CSX TRANSPORTATION, INC., Plaintiff-Counter-Defendant-Appellant Cross-Appellee, versus BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, (“BMWE“), ALLIED EASTERN FEDERATION OF THE BROTHERHOOD OF WAY EMPLOYEES, Defendants-Counter-Claimants-Appellees Cross-Appellants, SOUTHEAST SYSTEM FEDERATION, BMWE, Defendant-Counter-Claimant.
No. 01-15410
United States Court of Appeals for the Eleventh Circuit
April 21, 2003
D. C. Docket No. 95-00813-CV-3-F-21
(April 21, 2003)
Before BIRCH and BLACK, Circuit Judges, and PROPST*, District Judge.
BIRCH, Circuit Judge:
In this appeal, we decide whether damages are available under the Railway Labor Act (“RLA“),
I. BACKGROUND
CSX Transportation, Inc. (“CSXT“) is a national rail carrier, whose labor relations are governed by the RLA. The Brotherhood of Maintenance of Way Employees (“BMWE“) is the collective bargaining representative of CSXT maintenance of way workers. Maintenance of way employees are responsible for repairing and maintaining the railroad track and supporting structures. Negotiations between CSXT and BMWE resulted in collective bargaining agreements (hereinafter “agreements“), which governed rates of pay, work rules and working conditions, and were subject to the provisions of the RLA. The collective bargaining agreement at issue (the “Agreement“) was executed and administered between defendant Southeast System Federation, a BMWE sub-unit,1 and CSXT. The Agreement covered what is now the former Louisville and Nashville Railroad Company (“L&N“) and a part of CSXT‘s rail system.
* Honorable Robert B. Propst, United States District Judge for the Northern District of Alabama, sitting by designation.
The first dispute involved whether BMWE employees had the exclusive right to make track repairs, regardless of how minor, or whether it was within the scope of the Agreement that supervisors also could make occasional minor repairs of defects found during the course of their inspections. Rule 1 of the Agreement, dated 1 October 1973 (the “Scope Rule“) provides:
RULE 1. SCOPE
Subject to the exceptions in Rule 2, the rules contained herein shall govern the hours of service, working conditions, and rates of pay for all employes2 in any and all subdepartments of the Maintenance of Way and Structures Department, represented by the Brotherhood of Maintenance of Way Employes, and such employes shall perform all work in the maintenance of way and structures department.
RULE 2. EXCEPTIONS TO RULE 1
These provisions shall not apply to the following, except as to the retention and exercise of seniority by the individuals as outlined in the seniority rules:
. . .
2(c) Supervisors and assistants, and other employes above that rank; .
R6-140 at JA 27-28, R6-141 at JA 571.3
Prior to the 17 August 1995 strike, BMWE consistently took the position that CSXT‘s inspectors could not perform any repairs that were maintenance-of-way work because that was reserved to BMWE workers. BMWE asserted this position in many disputes, most of which were resolved by settlement, withdrawal or arbitration. The proverbial “last straw” was CSXT‘s permitting two supervisors to perform minor track repairs and abolishing a BMWE member-held truck driver position. R6-146 at 8. In the past, the truck drivers accompanied the CSXT supervisors on their inspections and were available to perform any necessary minor repairs. With the elimination of the position, CSXT inspectors would be unaccompanied in their inspections and would perform the minor work themselves,
The second dispute involved CSXT‘s initial refusal to award a track repairman position to a BMWE member because a dispute existed as to his seniority rights. Generally, agreements between CSXT and BMWE divided the rail system into seniority districts, wherein an employee could hold seniority in one district at a time. Dewey C. Hamilton had seniority in a seniority district on the former Chesapeake & Ohio Railway (C&O). He was furloughed for lack of work on the C&O and permitted to transfer on 23 May 1995 to another district on the former L&N, which was also part of CSXT‘s system, and given a trackman position. When a better position became available on the L&N, Hamilton bid on that position. CSXT initially declined to award him the position because it was uncertain whether Hamilton properly established seniority on the L&N. BMWE took the stance that Hamilton should be awarded the position because he was the only employee who bid on it. CSXT and BMWE negotiated regarding the issue. CSXT took the position that “policy will supersede the agreement” and refused to recognize Hamilton‘s seniority and position bid. R6-146 at 9. Ultimately, on the date BMWE commenced the strike, CSXT conceded to award Hamilton the
Discussions ensued between CSXT and BMWE as a result of these two issues. Finding no ready resolution, BMWE secretly prepared to engage the BMWE employees across eleven states in a strike over these two issues. Id. at 10-11. Without any formal or informal notice to CSXT, BMWE called the eleven-state strike on 17 August 1995. Later that same day, CSXT filed suit in the United States District Court for the Middle District of Florida and claimed that BMWE‘s strike violated
On 2 October 1995, BMWE filed a counterclaim alleging that CSXT violated the RLA by unilaterally changing working conditions and failing to maintain the parties’ collective bargaining agreements when it permitted inspectors to perform repair work exclusively reserved for maintenance-of-way employees. BMWE also filed motions to dismiss CSXT‘s claim for damages and state-law claim for tortious interference with contractual rights.
CSXT appeals the district court‘s order granting of BMWE‘s motion to dismiss, which held that a damages remedy was not appropriate for violations of RLA
We will first address whether issue preclusion principles prevent the adjudication of the merits of the parties’ appeals. Second, we turn to BMWE‘s cross-appeal of the district court‘s determination whether the seniority dispute was major or minor under the RLA. After we decide that the seniority dispute is also minor within the meaning of the RLA, thus rendering BMWE‘s strike illegal, we will turn to whether CSXT is entitled to recoup compensatory damages incurred as a result of the strike.
The case before us culminates in a specific query: whether CSXT can recover compensatory damages from BMWE, incurred as a result of BMWE‘s illegal strike over a minor dispute, because BMWE did not give advance notice to CSXT of its intent to strike. Initially, however, BMWE claims that the doctrine of collateral estoppel precludes us from deciding this issue because CSX Transportation Inc. v. Marquar, 980 F.2d 359 (6th Cir. 1992), litigated between CSXT and BMWE and decided ten years ago in the United States Court of Appeals for the Sixth Circuit, purportedly reached the same issue to hold that damages are never recoverable for an implied right of action under RLA
BMWE proffers a provocative, yet unpersuasive, argument that CSXT is collaterally estopped from arguing that it is entitled to recover compensatory damages under RLA
injunctive and compensatory relief, claiming that BMWE‘s nine-state strike over the location where the workers were to eat their lunches was unlawful because it involved a minor dispute. BMWE had threatened strike and CSXT filed suit just days prior to the strike‘s authorization and institution. CSXT, however, did not obtain a temporary restraining order until hours later on the same day the strike began. The parties submitted to arbitration, at which the arbitration panel deemed the dispute minor and resolved the dispute within the arbitration process. CSXT maintained its action for compensatory relief, claiming that it suffered damages from the, albeit brief, interruption in its train service. The district court granted BMWE‘s motion to dismiss, finding that damages had never been awarded under the RLA for unlawful strikes over minor disputes, nor had Congress affirmatively provided for such remedy.
On appeal, CSXT argued that a damages remedy was appropriate because the Supreme Court found an implied a right of action under the RLA. BMWE countered with authority from other circuits which denied damages for unlawful strikes and argued that the availability of damages would upset the balance of power between labor and management. The majority accepted BMWE‘s
Given that the matter before us is a federal question previously decided by a federal court, it naturally follows that federal preclusion principles apply in this case. In Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1356 n.1, 1360 n.6
Finding that federal issue preclusion rules apply, we next determine whether the issue in this case is predestined for the same result because it meets the criteria for application of the doctrine. “Collateral estoppel or issue preclusion forecloses
The adversaries in Marquar and in this appeal are the same: BMWE and CSXT. BMWE is attempting to assert issue preclusion against CSXT regarding the issue whether damages are available for an unlawful strike over a minor dispute, claiming that Marquar decided the very same issue against CSXT approximately ten years ago. The first prerequisite is whether the issue in this case is identical to the issue litigated in Marquar. The Marquar court decided generally that damages are not available under RLA
The issue preclusion doctrine, however, first directs our attention to the relative similarity of the facts of each case, and rightfully so. If we were bound by broad legal decisions by other courts at a given level of abstraction out of the facts of every similar case by the mere fact of an identical caption, the novel defense of issue preclusion would serve to bind the adjudication of many more cases than would serve the interests of justice and move outside the scope of the purposes of collateral estoppel.
