
in March 2002. The Section 6 notices requested that the parties establish a rule concerning the
construction, use, equipment and safety rules for “push cars,” and amend the current crew policy to
include more employee-friendly and safety benefits. On April 2, 2002, CSX and Conrail responded
by suggesting that the issues be handled in the forthcoming national bargaining discussions, which
were scheduled to be held in August of 2002. UTU declined the offer. On May 6 and July 20, 2002,
the parties met to discuss the issues but did not reach an agreement. At the July meeting they
collectively scheduled their next discussion for September 24, 2002, just over one month after a
planned bargaining meeting between the national representatives of the union and various railroads.

        1
          Examples of “minor” disputes are disagreements over meal allowances, Bhd. of Maint. of Way Employees v.
Burlington N. Santa Fe R.R., 270 F.3d 637 (8th Cir. 2001), or travel expenses, Bhd. of Maint. of Way Employees v.
Atchison, Topeka, & Santa Fe Ry. Co., 138 F.3d 635 (7th Cir. 1997).
        2
         “Push cars” are specialized rail cars that provide a place for train workers to stand when a train without a
caboose moves in reverse. Each car is equipped with handrails and platforms on which train workers stand.
No. 03-4345           CSX Transportation, Inc., et al. v. United                                 Page 3
                      Transportation Union, et al.


       At that meeting, held in August 2002, the numerous railroads represented by the National
Carriers’ Conference Committee, including CSX and Conrail, and the national leadership of UTU
entered into a national bargaining agreement on employee compensation and benefits. The
agreement contained a moratorium provision that precluded either party from seeking to change any
part of the agreement, and explicitly prohibited the filing of any Section 6 notices prior to
November 1, 2004. It also dismissed or settled all existing Section 6 notices “dated on or subsequent
to November 1, 1999.”
        Because the push car issue was born of a Section 6 notice, CSX and Conrail subsequently
notified UTU in writing that the moratorium barred any further discussion, despite the fact that the
issue had not been discussed at the national meeting. The letter stated that if UTU disagreed with
this position, the matter could then be set for handling in arbitration pursuant to Section 3 of the
RLA, i.e., as a “minor” dispute. UTU disagreed with CSX and Conrail’s interpretation of the
moratorium and maintained that, because the push car issue and other issues that were related to
their March Section 6 notice were not discussed during the August 2002 proceedings, the
moratorium did not apply.
        CSX and Conrail filed a complaint in the United States District Court for the Northern
District of Ohio, seeking a declaratory judgment that the parties’ dispute over the interpretation of
the moratorium provision was a “minor” issue under the RLA and could thus be worked out in
arbitration proceedings before the National Railroad Adjustment Board (“NRAB”). In granting
summary judgment for UTU, the district court held that dispute over whether the moratorium
provision did not bar the progression of the mediation over the Section 6 notices was a major
dispute. As such, the court concluded that a dispute should be resolved via the negotiation and
mediation procedures required for major disputes under the RLA. The district court denied CSX
and Conrail’s motion for reconsideration and CSX and Conrail filed this timely appeal.
                                             II. Analysis
       This court reviews the district court’s grant of summary judgment de novo. Airline Prof’ls.
Ass’n of the Int’l Bhd. of Teamsters, Local Union No. 1224 v. ABX Air, Inc., 274 F.3d 1023, 1029-
1030 (6th Cir. 2001) (citations omitted). We also review de novo the district court’s legal
determination of whether a dispute is classified as minor or major under the RLA. Gen. Comm. of
Adjustment, United Transp. Union, W. Md. Ry. Co. v. CSX R.R. Corp., 893 F.2d 584, 589 (3d Cir.
1990).
        Our case law dictates that if CSX and Conrail’s interpretation that the moratorium provision
should apply to the Section 6 notices at issue is arguably justified, then the issue should be resolved
under the RLA’s procedures for minor disputes. 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 within the exclusive jurisdiction of an arbitrator. Int’l Longshoremen’s Ass’n, Local 158 v.
Toledo Lakefront Dock & Pellet Co., 776 F.2d 1341, 1344 (6th Cir. 1985) (finding that a docking
company’s interpretation of a moratorium to be arguably justified and therefore a minor issue).
        Applying the classification test here, established by the United States Supreme Court in
Conrail, leads us to the same conclusion. Under the Conrail test, a labor dispute is classified as
minor when a party’s assertion that its proposed action is permitted by the collective bargaining
agreement is “arguably justified” by the terms of the agreement. Conrail, 491 U.S. at 307; see also
United Transp. Union v. Cuyahoga Valley Ry. Co., 979 F.2d 431, 434 (6th Cir. 1992) (finding that
“[w]hen it is unclear whether a dispute is [minor or major], the dispute should be characterized as
minor if the [party’s] actions are ‘arguably justified by the terms of the parties’ collective-bargaining
agreement”). But if, in an effort to justify its action, the party presents an “obviously insubstantial,”
No. 03-4345           CSX Transportation, Inc., et al. v. United                              Page 4
                      Transportation Union, et al.


