                                            Filed:   July 26, 2000

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 98-1332
                         (CA-97-2672-6-13)



Norfolk Southern Railway Company,

                                               Plaintiff - Appellant,

          versus


Brotherhood of Locomotive Engineers, et al.,

                                              Defendants - Appellees.



                             O R D E R



     The court amends its opinion filed June 22, 2000, as follows:

     On page 11, second full paragraph, line 3 -- the comma after

the word “management” is deleted.

                                         For the Court - By Direction



                                         /s/ Patricia S. Connor
                                                  Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORFOLK SOUTHERN RAILWAY
COMPANY,
Plaintiff-Appellant,

v.

BROTHERHOOD OF LOCOMOTIVE
ENGINEERS; CLARENCE V. MONIN,
Individually and as Brotherhood of
Locomotive Engineers President;
P. T. SORROW, Individually and as
Brotherhood of Locomotive
Engineers Vice President; EDWARD
DUBROSKI, Individually and as
Brotherhood of Locomotive
Engineers First Vice President;
RUSSELL W. BENNETT, Individually
                                       No. 98-1332
and as Brotherhood of Locomotive
Engineers Secretary/Treasurer; R. C.
WALLACE, Individually and as
Brotherhood of Locomotive
Engineers General Chairman;
AMERICAN TRAIN DISPATCHERS
DEPARTMENT - BLE; LES A.
PARMELEE, Individually and as
American Train Dispatchers
Department - BLE President;
WILLIAM A. CLIFFORD, Individually
and as American Train Dispatchers
Department - BLE Vice President;
JAMES A. PARKER, Individually and
as American Train Dispatchers
Department - BLE Vice President;
DAVID W. VOLZ, Individually and as
American Train Dispatchers
Department - BLE Vice President
(West); F. LEO MCCANN,
Individually and as American Train
Dispatchers Department
Secretary/Treasurer; S. A.
HUNNICUTT, Individually and as
American Train Dispatchers
Department General Chairman;
E. A. LANHAM, JR., Individually and
as American Train Dispatchers
Department Office Chairman;
C. W. HENDRICKS, Individually and
as American Train Dispatchers
Department Office Chairman;
T. E. RUSSELL, Individually and as
American Train Dispatchers
Department Office Chairman;
M. G. GIDEON, Individually and as
American Train Dispatchers
Department Office Chairman;
W. L. MOSLEY, Individually and as
American Train Dispatchers
Department Office Chairman,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CA-97-2672-6-13)

Argued: March 4, 1999

Decided: June 22, 2000

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

                     2
Affirmed by published opinion. Judge Michael wrote the opinion, in
which Judge Luttig joined. Judge Widener wrote a separate concur-
ring opinion.

_________________________________________________________________

COUNSEL

ARGUED: Jeffrey Stephen Berlin, SIDLEY & AUSTIN, Washing-
ton, D.C., for Appellant. Michael Stephen Wolly, ZWERDLING,
PAUL, LEIBIG, KAHN, THOMPSON & WOLLY, P.C., Washing-
ton, D.C., for Appellees. ON BRIEF: Mark E. Martin, Edward R.
McNicholas, SIDLEY & AUSTIN, Washington, D.C.; Mark D. Per-
reault, Roanoke, Virginia; Frank H. Gibbes, III, Deborah Casey
Brown, GIBBES, GALLIVAN, WHITE & BOYD, P.A., Greenville,
South Carolina, for Appellant. Daniel G. Orfield, ZWERDLING,
PAUL, LEIBIG, KAHN, THOMPSON & WOLLY, P.C., Washing-
ton, D.C.; Harold A. Ross, ROSS & KRAUSHAAR CO., L.P.A.,
Cleveland, Ohio, for Appellees.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

The question in this appeal is whether there is an implied remedy
under the Railway Labor Act, 45 U.S.C. §§ 151-188 (the RLA or the
Act), for damages caused by a union strike over what is known as a
"minor dispute." We hold that a damages remedy is not available in
this circumstance.

I.

This case arises out of a five-hour strike called on September 3,
1997, by the American Train Dispatchers Department of the Brother-
hood of Locomotive Engineers (the union) against the Norfolk South-
ern Railway Company (the railroad). For several years prior to the
strike, the union and the railroad had been at odds over one aspect of
the railroad's work assignment authority under the collective bargain-
ing agreement. Specifically, the parties disagreed about whether the

                    3
railroad could assign a dispatcher to work a shift or "desk" other than
his regular one. (In a train dispatchers' office each "desk" governs a
particular region of the railroad's operations.) On August 25, 1997,
Harry G. Shirley reported for duty at the railroad's Birmingham, Ala-
bama, train dispatching office to work at his regular desk. When a
supervisor directed him to work "off assignment," that is, at another
desk in the same office, Shirley said he was too sick to work at the
other desk. Despite warnings from the chief dispatcher and the super-
intendent, Shirley marked off sick and left the office. A week later,
on September 2, 1997, the railroad issued a "notice of charge" to Shir-
ley for insubordination and marking off sick under false pretenses.
The union called a strike in response, and the dispatchers walked off
the job at about 11:00 a.m. on September 3, 1997. The strike lasted
five hours until a federal district judge in South Carolina entered a
temporary restraining order directing the dispatchers to return to
work.

