                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 BROTHERHOOD OF                                 Nos. 15-56556
 MAINTENANCE OF WAY                                  16-55070
 EMPLOYES DIVISION/IBT,
         Plaintiff-Appellant,                    D.C. No.
                                          2:15-cv-05091-PA-PJW
                  v.

 BNSF RAILWAY, INC.,                               OPINION
        Defendant-Appellee.


         Appeal from the United States District Court
            for the Central District of California
          Percy Anderson, District Judge, Presiding

              Argued and Submitted May 2, 2016
                    Pasadena, California

                       Filed August 24, 2016

  Before: MILAN D. SMITH, JR. and JACQUELINE H.
  NGUYEN, Circuit Judges, and CLAUDIA WILKEN,*
                Senior District Judge.

             Opinion by Judge Milan D. Smith, Jr.


  *
    The Honorable Claudia Wilken, Senior United States District Judge for
the Northern District of California, sitting by designation.
2              BHD. OF MAINT. OF WAY V. BNSF

                           SUMMARY**


                             Labor Law

    The panel affirmed the district court’s judgment in favor
of an employer on a union’s claim that the employer violated
the Railway Labor Act by retaliating against an employee
who attempted to file grievances.

    The panel concluded that the district court’s subsequent
entry of final judgment mooted the question of the propriety
of a preliminary injunction against a strike.

    The panel held that the parties’ dispute was “minor,” and
therefore subject to mandatory arbitration, because the
employer asserted a contractual right to take the contested
action of disciplining the employee, and the action was
arguably justified by the parties’ collective bargaining
agreement. The panel rejected the union’s argument that the
distinction between major and minor disputes did not apply
because the dispute was not a dispute over enforcement of the
collective bargaining agreement, but rather concerned
whether the employer’s alleged retaliation undermined the
purpose of the Railway Labor Act and the grievance process.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              BHD. OF MAINT. OF WAY V. BNSF                        3

                           COUNSEL

Richard S. Edelman (argued) and Matthew D. Watts,
Mooney, Green, Saindon, Murphy & Welch, P.C.,
Washington, D.C., for Plaintiff-Appellant.

David M. Pryor (argued) and Andrea L. Hyatt, BNSF
Railway Company, Forth Worth, Texas; Donald J. Munro,
Jones Day, Washington, D.C.; for Defendant-Appellee.


                            OPINION

M. SMITH, Circuit Judge:

    In this appeal, we decide whether the test for
distinguishing between major and minor labor disputes
pursuant to the Railway Labor Act (RLA), 45 U.S.C.
§§ 151–188, applies when a labor union alleges that an
employer illegally retaliated against an employee attempting
to file grievances. We hold that the test does apply, and that
the district court correctly categorized the dispute in this case
as minor, and subject to mandatory arbitration.

          FACTS AND PRIOR PROCEEDINGS

   BNSF Railway, Inc. (BNSF) is a major freight railroad in
North America. Brotherhood of Maintenance of Way
Employes1 Division/IBT (BMWED) is a labor union
representing workers who maintain railway track


  1
    The union uses this archaic, but recognized, spelling of the word
“employees” in its name. See WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 743 (1961).
4              BHD. OF MAINT. OF WAY V. BNSF

infrastructure. Bobby Tindell is a senior track supervisor in
Needles, California, who is employed by BNSF and
represented by BMWED. As a senior employee, Tindell is
entitled to be given preference for overtime assignments,
which are to be awarded based on seniority.

    In 2015, Tindell became concerned that more junior
employees were being offered overtime shifts that should
have been first offered to him. Under the collective
bargaining agreement (CBA) that governs the parties in this
dispute, when a senior employee is improperly denied an
overtime shift, he may file a time claim grievance to collect
compensation for that overtime. Because the CBA does not
provide for a discovery mechanism for such grievances,
Tindell began to gather his own evidence to support his
overtime claims. He began by accessing BNSF’s payroll
system to find out whether junior employees had worked
overtime shifts.2

   In addition to accessing the database, Tindell repeatedly
questioned his junior coworkers about their overtime shifts.
One of those coworkers, Kyle Sahlstrom, complained to
BNSF’s human resources department about Tindell’s
questions. He reported that over the course of a year, Tindell
would access Sahlstrom’s payroll records on a weekly basis
and then come to Sahlstrom to tell him “about how much
more money I make th[a]n he does with the exact dollar


    2
   Tindell had access to the system as the result of a previous position he
held at BNSF. After he left that position, BNSF failed to terminate his
access to the employee information. Tindell had not been formally
instructed that accessing the payroll system in order to investigate a time
claim was prohibited, but once BNSF discovered he had been accessing
the database for this purpose, he was told to stop doing so.
             BHD. OF MAINT. OF WAY V. BNSF                    5

amount.” According to Sahlstrom, Tindell told him that he
acted similarly with “everyone that he has seniority on so he
can put time claims in.” Sahlstrom viewed these
conversations as invasive, and asked the human resources
department to intervene. According to Tindell, his
conversations with his coworkers were not “hostile,
threatening, or argumentative,” but Sahlstrom claimed he felt
“harassed.” Tindell was instructed to stop asking his
coworkers about their overtime, but he continued doing so.
Shortly after he was instructed to stop bothering Sahlstrom,
Tindell approached Sahlstrom and another coworker and told
them they must tell him any time they worked an overtime
shift, and if they did not, he had other means of discovering
the information. Sahlstrom and the other employee reported
this incident to BNSF. Specifically, they told BNSF that
Tindell “refused to honor their request to stop asking them
about their overtime work and was creating an unpleasant
work environment.”

    Because of these complaints, BNSF initiated an
investigation of Tindell for violating BNSF’s rules of
conduct. As a result of that investigation, it suspended Tindell
for 30 days for “continuing to create an unpleasant work
environment to various employees after confronting them
about their overtime pay” although Tindell had been “clearly
instructed . . . to stop.” Under the CBA, BMWED could (and
did) file an appeal of the disciplinary decision on behalf of
Tindell. That appeal proceeded through the arbitration
process outlined in the CBA.

   On July 7, 2015, Tindell and Sahlstrom attended a
meeting with other track supervisors. During the meeting,
Tindell and Sahlstrom got into an argument about the
overtime issue, during which they each made offensive and
6                  BHD. OF MAINT. OF WAY V. BNSF

profane comments to the other. After the incident, Sahlstrom
filed another written complaint, this time about Tindell’s
behavior and language at the meeting. He reported that since
the prior investigation, he had tried to keep his distance from
Tindell, but that Tindell had not been treating Sahlstrom “as
an equal in the work place,” which caused him to “feel very
uncomfortable with the attitude and now with the derogatory
comments.” BNSF initiated a second investigation of Tindell
for his part in the argument.3

    While Tindell’s appeal of his suspension was proceeding
through the arbitration process, BMWED filed a complaint
against BNSF in the District Court for the Central District of
California. It alleged that BNSF’s disciplinary actions
“interfered with and subverted the RLA grievance and
arbitration processes,” and sought a declaration that BNSF’s
actions violated the RLA “by imposing discipline and
penalties on use of the statutorily mandated minor dispute
resolution process.” Eleven days later, BMWED sent BNSF
a notice that union members were prepared to strike if BNSF
did not rescind Tindell’s discipline within ten days. BNSF
filed a motion for a temporary restraining order and
preliminary injunction to enjoin BMWED from proceeding
with the threatened strike, arguing that the dispute between
the parties was a minor one that was subject to mandatory
arbitration, and that any strike would therefore be illegal. In
support of its motion, BNSF submitted several witness
declarations from BNSF officials. BMWED did the same in
opposition.

    The district court ordered a hearing on the motion for a
preliminary injunction. In that order, it stated that it would

    3
        BNSF also investigated Sahlstrom’s participation in the argument.
             BHD. OF MAINT. OF WAY V. BNSF                     7

not take live direct testimony, but would instead receive such
testimony from witness declarations. It further directed the
parties to file any requests to cross-examine witnesses who
had filed written declarations, as long as that person was not
beyond the court’s subpoena power and was available to
testify at the hearing. The court ruled that if a witness did not
appear for live cross-examination after the court had ordered
the witness’s appearance, the court would not consider the
direct testimony in that witness’s declaration. BMWED
requested cross-examination of several of BNSF’s witnesses,
and the court granted that request. At the hearing, all of the
declarants whose direct testimony was considered were
subject to live cross-examination. Sahlstrom did not submit
a declaration or testify at the hearing. After the hearing, the
district court ruled in favor of BNSF, concluding that the
dispute was minor and subject to mandatory arbitration, and
enjoining the threatened strike.