That identical parties (or privies) are involved in this case and in Marquar is but a threshold requirement of issue preclusion. CSXT need only point to one material differentiating fact that would alter the legal inquiry here and thereby overcome the preclusive effect of Marquar. Sewell v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 94 F.3d 1514, 1519 (11th Cir. 1996). Admittedly, the disputes are substantially similar: both involve a dispute that went unresolved through the arbitration vehicles provided for in the RLA; both involved the interpretation by BMWE of the dispute as major, thus avoiding the mandatory arbitration of the dispute; both involved the institution of a strike prior to CSXT‘s
BMWE argues that the lack of notice was not a controlling fact and not essential to the resolution in Marquar.8 BMWE relies on the broad legal holding of Marquar, that damages are never recoverable for unlawful strikes over minor
Because we have concluded that the facts in this case are materially different, to give Marquar preclusive effect is inappropriate, and we need not further track the issue preclusion requirements. A material difference in fact necessarily leads us to conclude here that the issue was not “actually litigated” and could not possibly have been “critical and necessary” to the judgment. Although we cannot point to explicit “contrary precedent,” nor do we need to because of the factual differences, we will note that emergent case law, infra, steers the legal
Clearing the potential hurdle of issue preclusion, we now address the merits of the cross-appeal and appeal before us. We first address BMWE‘s cross-appeal, which argues that the seniority dispute is a major dispute, that the issue was not actually decided by the district court and, furthermore, that summary judgment was not appropriate because a material fact remained in dispute.
B. The Seniority Dispute - Major or Minor?
BMWE appeals the district court‘s grant of summary judgment in favor of CSXT, arguing that the district court erred in its failure to apply the Conrail test to the seniority dispute between BMWE and CSXT, about which BMWE maintains disputed facts exist regarding whether the dispute was minor within the definition of the RLA. Before we can reach the damages issue in this case, we first must address whether the district court erred in granting summary judgment to CSXT in and failing to determine whether the seniority dispute between the parties was minor.9 If we find that the district court erred, BMWE would be in a position to argue that the seniority dispute was major and justified self-help in the form of a
strike, thus there would be no illegal strike from which CSXT could allege a claim for compensatory damages.BMWE argues, first, that the district court did not make the required findings mandated by Conrail and, second, that there existed disputed facts precluding a decision on summary judgment. BMWE submits that the case should be remanded to the district court on this issue. CSXT responds that BMWE‘s cross-appeal is moot, as admitted by BMWE in the proceedings before the district court. In addition, CSXT maintains that the record clearly supports that the seniority dispute was minor under the RLA.
“If the appeal is moot, this court lacks jurisdiction to decide the case because it fails to meet the case or controversy requirement set forth in the
Moreover, underlying labor disputes presumably remain “live,” although they might be settled or abandoned by the parties in the meantime. In NBC, we noted that
[t]he Supreme Court has acknowledged that labor conflicts are the sort of disagreements likely to be repeated in the future. See, e.g., Buffalo Force Co. v. U. Steelworkers of America, AFL-CIO, 428 U.S. 397, 403 & n.8 (1976). See also, Jacksonville, Etc. v. Intern. Longshoremen‘s Ass‘n, 457 U.S. 702, 704 n.1 (1982) . . .; 13A C. Wright, A. Miller & E. Cooper, Federal Practice and
Procedure § 3533.3 at 287 (1984) (“labor disputes . . . provide clear illustration of the private disputes that are preserved from mootness by the prospect of future repetition.“).