On October 2, 1997, the district court issued a preliminary injunc-
tion prohibiting the strike, concluding that the union had struck the
railroad "over a minor dispute, in violation of the commands of the
Railway Labor Act." The railroad then filed an amended complaint
that added a claim against the union for damages caused by the strike.
The railroad asserted damages of approximately $250,000 for, among
other things, the payment of overtime wages, the payment of wages
to employees who were not productive on the day of the strike, and
costs associated with the delay of freight trains. On the union's
motion under Fed. R. Civ. P. 12(b)(6) the district court dismissed the
railroad's claim for damages, holding that a damages remedy cannot
be implied under the RLA when, as in this case, employees strike
over a minor dispute. Final judgment was then entered, and the rail-
road appealed the dismissal of its claim for damages.

II.

Today's question -- whether a carrier has an implied RLA remedy
for damages resulting from a union strike over a minor dispute -- is
best answered with some history in mind. As the Supreme Court has
said, "[t]he Railway Labor Act `cannot be appreciated apart from the
environment out of which it came and the purposes which it was
designed to serve.'" Burlington N. R.R., Co. v. Brotherhood of Main-

                    4
tenance of Way Employees, 481 U.S. 429, 444 (1987) (quoting Elgin,
J. & E. Ry. Co. v. Burley, 325 U.S. 711, 751 (1945) (Frankfurter, J.,
dissenting)). History and experience, in other words, dictated the pur-
pose and structure of the RLA, as passed in 1926 and amended in
1934.

Our history lesson begins with World War I, when the federal gov-
ernment took control of the country's railroads. During the war the
railroads were operated under the authority of the U.S. Railroad
Administration, an agency run by a Director General who was
appointed by the President. The Director General and the rail unions
entered into national agreements covering wages and working condi-
tions. See Charles M. Rehmus, Evolution of Legislation Affecting Col-
lective Bargaining in the Railroad and Airline Industries, in The
Railway Labor Act at Fifty 1, 6 (Charles M. Rehmus ed., 1977). The
unions gave a no-strike pledge for the duration of the war. See Frank
N. Wilner, The Railway Labor Act & the Dilemma of Labor Relations
38 (1991). Adjustment boards with equal representation from man-
agement and labor (the Director General voted in case of a tie)
decided grievances arising out of interpretation of the national agree-
ments. See Jacob Seidenberg, Grievance Adjustment in the Railroad
Industry, in The Railway Labor Act at Fifty, supra, at 209, 209-10.
The Railroad Administration controlled wartime freight rates and pas-
senger fares, and the government guaranteed the carriers a set rate of
return. See Wilner, supra, at 39-40.

As World War I drew to a close, Congress became concerned about
the potential for labor-management discord when the railroads were
returned to private management and the unions were free to call
strikes. The consensus in Congress was that continued (and substan-
tial) government involvement in railroad labor relations would be
necessary to preserve the peace in the rail industry. Thus came the
Transportation Act of 1920. See Rehmus, supra, at 6.

To start off, the Transportation Act of 1920 restored possession of
the railroads to their private owners. Title III of the act then imposed
a comprehensive system for the resolution of rail labor disputes. First,
Title III called upon carriers and labor organizations to create local
adjustment boards to decide disputes that "involv[ed] only grievances,
rules, or working conditions." Transportation Act of 1920, tit. III,

                    5
§ 303, 41 Stat. 456, 470 (repealed 1926). Second, and more impor-
tant, Title III created a Railroad Labor Board (to be appointed by the
President) that was empowered to decide all wage disputes and any
dispute not dealt with by an adjustment board. See title III, §§ 304-
307, 41 Stat. at 470-71. This dispute resolution scheme was character-
ized as "a form of compulsory arbitration," see International Ass'n of
Machinists v. Street, 367 U.S. 740, 756-57 (1961), although the Rail-
road Labor Board could not seek judicial enforcement of its orders,
see Pennsylvania R.R. Co. v. United States R.R. Labor Bd., 261 U.S.
72, 79 (1923). In any event, both labor and management believed that
the 1920 act was seriously flawed because it failed to place primary
reliance on collective bargaining and mediation, the means preferred
by the parties for the resolution of their disputes. See Rehmus, supra,
at 7.

Increasing dissatisfaction with the 1920 act, fueled in part by a
national strike of 400,000 shopcraft workers in 1922, led representa-
tives of rail labor and management to begin discussions aimed at for-
mulating a joint proposal for legislation to replace the 1920 act. In
January 1926, after months of negotiations, a bill worked out between
labor and management was introduced in Congress. The bill -- pub-
licly endorsed by both sides and enacted virtually without change --
became the Railway Labor Act of 1926. See Wilner, supra, at 44-47.
The RLA of 1926, with some amendments, remains on the books
today.

