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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 21, 2004 Decided July 2, 2004

No. 03-7185

NATIONAL RAILROAD PASSENGER CORPORATION,

APPELLANT

v.

TRANSPORT WORKERS UNION OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02010)

Thomas E. Reinert, Jr. argued the cause and filed the

briefs for appellant.

Edward Himmelfarb, Attorney, U.S. Department of Justice, argued the cause for amicus curiae United States of

America in support of appellant. With him on the brief were

Peter D. Keisler, Assistant Attorney General, Roscoe C. Howard, Jr., U.S. Attorney, William G. Kanter, Attorney, Jeffrey

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

A. Rosen, General Counsel, U.S. Department of Transportation, and Paul M. Geiger, Assistant General Counsel.

Richard S. Edelman argued the cause and filed the brief

for appellees.

Before: GINSBURG, Chief Judge, and HENDERSON and

ROGERS, Circuit Judges.

Opinion for the Court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge: Amtrak appeals an order of the

district court denying its motion to enjoin five unions from

conducting a one-day strike. Amtrak argues the district

court should have enjoined the strike as a violation of the

Railway Labor Act, 45 U.S.C. §§ 151 et seq. The Unions

argue the RLA is inapplicable because the strike does not

concern matters at issue in bargaining between Amtrak and

the Unions but rather is directed at the Congress and the

President. The United States appears as amicus curiae in

support of Amtrak. Because we reject the factual premise of

the Unions’ argument, we hold the strike must be enjoined

pursuant to the RLA, for which purpose we remand this

matter to the district court.

I. Background

In the fall of 2003 Amtrak announced it would be forced to

shut down if it received a congressional subsidy of less than

$1.8 billion for FY 2004. Meanwhile, the House of Representatives had passed a bill appropriating $900 million for Amtrak while the Senate had passed a bill providing $1.3 billion.

After Amtrak’s announcement, five unions representing Amtrak employees put out press releases saying they would

stage a ‘‘work stoppage’’ in order to protest ‘‘the Bush

Administration and Congress’ refusal to properly fund Amtrak.’’ The Unions’ stated goal was to publicize Amtrak’s bid

for increased appropriations and to show the public what

would happen if Amtrak were to shut down.

At the time the Unions announced their plan they were (as

they are still) engaged in negotiation or mediation with

Amtrak over the terms of new collective bargaining agree-
3

ments. Amtrak sought to enjoin the strike on the ground

that the RLA prohibits self-help during the negotiation of a

new collective bargaining agreement. The Unions agreed to

refrain from the strike until after the district court had

decided Amtrak’s motion for a preliminary injunction. Meanwhile, Amtrak’s President, David Gunn, had told the Congress the railroad needed at least $1.3 billion — $500 million

less than previously claimed — and the House and the Senate

had agreed in conference to provide Amtrak $1.22 billion in

FY 2004.

The district court denied Amtrak’s motion for a preliminary

injunction, stating the RLA ‘‘does not impose an absolute bar

against strikes’’ during collective bargaining but instead ‘‘establishes procedures for channeling disputes into a dispute

resolution process.’’ Nat’l R.R. Passenger Corp. v. Transp.

Workers Union, 294 F. Supp. 2d 60, 64 (D.D.C. 2003). The

district court held the RLA did not bar this strike because

the Unions’ ‘‘dispute with Congress and with the administration over Amtrak funding cannot be resolved by negotiation,

mediation, or arbitration with Amtrak.’’ Id. (emphasis in

original). The district court further held the RLA should not

be construed to prohibit ‘‘self-help with respect to any dispute

with anybody for any reason’’ during collective bargaining

because then the railroad would be entitled ‘‘to an injunction

as a matter of law, regardless of the unions’ purpose,’’ id. at

66, that is, even if the strike was directed at the political

process rather than the process of collective bargaining.

Amtrak appealed, and the Unions again agreed to refrain

from striking until this court has ruled.

II. Analysis

The issue on appeal is whether the Unions’ proposed strike

violates the RLA. If it does, then the district court must

enjoin it; if it does not, then the Norris–LaGuardia Act, 29

U.S.C. § 101 et seq., precludes the district court from enjoining it. See Bhd. of R.R. Trainmen v. Chicago River &

Indiana R.R. Co., 353 U.S. 30, 42 (1957) (‘‘[T]he specific
4

provisions of the [RLA] take precedence over the more

general provisions of the Norris–LaGuardia Act’’).

