                                                                         FILED
                          NOT FOR PUBLICATION
                                                                          MAY 31 2016
                   UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


INTERNATIONAL ASSOCIATION OF                   No. 15-35747
SHEET METAL, AIR, RAIL AND
TRANSPORTATION WORKERS,                        D.C. No. 2:15-cv-01270-RSL
TRANSPORTATION DIVISION, AKA
SMART-TD,
                                               MEMORANDUM*
             Plaintiff - Appellant,

 v.

BNSF RAILWAY COMPANY,

             Defendant - Appellee.


                  Appeal from the United States District Court
                    for the Western District of Washington
                Robert S. Lasnik, Senior District Judge, Presiding

                       Argued and Submitted April 4, 2016
                              Seattle, Washington

Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.


      The Transportation Division of the International Association of Sheet Metal,

Air, Rail and Transportation Workers (“Union”), appeals the denial of a preliminary


        *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
injunction seeking to enjoin BNSF Railway Co. (“BNSF”) from making certain

changes to employee availability rules without engaging in the major dispute

bargaining process described in Section 6 of the Railway Labor Act. We affirm.

      BNSF proposed implementing certain changes with respect to three new inter-

divisional services, claiming its actions were authorized by Article IX of the existing

collective bargaining agreement (“CBA”). BNSF contends that the proposed terms

to which the Union objects, involving turn-removal and predictive work schedules,

are encompassed in the “hours on duty” and “other conditions of work” provisions

that the carrier may impose in connection with establishing this inter-divisional

service under Article IX.

      We agree with the district court that BNSF’s actions are arguably authorized

by the existing CBA, and thus the Union’s dispute over the terms is appropriately

characterized as a “minor” dispute under Consolidated Rail Corporation v. Railway

Labor Executives’ Association, 491 U.S. 299 (1989) (“Conrail”). Disputes relating

“either to the meaning or proper application of a particular provision with reference

to a specific situation” are deemed “minor disputes.” Id. at 303 (quotation omitted).

If an employer asserts a contractual right to take a contested action, “the ensuing

dispute is minor if the action is arguably justified by the terms of the parties’




                                          2
collective-bargaining agreement,” that is, so long as the employer’s arguments are not

“obviously insubstantial” or “frivolous.” Id. at 306-07.

      BNSF’s prior Section 6 major dispute notice, which sought to implement,

among other things, similar changes to worker availability and scheduling but among

a variety of carriers and lines nationwide, does not alter the nature of this particular

dispute, which pertains only to BNSF’s proposed inter-divisional service in three

specific locations and as arguably contemplated by Article IX. 1 Thus, the Union’s

proper remedy is to seek binding arbitration to determine whether BNSF’s actions

were, in fact, authorized by the existing CBA. 45 U.S.C. § 153; Conrail, 491 U.S. at

303-04.

      Because the dispute here is a matter of contractual interpretation left exclusively

to the National Railroad Adjustment Board, we AFFIRM the denial of a preliminary

injunction and REMAND with instructions to DISMISS the underlying suit for a lack



      1
          Issuing a Section 6 notice for a broader purpose does not automatically
convert the more narrow issue here into a “major” dispute, because the threshold
question is still whether or not a particular dispute may be resolved by interpreting the
existing agreement. See, e.g., Conrail, 491 U.S. at 306 (“[T]he proper functioning of
the statutory scheme requires the court to substitute its characterization [of the
dispute] for that of the claimant.”); CSX Transp. Inc. v. United Transp. Union, 879
F.2d 990, 999 (2d Cir. 1989) (“It is [] necessary to address, as a threshold matter, the
nature of the controversy between the parties.”); Chicago & N.W. Transp. Co. v. Ry.
Labor Execs. