                                                                        [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________                           FILED
                                                                        U.S. COURT OF APPEALS
                                      No. 03-16318                        ELEVENTH CIRCUIT
                                                                              JUNE 30, 2005
                                ________________________
                                                                           THOMAS K. KAHN
                                                                                CLERK
                        D. C. Docket No. 03-00460-CV-J-32-HTS



BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES,


                                                                     Plaintiff-Appellant,

                                              versus

CSX TRANSPORTATION, INC.,

                                                                     Defendant-Appellee.
                                ________________________

                       Appeal from the United States District Court
                           for the Middle District of Florida
                            _________________________
                                    (June 30, 2005)

Before BARKETT, MARCUS and SUHRHEINRICH*, Circuit Judges.

PER CURIAM:



       *
        Honorable Richard F. Suhrheinrich, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
      The Brotherhood of Maintenance of Way Employees (BMWE) appeals from

the district court’s order denying summary judgment to BMWE and granting

summary judgment to CSX Transportation, Inc. (CSX) on BMWE’s claim that

CSX violated § 2 First of the Railway Labor Act (RLA), 45 U.S.C. § 152 First.

Because we conclude that the district court lacked subject matter jurisdiction over

the dispute, we vacate its judgment and remand with instructions to dismiss.

                                       I.

      BMWE, the designated collective bargaining representative of certain CSX

employees, entered into a collective bargaining agreement with CSX. In a side

letter to the agreement, CSX promised that at least 40% of the BMWE-represented

employees would have “fixed” headquarters, rather than “floating” headquarters;

and those in the latter category would be able to work over a broader geographic

range than those in the former. In the side letter, CSX further agreed that

      [t]he percentage of fixed headquartered positions will be determined
      on a system-wide basis, using a rolling monthly average comparison
      of both the total number of BMWE-represented positions (less SPG
      positions) and the number of fixed headquartered positions. The
      percentages will be reported to the General Chairman on a quarterly
      basis.

      CSX did not timely provide the information required by the agreement for

the third and fourth quarters of 1999, the first two quarters for which the



                                            2
information was due. After BMWE complained about the non-compliance, CSX

provided a chart showing the percentages of fixed and floating employees for

February, 2001. When BMWE insisted on the provision of the quarterly reports as

called for in the agreement, CSX wrote back to state the relevant percentages for

the first quarter of 2002. When CSX failed to provide reports for the next two

quarters, BMWE again complained, and CSX responded (several months later) by

stating the percentages for the first quarter of 2003.

      Throughout the course of this correspondence, BMWE repeatedly

demanded that CSX supplement the quarterly percentage reports with background

information relating to the calculation of the percentages, such as the dates that the

information was recorded, the identities of the actual work gangs reported, and the

number of employees per gang. CSX refused all such demands, stating that the

agreement did not require the provision of any background information.

      After BMWE filed a complaint in the United States District Court for the

Middle District of Florida, seeking declaratory and injunctive relief, CSX

provided the percentages for each period from the third quarter of 1999 through

the second quarter of 2003. Again, however, CSX refused to give the requested

background information.




                                           3
                                             II.

       We review the district court’s order granting summary judgment de novo,

applying the same legal standards as the district court did and viewing all facts in

the light most favorable to the non-moving party. See, e.g., Higdon v. Jackson,

393 F.3d 1211, 1218 (11th Cir. 2004). Summary judgment is appropriate when

“the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c).

                                          A.

       CSX argues at the outset that because it has provided the quarterly

percentage reports for the requested quarters and has acknowledged its obligation

to do so in the future, BMWE’s claims as to those percentages are moot.1 We

disagree.

       The Supreme Court has held that “[m]ere voluntary cessation of allegedly

illegal conduct does not moot a case; if it did, the courts would be compelled to

leave the defendant . . . free to return to his old ways.” United States v.



       1
        Notably, CSX does not assert that BMWE’s claim concerning provision of the background
information is moot.

                                               4
Concentrated Phosphate Export Ass’n, Inc., 393 U.S. 199, 203, 89 S. Ct. 361, 21

L. Ed. 2d 344 (1968) (citation and internal quotation marks omitted). While “[a]

case might become moot if subsequent events made it absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur,” a

defendant’s mere statement that there is no evidence that it will violate the law in

the future “cannot suffice to satisfy the heavy burden of persuasion which [the

Supreme Court] ha[s] held rests upon those in [a defendant’s] shoes.” Id. “[A]

defendant claiming that its voluntary compliance moots a case bears the

formidable burden of showing that it is absolutely clear the allegedly wrongful

behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190, 120 S. Ct. 693, 145 L. Ed.

2d 610 (2000) (citing Concentrated Phosphate, 393 U.S. at 203).

      As the district court put it, “CSX[]’s compliance with the percentage

reporting requirements . . . was slipshod at best.” Order at 16 n.7. CSX repeatedly

failed to provide the required information; by its own admission, it had reported

percentages for only three quarters between May 11, 1999 (when the agreement

was signed) and April 11, 2003 (when BMWE filed suit). This production

amounted only to three out of fifteen of the required reports. In fact, the

repetitiousness of past conduct is a significant factor that may point towards the

                                          5
likelihood of recurrence. See Horton v. City of St. Augustine, 272 F.3d 1318,

1328 (11th Cir. 2001) (finding that a city’s “history of legislating repeatedly” to

regulate certain activity indicated that such legislation was likely to recur, and thus

that a recent amendment to the challenged portion of the legislation did not render

the challenge moot). That CSX did not begin reporting regularly until after

BMWE brought suit casts still further doubt on the notion that its compliance was

“voluntary” and unlikely to resume once the threat of litigation had passed. CSX

has thus fallen far short of meeting the “formidable burden” described in Laidlaw.

      Simply put, the question of CSX’s obligation to provide the quarterly

percentage reports is not moot.

                                        B.

      CSX also argues that since BMWE’s claim is based on an alleged violation

of the collective bargaining agreement, it creates a “minor dispute,” over which

the district court lacked subject matter jurisdiction. We agree.

      Disputes arising under the RLA are divided into two types: major disputes

and minor disputes. See generally Consol. Rail Corp. v. Ry. Labor Executives’

Ass’n, 491 U.S. 299, 109 S. Ct. 2477, 105 L. Ed. 2d 50 (1989). As the Supreme

Court has observed:




                                             6
      “In the event of a major dispute, the RLA requires the parties to
      undergo a lengthy process of bargaining and mediation. Until they
      have exhausted those procedures, the parties are obliged to maintain
      the status quo, and the employer may not implement the contested
      change in rates of pay, rules, or working conditions. The district
      courts have subject matter jurisdiction to enjoin a violation of the
      status quo pending completion of the required procedures, without the
      customary showing of irreparable injury. . . . In contrast, the minor
      dispute category is predicated on § 2 Sixth and § 3 First (i) of the
      RLA . . . A minor dispute . . . is subject to compulsory and binding
      arbitration before the National Railroad Adjustment Board, § 3, or
      before an adjustment board established by the employer and the
      unions . . . . § 3 Second. The Board . . . has exclusive jurisdiction
      over minor disputes. Judicial review of the arbitral decision is
      limited.”

Id. at 302-03 (emphasis added) (footnote and citations omitted). See also

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253, 114 S. Ct. 2239, 129 L. Ed.

2d 203 (1994); CSX Transp. Inc. v. Bhd. of Maint. of Way Employees, 327 F.3d

1309, 1320 (11th Cir. 2003).

      Consolidated Rail established a standard for distinguishing between minor

disputes and major disputes. In that case, the Court focused primarily on minor

disputes. Beginning with the language of RLA § 3 First (i), which addresses

disputes arising “out of grievances or out of the interpretation or application of

agreements concerning rates of pay, rules, or working conditions,” the Court

repeated the language found in its earlier decision in Elgin, Joliet & Eastern




                                          7
Railway Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945),

which explained that this category of disputes

      contemplates the existence of a collective agreement already
      concluded or, at any rate, a situation in which no effort is made to
      bring about a formal change in terms or to create a new one. The
      dispute relates . . . to the meaning or proper application of a particular
      provision with reference to a specific situation . . . . [T]he claim is to
      rights accrued, not merely to have new ones created for the future.

