1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

INTERNATIONAL ASSOCIATION OF SHEET )

METAL, AIR, RAIL AND TRANSPORTATION )

WORKERS, TRANSPORTATION DIVISION,1 )

SMART-TD GENERAL COMMITTEE OF )

ADJUSTMENT GO-01, )

SMART-TD GCA GO-009, )

SMART-TD GCA GO-393, )

)

Plaintiffs, )

)

v. ) No. 20 C 4220

)

BNSF RAILWAY COMPANY, ) Honorable William T. Hart

)

Defendant. )

OPINION AND ORDER

Plaintiff International Association of Sheet Metal, Air, Rail and Transportation Workers, 

Transportation Division (“SMART-TD” or the “Union”)2 brings this action under the Railway 

Labor Act, 45 U.S.C. § 151, et seq., against Defendant BNSF Railway Company (“BNSF”) on 

behalf of the unionized Yard Foreman employees at BNSF. The Union alleges that BNSF is 

attempting to unilaterally alter the working conditions of the Yard Foreman position in Chicago 

and Seattle areas by requiring that the position becomes Engine Service Qualified without 

engaging in the mandatory collective bargaining process required by the Railway Labor Act. It 

seeks a declaration that BNSF’s unilateral action violates the Act, and an injunction preventing a 

change to the requirements of the position until the parties engage in the mandatory bargaining 

1 Plaintiff International Association of Sheet Metal, Air, Rail and Transportation Workers, Transportation Division is 

listed on the docket by its abbreviation “SMART Transportation Division” but by its full name in the complaint 

caption. (Dkt. 1, pg. 1.) The parties make no argument about the difference between the docket and the complaint 

caption, so the Court understands it to be immaterial. The Court draws its caption from the complaint. 

2 The parties use an “alphabet soup” of acronyms throughout their filings. The Court limits use of acronyms for the 

reader’s ease. The Court capitalizes key turns for the reader’s reference. 
2

process required by the Act. The parties bring cross motions. (Dkt. 16; Dkt. 17.) This Court 

concludes the parties present a “minor” dispute that must be resolved via arbitration under the Act. 

Consequently, for the reasons set forth below, the Court grants BNSF’s motion to dismiss for want 

of subject matter jurisdiction, (Dkt. 17.) and denies the Union’s motion for summary judgment. 

(Dkt. 16.) 

I. BACKGROUND

This case involves the Yard Foreman position, a subset of the train service employees, at 

BNSF. (Dkt. 21-1, pg. at 4.) Train service and engine service employees are two categories of 

workers at BNSF. Id. at 2-3. Train service employees are represented by the Plaintiff Union, 

while a separate union, the Brotherhood of Locomotive Engineers and Trainmen, (“Engineers’ 

Union”) which is not party to this litigation, represents the engine service employees. Id. BNSF 

and the Union have entered into several collective bargaining agreements governing the terms and 

conditions of employment for the train service employees. Id. at 2. 

The Union has a three-tier organization system with Plaintiff SMART-TD as the 

administrative head, mid-level semi-autonomous general committees of adjustment, that are 

responsible for negotiating and enforcing collective bargaining agreements with their respective 

railroads, and locals for the rank and file members. Id. at 1. The Union’s structure is largely 

irrelevant to the case other than to note that three intermediate general committees of adjustment 

are also Plaintiffs in this action along with SMART-TD. The Court refers to the Plaintiffs as the

“Union” unless a specific reference to the subpart of the Union is required.

The parties’ dispute centers on whether BNSF may require the Yard Foreman position to 

be Engine Service Qualified. Federal law mandates that only a properly qualified worker may 

operate a locomotive. 49 C.F.R. § 240.1(a); (Dkt. 18-1, pg. 2.) In July 2020, BNSF notified the 
3

Union of its intent to require the Yard Foreman position in Chicago and Seattle to be Engine 

Service Qualified. (Dkt. 21-1, pg. 9.) 

