                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 21 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    BROTHERHOOD OF
    MAINTENANCE OF WAY
    EMPLOYEES,

                Plaintiff-Appellee,                      No. 00-1105
                                                      (D.C. No. 00-Z-396)
    v.                                                     (D. Colo.)

    UNION PACIFIC RAILROAD
    COMPANY,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BALDOCK, ANDERSON,              and HENRY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Appellee Brotherhood of Maintenance of Way Employees (the Union)

brought this action against appellant Union Pacific Railroad Company (UP),

alleging that UP violated certain provisions of the Railway Labor Act (RLA),

45 U.S.C. §§ 151-188, by unilaterally changing a provision of one of its collective

bargaining agreements with the Union. Specifically, the Union asserted that UP

violated Rule 9 of the collective bargaining agreement by announcing its plans to

purchase switch panel kits and preassembled track panels and to close one of its

facilities. The Union contemporaneously filed a motion seeking to enjoin UP

from proceeding with these actions. The district court granted the Union’s motion

for a preliminary injunction, and UP appeals that decision. We have jurisdiction

pursuant to 28 U.S.C. § 1292(a)(1), and we vacate the district court’s preliminary

injunction order and remand the matter to the district court with instructions to

dismiss.


                                          I.

      The underlying facts of this case appear to be undisputed. UP and the

Union are parties to a collective bargaining agreement effective January 1, 1973,

covering UP’s lines and facilities known as the “former Union Pacific.” Rule 9 of

the 1973 agreement sets forth the job duties of the various employees in the

“Track subdepartment.” The preamble to Rule 9 states:



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             Construction and maintenance of roadway and tract, such as
      rail laying, tie renewals, ballasting, surfacing and lining tract,
      fabrication of track panels, maintaining and renewing frogs,
      switches, railroad crossing, etc., repairing existing right of way
      fences, construction of new fences up to one continuous mile,
      ordinary individual repair or replacement of signs, mowing and
      cleaning right of way, loading, unloading, and handling of track
      material and other work incidental thereto shall be performed by
      forces in the Tract Subdepartment.

Appellant’s App. Vol. II at 411.

      On November 16, 1999, UP announced by letter that it was changing its

policy for acquiring switch panels and track panels. Where before the

components for these panels were purchased from various suppliers and

assembled at a panel plant before being shipped to the work site, in the future UP

would be purchasing switch panel kits containing all the components. These kits

would then be shipped directly to the work site, bypassing the panel plant. UP

also announced its intent to purchase prefabricated track panels. Because these

two actions eliminated the need for the Laramie, Wyoming panel plant, UP

announced its intent to close that plant. The Union, through its general chairman,

David T. Tanner, requested a conference to discuss the matter and notified UP

that the Union considered these changes to be a major dispute under the RLA.

      On February 23, 2000, the Union filed its lawsuit and its motion for a

preliminary injunction in federal court in Colorado and commenced a strike. UP

then filed its own lawsuit in federal court in Nebraska, alleging that the Union


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had called an illegal strike over a minor dispute. UP also requested a preliminary

injunction and a temporary restraining order. Following a hearing, the Nebraska

federal district court agreed with UP’s characterization of the dispute as minor

and issued an order temporarily enjoining the Union from continuing the strike

pending a hearing on UP’s motion for a preliminary injunction. The Nebraska

court then transferred the matter to the federal district court in Colorado where

the Union had filed its lawsuit. Both motions for preliminary injunction were

consolidated and set for hearing.

       The Colorado district court disagreed with the Nebraska court’s conclusion

that the dispute was minor and found that UP was attempting to unilaterally alter

the terms of the collective bargaining agreement, thereby creating a major dispute.

The court subsequently issued an order granting the Union’s motion for a

preliminary injunction enjoining UP from going forward with its plans. On

appeal, UP contends that the Colorado district court erred in classifying the

dispute as major. It also claims that the court exceeded the permissible scope of

review under the RLA for determining whether a dispute is major or minor.


                                         II.

       We review a district court’s grant of a preliminary injunction for abuse of

discretion.   ACLU v. Johnson , 194 F.3d 1149, 1155 (10th Cir. 1999). “An abuse

of discretion occurs only when the trial court bases its decision on an erroneous

                                         -4-
conclusion of law or where there is no rational basis in the evidence for the

ruling.” Hawkins v. City & County of Denver       , 170 F.3d 1281, 1292 (10th Cir.),

cert. denied , 120 S. Ct. 172 (1999) (quotation omitted). “We will set aside a

preliminary injunction if the district court applied the wrong standard when

deciding to grant the preliminary injunction motion.”       SCFC ILC, Inc. v. Visa

USA, Inc. , 936 F.2d 1096, 1098 (10th Cir. 1991).

      The purpose of the RLA is “to promote stability in labor-management

relations by providing a comprehensive framework for resolving labor disputes.”

Hawaiian Airlines, Inc. v. Norris   , 512 U.S. 246, 252 (1994). The RLA provides a

mandatory arbitration system for settling two classes of labor disputes: “major

disputes” which “seek to create contractual rights,” or “minor disputes” which

“enforce them.”   Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n       , 491 U.S.