Id. at 723.

      The Court summarized the Burley test as “look[ing] 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,” and added that “[t]he

distinguishing feature of such a [minor dispute] is that the dispute may be

conclusively resolved by interpreting the existing agreement.” Consol. Rail, 491

U.S. at 305. Condensing the Burley formulation even further, the Court provided

a shorthand version of the test: “major disputes seek to create contractual rights,

minor disputes to enforce them.” Id. at 302 (citing Burley, 325 U.S. at 723). See

also Hawaiian Airlines 512 U.S. at 258; Atchison, Topeka & Santa Fe Ry. Co. v.

Buell, 480 U.S. 557, 564-65, 107 S. Ct. 1410, 94 L. Ed. 2d 563 (1987).

      Similarly, in Hawaiian Airlines, the Supreme Court described the “minor

dispute” category as encompassing all controversies involving rights created



                                          8
solely by collective bargaining agreements. The Court stated that the term

“‘grievances,’ like disputes over ‘the interpretation or application’ of CBA’s

[collective bargaining agreements], refers to disagreements over how to give effect

to the bargained-for agreement,” and observed that “[t]he use of ‘grievance’ to

refer to a claim arising out of a CBA is common in the labor-law context in

general.” 512 U.S. at 254. The Court further noted that “[o]ur case law confirms

that the category of minor disputes contemplated by § 151a are those that are

grounded in the CBA,” id. at 256, and that “‘minor disputes’ subject to RLA

arbitration are those that involve duties and rights created or defined by the CBA,”

id. at 258. Finally, the Court explained that “[o]bviously, to say that a minor

dispute can be ‘conclusively resolved’ by interpreting the CBA is another way of

saying that the dispute does not involve rights that exist independent of the CBA.”

Id. at 265.2 The crucial inquiry is thus whether the source of the plaintiff’s

asserted legal right is the collective bargaining agreement.


       2
         See also Ry. Labor Executives’ Ass’n v. Boston & Maine Corp., 808 F.2d 150, 159 (1st Cir.
1986) (“It would seem that any breach of an existing collective bargaining agreement, whether
‘anticipatory’ or otherwise, is precisely what an arbitrable ‘minor’ dispute is concerned with.”);
Wolfe v. Norfolk S. Ry. Co., 2003 WL 2007936, at **3 (6th Cir. Apr. 29, 2003) (“Minor disputes
include claims involving the meaning or application of an existing collective bargaining agreement
provision to a specific situation or case.”); Childs v. Pa. Fed’n Bhd. of Maintenance of Way
Employees, 831 F.2d 429, 437 (3d Cir. 1987) (“[M]inor disputes involve the application of a valid
agreement to a specific grievance); Chicago & N.W. Transp. Co. v. Ry. Labor Executives’ Ass’n,
908 F.2d 144, 148 (7th Cir. 1990) (“[A] grievance is merely a complaint that arises under the
agreement....”) (internal citation omitted).

                                                9
      In Consolidated Rail, the Supreme Court limited the ability of an RLA

defendant to convert a statutory claim into a “minor dispute” by merely asserting

that the challenged conduct is permitted by an applicable collective bargaining

agreement. The Court held that the contested action must be “arguably” justified

by the parties’ agreement before the minor dispute rule can apply:

      “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.”

Consol. Rail, 491 U.S. at 307. Thus, merely claiming a contractually based right

to take or resist the action in question does not render the dispute a minor dispute.

However, we have previously observed that the Consolidated Rail standard for

“arguability” is low, and stated that “if a reasonable doubt exists as to whether the

dispute is major or minor, we will deem it to be minor.” CSX Transp., 327 F.3d at

1321 (citation omitted). Moreover, Consolidated Rail did not involve a situation

in which the plaintiff’s claim was itself based on a collective bargaining

agreement.