860 F.2d at 1024 n.2 (finding case was not moot because it was capable of repetition). Accordingly, we will not refuse to adjudicate the case on mootness grounds because, not only does the issue remain relevant between the parties, but it is the exact type of issue that would recur on a regular basis and perpetually escape review.
The RLA distinguishes between two types of disputes in labor relations - major and minor. Depending on the classification of the dispute, each party must follow certain procedures mandated by the RLA. If a dispute is “minor” the parties are prohibited from striking and must submit to compulsory arbitration of the dispute by the NRAB.
Each party, acting in its own interest, will have different motives to assign a certain classification to the dispute. For example, a union will typically claim a dispute is major because it is permissible to strike if the carrier insists on implementing a certain policy. Conversely, a carrier will insist the dispute is minor because it can proceed with the policy while the parties are compelled to navigate the arbitration process. Accordingly, the district court is placed in the position to determine the nature of the dispute, without necessarily reaching the merits of the dispute. Conrail, 491 U.S. at 306. “[T]here is a danger in leaving the characterization of the dispute solely in the hands of one party. In a situation in which the party asserting a contractual basis for its claim is ‘insincere’ in so doing, or its ‘position [is] founded upon . . . insubstantial grounds,’ the result of honoring that party‘s characterization would be to undercut ‘the prohibitions of [the RLA]’ against unilateral imposition of new contractual terms. . . . In such circumstances, protection of the proper functioning of the statutory scheme requires the court to substitute its characterization for that of the claimant.” Id. (alteration and first omission in original) (internal citations omitted).
A major dispute:
“relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.”
Conrail, 491 U.S. at 302 (quoting Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945)).
On the other hand, a minor dispute is “a dispute arising or growing ‘out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.‘” Conrail, 491 U.S. at 303,
“[A minor dispute] 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 either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e.g., claims on account of personal injuries. In either case the claim is to rights accrued, not merely to have new ones created for the future.”
Conrail, 491 U.S. at 303 (quoting Burley, 325 U.S. at 723).
Thus, the formal demarcation between major and minor disputes does not turn on a case-by-case basis determination of the importance of the issue presented or the likelihood that it would prompt the exercise of economic self-help. . . . Rather, the line drawn in Burley looks to whether a claim has been made that the terms of an existing agreement either establish or refute the presence of a right to take the disputed action. The distinguishing feature of such a case is that the dispute may be conclusively resolved by interpreting the existing agreement.
Id. at 305 (internal citations omitted).
The Supreme Court articulated the standard for differentiating between major and minor disputes in Conrail. “Where an employer asserts a contractual right to take the contested action, the ensuing dispute is minor if the action is
BMWE argues that there exists a genuine issue of material fact as to whether the seniority dispute was minor, thereby precluding the award of summary judgment in favor of CSXT. BMWE urges us to remand the issue to the district court for adjudication on its facts. Because the issue whether the dispute is minor or major is one of law, and because the facts as presented to us in the record do not present a disputed material fact issue, we are in a position to resolve the matter at this time. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Although BMWE asserts that disputed facts exist that make summary judgment improper, the issue is facile; that is, whether CSXT recognized Hamilton‘s seniority and position bid prior to or after BMWE initiated the strike.