The RLA of 1926 relies first and foremost on collective bargaining
for the settlement of labor-management disputes. Section 2 (Second)
of the Act imposes a duty to bargain collectively in clear terms: "All
disputes between a carrier and its employees shall be considered, and,
if possible, decided, with all expedition, in conference between repre-
sentatives designated . . . by the carriers and by the employees." Rail-
way Labor Act of 1926, § 2 Second, 44 Stat. 577, 578 (codified as
amended at 45 U.S.C. § 152 Second). Although the 1926 RLA's
structure for dispute resolution was (and is) in all instances bottomed
on collective bargaining, the Act fashioned two tracks, one for dealing
with minor disputes and one for major disputes. Minor disputes are
those "arising out of grievances or out of the interpretation or applica-
tion of agreements covering rates of pay, rules, or working condi-
tions." Id. Major disputes are those"concerning changes in rates of

                    6
pay, rules, or working conditions." Id. Specifics aside, the Act set up
machinery (available in both dispute categories) for mediation and
voluntary arbitration. See id. §§ 3-9, 44 Stat. at 578-86.

The 1926 Act called for unsettled minor disputes to be referred to
local (or regional) boards of adjustment. (This was an idea borrowed
from the wartime experience and the 1920 act.) The carriers and
employees were to set up these boards, and each side was to have
equal representation. See id. § 3, 44 Stat. at 578-79 (codified as
amended at 45 U.S.C. § 153). If an adjustment board could not reach
a decision, either side could invoke the services of a permanent Board
of Mediation, appointed by the President. Once the board was
engaged, it was to "use its best efforts, by mediation, to bring [the
parties] to agreement." Id. § 5, 44 Stat. at 580 (codified as amended
at 45 U.S.C. § 155). Finally, if mediation failed, the RLA provided a
structure for voluntary arbitration. See id. § 7, 44 Stat. at 582-84 (cod-
ified as amended at 45 U.S.C. § 157).

The 1926 RLA provided a new mechanism for dealing with major
disputes, that is, disputes over potential changes to the collective bar-
gaining agreement affecting rates of pay, rules, or working conditions.
Any discussion of the Act's treatment of major disputes must begin
with a brief note about a unique feature of labor agreements in the rail
industry: the agreements usually do not have an expiration date;
instead, they remain in effect, with either side calling for (and some-
times achieving) amendments from time to time. See William E.
Thoms & Frank J. Dooley, Collective Bargaining Under the Railway
Labor Act, 20 Transp. L.J. 275, 277 (1992).1 The RLA of 1926 built
on this custom, but it requires carriers and unions to give each other
at least thirty days written notice of a proposed change in the agree-
ment "affecting rates of pay, rules, or working conditions." Railway
Labor Act of 1926, § 6, 44 Stat. at 582 (codified as amended at 45
U.S.C. § 156). This notice, called a "Section 6 notice" (after section
6 of the original Act), marks the beginning of the bargaining process
for major disputes. If the dispute is not resolved in private conference
between the parties, either side may call in the Board of Mediation
(see above), and the board then tries to mediate a settlement. If the
_________________________________________________________________

1 The collective bargaining agreement in this case has been in effect,
as amended, since 1949.

                     7
board fails, it attempts "to induce the parties to submit their [major
dispute] to arbitration." Id. § 5. If there is no resolution in the end,
each side is free to act in its own interests. In other words, the
employees may strike, or the railroad may unilaterally implement its
proposed change to the contract. See Wilner, supra, at 52. This pro-
cess for dealing with major disputes has changed little in the 74 years
since the Act's passage.

In 1934 Congress made several amendments to the Railway Labor
Act. The amendments began with an extensive list of "general pur-
poses" for the Act:

          (1) To avoid any interruption to commerce or to the opera-
          tion of any carrier engaged therein; (2) to forbid any limita-
          tion upon freedom of association among employees or any
          denial, as a condition of employment or otherwise, of the
          right of employees to join a labor organization; (3) to pro-
          vide for the complete independence of carriers and of
          employees in the matter of self-organization to carry out the
          purposes of this chapter; (4) to provide for the prompt and
          orderly settlement of all disputes concerning rates of pay,
          rules, or working conditions; (5) to provide for the prompt
          and orderly settlement of all disputes growing out of griev-
          ances or out of the interpretation or application of agree-
          ments concerning rates of pay, rules, or working conditions.

Railway Labor Act of 1934, § 2, 48 Stat. 1185, 1186-87 (codified at
45 U.S.C. § 151a). Consistent with the new statement of purpose, the
amendments added specific language about employees' rights to orga-
nize, declaring that "[n]o carrier, its officers or agents, shall deny or
in any way question the right of its employees to join, organize, or
assist in organizing the labor organization of their choice." Id. § 2
Fourth (codified at 45 U.S.C. § 152 Fourth). The amendments also
made it illegal for a carrier to "contribut[e] to any labor organization,
labor representative, or other agency of collective bargaining, or [to
perform] work therefor." Id. Finally, and most important for this case,
the 1934 amendments changed the Act's treatment of minor disputes.