      BMWE argues that CSX’s violation of the obligations imposed or allegedly

imposed by the agreement rises to the level of a violation of § 2 First. BMWE

repeatedly emphasizes § 2 First’s duty to “maintain agreements”; the implication

                                         10
is simply that by failing to provide the quarterly percentage reports and

background information, CSX has failed to maintain the agreement with BMWE.

According to BMWE, such an alleged statutory violation renders irrelevant the

question of whether the dispute is major or minor. We remain unpersuaded.

       BMWE relies heavily on Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l,

238 F.3d 1300 (11th Cir. 2001). BMWE says that the plaintiff’s § 2 First claim in

that case was “based in part on an agreement commitment,” and that the court

addressed the plaintiff’s claim regardless. Therefore, the argument goes, a district

court should assert jurisdiction to hear and decide claims under § 2 First, even if

those claims could also give rise to a minor dispute. This argument not only

collides with the ruling in Consolidated Rail, but also misapprehends the holding

in Delta itself.

       In Delta, a group of airline pilots began collectively to decline to work

overtime while their employer and their union were engaged in negotiations to

replace their existing collective bargaining agreement with a new agreement. The

employer sued under § 2 First, seeking to enjoin the pilots’ collective action.

Since the pilots’ conduct was intended to “pressure [the employer] into making

concessions in the negotiations for a new” agreement, the statutory claim raised a

major dispute, over which the district court had jurisdiction. Id. at 1303. The

                                          11
union asserted that the existing agreement “arguably” allowed the pilots to refuse

to work overtime, and thus that the employer’s claim should be dealt with as a

minor dispute. We, however, found that the agreement did not “arguably” permit

the pilots’ behavior, and thus that the case did not involve a minor dispute.

Indeed, we noted that classification of the case as a minor dispute “would have

rendered [the dispute] subject to mandatory and exclusive arbitration under the

RLA.” Id. at 1307.

      BMWE’s claim as to the quarterly reports raises a minor dispute. First,

CSX is not attempting to create new rights or to eliminate existing duties under the

agreement. Indeed, its argument regarding mootness is premised on the very fact

that it has complied with the relevant obligation by (belatedly) providing the

requested percentages. Second, BMWE is seeking a declaratory judgment stating

that CSX’s failure to provide the percentages violates the very agreement before

the Court -- in effect, a formal interpretation or application of the agreement.

Third, and more generally, the obligation in question clearly derives from the

agreement itself, rather than from some external statutory source. The

Consolidated Rail Court’s “shorthand” definition of minor disputes as those in




                                          12
which a party seeks “to enforce” a collective bargaining agreement surely

encompasses the present action.3

        BMWE’s claim as to the background information also raises a minor

dispute. The obligation to provide such information, if it existed at all, was

implicit in and derived from the side letter’s provision requiring the quarterly

reports. The determination of whether such an obligation existed plainly requires

interpretation of the agreement and the side letter.

        BMWE also suggests that because the side letter obliged CSX to report the

quarterly percentages, § 2 First required CSX to provide (upon request) the backup

information used to calculate those percentages. Such backup information,

according to BMWE, was necessary to ensure that CSX was not merely providing


        3
          The dissent suggests that there is no practical reason to refer this case to arbitration before
the Board, since the primary advantage of such arbitration -- the Board’s expertise in interpreting
collective bargaining agreements -- is not needed to resolve the question of whether the quarterly
reports were required. Because CSX concedes that point, the argument goes, the Board’s only
function would be to issue an award confirming the obvious, and BMWE would then have to return
to the district court in order to seek enforcement of the award. Under this view, it would be more
efficient simply to require the district court to issue the declaratory judgment now, and to skip the
extra procedural steps.

        The relevant question, however, is not whether the district court is the more efficient forum
(as it may well be), but whether it has jurisdiction to act. The district court’s jurisdiction does not
turn on the ease or difficulty of the interpretive question, but rather on whether the dispute is over
rights created and defined by the collective bargaining agreement. Because the Board’s jurisdiction
over minor disputes like the one at hand is exclusive, the district court is without the authority simply
to resolve the claim - - which BMWE has brought in the wrong forum - - in the name of efficiency.
For us to hold otherwise would enable a party to sidestep the arbitration process whenever it may
be convenient.