The Yard Foreman is a freight conductor working in the rail yard. Id. at 4. When assigned 

to a yard switcher crew, the position is primarily responsible for the safe and proper switching of 

inbound and outbound trains. Id. Other duties of the Yard Foreman include: advising his or her 

crew on safety related issues, train movements, track switch alignments, the coupling and 

uncoupling of rail cars, air hose connections, air brake inspections when car department personnel 

are unavailable, and timekeeping for members of the yard crew. Id. 

“Switching” consists of the sorting of rail cars onto various tracks and connecting them 

with each other and one or more locomotives to form trains. Id. This work can be performed in 

multiple methods including by a yard service crew or by an engineer operating the locomotive to 

move the train cars. Id. An additional method of switching, which is of importance to this case,

is performed with a remote control device. Id. at 5. The remote control allows the Yard Foreman 

and an assistant, who is also a train service employee represented by the Union, to move the 

locomotive to conduct the switching without being on-board. Id. 

Despite moving a locomotive via remote control when performing switching, the Yard 

Foreman position is not presently required to be Engine Service Qualified. (Dkt. 18, pg. 7.) The 

Union explains that the qualification is not required for the remote control work because the Yard 

Foreman is not operating the locomotive’s controls, but instead is only “directing as he would do 

with an Engineer in the cab of the locomotive.” (Dkt. 22-1, pg. 5.) 

BNSF desires the Yard Foreman position to be Engine Service Qualified because there are 

times that the Yard Foreman cannot conduct the necessary switching work using the remote 

control. (Dkt. 18, pg. 7.) Some switching work must be done conventionally using the 
4

locomotives throttle instead of via remote control. Id. BNSF wants the Yard Foreman to be able 

to perform the conventional movement of the locomotives during switching and so is now 

mandating that they be Engine Service Qualified. Id. The Court is uncertain whether there is a 

substantive difference between “directing” the locomotive via a remote control (which does not 

require the qualification) and operating the locomotive manually (which does) other than one 

requires a physical presence on the locomotive while the other does not. Regardless, it is clear 

that the parties do not dispute that the Yard Foreman may perform the remote control work without 

being Engine Service Qualified, and that BNSF now wants them to become qualified so they can 

perform manual movement of the locomotive. 

The Union brings the present suit under the Railway Labor Act challenging BNSF’s 

actions. The Union has an instant motion for summary judgment (Dkt. 16.) and BNSF responds 

with its own motion to dismiss for want of subject matter jurisdiction or in the alternative summary 

judgment. (Dkt. 17.) The Union argues that BNSF’s attempt to alter the Yard Foreman position 

is a break with past agreements and practice making it a “major” dispute under the Act. As such, 

the Union claims it is entitled to an injunction prohibiting BNSF from unilaterally requiring that 

the Yard Foreman position be Engine Service Qualified and directing that they engage in collective 

bargaining on this point. BNSF counters that this is a “minor” dispute under the Act that must be 

resolved by the arbitrator, and the instant case should be dismissed for want of subject matter 

jurisdiction. 

II. Analysis

At the outset, the Court notes that BNSF moves to dismiss the case for want of subject 

matter jurisdiction or alternatively seeks a grant of summary judgment. At first blush, one might 

think the Court has subject matter jurisdiction to adjudicate this action. Subject matter jurisdiction 
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is the power of the Court to resolve the merits of the case before it. Lightfoot v. Cendant Mortgage 

Corp., 137 S. Ct. 553, 562 (2017) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 583-85 

(1999)). The complaint alleges that the Court has subject matter jurisdiction because the case 

presents a federal question under 28 U.S.C. § 1331, and involves an Act regulating commerce, 28 

U.S.C. § 1337. (Dkt. 1, pg. 2.) Plaintiff is requesting the Court interpret a federal statute as it 

relates to the present dispute between the parties under the Court’s Article III authority to address 

cases and controversies and order applicable relief. That would seem sufficient to establish subject 

matter jurisdiction.