In considering the 1934 amendments, Congress recognized that the
original Act's local adjustment board system, which had been created

                     8
to deal with minor disputes, was flawed. In some places, labor and
management forces were unable to agree on the composition of the
local boards. See H.R. Rep. No. 73-1944, at 3 (1934). In others, the
boards were established, but became hopelessly deadlocked once they
began their work. See id.; see also Brotherhood of R.R. Trainmen v.
Chicago River & Indiana R.R. Co., 353 U.S. 30, 36 (1957). The 1934
amendments did not disturb the Act's reliance on collective bargain-
ing as the first step in the process of minor dispute resolution. How-
ever, at the second step, local boards of adjustment were abolished.
In their place, Congress established a National Railroad Adjustment
Board, with four divisions, "making it unnecessary for parties to agree
to establish their own boards." Id. at 36.2 The new Adjustment Board
divisions have equal representation from labor and management, and
in case of deadlock the appropriate division can add a neutral referee
to its ranks. See id. at 36-37. If the division cannot agree on a referee,
one is appointed by the National Mediation Board.3 Either side may
submit a minor dispute to the Adjustment Board when negotiations
fail. The relevant adjustment board division then has authority to
decide the dispute: "The awards of the several divisions of the Adjust-
ment Board . . . shall be final and binding upon both parties to the dis-
pute." Railway Labor Act of 1934, § 3, 48 Stat. at 1191 (codified at
45 U.S.C. § 153). In devising this system,"Congress considered it
essential to keep these so-called `minor' disputes within the Adjust-
ment Board and out of the courts." Union Pacific R.R. Co. v. Sheehan,
439 U.S. 89, 94 (1978). Once the Adjustment Board has made an
_________________________________________________________________

2 If labor and management can agree to establish a local board of
adjustment, the 1934 amendments give them this option. However, this
option is bypassed if either party "elect[s] to come under the jurisdiction
of the Adjustment Board." Railway Labor Act of 1934, § 3 Second, 48
Stat. at 1193 (codified as amended at 45 U.S.C.§ 153 Second).

3 The 1934 amendments replaced the old Board of Mediation with the
National Mediation Board. The amendments do not allow the parties to
call the new mediation board into a minor dispute. See Chicago River,
353 U.S. at 37 n.14. The amendments, however, gave the new board con-
tinued authority to mediate major disputes. Finally, the 1934 amend-
ments authorized the board to hear and decide representation disputes.
See Railway Labor Act of 1934, §§ 2, 4-5, 48 Stat. at 1187-89, 1193-97
(codified as amended at 45 U.S.C. §§ 152, 154-155).

                    9
award, however, there is a provision for judicial enforcement. See 45
U.S.C. § 153 First (p).4

Although Congress, through the 1934 amendments, imposed a duty
to arbitrate minor disputes before the Adjustment Board, the amend-
ments did not provide a cause of action or remedy for a breach of this
duty. The Supreme Court filled in the gap in Chicago River, making
one remedy available. The specific question in Chicago River was
whether a rail union could call a strike over a minor dispute pending
before the Adjustment Board. See Chicago River , 353 U.S. at 31. The
Court held that allowing such a strike "would render meaningless
those provisions in the Act [the 1934 amendments] which allow one
side to submit a dispute to the Board, whose decision shall be final
and binding on both sides." Id. at 34 (emphasis omitted). The Act, in
other words, requires the compulsory arbitration of minor disputes
before the Adjustment Board, and strikes in that "limited field" are
prohibited. See id. at 39.

The Court noted that its interpretation of the 1934 amendments was
supported by the legislative history: "there was general understanding
between both the supporters and the opponents of the 1934 amend-
ment that the provisions dealing with the Adjustment Board were to
be considered as compulsory arbitration." Id. at 39; see also Railway
Labor Act Amendments: Hearings on H.R. 7650 Before the Comm. on
Interstate and Foreign Commerce, 73d Cong. 47 (1934) (testimony
of Joseph B. Eastman, Federal Coordinator of Transportation) (noting
that unions had conceded the right to strike over minor disputes in
_________________________________________________________________

4 The Railway Labor Act has been amended several times since 1934.
For example, subsequent amendments have brought airlines within the
Act's jurisdiction, see Act of Apr. 10, 1936, ch. 166, 49 Stat. 1189 (codi-
fied at 45 U.S.C. §§ 181-188); authorized dues checkoff and union shop
agreements, see Act of Jan. 10, 1951, 64 Stat. 1238 (codified at 45
U.S.C. § 152 Eleventh); and established special procedures for commuter
rail disputes, see Omnibus Budget Reconciliation Act of 1981, Pub. L.
No. 97-35, tit. XI, § 1157, 95 Stat. 357, 681-82 (codified at 45 U.S.C.
§ 159a). None of these amendments, however, has effected substantial
changes to the Act's core sections. See Rehmus, supra, at 14 ("The 1934
amendments to the 1926 Act represent the last changes of major impor-
tance in the collective bargaining legislation affecting railroads . . . .").

                     10
return for the establishment of a national rail adjustment board); To
Amend the Railway Labor Act: Hearings on S. 3266 Before the
Comm. on Interstate Commerce, 73d Cong. 35 (1934) (testimony of
George Harrison, spokesman for railway labor organizations) ("These
railway labor organizations have always opposed compulsory deter-
mination of their controversies. . . . [W]e are now ready to concede
that we can risk having our grievances to a board and get them deter-
mined . . .

Finally, with respect to remedy, the Supreme Court in Chicago
River held that federal courts may enjoin rail strikes, notwithstanding
the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, when those strikes
are called in connection with minor disputes. See 353 U.S. at 40-42.

The background from World War I through Chicago River (1957)
may be summarized as follows. The Railway Labor Act of 1926 was
passed with the full support of labor and management in reaction to
the heavy role the government had played in railroad labor relations
beginning with World War I. The RLA of 1926 provided a dispute
resolution structure that was bottomed on collective bargaining. The
1934 amendments kept this focus. To strengthen the process, how-
ever, Congress added compulsory arbitration for minor disputes if
negotiations failed. Federal court involvement was to be minimal,
although the Supreme Court in Chicago River held that strikes over
minor disputes may be enjoined because the Act requires compulsory
arbitration for these disputes. What remains an open question (at least
in this circuit) is whether a carrier may file a lawsuit for damages
when it claims injury as a result of a strike over a minor dispute. We
turn to that question now.

III.

Although it did not say so directly, the Supreme Court in Chicago
River recognized an implied right of action under the RLA to enforce
the duty to arbitrate minor disputes. See Chicago River, 353 U.S. at
39-42. The Court held that the duty could be enforced through the
implied remedy of injunctive relief (the strike over grievances was
enjoined), see id., but it went no further in prescribing remedies. The
Supreme Court has never said whether a damages remedy is available
when the duty to arbitrate minor disputes is breached by a strike, but

                    11
the two circuits (the Fifth and Sixth) to decide the issue have held that
damages are inappropriate in such a case. See CSX Transp., Inc. v.
Marquar, 980 F.2d 359 (6th Cir. 1992); Burlington N. R.R. Co. v.
Brotherhood of Maintenance of Way Employees, 961 F.2d 86 (5th
Cir. 1992); Louisville & Nashville R.R. Co. v. Brown, 252 F.2d 149
(5th Cir. 1958).

Two Supreme Court cases of recent vintage, Franklin v. Gwinnett
County Public Schools, 503 U.S. 60 (1992), and Gebser v. Lago Vista
Independent School District, 524 U.S. 274 (1998), provide guidance
for determining what remedies are available in a suit brought to
enforce an implied right. In the first case, Franklin, the Supreme
Court reiterated the traditional presumption "that absent clear direc-
tion to the contrary by Congress, the federal courts have the power to
award any appropriate relief in a cognizable cause of action brought
pursuant to a federal statute." Franklin, 503 U.S. at 70-71. Franklin
went on to say that in determining whether Congress intended for the
presumption to apply when the cause of action is implied, "we evalu-
ate the state of the law when the legislature passed" the statute. Id. at
71.

In the second case, Gebser, the Supreme Court reconfirmed the tra-
ditional presumption in favor of all appropriate relief, but the Court
emphasized that it had "made no effort in Franklin to delimit the cir-
cumstances in which a damages remedy should lie." Gebser, 524 U.S.
at 284. The Court then proceeded to set the limits of the presumption:

           Because the private right of action under [the statute] is
          judicially implied, we have a measure of latitude to shape a
          sensible remedial scheme that best comports with the stat-
          ute. That endeavor inherently entails a degree of specula-
          tion, since it addresses an issue on which Congress has not
          specifically spoken. To guide the analysis, we generally
          examine the relevant statute to ensure that we do not fashion
          the parameters of an implied right in a manner at odds with
          the statutory structure and purpose.

           Those considerations, we think, are pertinent not only to
          the scope of the implied right, but also to the scope of the
          available remedies. We suggested as much in Franklin,

                     12
          where we recognized the general rule that all appropriate
          relief is available in an action brought to vindicate a federal
          right, but indicated that the rule must be reconciled with
          congressional purpose. The general rule, that is, yields
          where necessary to carry out the intent of Congress or to
          avoid frustrating the purposes of the statute involved.

Id. at 284-85 (citations and quotation marks omitted). The Gebser
Court said finally that in situations where the cause of action is
implied, "we attempt to infer how the . . . Congress [at the time of
enactment] would have addressed the issue [of available remedies]
had the action been included as an express provision in the statute."
Id. at 285 (citations, quotation marks and alteration omitted). The
Gebser Court conducted this exercise by looking at whether a dam-
ages remedy would "frustrate the purposes" of the statute. Id.

As we have indicated, when the RLA was passed in 1926 and
amended in 1934, Congress did not specify any cause of action for
breach of the duty to arbitrate minor disputes. Because an implied
right of action was recognized in Chicago River, we presume that any
appropriate remedy is available, unless the remedy (here, damages)
runs counter to the purpose and structure of the Act. See Gebser, 524
U.S. at 284-85.

In part II we discussed the purpose and structure of the RLA (par-
ticularly with respect to minor dispute resolution), and we return to
that topic to look for clues about what enforcement remedies are
appropriate to carry out congressional intent. The overriding purpose
of the RLA is to provide for the prompt and orderly settlement of all
labor-management disputes in the rail industry and avoid interruption
to commerce. See 45 U.S.C. § 151a. Thus, the primary duty that the
Act imposes upon both labor and management is to "settle all dis-
putes" so that rail service is not disrupted. 45 U.S.C. § 152 First.
Moreover, the Act is designed to give each side relatively equal
power in the bargaining process. To this end the RLA of 1926 guaran-
teed both sides independence in the selection of their bargaining rep-
resentatives. See Railway Labor Act of 1926, § 2 Third, 44 Stat. 577,
578 (codified as amended at 45 U.S.C. § 152 Third). The organiza-
tional and bargaining rights of rail employees were made more spe-
cific in the 1934 amendments. Thus, (1) "[e]mployees shall have the

                    13
right to organize and bargain collectively," (2) "[t]he majority of any
craft or class of employees shall have the right to determine who shall
be [their] representative," and (3) "[n]o carrier . . . shall deny or in any
way question the right of its employees to join, organize, or assist in
organizing the labor organization of their choice." Railway Labor Act
of 1934, § 2 Fourth, 48 Stat. 1185, 1187 (codified at 45 U.S.C. § 152
Fourth).

After establishing the duty to negotiate, and attempting to put the
parties on equal footing, the RLA provides a structure for dispute res-
olution. First, the parties must attempt to settle their disputes by nego-
tiation in a conference of their representatives. See 45 U.S.C. § 152
Sixth. Second, with respect to minor disputes, if one-on-one bargain-
ing fails to bring about a settlement, either side may refer the dispute
to compulsory arbitration before the Adjustment Board. See 45 U.S.C.
§ 153. The Act's scant reference to the courts makes clear that the dis-
pute resolution process is to be carried out with a minimum of judicial
involvement. See Union Pacific R.R. Co. v. Sheehan, 439 U.S. 89, 94
(1978).

The specific question for us is whether allowing damages for a
strike over a minor dispute is consistent with the RLA's purpose and
structure. We conclude that a damages remedy in this situation is at
odds with the Act. In the RLA context, litigation about damages
allegedly caused by a minor dispute strike would be a sideshow that
detracts from the bargaining and arbitration required by the Act. The
aim of the RLA is to channel the parties' efforts toward resolution of
their labor disputes within the Act's carefully devised framework. See
45 U.S.C. § 151a. If we imply a statutory damages remedy in the case
of minor dispute strikes, the parties will be drawn into contentious
and time-consuming litigation in a separate venue when they should
be devoting their energies to face-to-face bargaining or arbitration to
resolve the underlying labor dispute. This result would be at cross
purposes with the Act. In short, litigating about damages in a judicial
forum would divert the parties' attention from the Act's comprehen-
sive process for dispute resolution. The injunction remedy, on the
other hand, is appropriate because it quickly returns the parties to the
process provided in the Act: bargaining and (if necessary) arbitration
to resolve a minor dispute. See Chicago River, 353 U.S. at 33-35.
Today's case illustrates the point. The railroad moved swiftly under

                     14
the Act to obtain a temporary restraining order. As a result, the strike
was over in five hours, and the union was forced to negotiate or arbi-
trate if it wished to press its grievance about desk assignments for dis-
patchers.

The railroad argues that regardless of whether a damages remedy
under the RLA would help resolve a particular dispute, the availabil-
ity of monetary relief would, in the long run, deter strikes over minor
disputes. Any benefit this would bring is outweighed by other consid-
erations. First, Congress, in enacting the RLA with labor-management
consent, sought to strike a careful balance of power between the two
sides as it devised a scheme to govern the resolution of disputes. See
Marquar, 980 F.2d at 380-81. Handing the railroads a statutory dam-
ages club in strikes over minor disputes could upset that balance.
After all, in the 74-year history of the RLA not one circuit court has
held that damages are an appropriate remedy in this situation. We are
hesitant after all these years to do anything that might upset the deli-
cate balance, particularly since the Act is structured to keep judicial
involvement at a minimum. Second, as the Supreme Court has recog-
nized, "distinguishing between major disputes and minor disputes"
can be a "difficult task." Consolidated Rail Corp. v. Railway Labor
Executives' Ass'n, 491 U.S. 299, 310 (1989). Circuit decisions con-
firm that the distinction is not always clear. See CSX Transp., Inc. v.
Marquar, 980 F.2d 359, 382 (6th Cir. 1992) ("The problem is particu-
larly acute in a case such as this where the union cannot know with
certainty at the time it calls a strike whether a court will later decide
that the dispute was minor or major."); Rutland Ry. Corp. v. Brother-
hood of Locomotive Eng'rs, 307 F.2d 21, 33 (2d Cir. 1962) ("We
readily recognize that here, as in other areas of jurisprudence, the dif-
ference, on the one hand, between the interpretation and the applica-
tion of an existing agreement, and, on the other hand, a change in an
original intended basis of agreement is often a question of degree.");
cf. International Bhd. of Teamsters v. Southwest Airlines Co., 875
F.2d 1129, 1132 (5th Cir. 1989) (en banc) (holding en banc that dis-
pute was minor after panel and district court had held that it was
major). As the Sixth Circuit has said, "[i]f damages were available
and the union guessed wrong [in calling a strike over what was later
adjudged a minor dispute], it would be liable for damages that could
deplete the union treasury and impair its effectiveness as the collec-
tive bargaining agent." Marquar, 980 F.2d at 382. Weakening a union