We conclude that CSXT‘s position regarding the seniority dispute was “arguably justified” by the terms of the Agreement and thus the dispute is minor under the RLA. CSXT argues that the resolution of the dispute depended on the interpretation of Rules 6, 16, and 26 of the existing L&N Agreement. BMWE also cited these provisions and the fact that Hamilton was the only person to bid on the position to argue that he was entitled to it. When Hamilton transferred from one seniority district to another, it was unclear under the Agreement whether the date of his seniority began at the time that he started work under the first seniority district and that time transferred when he was furloughed and rehired in a different district, or whether he was a “new employee” and his seniority computation began
It is clear from the parties’ arguments and the nature of the dispute that the resolution of the matter depended on the existence and interpretation of the Agreement. CSXT‘s denial of the position to Hamilton was “arguably justified” by the terms of the Agreement, because there existed uncertainty as to the interpretation of its terms and, therefore, as to which point his seniority was computed. Contrary to BMWE‘s insistence that CSXT unilaterally changed the Agreement by denying Hamilton‘s position bid, we find that CSXT‘s position regarding Hamilton‘s seniority rights was a justifiable interpretation of the Agreement provisions that would be ultimately resolved by a resolution of the correct interpretation of the Agreement‘s seniority provisions. Because the resolution of the seniority dispute necessarily involved an interpretation of the Agreement, the dispute is minor within the meaning of the RLA under the Conrail test. We will not discuss whether CSXT‘s interpretation is a correct one; it is not within the scope of our review to decide the merits of the dispute before us, but
Accordingly, we find that the BMWE-instituted strike was predicated on not just one but two minor disputes and was thus illegal under the RLA. We now turn to whether CSXT is entitled to recover compensatory damages incurred as a result of the illegal strike.
C. Availability of Compensatory Damages Incurred from an Illegal Strike Initiated by BMWE without Notice to CSXT
Although the issue as to whether damages are recoverable for an illegal strike over a minor dispute is not new, there is relatively sparse case law especially considering the long history of the RLA, such that we are not convinced that the issue has been fully examined nor has it been developed to establish well-settled principles. The reason for this is unclear, but we are satisfied to presume that generally the RLA is accomplishing the purposes for which it was envisioned, and is successful to such a degree that generally unions and carriers are settling their disputes within the constructs of the RLA and using the courts as a last resort in the few instances the law has been ineffective. Thus, we find ourselves confronted with a question that, if not carefully reviewed and adjudicated with the history and purposes of the RLA in mind, could serve to upset the precarious balance in labor
After Brotherhood of Railroad Trainmen v. Chicago River & Indiana Railroad Co., 353 U.S. 30 (1957) (“Chicago River“), there exists an implied right of action under the RLA for unions and carriers to enforce its provisions through the courts. Specifically, Chicago River held that the district court ““has jurisdiction and power to issue necessary injunctive orders” to enjoin strikes that were deemed illegal under the RLA. Id. at 42 (quoting Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768, 774 (1952)).
There are two statutory bases by which CSXT alleged a violation of the RLA by BMWE and can maintain a private right of action. First, the fomentation of an illegal strike over a minor dispute violates the mandate that every minor dispute be subjected to compulsory arbitration under
BMWE‘s deliberate policy of repeatedly calling surprise strikes violates the statutory requirement that railroads and unions “exert every reasonable effort . . . to settle all disputes . . . in order to avoid any interruption to commerce.”
45 U.S.C. § 152 First. A surprise strike makes it difficult or impossible to resolve the underlying dispute between labor and management without “interruption to commerce.”Id. Because management
Section 153, First (i) of the RLA provides:
The disputes 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 conditions, . . . shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.
Burlington N. & Santa Fe Ry. Co. v. Bhd. of Maint. of Way Employees, 286 F.3d 803, 806 (5th Cir. 2002), cert. denied, 537 U.S. 1172 (2003). We agree. If a strike is imminent, regardless of whether it is over a major or minor dispute, it would seem incumbent upon the union to at least notify the carrier that the strike is impending. The form and timing of the notice is prescribed by the “every reasonable effort” language, which presumably requires that such notice will give the carrier adequate opportunity to seek an injunction from the district court, if appropriate to the facts of the dispute.