    BMWED filed an interlocutory appeal of the preliminary
injunction. In its briefing, it raised two challenges to the
injunction. First, it argued that when the district court
received direct testimony through written declarations rather
than live testimony, it violated the procedural requirements
contained in the Norris-La Guardia Act, 29 U.S.C.
§§ 101–115, which prohibit federal courts from enjoining
labor strikes “except after hearing the testimony of witnesses
in open court (with opportunity for cross-examination).” Id.
§ 107. Second, it argued that on the merits, the district court
legally erred when it applied the test for distinguishing a
major dispute from a minor dispute, which is principally
articulated in Consolidated Rail Corp. v. Railway Labor
Executives. Ass’n, 491 U.S. 299, 307 (1989) (ConRail).
Specifically, BMWED argued that because its complaint
alleges that BNSF retaliated against Tindell in a way that
8            BHD. OF MAINT. OF WAY V. BNSF

“subverts” the purposes of the RLA and the grievance
process, its claim was “statutory,” and therefore not subject
to the ConRail analysis.

    After the parties’ appellate briefs were filed, the parties
stipulated in district court that “the factual record developed
at the hearing on the defendant’s motion for preliminary
injunction is sufficient to convert the Court’s order into a
final judgment.” The court then concluded “after reviewing
the evidence, [that] the dispute is minor,” and “BNSF has not
violated the RLA.”

    JURISDICTION AND STANDARD OF REVIEW

    When this appeal was initially filed, we had jurisdiction
over the preliminary injunction as an interlocutory appeal
pursuant to 28 U.S.C. § 1292(a)(1). Under that procedural
framework, we would have reviewed “the legal determination
of whether the district court had the power to issue an
injunction de novo,” and “the district court’s exercise of that
power for abuse of discretion.” Aircraft Serv. Int’l, Inc. v.
Int’l Bhd. of Teamsters, 779 F.3d 1069, 1072 (9th Cir. 2015)
(en banc) (quoting Cont’l Airline, Inc. v. Intra Brokers, Inc.,
24 F.3d 1099, 1102 (9th Cir. 1994)). Such a review would
also have considered whether the district court’s decision not
to hear direct testimony live in court was a procedural
violation of the Norris-La Guardia Act that would have made
the preliminary injunction improper.

    However, the subsequent entry of the final judgment in
the case mooted the question of the procedural propriety of
the preliminary injunction. The final judgment ended the life
of the preliminary injunction, and it no longer had binding
               BHD. OF MAINT. OF WAY V. BNSF                             9

effect on the parties.4 See Envtl. Prot. Info. Ctr., Inc. v. Pac.
Lumber Co., 257 F.3d 1071, 1075 (9th Cir. 2001) (citing
Madison Square Garden Boxing, Inc. v. Shavers, 562 F.2d
141, 144 (2d Cir. 1977)).

    Because the district court evaluated the evidence and
made findings of fact after the preliminary injunction hearing,
we review the final judgment as the result of a bench trial.
See OneBeacon Ins. Co. v. Haas Indus., Inc., 634 F.3d 1092,
1096 (9th Cir. 2011). On that basis, we review the district
court’s findings of fact for clear error and conclusions of law
de novo. Id.

                             ANALYSIS

    A strike or work stoppage is “unlawful” under § 107(a) of
the RLA if the strike concerns a “minor” dispute that is
subject to mandatory arbitration. Ass’n of Flight Attendants
v. Mesa Air Grp., Inc., 567 F.3d 1043, 1046–47 (9th Cir.
2009) (holding that federal courts “may issue injunctions to
freeze the status quo during the bargaining process over”
major disputes, but not minor disputes).




 4
    At oral argument, counsel for BMWED argued that this issue was still
live because the final judgment permanently enjoined the union from
striking, and the Norris-La Guardia Act governs both preliminary and
permanent labor injunctions. We see no indication of a permanent
injunction in the record. BMWED was the plaintiff in this case, and BNSF
did not counterclaim for permanent injunctive relief; it requested only the
pretrial remedy of a preliminary injunction. The final judgment merely
ruled that BMWED’s declaratory judgment action be dismissed on the
merits, and that it should recover nothing. Such a judgment is not an
“injunction” subject to the requirements of the Norris-La Guardia Act.
10           BHD. OF MAINT. OF WAY V. BNSF

    Minor disputes are those “growing out of grievances or
out of the interpretation or application of agreements
concerning rates of pay, rules, or working conditions.”
45 U.S.C. § 153(i); see ConRail, 491 U.S. at 303. They are
“attempts to enforce existing contractual obligations and
rights.” Ass’n of Flight Attendants, 567 F.3d at 1047. “Where
an employer asserts a contractual right to take the contested
action, the ensuing dispute is minor 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. The ConRail test “looks to whether
a claim has been made that the terms of an existing agreement
either establish or refute the presence of a right to take the
disputed action. The distinguishing feature of such a case is
that the dispute may be conclusively resolved by interpreting
the existing agreement.” Id. at 305. The burden on the
employer to show that its position is “arguably justified” by
the agreement is “relatively light.” Id. at 306–07. “When in
doubt, courts construe disputes as minor.” Ass’n of Flight
Attendants, 567 F.3d at 1047.

