### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 17

- 1563
B ROTHERHOOD OF L OCOMOTIVE E NGINEERS AND T RAINMEN (G ENERAL C OMMITTEE OF A DJUSTMENT , C ENTRAL R EGION ), et al

. , Plaintiffs

- Appellants ,

v.
U NION P ACIFIC R AILROAD C OMPANY , Defendant

- Appellee

.

____________________ Appeal from the United States District Court for the Northern District of Illinois , Eastern Division.

No. 16 C 2730

— Edmond E. Chang , Judge

.

____________________
A RGUED S EPTEMBER 14, 2017

— D ECIDED N OVEMBER 17, 2017

____________________

Before W OOD , Chief Judge , and R IPPLE and H AMILTON , Circuit Judges

. W OOD , Chief Judge

. Labor

- management relations in the railroad industry have been subject to a distinctive regulatory regime ever since the Railway Labor Act (RLA or Act) took effect in 1926. See 45 U.S.C. §§ 151

– 88. No one wants to see the2 No. 17

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nation’s transportation network brought to a standstill because of labor conflict. The RLA therefore is designed to substitute bargaining, mediation, and arbitration for strikes. Embedded in the Act is a strong preference for arbitration, as opposed to judicial resolution of disputes. If a disagreement arises over the formation or amendment of a collective bargaining agreement (CBA) , it is considered a “major” dispute under the Act, and it must be decided by a
court. See Consolidated Rail Corp. v. Ry

. La bor Execs.’ Ass’n , 491 U.S. 299, 302

– 03 (1989). If , on the other hand, it relates only to the interpretation or application of an existing agreement, it is labeled “minor” and must go to arbitration. Id. at 303. In the case before us, the Union Pacific Rai lroad (the Railroad) issued a modified disciplinary policy for its engineer s without first sitting down at the bargaining table with their union, the Bro t herhood of Locomotive Engineers and Trainmen (the Union). The Union argues that the Railroad could no t take this step before bargaining and that its unilateral action violate s the RLA

. It also contends that the dispute itself is a major one not suitable for arbitration. Observing that the playin g field is tilted heavily in favor of arbitration , the distr ict court agreed with the Railroad that the dispute i s minor, and it accordingly dismissed the lawsuit in favor of arbitration. Although the Union has made a number of go od points, we conclude that there is at least a

non

- frivolous argument that interpreta tion of the agreement between the parties , not change, is at stake. We therefore affirm the district court’s decision dismissing the suit for lack of subject

- matter jurisdiction

.No. 17

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I Our summary of the underlying facts can be brief

. The Brotherhood of Locomotive Engineers and Trainmen is comp o sed of three union s that represent engineers employed by the Railroad , which is itself an amalgamation of several former railroad carrier s . As a result, the Railroad is a party to multiple overla pping CBA s with differen t groups of employees. The current dispute originates from the Railroad’s decision in 2015 to modify a set of disciplinary rules ; the new policy was set forth in something called M APS, which stands for Managing Agreement Professiona l s for Success . Before that time , the same subset of the Union’s members was subject to disciplinary rules contained in a mid

- 1990s agreement, known as UPGRADE. In the years before 2015 , the Railroad made several changes to UPGRADE over the Union’s objections. When it shifted from UPGRADE to MAPS it again did
not consult the Union

. Around the time MAPS was being rolled out, however, the Railroad poll ed members of th e U nion about what changes they would like to see in the existing dis ciplinary rules.
A nother subse t of the Union’s members is party to an agreement called the 1995 Southern Pacific Agreement , a CBA that also establishes disciplinary rules

. The Railroad became subject to this agreement when it absorbed the former Southern Pacific Western Lines.
I I

T he RLA allows employers to use either of two methods for changing “rates of pay, rules, or working conditions of [] employees” : f irst, they may act in any way permitted by an4 No. 17

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existing CBA; or s econd, they may go through t he bargaining and negotiation procedure prescribed in section 156 of the Act

. See 45 U.S.C. § 152 Seventh

. In other words, the central topics of rates of pay, rules, and working conditions are subject to mandatory bargaining. Both parties agree that MAPS i s a disciplinary policy that falls within the scope of “rules” and “working conditions” and is thus subject to these limits.
The Union sees this case as straightforward, in its favor. S ince MAPS is subject to RLA section 152 Seventh and it was implemented without going through the section 156 procedure s , the Union reasons, the Railroad changed a mandatory subject o f bargaining without the necessary participation of the Union. But matters are not that simple. Critically, the U nion overlooks the fact that ev en in the absence of negotiation, changes are permitted if authorized by contract

. For the same reason, the primary case on which the Union relies is inapposite. That case holds that th e courts, rather than arbitrators, are the proper forum for cases in which a carrier unilaterally changes conditions of employment. See Airline Pilots Ass’n Int’l. v. Nw. Airlines, Inc. , 199 F.3d 477, 479

– 80 (D.C. Cir. 1999) (airline industry, to which the RLA also applies)

. But a change is “unilateral” only if it was accomplished without contractual authority; if it is made under the aegis of a contract, it would not (by definition) be unilateral. Thus, Airline Pilots is helpful to the Union only if we fin d that the present dispute lies outside the boundaries of the agreement between it and the Railroad. If it is covered somehow by that agreement, any disputes concerning MAPS are properly characterized as minor and must be taken to an arbitrator.No. 17

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Before m oving to the relevant contractual issues, we must briefly change tracks. The Railroad also offers a simple way to resolve the case before us: silence in the CBA, it insist s, is enough to give the carrier carte blanche

. We cannot accept such a sweeping prop osition. First, such a rule cannot be squared with the RLA. There is no ambiguity in the statute: any change to pay, rules , or conditions must be authorized by
contract or as the result of bargaining. The Railroad tries to avoid the plain language of the s tatute by pointing to past arbitration awards that have found, in particular situations, that contractual silence equals authority

. Even if the awards use this language, however, as a structural matter they cannot support any broad legal proposition. Arbit rators’ jurisdiction is strictly limited to interpreting the contract before them , and the force of any decision can go no further than what t he contract at issue allows. 45 U.S.C. § 153 First (i). Contractual silence may give carriers freedom to make changes to matters not affecting rates of pay, rule s , or working condition s

. See Chicago & N.W. Transp. Co. v. Ry. Labor Execs.’ Ass’n , 908 F.2 d 144, 151 (7th Cir. 1990). But contract and bargaining are the only options f or subjects covered by sec tion 152 Seventh

. The RLA casts federal courts in an unfamiliar role

— that of taxonomist

— when a railroad carrier claims contractual authority to make changes to one of the mandatory subjects of bargaining

. Bhd. of Maint. of Way Emps. v. Atchison, Topeka & S anta Fe Ry. Co. , 138 F.3d 635, 638 (7th Cir. 1997)

. Whether the court has jurisdiction to resolve the underlying contractual dispute depends on whether it is “ major ” or “ minor. ” These

are terms of art. Chicago & N. W. Transp. Co. , 908 F.2d at 148

. As we indicated earlier, m ajor disputes pertain to the creation of new contracts affecting any mandatory subject of6 No. 17

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bargaining or modifications of existing contracts that have the same effect

. Federal courts have jurisdiction to enjoin a carrier from making th at type of change if the change is neither authorized by a CBA nor the result of the statutorily defined bargaining and mediation procedures. Consol idated Rail , 491 U.S. at 30 2

– 0 3

. The injunction halts the proposed new rule from taking effect and thus preserves the status quo during bargain ing

. If bargaining is unfruitful , the union may resort to economic self

- help

. Id. at 311. In contrast, minor disputes “aris[e] ou t of the grievances or out of the interpretation or application of agreements concerning rates of pay, rules or working conditions.” 45 U.S.C. § 152 Sixth. Minor disputes are subject to compulsory arbitration before the National Railroad Adjustment Board , leaving federal courts without jurisdiction

. Consol idated Rail , 491 U.S. at 303

– 04. Crit ically, a minor change may take effect immediately, even if it must later be undone by order of the arbitrator.
A primary goal of the RLA is to avoid disruptions to commercial use of the railways . Accordingly, in making the choice between major and minor, there is a large thumb on the scale in favor of minor, and hence arbitr ation

. Id. at 310

– 11

. T he burden on a railroad to convince the c ourt that its changes are only an interpretation or application of an existing CBA is quite low. If the railroad articulates an argument that is “neither obviously insubstantial or frivolous, nor made in bad faith , ” the court lacks jurisdiction to do anything but dismiss the case and allow arbitration to go forward. Id. at 310

. And because a CBA, unlike a private co ntract, is a “generalized code to govern a myriad of cases which the dra ftsmen cannot wholly anticipate, ” id. at 311

– 12 (internal citation omitted), the major

- minor dichotomy treat s interpretation or applica-No. 17

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tion of express and implied contractual term s ind istinguishably

. Thus, the relevant terms of an agreement are not only those that are written down; they also include the parties’ practice, usage, and custom as they carry out their agreement

. Bhd. of Maint. of Way Emps. , 138 F.3d at 641

. II I

Better

- than

- frivolous is a low bar , but a bar nonetheless , and t he R ailroad must make some showing to clear it. Naked assertions of a past practice are not enough. Nor may a r ailroad lie its way to arbitration. There must be a basis in the record to support the conclu sion that the railroad, or the union as the case may be, put the relevant practice into effect. If the u nion were to produce evidence that foreclosed the carrier’s interpretation , it might succeed in showing that the railroad’s position is obviously insubs tantial. But none of that has occurred here. Union Pacific has come forward with two essential pieces of evidence: (1) a written CBA governing disciplinary policy and (2) a history of making pertinent changes in the disciplinary procedures outlined in the governing CBA

. UPGRADE is the written CBA at issue. As we noted earlier, the UPGRADE agreement preceded MAPS . Whatever else MAPS may be, therefore, it cannot be seen as a brand new
contract. The exi stence of UPG RADE supports a finding that the Union and the Railroad here are at odds not about an implied