The question, however, is complicated by this area of law. Historically, the Seventh Circuit 

instructs that a “minor” dispute that must be resolved via arbitration is within the exclusive 

jurisdiction of the arbitrator, and consequently, the federal court lacks subject matter jurisdiction 

over the case. Brotherhood of Maint. Of Way Employees Division/IBT v. Norfolk S. R.R. Co., 745 

F.3d 808, 815 (7th Cir. 2014) (“Brotherhood 2014”). The Court of Appeals has clarified, however, 

that its historical practice of dismissing for want of subject matter jurisdiction has not taken into

consideration recent Supreme Court case law instructing that “whether a party’s failure to meet a 

statutory requirement deprives federal courts of subject matter jurisdiction must be based on 

whether Congress clearly indicated that it was setting a jurisdictional limitation.” Carlson v. CST 

Transp., Inc., 758 F.3d 819, 831 (7th Cir. 2014) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 

510-11, 515-16 (2006)); see also Miller v. Sw. Airlines Co., 926 F.3d 898, 901 (7th Cir. 2019) 

(recognizing issue). The Seventh Circuit has declined to consider whether the intervening 

Supreme Court case law alters its historical practice of dismissing “minor” disputes for want of 

subject matter jurisdiction. See Miller, 926 F.3d at 901; Brotherhood 2014, 758 F.3d at 831. Thus, 

the Seventh Circuit’s case law on this point remains binding because this Court, as an inferior court 
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to the Seventh Circuit, has no authority to reexamine a superior court’s precedents. State Oil Co. 

v. Khan, 522 U.S. 3, 20 (1997); A Woman’s Choice-East Side Women’s Clinic v. Newman, 305 

F.3d 684, 687 (7th Cir. 2002) (“[O]nly an express overruling relieves an inferior court of the duty 

to follow decisions on the books.”). 

A motion to dismiss for want of subject matter jurisdiction is governed by Rule 12(b)(1) 

of the Federal Rules of Civil Procedure. The moving party may assert either a “facial or factual 

attack on Plaintiff’s allegations.” Bazile v. Finance Sys. of Green Bay, Inc., 983 F.3d 274, 279 

(7th Cir. 2020) (citations omitted). The facial attack takes the Plaintiff’s factual allegations as true,

but argues the facts as alleged do not establish the Court’s jurisdiction. Id. Alternatively, a party 

may also bring a factual attack. Id. In that situation, the party may bring in evidence outside the 

pleadings in support of its argument that the Court lacks jurisdiction over the case. Id. BNSF’s 

instant motion falls into this second category. 

The Union’s motion for summary judgment is governed by Rule 56 of the Federal Rules 

of Civil Procedure. “Summary judgment is proper ‘where there are no genuine issues of material 

fact and the movant is entitled to judgment as a matter of law.’” Stelter v. Wisconsin Physicians 

Servs Ins. Corp., 950 F.3d 488, 490 (7th Cir. 2020) (quoting Fed. R. Civ. P. 56(a)). The Court 

examines the record in the light most favorable to the non-moving party and construes all 

reasonable inferences in its favor. Steler, 950 F.3d at 490 (citations omitted). 

Turning to the merits, the Railway Labor Act of 1926 “governs much of the relationship 

between employees and employers in the railroad industry.” BLET GCA Up v. Union Pac. R.R. 

Co., 988 F.3d 409, 412 (7th Cir. 2021). Under the Act, employers may “modify ‘rates of pay, 

rules, or working conditions of employees’” either “in accordance with any existing agreement or 
7

[] through the bargaining and negotiating procedures prescribed in the [Act].” Id. (quoting 45 

U.S.C. § 152 Seventh). 

It is not the Court’s role to resolve the underlying merits of the parties’ instant dispute, but 

instead its place is “that of taxonomist.” Brotherhood of Locomotive Eng’rs and Trainmen (Gen. 