We conclude that BMWE violated both bases for liability under the RLA. First, although determinable in hindsight, BMWE illegally initiated a strike over two minor disputes - the inspector/supervisor repair dispute and the seniority dispute. Second, BMWE failed to provide CSXT with any notice, either formal or
[T]he question of what remedies are available under a statute that provides a private right of action is “analytically distinct” from the issue of whether such a right exists in the first place. . . . Thus, although we examine the text and history of a statute to determine whether Congress intended to create a right of action, we presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise. . . . The general rule, therefore, is that absent clear direction 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 65-66, 70-71 (internal citations omitted). In Franklin, the Supreme Court extended this longstanding jurisdictional rule to apply to instances when the right of action is implied and presumed that, because there was no indication otherwise, Congress enacted the statute from which a right of action is implied with this general rule in mind. Id. at 72 (“the same contextual approach used to justify an implied right of action more than amply demonstrates the lack of any legislative intent to abandon the traditional presumption in favor of all available remedies“).
In Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), the Supreme Court elaborated on Franklin, which recognized the availability of damages in an implied right of action, and took the opportunity “to
We are bound by our precedent in Louisville & Nashville Railroad Co. v. Brown, 252 F.2d 149 (5th Cir. 1958). In Brown, we held that:
The Supreme Court has held that a major purpose of [the RLA] was to provide a machinery for settling railway labor disputes in a manner that would prevent or minimize strikes. That this was a purpose of the Act is not disputed. However, it does not follow that Congress has, by this announcement of policy, even though stated in the terms of “duty,” intended to or succeeded in setting up a statutory right of action for damages for a breach of this duty. Where Congress sought to set up a right of action for damages for breach of duty in other management labor situations, it enacted a statute expressly spelling out the nature of the right of action. See
29 U.S.C.A. § 187 , and so also in creating a right of action in the civil rights field.42 U.S.C.A. § § 1983 ,1985 ,1986 . We do not think that Congress here intended to or did create a new statutory right of action for damages of the nature declared upon by the plaintiff . . .
Intervening Supreme Court precedent, however, arguably belies this assumption and its blanket application to any and all claims for damages under the RLA
Were we writing on a clean slate, we would hold that, given the case-by-case determination of the appropriate remedies for an implied right of action as set forth in Franklin and its progeny, this case is the quintessential “appropriate” case for an action for damages under the RLA for violations of §§
In Marquar, Judge Batchelder filed an extensive dissent opposing the majority‘s broad categorical holding, which we regard as instructive on the inherent shortcomings of Brown. The dissent advocated a case-by-case determination whether a damages remedy was appropriate, and thought it necessary to remand the case to the district court to develop the factual record to make such a determination. The dissent was particularly perplexed about the potential that a party victimized by an intentional violation of the RLA would be left without recourse if damages were never available. Marquar, 980 F.2d at 374
[t]he blanket statement that the majority makes - that damages are not available to a railway for a union‘s illegal strike - ignores the mandate that a panel of this Court set out in Kaschak [v. Consolidated Rail Corp., 707 F.2d 902, 906 (6th Cir. 1983)]: that the appropriateness of a remedy under the RLA must be determined on a case-by-case basis. Because this case is only at the motion to dismiss stage, I believe it is wrong to hold that the railway has failed to demonstrate why damages are appropriate in this fact situation. Therefore, I would reverse the district court‘s granting of the motion to dismiss and remand the case to the district court for further proceedings.
Id. at 379. We will not attempt to repeat Judge Batchelder‘s eloquent explication of the legislative history, purposes of the RLA, or policy arguments for the availability of damages under the RLA as appropriate; however, we enthusiastically endorse the reasoning.
(1) To avoid any interruption to commerce or to the operation of any carrier engaged therein; (2) to forbid any limitation 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 provide 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 grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.
“It cannot be denied but that congress had the power to command that act to be done; and the power to enforce the performance of the act must rest somewhere, or it will present a case which has often been said to involve a monstrous absurdity in a well organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist.” Kendall v. United States ex rel. Stokes, 37 U.S. 524, 624, 12 Pet. 524 (1838); see Marbury v. Madison, 5 U.S. 137,
While we recognize that there are valid arguments against the general availability of damages under the RLA, those arguments are inapposite here. First, the primary argument against a damages remedy is that it would upset the balance of power so carefully maintained between the carriers and the unions. See Marquar, 980 F.2d at 382. We need not expound in further detail why this argument fails to pass muster here. Rather, as manifested in the facts here, the unavailability of damages in the event that a union does not give notice of an authorized strike actually undermines the continued balance of power between the carrier and union. Moreover, the animosity generated by use of such a tactic places the parties in postures less amenable to settlement.