or “frivolous,” interpretation of the agreement, then the agreement will need to be amended in order
for the party’s proposed action to proceed. In such an instance, the dispute will be classified as
major and the parties will enter into mediated discussions on amending the agreement as provided
for under the RLA. Conrail, 491 U.S. at 303-04. The moving party carries a “relatively light
burden” in establishing that its interpretation is arguably justified by the terms of the agreement.
Id. at 307.
        The facts of this case indicate that CSX and Conrail’s argument that the moratorium should
prohibit further negotiations on UTU’s March 2002 Section 6 notices may not be strong, but it is
arguably justified by the terms of the August 2002 national agreement. Significantly, the plain
language of the August 2002 National Bargaining Agreement supports CSX and Conrail’s claim.
Section 2(a) of Article X expressly indicates that a purpose of the 2002 National Agreement is to
settle any Section 6 notices dated on or subsequent to November 1, 1999:
       (a) The purpose of [the 2002] Agreement is to fix the general level of compensation
       during the period of the Agreement and is in settlement of the dispute growing out
       of the notices dated November 1, 1999[,] served by and on behalf of the carriers ...
       upon the organization signatory hereto, and the notices dated on or subsequent to
       November 1, 1999[,] served by the [unions] upon such carriers.
       UTU’s March 2002 Section 6 notices were dated “subsequent to November 1, 1999,” and
they were undisputedly served by the union (UTU) on the carriers (CSX and Conrail). Accordingly,
Section 2(a) arguably settles the March 2002 Section 6 notices.
        Further, Section 2(c) of Article X can arguably be interpreted to halt any mediation between
UTU and CSX and Conrail over any outstanding Section 6 notices. It specifically can be read to
indicate that discussions surrounding the March 2002 Section 6 notices should not progress and are
to be considered “withdrawn” upon the enactment of the new collective bargaining agreement:
       (c) The parties to this Agreement shall not serve nor progress prior to November 1,
       2004 .... any notice or proposal for changing any matter ...
               (3) ... any pending notices which propose such matters are hereby withdrawn,
               except as otherwise provided in Article IV of this Agreement.
        Lastly, UTU points to no language in the August 2002 national agreement, or discussions
preceding the agreement, that reflect any intent to exclude their March 2002 Section 6 notices. UTU
did not identify any language in the August 2002 agreement that indicated that the moratorium
covered only Section 6 notices pursuant to national issues and procedures. There also is no language
in the August 2002 agreement that limits the scope of the moratorium to national Section 6 notices
or issues. None of UTU’s arguments rested on the contract language written by the parties.
        This reasoning, however, does not mean that UTU’s arguments are without merit. We
emphasize that we do not, as the dissent claims, “accepts Plaintiffs’ claim that the ‘push car’
announcement and Defendant’s resulting section 6 notices fall under the national moratorium
provision.” Dissent at 6. In fact, we believe that their argument that the moratorium should not be
read to halt their ongoing discussion of the push car issue is supported by the record. The RLA,
however, requires us to defer all disputes over interpretations of a collective bargaining agreement
that are not “frivolous” or “obviously insubstantial” to arbitration. Conrail, 491 U.S. at 303. We
find that CSX and Conrail’s claim that the moratorium applies to bar discussion of the March 2002
Section 6 notices is arguably justified under the terms of the August 2002 collective bargaining
agreement. As such, the district court exceeded its jurisdiction in evaluating their interpretation of
No. 03-4345           CSX Transportation, Inc., et al. v. United                               Page 5
                      Transportation Union, et al.


the moratorium provision. The dispute over the scope of the moratorium should therefore be
resolved under the arbitration procedures established by the RLA.
                                          CONCLUSION
        Based on the foregoing reasoning, we REVERSE the district court’s decision and REMAND
this case for the district court to issue a declaratory judgment that the moratorium dispute is a minor
dispute subject to binding arbitration.
No. 03-4345               CSX Transportation, Inc., et al. v. United                                             Page 6
                          Transportation Union, et al.