                                                   13
baseless or “sham” percentage figures, while secretly reducing the number of

“fixed” employees to a point below the agreed-upon figure. Under this view, the

provision of such information and the enabling of basic compliance verification

was necessary for CSX to demonstrate a “reasonable effort” to maintain the

agreement and to settle the dispute.

      BMWE’s reading of the statute, however, effectively circumvents

Consolidated Rail’s minor dispute rule. Indeed, under this reading, every specific

right or duty imposed by a collective bargaining agreement would generate

additional rights or duties in the statute. Virtually any dispute over the meaning of

a term of an agreement could be recast as a dispute over the corresponding § 2

First requirements, opening the door to federal subject matter jurisdiction.

Moreover, the inference of such additional statutory requirements could

undermine the parties’ negotiation of collective bargaining agreements, since the

addition of new agreement terms could lead to the imposition of unforeseeable

statutory liability in future cases. It would thus be difficult for the parties to define

and control with precision their respective obligations, even through the most

careful of drafting efforts.

      Simply put, any obligation to provide either the quarterly percentage reports

or the requested background information can only have derived from the

                                           14
agreement and the side letter. And, the identification of these obligations requires

the interpretation and application of the side letter, a function to be performed by

the Board. Therefore, we are constrained to conclude that the district court lacked

subject matter jurisdiction over BMWE’s claims. Accordingly, we vacate and

remand the case to the district court, with instructions to dismiss for lack of

subject matter jurisdiction.

      VACATED AND REMANDED.




                                          15
BARKETT, Circuit Judge, concurring in part and dissenting in part:

      I concur with the majority’s conclusion in Part II.A that BMWE’s claims

regarding the quarterly percentage reports are not moot, and its conclusion in Part

II.B that BMWE’s claim as to the provision of background information is a “minor

dispute” over which we lack jurisdiction. However, I disagree with its holding

that BMWE’s quarterly percentage reports claim is also a “minor dispute”. That

conclusion rests, in my opinion, on a misreading of the distinction between minor

and major disputes laid out in Consolidated Rail Corp. v. Railway Labor

Executives’ Ass’n, 491 U.S. 299, 109 S. Ct. 2477, 105 L. Ed. 2d 250 (1989), and

Elgin, Joliet & Eastern Railway Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L.

Ed. 1886 (1945). When, as in this case, a carrier refuses to comply with an

undisputed provision in a collective bargaining agreement, effecting a unilateral

change in the agreement’s terms, the resulting dispute is major, not minor.

      Under Consolidated Rail, when a party to a collective bargaining agreement

“asserts a contractual right to take the contested action,” the dispute is minor “if

the action is arguably justified by the [agreement’s] terms.” Consol. Rail Corp.,

491 U.S. at 307. On the other hand, if the party’s contractual justification is

“obviously insubstantial or frivolous, [or] made in bad faith,” the dispute is major.

Id. at 307-10. CSX admitted at oral argument that it could not arguably justify its

                                          16
refusal to provide the reports under the agreement’s terms. (“By repeatedly failing

to comply with this obligation to provide the reports, CSX-T[ransportation]

effectively read the obligation to provide the reports out of the agreement, and

changed the agreement.”).1 Thus, this refusal must constitute a major dispute,

even under the low standard of “arguability” of CSX Transportation, Inc. v.

Brotherhood of Maintenance of Way Employees, 327 F.3d 1309, 1321 (11th Cir.

2003). See Ass’n of Flight Attendants, AFL-CIO v. United Airlines, Inc., 976

F.2d 102, 104 (2d Cir. 1992) (noting that “a unilateral and enjoinable change in

the collective agreement” would constitute a major dispute, and contrasting it with

“a legitimate disagreement over an ambiguity in a collective agreement” subject to

arbitration that formed the focus of the case).

