In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1563

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN 

(GENERAL COMMITTEE OF ADJUSTMENT, CENTRAL REGION), et 

al.,

Plaintiffs-Appellants,

v.

UNION PACIFIC RAILROAD COMPANY,

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.

____________________

ARGUED SEPTEMBER 14, 2017 — DECIDED NOVEMBER 17, 2017

____________________

Before WOOD, Chief Judge, and RIPPLE and HAMILTON, Circuit Judges.

WOOD, 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 the 
2 No. 17-1563

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. Labor 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 Railroad (the Railroad) 

issued a modified disciplinary policy for its engineers without 

first sitting down at the bargaining table with their union, the 

Brotherhood of Locomotive Engineers and Trainmen (the 

Union). The Union argues that the Railroad could not take 

this step before bargaining and that its unilateral action 

violates the RLA. It also contends that the dispute itself is a 

major one not suitable for arbitration. 

Observing that the playing field is tilted heavily in favor

of arbitration, the district court agreed with the Railroad that

the dispute is minor, and it accordingly dismissed the lawsuit

in favor of arbitration. Although the Union has made a 

number of good points, we conclude that there is at least a 

non-frivolous argument that interpretation 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. 17-1563 3

I

Our summary of the underlying facts can be brief. The 

Brotherhood of Locomotive Engineers and Trainmen is composed of three unions that represent engineers employed by 

the Railroad, which is itself an amalgamation of several former railroad carriers. As a result, the Railroad is a party to 

multiple overlapping CBAs with different 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 MAPS, which stands for 

Managing Agreement Professionals 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 polled members of the Union about what changes they would like to see in the existing 

disciplinary rules. 

Another subset 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.

II

The RLA allows employers to use either of two methods 

for changing “rates of pay, rules, or working conditions of [] 

employees”: first, they may act in any way permitted by an 
4 No. 17-1563

existing CBA; or second, they may go through the 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 

is 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. 

Since MAPS is subject to RLA section 152 Seventh and it was 

implemented without going through the section 156 

procedures, the Union reasons, the Railroad changed a 

mandatory subject of bargaining without the necessary 

participation of the Union. But matters are not that simple. 

Critically, the Union overlooks the fact that even 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 the 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 find 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. 17-1563 5

Before moving 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 insists, is 

enough to give the carrier carte blanche. We cannot accept 

such a sweeping proposition. 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 statute 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. Arbitrators’ jurisdiction 

is strictly limited to interpreting the contract before them, and 

the force of any decision can go no further than what the 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, rules, or working conditions. See 

Chicago & N.W. Transp. Co. v. Ry. Labor Execs.’ Ass’n, 908 F.2d 

144, 151 (7th Cir. 1990). But contract and bargaining are the 

only options for subjects covered by section 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 & 

Santa 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, major disputes pertain to the 

creation of new contracts affecting any mandatory subject of 
6 No. 17-1563

bargaining or modifications of existing contracts that have the 

same effect. Federal courts have jurisdiction to enjoin a carrier 

from making that type of change if the change is neither 

authorized by a CBA nor the result of the statutorily defined 

bargaining and mediation procedures. Consolidated Rail, 491 

U.S. at 302–03. The injunction halts the proposed new rule 

from taking effect and thus preserves the status quo during 

bargaining. If bargaining is unfruitful, the union may resort 

to economic self-help. Id. at 311. In contrast, minor disputes 

“aris[e] out 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. Consolidated Rail, 491 U.S. at 303–04. Critically, 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 arbitration. Id. at 310–11. The burden on a railroad to convince the court 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 contract, is a “generalized 

code to govern a myriad of cases which the draftsmen cannot 

wholly anticipate,” id. at 311–12 (internal citation omitted), 

the major-minor dichotomy treats interpretation or applica-
No. 17-1563 7

tion of express and implied contractual terms indistinguishably. 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. 

III

Better-than-frivolous is a low bar, but a bar nonetheless,

and the Railroad must make some showing to clear it. Naked 

assertions of a past practice are not enough. Nor may a railroad lie its way to arbitration. There must be a basis in the 

record to support the conclusion that the railroad, or the union as the case may be, put the relevant practice into effect. If 

the union were to produce evidence that foreclosed the carrier’s interpretation, it might succeed in showing that the railroad’s position is obviously insubstantial. 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 existence of UPGRADE 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 there was any extant 

agreement governing the parties’ relationship with respect to 

the contested matter. Cf. Granite Rock Co. v. Int’l Bhd. of 

Teamsters, 561 U.S. 287, 297 (2010) (resolving whether the 

parties’ arbitration clause had been properly ratified by the 
8 No. 17-1563

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 Director 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 accurately represented that pertinent fact. The 

Railroad’s declaration is enough to show that its position is 

not frivolous, though it may or may not prevail. Wading 

through the competing 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 that MAPS must be a 

change in policy rather than an application of existing contractual authority because it conflicts with the terms of a separate agreement—Article 18 of the Southern Pacific Western 

Lines Agreement. Article 18 requires the following: 
No. 17-1563 9

Information concerning discipline more than five (5) 

years old contained in personnel records will be expunged with the exception of suspension or dismissal 

involving violations of [Federal Railroad Administration] regulations or Safety Rules, which were upheld in 

arbitration.

MAPS imposes a “three-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.” Further, since nothing in 

MAPS distinguishes between revocations more or less than 

five years old, it contends that MAPS and Article 18 cannot 

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) would mean that MAPS has not changed the 

prior rules. In the Railroad’s view, license revocations fall 

within Article 18’s exception for violations of the Federal 

Railroad Administration (FRA) regulations. License 

revocations are a possible consequence of violating 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 

regulations. The 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). It 
10 No. 17-1563

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 dealing 

with the Union’s members violates one of the provisions of 

the RLA that confers federal jurisdiction independent of the

major-minor dichotomy. Bhd. of Ry., Airline & S.S. Clerks, 

Freight Handlers, Express & 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 federal courts should be 

particularly wary of finding jurisdiction when the carrier 

plausibly understands a CBA to permit its conduct. Id. at 409.

Typically, jurisdiction for specific violations of the RLA is confined to cases in which arbitration is an ineffective or unavailable remedy or the carrier has been alleged to have intended 

to weaken the union. Id. at 411.

This 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 UPGRADE with MAPS. Polling union members

about these matters does not significantly undercut the 

Union’s role if the Union’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 that 
No. 17-1563 11

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 

extraordinary 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 AFFIRM the judgment of the district 

court.