    BMWED attempts to sidestep the ConRail framework
entirely by claiming that the distinction between minor and
major disputes does not apply to the case before us. We
disagree. The union’s contention is that the dispute is neither
a dispute over the enforcement of the CBA nor the
negotiation of new rights, but is instead a dispute over
whether BNSF’s alleged retaliation against Tindell
undermines the purpose of the RLA and the grievance
process. This is a distinction without a difference. BNSF has
asserted a “contractual right to take the contested action.”
ConRail, 491 U.S. at 307. BMWED, in response, contends
that BNSF’s reliance on the contract is a pretext for illegal
             BHD. OF MAINT. OF WAY V. BNSF                    11

retaliation. This is a dispute that fits squarely within the
major/minor framework from the RLA and ConRail.
BMWED’s defense to the contractual language is tantamount
to an argument that BNSF’s contractual position is
“frivolous” or in “bad faith,” a concept incorporated into the
ConRail test. At bottom, BMWED’s claim is that BNSF’s
contractual position is not “arguably justified” because it is
really a cover for illegal retaliation. BMWED cannot merely
invoke the general concept of retaliation or corporate action
that discourages the filing of grievances in order to evade
mandatory arbitration.

    As the district court noted, BMWED’s position that it
should not be subject to the ConRail test is unsupported by
any legal precedent, and would “turn the RLA on its head.”
The purpose of the statute is “to head off strikes, not
encourage them.” Aircraft Serv. Int’l, 779 F.3d at 1079.
According to BMWED, a union’s invocation of any statutory
argument supporting its strike, regardless of its strength,
would shake off the burdens of ConRail and make its strike
lawful and unenjoinable. Such a reading of ConRail is
untenable.

     Having concluded that the district court’s decision to
apply the ConRail test was appropriate, we also conclude that
it did so faithfully when it ruled that the parties’ dispute is a
minor one. Ultimately, the dispute in this case is about
whether Tindell’s discipline was justifiable. BNSF has a
colorable position that its suspension of Tindell was
supported by the terms of the CBA. That document
incorporates BNSF’s workplace rules and policies, which in
turn prohibit employee conduct that is “insubordinate,”
“quarrelsome,” and “discourteous.”
12             BHD. OF MAINT. OF WAY V. BNSF

    Based on the information BNSF had at its disposal,
Tindell was arguably in violation of those standards. It
received multiple unsolicited complaints about Tindell from
his coworkers that he had continued to badger them about
their overtime even after he had been asked to stop, which
made them feel uncomfortable and harassed.5 Although we do
not here weigh these complaints against Tindell’s need for
information to bring legitimate grievances or come to a
conclusion about whether the discipline was retaliatory,
Tindell’s discipline could have been warranted under the
existing rules and policies.

    In arbitration, BMWED may be able to show that BNSF’s
reliance on the CBA and associated rules of conduct was
pretextual. The union might also be able to prove that the
discipline was “unjust,” which is prohibited by the CBA.
However, such allegations, in and of themselves, do not
transform this case into a major dispute that can lawfully be
made the subject of a strike. If both sides have non-frivolous
positions regarding the interpretation and application of
existing agreements and policies, the dispute is minor under
the RLA and ConRail, and must be resolved through
arbitration.



  5
     BMWED also contends that the district court abused its discretion
when it only heard evidence about Sahlstrom’s complaints from BNSF
officials and not from Sahlstrom himself, on the grounds that such
testimony is “inadmissable double hearsay.” We conclude that the district
court did not abuse its discretion, because the testimony of BNSF officials
was submitted for the purpose of explaining why BNSF chose to take
disciplinary action, not whether Sahlstrom’s complaints were accurate as
a matter of fact. See Fed. R. Evid. 801(c) (defining hearsay in part as a
statement “a party offers for the truth of the matter asserted in the
statement”).
            BHD. OF MAINT. OF WAY V. BNSF              13

                    CONCLUSION

   For the foregoing reasons, the judgment of the district
court is AFFIRMED.