                                               _________________
                                                   DISSENT
                                               _________________
        CLAY, Circuit Judge, dissenting. Despite ambiguity in the language of the national
agreement’s moratorium provision, and evidence demonstrating that the dispute between the parties
centers around Plaintiffs’ attempt to create “a unilateral change in working conditions,” Brotherhood
Railway Carmen v. Norfolk and Western Railway Co., 745 F.2d 370, 375 (6th Cir. 1984), the
majority labels the dispute as “minor.” With little or no examination of the language in the national
agreement, the circumstances surrounding the dispute, or the prior dealings between the parties, the
Court accepts Plaintiffs’ claim that the “push car” announcement and Defendant’s resulting section
6 notices fall under the national moratorium provision. Plaintiffs may have a relatively light burden
in demonstrating that their construction is ‘arguably justified,’ however a light burden is not the
same as no burden at all. Because I agree with the district court’s determination that the dispute is
a “major” one, I respectfully dissent.
        A “major” dispute “look[s] to the acquisition of rights for the future, not to assertion of rights
claimed to have vested in the past.” Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723, 65 S. Ct.
1282, 86 L. Ed. 1886 (1945). Conversely, the “distinguishing feature” of a minor dispute “is that
the dispute may be conclusively resolved by interpreting the existing agreement.” Consol. Rail
Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 305, 109 S. Ct. 2477, 105 L. Ed. 2d 250 (1989).
The majority quotes from Article X, section 2(a) of the national collective bargaining agreement
(“CBA”), focusing on the “subsequent to November 1, 1999” clause. Yet, section 2(a) begins by
stating that “[t]he purpose this Agreement is to fix the general level of compensation.” (emphasis
added). Nothing in section 2(a) or any other provision refers to push cars, cabooses or crew consist
in Plaintiffs CSX and Conrail’s Northern District. Moreover, Article X, section 2(c), which the
Court alleges can be arguably interpreted to    halt any mediation over the push car issues, does
nothing to conclusively resolve the dispute.1
        The national CBA is a general agreement between Defendant UTU and the National
Carriers’ Conference Committee on behalf of numerous railway carriers around the country. In the
context of the RLA, we have previously noted that “[b]ecause collective bargaining agreements are
meant to be ‘generalized code[s] to govern a myriad of cases which the draftsmen cannot wholly
anticipate,’ the parties’ prior ‘practice, usage and custom’ is relevant in determining the rights of the
parties under the agreement.” Airline Prof’ls Ass’n v. ABX Air, Inc., 274 F.3d 1023, 1028 (6th Cir.
2001) (quoting Conrail, 491 U.S. at 311-12, 109 S. Ct. 2477). Defendant produced evidence that
the parties have never negotiated crew consist or other local issues specific to individual carriers at
the national level. See, generally, Bhd. of R.R. Trainmen v. Atlantic Coast Line R.R., 383 F.2d 225,


         1
          The full text of section 2(c) reads:
         (c) The parties to this Agreement shall not serve nor progress prior to November 1, 2004 (not to become
              effective before January 1, 2005) any notice or proposal for changing any matter contained in:
               (1)    This Agreement,
               (2)    the proposals of the parties identified in Section 2(a) of this Article, and
               (3)    Section 2(c) of Article XV of the Agreement of January 27, 1972, and any pending notices which
                      propose such matters are hereby withdrawn, except as otherwise provided in Article IV of this
                      Agreement.
         If anything, this language undercuts Plaintiffs’ construction of the national moratorium by singling out specific
matters which may not be the subject of section 6 notices during the moratorium period, and which do not include the
issues addressed in Defendant’s March 2002 section 6 notices.
No. 03-4345               CSX Transportation, Inc., et al. v. United                                            Page 7
                          Transportation Union, et al.


229 (D.C. Cir. 1967) (“It cannot be disputed that although the [union] and the carriers have
occasionally discussed crew consist problems on a national scale, there has never been a national
crew consist rule . . . The thousands of existing crew consist agreements have been negotiated at the
local level.”) Defendant also introduced evidence that every other major railroad carrier in the
country has its own locally handled agreement with the UTU dealing with these issues, and each
local CBA has its own moratorium provision. Not only had these issues not been bargained for at
the national level, the parties here had “no such agreement” at the local level. Burley, 325 U.S. at
723, 65 S. Ct. 1282. In light of the parties prior ‘practice, usage and custom,’ Plaintiffs’ argument
that the national moratorium encompasses the local issues specific to the Northern District raised
in Defendant’s March 2002 section 6 notices is “obviously insubstantial” or “frivolous.”
       There are additional problems with the Court’s analysis. The majority cites to this Court’s
opinion in International Longshoremen’s Association v. Toledo Lakefront Dock & Pellet Co., 776
F.2d 1341, 1344 (6th Cir. 1985), for the decisive proposition that disputes over whether a
moratorium provision can be interpreted to bar the serving of Section 6 notices are minor disputes.
However, International Longshoremen’s does not stand for such a broad proposition, and this Court
has never held that a disagreement over the application of a moratorium provision is automatically
a minor dispute. Rather, in International Longshoremen’s, the Court held that certain negotiations
over manning were barred by a national moratorium provision, because the manning issue was
addressed in the national CBA:
                We agree that Toledo Lakefront’s claim that negotiations concerning
         manning are barred by the moratorium provision of the Miami Agreement is
         arguably correct and the dispute, therefore, is a minor one. Section 10 of the Miami
         Agreement specifically addresses the possibility that changes in manning may be
         necessary due to the technological and operational changes.
International Longshoremen’s, 776 F.2d at 1344 (emphasis added). An inference could be drawn
from International Longshoreman’s that where certain issues are not even implicitly addressed by
an agreement, the agreement’s moratorium provision does not bar negotiations on those issues. That
reasoning is also consistent with Conrail, in which the Supreme Court held that a prior agreement
governing physical examinations, and providing for urinalysis to check for disease, could arguably
encompass the carrier’s subsequent decision to implement mandatory drug testing. Conrail, 491
U.S. 299, 109 S. Ct. 2477. In addition, the district court correctly found that in each of the cases
cited by Plaintiffs in support of their argument that disputes over the scope of a moratorium
provision are automatically “minor,” either the subject matter of the CBA2and the section 6 notices
were arguably the same, or the moratorium explicitly barred the notices.
        The dispute between the parties arises out of Plaintiffs’ announcement in March 2002 that
they intended to institute “push cars” in their Northern District. The resulting section 6 notices
served by Defendant were in direct response to Plaintiffs’ announcement, and involved issues never
discussed in the context of the national CBA. This is not a situation where Defendant’s “claim is
to rights accrued,” but rather, a situation where Defendant seeks to secure new rights relating to
previously unbargained-for issues. Burley, 325 U.S. at 723, 65 S. Ct. 1282. “[M]ajor disputes seek
to create contractual rights, and minor disputes seek to enforce them.” Conrail, 491 U.S. at 302, 109
S. Ct. 2477. Because the majority reaches a contrary conclusion, I respectfully dissent.

         2
          See, e.g., Bhd. of Locomotive Eng’rs v. Portland Terminal R.R. Co., 860 F.2d 1088 (9th Cir. 1988)
(unpublished decision); St. Louis S.W. Ry. Co. v. United Transp. Union, 646 F.2d 230 (5th Cir. 1981); Flight Eng’rs Int’l
Ass’n v. American Airlines, Inc., 303 F.2d 5 (5th Cir. 1962); Burlington N., Inc. v. R.R. Yardmasters of America, Nos.
76 C 1750, 1869 & 1937, 1976 WL 1570 (N.D. Ill. June 21, 1976); Southern Pacific Transp. Co. v. Bhd. of Ry., Airline
and Steamship Clerks, No. C-75-2187 SW, 1975 WL 1246 (N.D. Cal. Dec. 18, 1975).