       Despite acknowledging this language in Consolidated Rail, the majority

ultimately decides that this dispute was minor based on the Supreme Court’s

“shorthand” formulation of the minor-major dispute test in the same case, which

explains that “major disputes seek to create contractual rights, minor disputes to

enforce them.” Consol. Rail Corp., 491 U.S. at 302 (citing Burley, 325 U.S. at



       1
          This undermines the majority’s conclusion that “CSX is not attempting to create new rights
or to eliminate existing duties under the agreement.” Ante at __. In fact, by holding that this claim
is not moot, the majority implicitly recognizes that CSX may attempt to write this provision out of
the agreement again in the future.

                                                 17
723). Because the obligation to provide the quarterly reports derives from a

provision in the agreement, the majority reasons, the dispute concerns the

enforcement of a contractual right, and therefore must be a minor dispute subject

to arbitration.

       “Shorthand” formulations of Supreme Court jurisprudence do not always

capture the precision or totality of the Supreme Court’s holdings, and I do not

believe they do so in this case. The majority’s conclusion ignores the language

that the “shorthand” test summarizes, which classifies disputes “where it is sought

to change the terms of [an agreement]” as major disputes. Burley, 325 U.S. at 723.

In contrast, the Court described minor disputes as:

       contemplat[ing] the existence of a collective agreement already
       concluded or, at any rate, a situation in which no effort is made to bring
       about a formal change in terms or to create a new one. The [minor]
       dispute relates either to the meaning or proper application of a particular
       provision with reference to a specific situation or to an omitted case.

Id. (emphasis added). By refusing to comply with a provision in the collective

bargaining agreement without justification, CSX made an “effort…to bring about

a formal change in [its] terms.” Id. And because CSX admits that it could not

arguably justify its refusal under the agreement’s terms, the dispute does not

“relate[] either to the meaning or the proper application of a particular provision




                                           18
with reference to a specific situation.” Id. CSX concedes that the agreement

required it to provide the reports; it simply refused to comply.

      Moreover, classifying this dispute as minor clashes with Consolidated

Rail’s observation that under Burley, the “distinguishing feature” of a minor

dispute is that it “may be conclusively resolved by interpreting the existing

agreement.” Consol. Rail. Corp., 491 U.S. at 305. In such situations, the

arbitrators, who are “experts in the interpretation of agreements,” Air Line Pilots

Ass’n, Int’l v. UAL Corp., Int’l Ass’n of Machinists & Aerospace Workers, 874

F.2d 439, 444 (7th Cir. 1989), play a valuable role. Because collective bargaining

agreements are complicated contracts that “cannot define every minute aspect of

the complex and continuing relationship” between carrier and union, see Gateway

Coal Co. v. United Mine Workers of America, 414 U.S. 368, 378, 94 S. Ct. 629,

38 L. Ed. 2d 583 (1974) (commenting in context of the Labor Management

Relations Act); United Steelworkers of America v. Warrior & Gulf Navigation

Co., 363 U.S. 574, 578-80, 80 S. Ct. 1347, 4 L. Ed. 2d 1409 (1960) (same),

arbitrators’ expertise in “the common law of [the] particular industry” makes them




                                         19
specially able to interpret their provisions. Consol. Rail Corp., 491 U.S. at 310