Hence, the chilling effect noted in Marquar, is non-existent. 980 F.2d at 382. Unions remain able to exercise their rights as available within the RLA because they still possess the right to strike over major disputes when status quo is not maintained; now the carrier merely has the ability to contest at the outset whether the dispute is major or minor. If the dispute is minor, it is illegal for the union to strike and it will be prevented from doing so.
III. CONCLUSION
We hold, albeit reluctantly, that CSXT cannot maintain an action for damages under the RLA as mandated by the current law in our circuit. We urge our colleagues to reconsider the law en banc in light of the considerations outlined herein to reconcile the available remedies of the RLA with the purposes of the RLA and the interest of justice.
AFFIRMED.
I agree with the majority that the doctrine of collateral estoppel does not preclude us from deciding the issue of whether monetary damages are available under the RLA for an illegal strike. Furthermore, I agree with the majority that in Louisville & Nashville Railroad Company v. Brown, 252 F.2d 149 (5th Cir. 1958), we addressed this issue and answered it in the negative.1 Thus, we are bound by our precedent to affirm the district court‘s ruling. All other issues are moot.
I specially concur with the result in this case because I respectfully disagree with the majority‘s call for the court to reconsider the Brown decision en banc. It is true that since Brown was decided the Supreme Court has clarified the framework for determining what remedies are available under a statute that provides a private right of action. See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 112 S. Ct. 1028 (1992); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 118 S. Ct. 1989 (1998). However, I do not think these precedents of relatively recent vintage present a sufficient reason to revisit Brown. I agree with the majority that were we writing on a clean slate and deciding this issue after Franklin and Gebser, we might find that monetary damages were appropriate
The Brown court has already addressed this issue and resolved it. Parties have relied on this ruling for 45 years. In the 77-year history of the RLA, not one court of appeal has held that damages are an appropriate remedy in this situation. The three courts of appeals to address the issue since Brown have all followed Brown‘s holding, noting that to recognize a monetary remedy at this late stage in the RLA‘s development would threaten to disrupt the balance that has developed between railroads and unions. See Norfolk Southern Ry. Co. v. Bhd. of Locomotive Eng‘rs, 217 F.3d 181, 190 (4th Cir. 2000) (“We are hesitant after all these years to do anything that might upset the delicate balance, particularly since the Act is structured to keep judicial involvement at a minimum.“); CSX Transp. v. Marquar, 980 F.2d 359, 381-82 (6th Cir. 1992) (“After 66 years, a court should be reluctant to change the balance that has been struck between railroads and unions.“); See also Burlington Northern R.R. Co. v. Bhd. of Maint. of Way Employes, 961 F.2d 86 (5th Cir. 1992).
Perhaps the majority is correct that BMWE is “exploiting, with impunity, this inherent loophole in the RLA” by repeatedly calling surprise strikes over minor disputes knowing that, under Brown, BMWE would not be liable for
Notes
In Montana v. United States, 440 U.S. 147, 99 S. Ct. 970 (1979), the Supreme Court recognized the ““unmixed question of law’ in successive action involving substantially unrelated claims” exception to estoppel principles. Id. at 162, 99 S. Ct. at 978 (quoting United States v. Moser, 266 U.S. 236, 242, 45 S. Ct. 66, 67 (1942)):Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitgation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
. . .
(2) The issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws . . .
The true nature and applicability of this exception is generally uncertain. See Henglein v. Colt Indus. Operating Co., 260 F.3d 201 (3d Cir. 2001) (“This exception has been discussed by courtsWhere, for example, a court in deciding a case has enunciated a rule of law, the parties in a subsequent action upon a different demand are not estopped from insisting that the law is otherwise, merely because the parties are the same in both cases. But a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law.) (emphasis added).
All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.
It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreement or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.