                     15
in this way would run counter to the RLA provisions aimed at ensur-
ing that the parties are evenly matched as they pursue negotiations.5

In sum, we conclude that a damages remedy for a minor dispute
strike is at odds with the structure and purpose of the RLA. In particu-
lar, the remedy would detract from the Act's requirement that minor
disputes be resolved through bargaining or compulsory arbitration.
Allowing the remedy would also run the risk of upsetting the balance
of power between labor and management that has been maintained in
the 74 years since the RLA was passed. Accordingly, we hold that
monetary damages are not available under the RLA to remedy a strike
over a minor dispute.6 The judgment of the district court is therefore

AFFIRMED.
_________________________________________________________________

5 The circuit court decisions that have allowed employees to obtain
damages (under the RLA) against carriers that interfered with the
employees' right to organize and bargain collectively, see Lebow v.
American Trans Air, 86 F.3d 661, 670-72 (7th Cir. 1996); Burke v. Com-
pania Mexicana de Aviacion, S.A., 433 F.2d 1031, 1034 (9th Cir. 1970),
and that have allowed employees to request damages for alleged
breaches of the duty of fair representation, see Steele v. Louisville &
Nashville R.R. Co., 323 U.S. 192, 204, 207 (1944); Brady v. Trans World
Airlines, Inc., 401 F.2d 87, 96-100, 102-03 (3d Cir. 1968), are distin-
guishable. These cases deal with threats to the integrity of the collective
bargaining process itself, and the RLA is fundamentally about that pro-
cess. As we have emphasized, litigation to recover damages allegedly
caused by a minor dispute strike is a diversion from the process of dis-
pute resolution.

6 There is a no-strike clause in the collective bargaining agreement
between the union and the railroad. This leads us to note that our holding
deals only with the unavailability of a damages remedy under the RLA
for a minor dispute strike. What we have said has no bearing on whether
the railroad might have sought contract damages in arbitration before the
Adjustment Board. As the union points out, "[w]hether the [no-strike]
clause includes an implicit damages remedy is grist for a Section 3
adjustment board because the question involves the interpretation or
application of a collective bargaining agreement." Br. for Appellees at
32. See also Local 553, Transp. Workers Union of America v. Eastern
Air Lines, Inc., 695 F.2d 668, 675 (2d Cir. 1982) (noting that Adjustment
Board "can interpret contract clauses and award monetary damages").

                    16
WIDENER, Circuit Judge, concurring:

Because I agree with the majority that a damages remedy for a
minor dispute is "at odds with the structure and purpose of the RLA,"
slip 16, I concur in the result. However, I disagree with the majority's
depending as it does on implied rights of action under the Railway
Labor Act and suggesting the obtaining of damages for breach of con-
tract of a no-strike clause in an arbitration proceeding before the
Adjustment Board for a strike over a minor dispute. See slip 13-16,
16 n.6.

In 1934, Congress created the statutory provision requiring com-
pulsory arbitration before the Adjustment Board for minor disputes.
See Railway Labor Act of 1934, 45 U.S.C. § 153. The compulsory
arbitration provision forbade the use of a strike as a remedy for a
minor dispute between a union and the railroad. 1 Arbitration before
the Adjustment Board was the only right or remedy available. I agree
with the majority that the 1934 amendments to the Act imposed a
duty upon the railroads and the unions to arbitrate their minor dis-
putes, but I do not agree that it is necessary to imply a right of action
to enforce this duty. See slip 10-11.

As the the majority correctly notes, the Supreme Court in Brother-
hood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353
U.S. 30 (1957), did not "say so directly" that an implied right of
action or remedy exists under the Act to enforce the duty to arbitrate.2
Rather, it simply upheld its earlier conclusion in Brotherhood of R.R.
Trainmen v. Howard, 343 U.S. 768 (1952), that the federal courts had
jurisdiction and power to enforce the Railway Labor Act by injunc-
_________________________________________________________________

1 The unions conceded their right to strike over minor disputes, and did
so as a contribution to the national transportation system. See Brother-
hood of R.R. Trainmen v. Chicago River & Indiana R.R. Co., 353 U.S.
30, 36-39 (1956) (examining the legislative history in Congress).

2 Apparently, the phrase "implied right of action" or "implied cause of
action" was first used in this context in CSX Transp. Inc. v. Marquar,
980 F.2d 359, 363-64 (6th Cir. 1992) (stating that the Supreme Court
implied a right of action under the Act for a union's illegal strike by
holding that federal courts could compel compliance with the Act).

                     17
tion. Chicago River, 353 U.S. at 42. I would go no further than the
Supreme Court has gone.