Comm. of Adjustment, Cent. Region) v. Union Pac. R.R. Co., 879 F.3d 754, 757 (7th Cir. 2017)

(“Brotherhood 2017”). The Court’s sole task is to determine whether the parties present a “major” 

or “minor” dispute under the Act. Id. at 755-56. The phrase “major” and “minor” are “terms of 

art” under the Act. Id. at 756. “Whether a dispute is major or minor in no way relates to the court’s 

estimation of the dispute’s relative importance.” BLET GCA UP, 988 F.3d at 412 (citing 

Consolidated Rail Corp v. Railway Labor Executives Ass’n, 491 U.S. 299, 305 (1989) 

(“Conrail”)). 

A “major” dispute is “a disagreement [that] arises over the formation or amendment of a 

collective bargaining agreement . . . .” Brotherhood 2017, 879 F.3d at 755 (citing Conrail, 491 

U.S. at 302-03). When the parties have a “major” dispute, the Court may enter an injunction to 

maintain the status quo between the parties while they engage in the mandatory bargaining and 

mediation process established under the Act. BLET GCA UP, 988 F.3d at 412 (citing Detroit & 

T.S.L.R. v. United Transp. Union, 396 U.S. 142 (1969)). 

A “minor” dispute “relates only to the interpretation of the application of an existing 

agreement. . . .” Brotherhood 2017, 879 F.3d at 756 (citing Conrail, 491 U.S. at 303). When 

faced with a “minor” dispute, the Court dismisses the case for want of jurisdiction and the parties 

must present their dispute to binding arbitration, traditionally before the National Railroad 

Adjustment Board. BLET GCA UP, 988 F.3d at 412-13 (citing Conrail, 491 U.S. at 303-04). A 

“minor change may take effect immediately, even if it must later be undone by order of the 
8

arbitrator.” Brotherhood 2017, 879 F.3d at 758. In sum, “major disputes seek to create 

contractual rights, minor disputes to enforce them.” Conrail, 491 U.S. at 302 (citing Elgin J. & 

E.R. Co. v. Burley, 325 U.S. 711, 723 (1945)). 

The collective bargaining agreement for the Court to examine is a “‘generalized code to 

govern a myriad of cases which the draftsmen cannot wholly anticipate.’” BLET GCA UP, 988 

F.3d at 413 (quoting Conrail, 491 U.S. at 311-12). “Thus, the relevant terms of an agreement are 

not only those that are written down; they are also included in the parties’ practice, usage, and 

custom as they carry out their agreement.” Brotherhood 2017, 879 F.3d at 758 (citation omitted). 

“‘[A]ny well established practice that constitutes a ‘course of dealing’ between the carrier and 

employees’ form part of the agreement the same as do any specific terms set out in the text of the 

agreement.” BLET GCA UP, 988 F.3d at 413-14 (quoting Railway Labor Exec. Ass’n v. Norfolk 

and W. R.R. Co., 833 F.2d 700, 705 (7th Cir. 1987)). 

“When the parties disagree about the appropriate classification of a dispute, the party 

seeking to establish that a dispute is minor and under the exclusive arbitral jurisdiction of a RLA 

Adjustment Board faces a “relatively light burden.” Conrail, 491 U.S. at 307, Brotherhood 2014, 

745 F.3d at 813; see also Brotherhood 2017, 879 F.3d at 758 (“[T]here is a large thumb on the 

scale in favor of minor, and hence arbitration.”). “If the railroad can articulate an argument that is 

‘neither insubstantial or frivolous, nor made in bad faith,’” that “its changes are only an 

interpretation or application of an existing [collective bargaining agreement],” then the result is 

the “Court lacks jurisdiction to do anything but dismiss the case and allow arbitration to go 

forward.” Brotherhood 2017, 879 F.3d at 758 (quoting Conrail, 491 U.S. at 310). This is a “low 

bar” requiring the railroad to do “very little to show that this dispute is minor.” Brotherhood 2017, 

879 F.3d at 758. It is a “bar nonetheless,” as “[n]aked assertions of past practice are not enough.” 
9

Id. “There must be some 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.” Id. 

The Court concludes that BNSF provides sufficient evidence to satisfy the “low bar” to 

demonstrate the instant dispute between the parties is a “minor” one. Id. The parties provide 

several arguments, often at a granular level, about whether the dispute implicates an existing 

agreement between the parties. However, taking a step back and viewing the forest from the trees, 

the Court believes the issue becomes clear. 