299, 302 (1989) ( Conrail). The district court’s underlying determination of

whether the dispute between the parties was major or minor is a question of law

that we review de novo.    Fry v. Airline Pilots Ass’n, Int’l   , 88 F.3d 831, 835 (10th

Cir. 1996).

      When a major dispute arises, the parties are required to “maintain the status

quo” until they complete a “lengthy process of bargaining and mediation.”         Id. at

302. The district court has jurisdiction to enter an injunction to prevent a

disturbance of the status quo during resolution of a major dispute without a


                                            -5-
showing of irreparable harm.     Id. at 303. If the bargaining and mediation process

fails to settle a major dispute, the parties may resort to the use of economic force.

Id.

       Minor disputes, “growing ‘out of grievances or out of the interpretation or

application of agreements concerning rates of pay, rules, or working conditions,’”

are subject to conference and compulsory arbitration procedures.            Id. at 303

(quoting 45 U.S.C. § 152 Sixth). This category of disputes “relates either to the

meaning or proper application of a particular provision [of a collective bargaining

agreement] with reference to a specific situation or to an omitted case.”          Id.

(quotation omitted). The National Railroad Adjustment Board, or any board

established by the parties under the RLA, has exclusive jurisdiction over minor

disputes, with only limited review of the arbitrated decision available.         Id. at

303-04. Although district courts lack subject matter jurisdiction over minor

disputes, they may enjoin a strike called because of a minor dispute.          Id. at 304.

Therefore, the propriety of the district court’s injunction in this case turns on

whether the dispute over UP’s actions is major or minor.

       In addressing this question, we do not purport to settle this dispute. At this

point, that is not for us or the district court to do, but is the exclusive purview of

the administrative mechanisms in place for that purpose. In order to determine

whether the district court abused its discretion, however, we must examine the


                                             -6-
nature of the dispute and the provision of the collective bargaining agreement at

issue.

         UP asserts that because the dispute turns on the interpretation and

application of the terms of Rule 9 of the collective bargaining agreement, it is

minor. UP further contends that no provision of the collective bargaining

agreement prohibits its actions in purchasing switch panel kits and preassembled

tract panels, or in closing the Laramie panel plant. The Union, on the other hand,

asserts that, by its actions, UP is attempting to exert rights not bestowed by the

agreement, and therefore, the district court properly categorized the dispute as

major.

         In Conrail , the Court held that if the employer’s action is “arguably

justified by the terms of the parties’ collective bargaining agreement,” the dispute

is minor and preempted by the RLA.       Id. at 307. It further held that if, “in

contrast, the employer’s claims are frivolous or obviously insubstantial, the

dispute is major.”    Id. The Court, in Hawaiian Airlines, Inc.,   stated that the

“arguably justified” standard is used only for controlling the line between major

and minor disputes, and concluded that “‘[t]he distinguishing feature of [a minor

dispute] is that the dispute may be conclusively resolved by interpreting the

existing [CBA],’” that is “the dispute does not involve rights that exist

independent of the CBA.” 512 U.S. at 265 (        quoting Conrail , 491 U.S. at 305);


                                            -7-
see also Ertle v. Continental Airlines, Inc.     , 136 F.3d 690, 693 (10th Cir. 1998)

(defining minor disputes as those related to disagreements over the meaning of

the collective bargaining agreement). The test articulated in        Conrail is slanted

toward finding a dispute minor.

       At first blush, the Union’s argument that UP is attempting to create new

contractual rights, and therefore the dispute is major, appears to have some merit.

On further reflection, however, it becomes clear that what the Union is really

seeking is enforcement of the existing collective bargaining agreement. It

appears clear that UP’s actions are “arguably justified,” and the dispute is “rooted

firmly in the [collective-bargaining agreement]” so that any attempt to resolve the

dispute will inevitably involve interpretation of that agreement.        Hawaiian

Airlines, Inc. , 512 U.S. at 260. Moreover, resolution of this dispute depends not

only on rights found in the collective bargaining agreement, but also “implicate[s]

practices, procedures, implied authority [and] codes of conduct that are part of the

working relationship.”     Fry , 88 F.3d at 836.

       Therefore, we hold that, because the dispute at issue here can be resolved

by application and interpretation of the existing collective bargaining agreement,

it is a minor dispute.   See Conrail , 491 U.S. at 305.   1
                                                              The arbitral remedy


1
      Because of our decision to vacate the district court’s order and remand this
case for dismissal, we do not need to address UP’s claim that the district court
                                                                      (continued...)

                                               -8-
provided in 45 U.S.C. § 153 is mandatory and exclusive for minor disputes,

Andrews v. Louisville & Nashville R.R.     , 406 U.S. 320, 322, 32 (1972), and, in that

light, the district court abused its discretion in issuing a preliminary injunction,

see 45 U.S.C. § 153, First and Second. Accordingly, we vacate the preliminary

injunction and remand this case with instructions to dismiss the Union’s action

for lack of subject matter jurisdiction.   See Davies v. Am. Airlines, Inc.   , 971 F.2d

463, 465 (10th Cir. 1992) (holding that Railway Labor Act preemption is

jurisdictional).

       VACATED AND REMANDED.



                                                        Entered for the Court


                                                        Stephen H. Anderson
                                                        Circuit Judge




1
 (...continued)
exceeding its permissible scope of review in determining whether the dispute at
issue was major or minor.

                                            -9-