Moore v. Illinois Central R.R. Co., 312 U.S. 630 (1941), overruled
by, Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320 (1972),
presented a parallel issue regarding the Railway Labor Act. Moore
involved an individual railroad employee's suit against the railroad
for damages due to wrongful discharge in violation of the collective
bargaining agreement. See Moore, 312 U.S. at 631-32 (the aggrieved
employee brought suit before exhausting his remedies under the Act).
The Supreme Court, in Moore, construed the Act's provisions for
minor dispute resolution as optional rather than compulsory. See
Moore, 312 U.S. at 635-36 (examining the language in 45 U.S.C.
§ 153(i)-- "`may be referred to . . . the Adjustment Board'"). Despite
contrary language by the Court in Moore, in 1965 this court held in
Walker v. Southern Railway Co., 354 F.2d 950 (4th Cir. 1965), that
Moore had been overruled by implication by Republic Steel Corp. v.
Maddox, 379 U.S. 650 (1965). The Supreme Court, however,
reversed this court in a per curiam opinion in Walker v. Southern
Railway Co., 385 U.S. 196 (1966). Although the Court declined to
overrule Moore in Walker, it did state that the "[p]rovision for arbitra-
tion of a discharge grievance, a minor dispute, is not a matter of vol-
untary agreement under the Railway Labor Act; the Act compels the
parties to arbitrate minor disputes before the National Railroad
Adjustment Board established under the Act." Walker, 385 U.S. at
198.

Later, in Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320
(1972), the Court explicitly overruled Moore holding that "the notion
that the grievance and arbitration procedures provided for minor dis-
putes in the Railway Labor Act are optional, to be availed of as the
employee or carrier chooses, was never good history and is no longer
good law." Andrews, 406 U.S. at 322. Applicable to this case are the
Court's statements that "in some situations the Act makes the [RLA]
remedy exclusive," and "[i]n such a case [as here] the proceeding
afforded by 45 U.S.C. § 153 First(i) will be the only remedy available
to the aggrieved party." Andrews, 406 U.S. at 325 (emphasis added)
(meaning that compulsory arbitration for minor disputes is the only
remedy available).

                    18
It is significant that the Court did not state in the Chicago River
decision, or in any subsequent decision, that an "implied right of
action" is available under the Act for minor disputes. Despite its
acknowledgment that "[the Court] did not say[an implied right of
action exists under the RLA] directly," slip 11, the majority insists
upon labeling the Supreme Court's holding in Chicago River as the
Court's recognition of an implied right of action under the Act. I sug-
gest that no support for this conclusion exists.

I am more troubled by the majority's suggestion that the railroad
may obtain money damages in arbitration before the Adjustment
Board for the union's breach of a no-strike clause in the parties' col-
lective bargaining agreement. See slip 16 n.6. Although not explicitly
defined in the Railway Labor Act, it is well established that a minor
dispute is one which turns on the application of the parties' collective
bargaining agreement's terms. See Elgin, Joliet & E. Ry. Co. v. Bur-
ley, 325 U.S. 711, 723 (1945). Grievances for actions like wrongful
discharge or other disputes regarding the interpretation of a collective
bargaining agreement are minor disputes which must be arbitrated
before the Adjustment Board. See Andrews, 406 U.S. at 323-24
(1972). In the case before us, the minor dispute is about "one aspect
of the railroad's work assignment authority under the collective bar-
gaining agreement." Slip 3. The majority recognizes that there is a
minor, not major, dispute in this case, but then goes on to suggest that
the union's breach of the no-strike clause by striking might also qual-
ify as a minor dispute to be arbitrated before the Adjustment Board.
See slip 16 n.6. I disagree with this suggestion.

The Adjustment Board may award monetary damages for a minor
dispute, like one for wrongful discharge, see 45 U.S.C. § 153(o),
however, the suggestion that money damages could be awarded in
arbitration before the Adjustment Board for a strike occasioned by a
minor dispute is not supported within the Railway Labor Act's statu-
tory scheme. The union may not strike over a minor dispute; it must
resolve the dispute in arbitration as dictated by the Railway Labor
Act. That union members illegally engaged in a strike over a minor
dispute in violation of their statutory duty to arbitrate was not a "dis-
pute[ ] between an employee or group of employees and a carrier or
carriers growing out of grievances or out of the interpretation or
application of agreements concerning rates of pay, rules, or working

                     19
conditions" under 45 U.S.C. § 153(i), as was held in Louisville &
Nashville R.R. Co. v. Brown. 252 F.2d 149, 154 (5th Cir. 1958)
(explaining that the legality of a strike over a minor dispute is not a
dispute for the Adjustment Board, but that the courts have jurisdiction
to enjoin such illegal strikes).

Finally, I note that the case the majority relies upon, Local 553,
Transp. Workers Union of Am. v. Eastern Airlines, Inc., 695 F.2d 668
(2d Cir. 1982), in my opinion, does not stand for the proposition that
a union's strike over a minor dispute in violation of a no-strike clause
constitutes the type of minor dispute to be adjudicated by the Adjust-
ment Board. Rather, in its discussion of determining whether a dis-
pute is a major dispute or a minor dispute, the Second Circuit
recognized that "[i]f a carrier proposes to take action arguably permit-
ted by the contract, opposition by the union based on a differing inter-
pretation of the contract is a minor dispute subject to binding
adjudication by the appropriate Adjustment Board, which can inter-
pret contract clauses and award monetary damages." Local 553, 695
F.2d at 674-75. Because engaging in a strike over a minor dispute is
forbidden by the Railway Labor Act, see Chicago River, 353 U.S. at
39-42, such a strike is not a matter of differing interpretations of a
contract. It is not a minor dispute.

                    20