The record demonstrates the existence of a “well established practice that constitutes a 

‘course of dealing’ between the carrier and employees,” BLET GCA UP, 988 F.3d at 413, of the 

Yard Foreman participating in the switching process assembling individual train cars and 

locomotives into trains. Part of this practice is the Yard Foreman directing the locomotive’s 

movement through remote control as the train cars are assembled. (Dkt. 22-1, pg. 5.) The instant 

dispute is caused by BNSF’s desire for the Yard Foreman to not only direct the locomotive via the 

remote control, but at times step onto the locomotive and operate it conventionally using the hand 

controls while conducting the switching function. (Dkt. 18, pg. 7.) The record is unclear as to 

why a Yard Foreman “directing” the locomotive during switching via remote control does not need 

to be Engine Service Qualified, but effectively performing the same function conventionally while 

on the locomotive does. Regardless, what is clear is that this dispute arises out of the larger well 

established practice of the Yard Foreman using the locomotive as a tool to conduct the switching

process. 

A company’s efforts to impose an additional requirement on the employee as part of a well 

established process is an indication that the dispute is “minor.” See Conrail, 491 U.S. at 300-01, 

313 (holding that railroad’s unilateral imposition of mandatory drug testing during physical 
10

examinations when it was previously performed when there was a concern over employee drug 

use was a “minor” dispute); BLET GCA UP, 988 F.3d at 411, 414 (holding unilateral alteration to 

existing attendance policy presented “minor” dispute). The parties’ well established practice 

demonstrate the existence of an existing agreement governing the Yard Foreman’s work switching 

trains. The instant dispute as to whether the Yard Foreman position can be required to be Engine 

Service Qualified implicates an existing agreement, and so is a “minor” dispute that must be 

resolved by the arbitrator. 

The Court pauses to note at this point that it is not resolving the underlying dispute about 

the Yard Foreman’s responsibilities because that question is for the arbitrator to resolve. 

Brotherhood 2017, 879 F.3d at 759. The instant decision is limited to the Court’s role as 

taxonomist. The evidence before the Court shows a “pattern [which] established beyond dispute 

that [BNSF] stood on solid ground in considering the [Union’s] challenge to the [Yard Foreman’s 

responsibilities] to reflect a minor dispute --- a challenge to the company’s exercise of authority 

implied and established as part of existing collective bargaining agreements through the parties’ 

course of dealing.” BLET GCA UP, 988 F.3d at 414. 

The Union counters that the dispute in this case is “major” because BNSF is effectively 

creating a new “Hybrid” position. As the Union sees it, only engine service employees (who are 

represented by a different union) may operate locomotives, and in turn, they are the only 

employees who can be required to become Engine Service Qualified. In contrast, train service 

employees (including Yard Foreman) cannot operate locomotives. By requiring the Yard Foreman 

to become Engine Service Qualified, the Union believes BNSF is attempting to create a new 

position that contains components of both the train service function (performing the switching 
11

function) while also performing the engine service employee function (obtain the necessary 

qualification to operate the locomotive). 

The evidence in the record shows that the course of dealing between BNSF and the Union 

on this point is not as the Union suggests. The record does not demonstrate a sharp division 

between the train and engine service employees as argued by the Union. As explained above, the 

Yard Foreman is already effectively a “Hybrid” position possessing components of the yard 

service and engine service functions as it is responsible for directing the locomotive (engine 

service) during the switching process (train service) via remote control. The Court appreciates 

that directing of the locomotive during switching via remote control does not require the operator 

to be Engine Service Qualified yet performing the same task on the locomotive using the

conventional controls does require the certification. But, for purposes of the instant dispute, it 

appears to the Court to be a distinction without a difference. BNSF is not attempting to create a 

new “Hybrid” position as the Union argues, this “Hybrid” position already exists. 