The goal of the RLA is ambitious: ‘‘to provide for the

prompt and orderly settlement of all disputes concerning

rates of pay, rules, or working conditions,’’ 45 U.S.C.

§ 151a(4), in order to ‘‘avoid any interruption to commerce or

to the operation of any carrier engaged therein.’’ 45 U.S.C.

§ 151a(1). To that end § 2 First of the RLA, 45 U.S.C.

§ 152 First, obligates carriers and the unions that represent

their employees to ‘‘exert every reasonable effort to make and

maintain agreements concerning rates of pay, rules, and

working conditions, and to settle all disputes TTT 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.’’ See Detroit & Toledo Shore Line

R.R. Co. v. United Transp. Union, 396 U.S. 142, 153 (1969)

(‘‘The obligation of both parties TTT is to preserve and

maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect

prior to the time the pending dispute arose and which are

involved in or related to that dispute’’).

The RLA applies to two types of disputes between a carrier

and a union representing its employees. A ‘‘major dispute’’

concerns changes in ‘‘rates of pay, rules, or working conditions,’’ 45 U.S.C. § 151a(4), and relates to ‘‘the formation of

collective bargaining agreements or efforts to secure them.’’

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994).

A ‘‘minor dispute’’ involves a controversy over the ‘‘interpretation or application of [an] agreement[ ] covering rates of

pay, rules, working conditions.’’ 45 U.S.C. § 151a(5). In

short, ‘‘major disputes seek to create contractual rights,

minor disputes to enforce them.’’ Hawaiian Airlines, 512

U.S. at 253 (quoting Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 302 (1989)). Amtrak and the

Unions are presently engaged in a ‘‘major dispute’’ over the

content of new collective bargaining agreements.

The RLA establishes a sequence of mandatory procedures

for the resolution of a major dispute. The initial step is
5

negotiation between the carrier and the union. See 45 U.S.C.

§ 152 Second. If negotiation fails, then the dispute is referred to the National Mediation Board. See 45 U.S.C. § 156.

If the NMB fails to mediate the dispute and if it determines

the dispute ‘‘threaten[s] substantially to interrupt interstate

commerce to a degree such as to deprive any section of the

country of essential transportation service,’’ then the President may create an emergency board to arbitrate the dispute

and to ‘‘report [to the President] respecting such dispute.’’

45 U.S.C. § 160. If arbitration fails, then there is a mandatory 30-day ‘‘cooling-off’’ period during which ‘‘no change’’ may

be made by either side to ‘‘the conditions out of which the

dispute arose.’’ Id. These exhaustive provisions ‘‘form an

integrated, harmonious scheme for preserving the status quo

from the beginning of the major dispute through the final 30-

day ‘cooling-off’ period.’’ Detroit & Toledo Shore Line R.R.,

396 U.S. at 152. If, and only if, negotiation, mediation,

arbitration, and the cooling-off period fail to produce an

agreement, may the parties resort to self-help — the employer by unilaterally changing rates of pay, rules, or working

conditions, the union by striking. See Air Line Pilots Ass’n,

Int’l v. Northwest Airlines, Inc., 199 F.3d 477, 479 (D.C. Cir.

1999).

In this case, the Unions argue their proposed strike does

not ‘‘grow[ ] out of’’ their on-going ‘‘major dispute’’ with

Amtrak, 45 U.S.C. § 152 First, and therefore is not subject to

the status quo provisions of the RLA. More specifically, they

claim the status quo provisions of the RLA are inapplicable

because the subject of the work stoppage ‘‘is not the subject

matter of pending bargaining or mediation,’’ and ‘‘is not about

rates of pay, rules, or working conditions involved in or

related to the dispute subject to bargaining or mediation.’’

The Unions contend the strike is instead directed at policy

decisions made by the Congress and the President.

We think it clear that, insofar as the subject matter of the

Unions’ proposed strike is the level of congressional appropriations for Amtrak, the strike does ‘‘grow[ ] out of’’ the major

dispute between Amtrak and the Unions over the formation
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of new collective bargaining agreements concerning, among

other things, rates of pay and working conditions.