- in

- fact contract but rather an implied

- in

- fact term to a written contract. That distinguishes this case from those in which a court had to decide whether the re wa s an y extant agreement governing the parties’ relationship with respect to the contested matter

. Cf. Granite Rock Co. v. Int’l Bhd. o f Teamsters , 561 U.S. 287 , 297 (2010) ( resolving whe ther the parties’ arbitration clause had been properly ratified by the8 No. 17

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time in question ) ; Janiga v. Questar Capital Corp. , 615 F.3d 735 , 737 (7th Cir. 2010) (resolving whether a document qualified as a contract) . Here, we need to see what past practices tell us about any implied terms in UPGRADE

. The Railroad’s General Direc tor of Labor Relations submitted a declaration in which he maintained that the Railroad had made “many” changes to UPGRADE, including updates to “safety rule violations, adding conference opportunities, and adjusting the severity of the penalty based on employees’ unsafe behavior.” Phillips Declaration ¶ 10. The Union denies that it ever acquiesced to any such changes to UPGRADE. Bagby Declaration ¶ 14 ; Hannah Declaration ¶ 35. But the Union does not dispute that historically the Railroad has made changes to the practices covered by the parties’ agreement

. At oral argument, counsel for the Union conceded that Phillips’ declaration a ccurate ly represent ed that pertinent fact. The Railroad’s declaration is enough t o show that i t s position is not frivolous , th ough it may or may not prevail. W ading through the competin g declarations to determine the actual authority the Railroad had to modify the disciplinary policies, based on past practices , is a job for the arbitrator.
The Union argues in the alternative tha t MAPS must be a change in policy rather than an application of existing contractual authority because it conflict s with the terms of a separate agreement

— Article 18 of the Southern Pacific Western Lines Agreement . Article 18 requires the following:No. 17

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Information concerning discipline more than five (5)years old contained in personnel records will be expunged with the exception of suspension or dismissalinvolving violations of [Federal Railroad Administration] regulations or Safety Rules, whi ch were u pheld in arbitration. MAPS imposes a “th ree

- strike” policy that counts prior license revocations as strikes. The Union argues that since MAPS allows the Railroad to escalate punishment based on past license revocations , then license revocations must be “ information concerning discipline. ” Fu rther, since nothing in MAPS distinguishes between revocations more or less than five years old, it contends that MAPS and Article 18 cann ot coexist. It concludes that MAPS implements a change in disciplinary policy, not just an interpretation or application of an existing policy, and thus the dispute over its implementation is major. Again, the Railroad has a non

- frivolous argument for the compatibility of the two policies . This in turn (if accepted by an arbitrator) wou ld mean that MAPS has not changed the prior rules. In the Railroad’s view , l icense revocation s fall within Article 18’s exception for violations of the Federal Railroad Administration (FRA) r egulations. License revocations are a possible consequence of vio lating a federal regulation. See 49 C.F.R. § 240.307 . Though on its face Article 18’s exception might appear to cover all discipline , matters “upheld in arbitration” could be seen to apply only to violations of safety rules , as opposed to violations of FRA regulation s

. T he recourse for an engineer who has had her license stripped is not arbitration, but rather review by the Locomotive Engineer Review Board. 49 C.F.R. § 240.401(b) . It10 No. 17

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is impossible for a license revocation ever to be upheld in arbitration

. We stress again that we are not resolving these disputes. We conclude only that the Railroad’s arguments are better than frivolous. It will be up to the arbitrator to decide if they carry the day.
IV Finally, we address whether the Railroad’s direct de aling with the Union’s members violates one of the provisions of the RLA that confer s federal jurisdiction independent of the major

- minor dichotomy. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Exp ress & Station Emps. v. Atchison, Topeka & Santa Fe Ry. Co. , 847 F.2d 403, 408 (7th Cir. 1988). Direct dealing is one such violation. Nonetheless , jurisdiction is limited
to exceptional circumstances

. Id. And f ederal courts should be particularly wary of finding jurisdiction when the carrier plaus ibly understands a CBA to permit its conduct

. Id. at 409

. Typically, jurisdiction for specific violations of the RLA is confined to case s in which arbitration is an in effective or unavailable remedy or the carrier has been alleged to have intended to weake n the union. Id. at 411.
Th is is not a case in which arbitration would be ineffective or unavailable. The Railroad had a basis for believing that it

was under no obligation to bargain with the Union when it replaced UPGR ADE with MAPS. Polling union members about these matters does not significantly undercut the Union’s role if the U nion’s role had been contracted away to begin with. If the Railroad’s interpretation is wrong , the arbitrator will tell it so , and it will be compelled to negotiate with the Union. The facts also do not support a finding thatNo. 17

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the Railroad was out to weaken the Union. All it is alleged to have done is ask union members about their policy preferences. The Union has not pleaded anything

e xtraordinary about this case nor any exceptionally detrimental consequences.
V Union Pacific must do very little to show that this dispute is minor

. It has passed that low bar and shown that the proper forum for further proceedings under the RLA system is arbitration. We therefore A FFIRM the judgment of the district
court

.