The Union’s view of a sharp distinction between train and engine service employees is 

further undermined by the fact that there is movement back and forth by employees between the 

two functions. Engine service employees are promoted from the ranks of train service employees 

and engine service employees may return to the train service function. (Dkt. 22-1, pg. 3.) As of

August 2020, one out of every three active train service employees at BNSF was Engine Service 

Qualified. Id. at 4. In sum, the record does not support the Union’s argument that established 

practice between the parties is a sharp separation between train and engine service employees. 

BNSF’s desire to impose an additional requirement on the Yard Foreman position of mandating 
12

that all in the position be Engine Service Qualified is not a sharp break from past practice for the 

position.

3

 This is further evidence suggesting the dispute is “minor.” 

The final piece of evidence demonstrating this is a “minor” dispute is the 1985 written 

agreement. The agreement was reached between the National Carriers’ Conference Committee

and the United Transportation Union. (Dkt. 22-1, pgs. 2, 6; Dkt. 28-1.) There is no dispute that 

the parties are covered by this agreement as BNSF is a member of the National Carriers’ 

Conference Committee, and United Transportation Union is Plaintiff Union’s prior name. (Dkt. 

22-1, pgs. 2, 6.) The relevant portion of the agreement states:

Road and yard employees in engine service and qualified ground service employees 

may perform the following items of work in connection with their own assignments 

without additional compensation: 

(2) move, turn and spot locomotives and cabooses . . . 

(5) start or shutdown locomotives . . . 

(10) any duties formerly performed by fireman. 

(Dkt. 22-1, pg. 6; Dkt. 28-1, pgs. 3-4.)

3 The parties make two other arguments on this point. First, BNSF points out other job positions that are “Hybrid” in 

nature of train service employees operating the locomotive including two that are Union represented. The Union 

concedes that there are two positions, Hostlers, who move locomotives without train cars, and Fireman, who operate 

locomotives under the supervision of engineers, that perform a “Hybrid” function. (Dkt. 22-1, pg. 5.) The Court finds 

this point to be marginally relevant. Yes, these are examples of other “Hybrid” positions, but it does not inform as to 

the extent of the parties’ past bargaining on the Yard Foreman’s position. As discussed above, the Court places 

considerably more weight on the fact that the Yard Foreman is effectively already performing the “Hybrid” function 

when directing the locomotive with the remote-control during switching.

Second, BNSF points out that historically the Engineers’ Union had argued that only engine service employees, who 

were members of that union, had the exclusive right to operate the locomotive’s conventional controls. (Dkt. 22-1, 

pg. 5.) However, in 2007, BNSF reached a new agreement with the Engineers’ Union in which that union agreed that 

“Hybrid” positions could be established for the switching activity and that engine service employees were not required 

to move locomotives during the switching process. Id. at 7-8. That agreement allowed train service employees to 

move the locomotive by remote control or conventional controls (if the employee was properly certified to perform 

conventional operation). Id. at 8. SMART-TD notes it was not a party to the agreements between BNSF and 

Engineers’ Union. The Court fails to see how an agreement between BNSF and a third-party union that is not a party 

to this litigation informs the scope of whether a collective bargaining exists between the parties in this case as to the 

Yard Foreman position. 

 
13

The Union counters that the language involves work “in connection with their own 

assignments . . .” (Dkt. 22, pg. 7.) It understands the agreement to cover train service employees 

who already move locomotives as an incidental duty such as Hostlers and Fireman. The Union 

believes that Yard Foreman are not in the business of moving locomotives, are not covered by this 

agreement, and so this agreement cannot be used to show that the present dispute is “minor.” 

Leaving aside the fact that the Yard Foreman do move the locomotives when using the 

remote control suggesting they are in the class of employees covered by the agreement (instead of 

only Hostlers and Fireman as the Union argues), the ultimate point is that it is not for the Court to 

resolve the issue. “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 can articulate 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.” 

Brotherhood 2017, 879 F.3d at 758 (quoting Conrail, 491 U.S. at 310). BNSF’s argument on the 

1985 agreement meets this “quite low” burden. In sum, BNSF demonstrates that this case presents 

a “minor” dispute. It is entitled to dismissal of this action for want of subject matter jurisdiction, 

and the dispute resolved by the arbitrator.