(quoting Warrior & Gulf Navigation Co., 363 U.S. at 579).2


        2
          Relying on Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S. Ct. 2239, 129 L. Ed. 2d
203 (1994), the majority asserts that the “crucial inquiry” in classifying a dispute as major or minor
is “whether the source of the plaintiff’s asserted legal right is the collective bargaining agreement.”
Ante at __. I disagree. The crucial inquiry is not whether the collective bargaining agreement is the
basis for the plaintiff’s claim, but whether it provides a colorable, non-frivolous defense to the
contested action. See Consol. Rail Corp., 491 U.S. at 307 (“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.”). If it does, then the dispute is suited
for resolution by arbitrators, who are experts at the special skill of interpreting collective bargaining
agreements. If it does not, then arbitration serves no purpose, and dispute resolution is best handled
by a court.
        Consistent with Consolidated Rail, Hawaiian Airlines merely reiterates that the crucial
inquiry is whether the dispute “may be conclusively resolved by interpreting the existing [collective
bargaining agreement].” 512 U.S. at 265 (quoting Consol. Rail Corp., 491 U.S. at 305). If the
dispute involves interpretation of the agreement, the dispute is minor; if it does not, the dispute is
major. Id. Thus, the Hawaiian Airlines Court noted that under Consolidated Rail, a carrier’s attempt
to unilaterally add a term to an existing collective bargaining agreement would constitute a major
dispute. Id. (citing Consol. Rail Corp., 491 U.S. at 303).
        This case presents the materially indistinguishable situation wherein the carrier attempts to
unilaterally delete an express provision of a collective bargaining agreement. In both cases, the
carrier has unilaterally modified the terms of the contract. No interpretation of the agreement is
required in either situation, because the carrier cannot advance a non-frivolous argument that the
agreement permits the contested modification. See Consol. Rail Corp., 491 U.S. at 307. Instead,
the carrier has attempted to create or eliminate provisions in the collective bargaining agreement
without resorting to the bargaining process required by the Railway Labor Act. Unilateral
modifications to the agreement thus constitute “major disputes” because (1) no contractual
interpretation is necessary to resolve them, and (2) classifying them as minor would impermissibly
“undercut the prohibitions of § 2, Seventh, and § 6 of the Act against unilateral imposition of new
contractual terms.” Id. at 306 (internal quotation marks and citations omitted).
        This logic is in no way at odds with the observation in Hawaiian Airlines that minor disputes
“[do] not involve rights that exist independent of the [collective bargaining agreement].” 512 U.S.
at 265. When the offending party unilaterally modifies the terms of the collective bargaining
agreement, it implicates its independent duty “to exert every reasonable effort to make and maintain
agreements” under § 2 First of the Act, 45 U.S.C. § 152 First (2005), and “the prohibitions of § 2,
Seventh, and § 6 of the Act against unilateral imposition of new contractual terms.” Consol. Rail
Corp., 491 U.S. at 306 (internal quotation marks and citations omitted). Therefore, a major dispute
may still arise even though the plaintiff has asserted a legal right under the collective bargaining

                                                   20
       But there is nothing to interpret in this case. Both CSX and BMWE agree

that the agreement requires CSX to produce quarterly reports. Accordingly, I do

not believe that Congress intended for arbitrators to handle such disputes.

Frankly, I do not even see what role an arbitrator can play in this scenario.

Because both parties agree that the agreement requires CSX to produce the

reports, the arbitral panel’s only job will be to issue a decision commanding CSX

to comply, a decision that BMWE will have to take back to federal court to

enforce. We can more easily settle this dispute now, by entering a declaratory

judgment requiring CSX to produce the quarterly reports, without engaging in

contractual interpretation of any sort.

       Finally, I note that a carrier’s bad-faith refusal to comply with an undisputed

provision in a collective bargaining agreement “present[s] the large issues about

which strikes ordinarily arise with the consequent interruptions of traffic the Act

sought to avoid,” and thus is appropriately categorized as a major dispute. Burley,

325 U.S. at 723-24. Far from quibbling over what a particular provision means,

CSX flatly refused to abide by an agreement that forms the cornerstone of its

relationship with its employees. See Warrior & Gulf Navigation Co., 363 U.S. at



agreement, if the defendant either does not assert a contractual right to take the contested action, or
asserts a contractual right that is “frivolous or obviously insubstantial.” See id. at 307.

                                                  21
579 (“The collective agreement covers the whole employment relationship.”).

That sort of unilateral action risks “undermin[ing] the confidence so indispensable

to adjustment by negotiation, which is the vital object of the Act.” Burley, 325

U.S. at 756 (Frankfurter, J., dissenting); cf. Air Line Pilots Ass’n, Int’l, 874 F.2d at

444 (“[I]f one party to a labor agreement refuses to bargain with the other, this is

an ominous sign that a strike is looming.”).

      For the above reasons, I respectfully dissent from the majority’s

determination that BMWE’s claim as to the quarterly reports constitutes a minor

dispute.




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