The amount the Congress appropriates for Amtrak’s operations determines both the number of employees Amtrak

retains and any increases in the level of pay and benefits

those employees may receive. This had been the Unions’

expressed view prior to the present litigation. For example,

Charles Moneypenny, Railroad Division Director of the

Transport Workers Union, stated in a letter to the local TWU

chapters that the proposed work stoppage

is not a pro-Amtrak event. It is a pro-railroad worker

event. If passenger rail is not properly subsidized TTT

there just will not be any jobs for our hard-working,

long-suffering Amtrak members. The collapse of our

national passenger rail system would also cripple our

Railroad Retirement System.

The Unions also related appropriations for repairs and

other capital improvements in Amtrak’s equipment and tracks

to the safety of union members on the job. Thus, Mr.

Moneypenny testified before the district court that the TWU

was ‘‘concerned about how [the appropriations process] could

affect the safety of employees.’’ In their press release the

Unions also quoted the statement by Amtrak President David

Gunn: ‘‘[O]n any given day something could fail — as it

already has — and large parts of the system could be shut

down.’’ The press release further warned Amtrak employees,

‘‘Some of the cars you ride in today contain asbestos; it’s

there because Amtrak cannot afford to remove it safely.’’

Finally, a letter written by Sonny Hall, President of the

TWU, to David Gunn demonstrates that the Unions’ effort to

secure increased congressional appropriations for Amtrak

grows out of its dispute over ‘‘rates of pay’’ and ‘‘working

conditions.’’ The TWU, he wrote, expected the appropriation

sought by Amtrak would provide ‘‘not only [for] the maintaining and improvement of the physical structure of Amtrak, but

the human structure as well’’; it should ‘‘result in a fair, and

honest new Labor agreement with rail unions and a commitment to Amtrak employees that they are at least as important
7

as safe equipment and track bids [sic].’’ Even in their brief

to this court the Unions characterize this letter as ‘‘a statement that Amtrak should not come looking to the unions for

concessions because it had just reduced its request for appropriations by $500 million.’’ In sum, there can be no doubt the

planned strike over the level of the congressional appropriation for Amtrak ‘‘grow[s] out of’’ the dispute over pay and

working conditions presently in negotiation or mediation between Amtrak and the unions. Because the proposed strike

grows out of a major dispute concerning rates of pay and

working conditions, the parties must exhaust the procedures

of the RLA before either may resort to self-help such as a

strike.

The planned strike is also addressed in part to a nonmandatory subject of bargaining, namely, curtailment or complete discontinuance of Amtrak’s operations. In fact, the

Unions’ proclaimed purpose for striking was to show the

Congress and the public what life would be like if Amtrak

were shut down due to lack of funding by the Congress. The

Unions, which considered the Congress’s failure fully to fund

Amtrak’s request ‘‘a death sentence’’ for the railroad, planned

their work stoppage in part to dissuade the Congress from

‘‘kill[ing] Amtrak.’’ A decision either by Amtrak itself or by

the Congress to curtail or to eliminate Amtrak’s operations,

however, is a non-mandatory subject of bargaining, within the

sole discretion of management. See Pittsburgh & Lake Erie

R.R. v. Ry. Labor Executives’ Ass’n, 491 U.S. 490, 507–08,

509 (1989) (elimination of operations is ‘‘not a change in the

conditions of employment forbidden by the status quo provision of § 156’’); see Ry. Labor Executives’ Ass’n v. CSX

Transp., 938 F.2d 224, 229 (D.C. Cir. 1991) (‘‘the railroad’s

‘freedom to leave the market’ TTT by terminating an operation

or selling assets, is a matter of managerial prerogative’’).