There is one final matter that requires the Court’s attention. The Union asserts that from 

2012 through 2014, BNSF and one of the Union’s general committees of adjustment (which is 

responsible for engaging in collective bargaining) negotiated a proposed agreement regarding 

“Hybrid” work by BNSF employees including the Yard Foreman engine certification at issue in 

this case. (Dkt. 21-1, pg. 7.) The agreement, however, was rejected by the Union rank and file 

membership. Id. 
14

The Union argues that BNSF persisted in its desire to create the “Hybrid” Yard Foreman 

position and so served a Section 6 notice on the Union in November 2019. Id. at 8. The filing of 

a Section 6 notice sets off the mandatory negotiation and mediation process just like the Court’s 

finding of a “major” dispute. 45 U.S.C. § 156; Chicago & Nw. Transp. Co. v. Ry. Labor 

Executives’ Assoc., 908 F.2d 144, 147 (7th Cir. 1990). Despite bringing the Section 6 notice, 

BNSF now attempts to unilaterally impose the Engine Service Qualified requirement for the Yard 

Foreman. 

The Union believes the fact that BNSF previously attempted to negotiate the change and 

now brings the Section 6 notice on this point is evidence this is a “major” dispute. Put another 

way, it is clear that when the Court finds there is a “major” dispute, the parties must proceed to 

mandatory bargaining and mediation. But, when a party previously put the issue to mandatory 

bargaining and mediation, does that also mean the issue is per se a “major” dispute?

The Court concludes the answer is “no.” It is the Court’s role to determine whether the 

dispute is “major” or “minor,” and the Court may “substitute its characterization for that of the 

claimant.” Conrail, 491 U.S. at 306. The “[f]iling [of] a section 6 notice may kick off a major 

dispute; it does not transform a minor dispute into a major one.” Chicago & Nw. Transp. Co., 908 

F.2d at 158.4

 As the Court previously determined this to be a “minor” dispute, the implication is 

that any previously filed Section 6 notice does not transform this “minor” dispute into a “major”

one. International Ass’n of Sheet Metal, Air, Rail and Transp. Workers, Transp. Div. v. BNSF Ry. 

4 The Court appreciates that the Chicago & Nw. Transp. Co. case is a slightly different factual context from the instant 

case. In that case, the Seventh Circuit was considering a Section 6 notice filed by a union. 908 F.2d at 158. In theory, 

a union would prefer to call disputes “major,” and Chicago & Nw. Transp. Co., is explaining that a union cannot use 

Section 6 notices as a backdoor to convert “minor” disputes into “major” ones. But, BNSF asserts that it may desire 

at times to engage in the negotiation process under a Section 6 notice even though the dispute is minor. (Dkt. 21, pg. 

6) (explaining that it can desire to engage in collective bargaining even though it already has an established contractual 

right in order to further clarify bargained for rights or if the rights are part of a larger omnibus negotiation). BNSF’s 

argument on this point does not strike the Court as “obviously insubstantial or frivolous, nor made in bad faith,” and 

so the Court shall accept it. Conrail, 491 U.S. at 310. 
15

Co., No. C15-1270RSL, 2015 WL 5159201, at *2 (W.D. Wash. Aug. 24, 2015) (“Nor does 

SMART–TD explain why a party’s unilateral decision to serve a Section 6 notice would upend the 

analysis set forth in Conrail and the statutory distinctions between “major” and “minor” disputes. 

Even if BNSF had filed a Section 6 notice . . . and then later realized that it had the option to 

proceed under [a collective bargaining agreement], its initial characterization of the dispute would 

not be binding on the courts.”).5

 

The final arrow in the Union’s quiver is Burlington N. R.R. Co. v. United Transp. Union, 

862 F.2d 1266 (7th Cir. 1988) (“BNSF 1988”), a prior dispute between the two parties in this case. 

In BNSF 1988, BNSF wanted to create a new lower-priced train service. Id. at 1269. BNSF was 

able to successfully negotiate the necessary labor concessions with local union membership to 

facilitate the lower cost train service in various locations, but was unable to obtain the necessary 

concessions from union employees working on its Northern Line running from Minnesota to 

Washington State. Id. 

