United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-1508

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Brotherhood of Maintenance of Way *

Employees, *

*

Appellant, * Appeal from the United States

* District Court for the District

v. * of Minnesota.

*

Burlington Northern Santa Fe * [PUBLISHED]

Railroad, *

*

Appellee. *

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Submitted: October 17, 2001

Filed: October 24, 2001

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Before McMILLIAN, FAGG, and BEAM, Circuit Judges.

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PER CURIAM.

The Brotherhood of Maintenance of Way Employees (the Union) and

Burlington Northern Santa Fe Railroad (BNSF or the Railroad) disagree on the

meaning of Article A of their August 1999 Collective Bargaining Agreement (CBA).

The CBA provides:

Employees force assigned to a headquartered position which is located

greater than 75 highway miles from both the employee’s residence and
*

The Honorable Donald D. Alsop, United States District Judge for the District

of Minnesota.

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the employee’s home station will be eligible for double occupancy

lodging under the BNSF corporate lodging program on each day service

is performed at the away-from-home headquarter location. Employees

utilizing Carrier provided lodging under this provision will receive a

meal allowance of $15.00 for each day on which service is performed

and the employee is housed at Carrier expense at the away-from-home

headquarter location.

(J.A. at 49). The Union contends an employee is entitled to five $15.00 meal

allowances when the employee works Monday through Friday at a location greater

than seventy-five highway miles from both the employee’s residence and home

station and utilizes Carrier-provided lodging Monday night through Friday morning.

The Railroad initially paid employees five meal allowances per week for this work

arrangement. In February 2000, the Railroad began paying employees four meal

allowances per week for this arrangement, contending the CBA did not obligate the

Railroad to pay a fifth meal allowance when the employee utilized Carrier-provided

lodging for only four nights. 

After the Union and the Railroad failed to reach an agreement interpreting the

meal allowance provision, the Union filed suit, contending the Railroad had effected

a unilateral change of the CBA in violation of the Railway Labor Act (RLA). See 45

U.S.C. § 152 Seventh (1994). The Railroad filed a motion to dismiss, claiming the

dispute was minor and subject to arbitration, thus the district court lacked subject

matter jurisdiction. See 45 U.S.C. § 153 First (i) (1994); Jenisio v. Ozark Airlines,

Inc. Retirement Plan for Agent & Clerical Employees, 187 F.3d 970, 973-74 (8th Cir.

1999) (citing Bhd. of Locomotive Eng’rs v. Louisville & Nashville R.R., 373 U.S. 33,

39 (1963)). The district court*

 granted the Railroad’s motion to dismiss. The Union

appeals. Having reviewed the record and briefs de novo, accepted the allegations

contained in the complaint as true, and considered the facts and all reasonable
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inferences that can be drawn from them in the light most favorable to the Union, we

affirm. See Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001)

(reviewing motion to dismiss de novo); Jenisio, 187 F.3d at 972 (reviewing question

of subject matter jurisdiction de novo).

Under the RLA, a dispute is classified as either major, involving the creation

of new contractual rights, or minor, involving the interpretation and enforcement of

existing CBAs. See Consol. Rail Corp. v. Ry. Labor Executives Ass’n, 491 U.S. 299,

302, 305 (1989) (Conrail). The distinction is important when establishing jurisdiction

because minor disputes must be submitted to binding arbitration. See Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 252-53 (1994). Although there is no bright

line to differentiate between major and minor disputes, a dispute that is arguably

justified by the terms of the CBA is minor. See United Transp. Union v. Kansas City

Southern Ry. Co., 172 F.3d 582, 585-86 (8th Cir. 1999). In addition, if doubt arises

about the classification of a dispute, the dispute is also considered to be minor. See

Jenisio, 187 F.3d at 973.

We conclude the district court correctly found each party’s position is arguably

justified by the language of the CBA and the dispute is minor. See Hawaiian

Airlines, 512 U.S. at 256 (holding disputes grounded in the CBA are minor); see, e.g.,

Bhd. of Maint. of Way Employees v. Atchison, Topeka & Santa Fe Ry. Co., 138 F.3d

635, 643 (7th Cir. 1997) (holding dispute over travel expenses minor). Resolution

of the dispute will turn on the meaning of the CBA clause requiring employees to

utilize Carrier-provided lodging before the employee is entitled to a meal allowance.

Because minor disputes must be resolved through arbitration, we conclude the district

court correctly determined it lacked jurisdiction. See Jenisio, 187 F.3d at 973-74. 

We reject the Union’s contention that the Railroad’s past practice of paying

five meal allowances per week shows the Railroad’s current contrary position is

frivolous or insubstantial. Although the Railroad’s past practice is relevant to the
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merits of interpreting the contested CBA provision, it does not alter the minor nature

of the dispute. See Conrail, 491 U.S. at 311, 318-19; Alton & Southern Lodge No.

306 Bhd. Ry. Carmen v. Alton & Southern Ry. Co., 849 F.2d 1111, 1114 (8th Cir.

1988) (holding evidence of past practice is not dispositive in the face of contrary

CBA language). Contrary to the Union’s assertion, the district court treated the

Railroad’s motion to dismiss as a facial attack on the complaint, not a factual attack;

thus the Union received the benefit of the presumption its allegations were true and

all favorable inferences were drawn in the Union’s favor. 

Because the dispute is minor and subject to arbitration, we affirm the district

court’s decision dismissing the complaint for lack of subject matter jurisdiction.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.