Under the NLRA, ‘‘a strike or other economic action in

support of a proposal on a nonmandatory subject of bargaining is unlawful.’’ Detroit Newspaper Agency, 327 NLRB 799,

800 (1999); see NLRB v. McClatchy Newspapers, Inc., 964

F.2d 1153, 1154 (D.C. Cir. 1992) (Edwards, concurring) (‘‘unilateral action may not be taken with respect to nonmandatory
8

subjects of bargaining’’). Although ‘‘[e]ven rough analogies

[between the RLA and the NLRA] must be drawn circumspectly,’’ Brotherhood of Railroad Trainmen v. Jacksonville

Terminal, Co., 394 U.S. 369, 383 (1969), ‘‘the use of the

mandatory-permissive distinction under the RLA is entirely

consistent with its statutory framework,’’ Air Line Pilots

Association International v. United Air Lines, Inc., 802 F.2d

886, 902 (7th Cir. 1986), and has been adopted by several

circuits, including this one. See Northwest Airlines, 199 F.3d

at 479; United Air Lines, 802 F.2d at 902; Japan Air Lines

Co. v. Int’l Ass’n Machinists & Aerospace Workers, 538 F.2d

46, 52 (2d Cir. 1976). Therefore, ‘‘[i]nsofar as the [U]nions

want to strike merely to protest a transaction’’ that ‘‘does not

violate any of their statutory or contractual entitlements, they

are using an unauthorized self-help remedy, which violates

the Act and is therefore enjoinable.’’ Chicago & N.W.

Transp. Co. v. Ry. Labor Executives’ Ass’n, 908 F.2d 144, 157

(7th Cir. 1990). To permit the Union to strike with regard to

that non-mandatory subject, at least during the pendency of a

major dispute, would be to subvert the rationale of Pittsburgh

& Lake Erie, which is to preserve managerial discretion over

these matters. See 491 U.S. at 507-08.

In any event, as the Government correctly points out, even

if the strike were ‘‘designed to influence [only] the Government,’’ and not the formation of new collective bargaining

agreements, a politically motivated strike has the ‘‘same

adverse effect on interstate commerce’’ as a ‘‘strike motivated

by more conventional labor concerns.’’ Call it a political

protest rather than a strike; no matter: When the RLA

prohibits a strike it also prohibits any union tactic ‘‘which has

the consequences of a strike.’’ Air Line Pilots Ass’n, Int’l v.

United Air Lines, Inc., 802 F.2d 886, 906 (7th Cir. 1986).

This strike — which the Unions admitted at oral argument

could, if it is lawful, be called not for a day but until such time

as the Congress meets the Unions’ demands — would put

‘‘severe economic pressures on [Amtrak], thereby undermining its bargaining position during the period of negotiation

and mediation. This is precisely the kind of action that the

RLA status quo provisions seek to prevent.’’ United Air
9

Lines, Inc. v. Int’l Ass’n of Machinists & Aerospace Workers,

243 F.3d 349, 365 (7th Cir. 2001).

The Unions also argue that ‘‘if a dispute is not amenable to

resolution through the dispute resolution processes provided

by the RLA, then there is no RLA bar on concerted activity

and no status quo obligation applies.’’ The Government,

supported by Amtrak, responds with the ‘‘possibility that a

politically tinged dispute cannot be ‘resolved’ by negotiation

does not warrant a wholesale exception to the mandates of

the RLA.’’

Insofar as the Unions’ planned strike grows out of the

major dispute between Amtrak and the Unions, however, it is

indeed subject to resolution through RLA procedures, starting with bargaining between the Unions and Amtrak over

rates of pay and working conditions. Insofar as the strike

also relates, in part, to a non-mandatory subject of bargaining, namely, the Employer’s prerogative either to curtail or to

eliminate operations, the RLA prohibits the Unions from

striking even though the dispute is not amenable to resolution

via the procedures of the RLA. If the strike did not grow out

of a major dispute or concern a management prerogative —

like the protest regarding the Soviet invasion of Afghanistan

at issue in Jacksonville Bulk Terminals, Inc. v. International

Longshoremen’s Association, 457 U.S. 702 (1982) — then the

Unions would not be restrained by the status quo provision

for major disputes. That is simply not the case here, however, because Amtrak and the Unions are in the midst of a

major dispute, the strike in fact grows out of that dispute,

and is in part directed to the Employer’s prerogative to cease

operations.

III. Conclusion

For the foregoing reasons, we hold the Unions’ proposed

strike must be enjoined pursuant to the RLA. The order of

the district court is therefore reversed and this matter is

remanded to the district court for the entry of appropriate

relief.

So ordered.