To implement the new discount service on the Northern Line, BNSF contracted with its 

subsidiary, Winona Bridge, to operate on the Northern Line. Id. Prior to the agreement, Winona 

Bridge assets consisted of an out of service bridge and operating equipment over 1.07 miles of 

track. Id. It employed five workers who did not operate any trains. Id. Under the new agreement, 

Winona Bridge would now operate 1,860 miles of track on the Northern Line. Id. The advantage 

to BNSF was that Winona Bridge was effectively an empty corporate shell with no existing 

5 The Court’s finding that this is a “minor” dispute contrasts this case from Wheeling & Lake Erie Ry. Co. v. 

Brotherhood of Locomotive Engineers and Trainmen, 789 F.3d 681 (6th Cir. 2015), cited by the Union. In that case, 

the federal court performed its function of classifying the dispute concluding it was “major.” Id. at 693. The Court 

noted that the railroad had served a Section 6 notice, but that fact was not the basis for the “major” finding. Instead, 

the Court looked to the plain language of the “Scope Rule in Article I of the Trainman Agreement” when making the 

“major” finding. Id. at 693-94. The Sixth Circuit explained that the railroad’s filing of the Section 6 notice was 

consistent with its finding of a “major” dispute, but it did not hold the dispute was “major” because of the Section 6 

notice. 
16

collective bargaining agreements with the unions allowing it to hire employees under the new 

lower cost structure necessary for the new discount train service. Id. The Seventh Circuit 

concluded the dispute was “major.” Id. at 1274. Moreover, the Court of Appeals repudiated

BNSF’s effort to use Winona Bridge explaining that “a carrier cannot evade its duties under a 

collective bargaining agreement or the [Railway Labor Act] by directing business to an entity 

within the same corporate family and not obtained by the existing collective bargaining 

agreement.” Id. at 1275. 

BNSF 1988 is of no help to the Union in this case. The federal court in that case performed 

its obligation of characterizing the dispute as either “major” or “minor.” There was no reliance on 

a Section 6 notice or similar statement by BNSF in the major / minor determination. Notably, 

BNSF did not file a Section 6 letter in that case. What it did send was a letter to its employees 

admitting to using Winona Bridge as a subterfuge. Id. at 1274. BNSF 1988 stands for the 

proposition that a railway cannot avoid the mandatory negotiation and mediation process through 

use of a corporate subsidiary when faced with a “major” dispute, and an admission that the 

company used the corporate subsidiary improperly will be considered by the federal court. In 

contrast to BNSF 1988, the record demonstrates that the dispute in this case is “minor,” and there 

is no indication that BNSF is engaging in any type of malfeasance to avoid its statutory obligations 

under the Railway Labor Act in the instant dispute. 

In sum, this dispute is “minor,” and the parties must resolve it via arbitration. BNSF is 

entitled to dismissal of this case for want of subject matter jurisdiction. 

III. CONCLUSION

Defendant BNSF Railway Company’s motion to dismiss for want of subject matter 

jurisdiction (Dkt. 17.) is granted. Plaintiffs’ International Association of Sheet Metal, Air, Rail 
17

and Transportation Workers, Transportation Division, SMART-TD General Committee of 

Adjustment GO-01, SMART-TD GCA GO-009, and SMART-TD GCA GO-393’s motion for 

summary judgment (Dkt. 16.) is denied. Any pending motions are moot. The Clerk is instructed 

to enter a Rule 58 judgment in favor of Defendant and against Plaintiffs finding that the dispute is 

“minor” under Railway Labor Act. Civil Case Terminated. 

ENTERED:

Date: July 1, 2021 /s/ William T. Hart____________

WILLIAM T. HART

United States District Court Judge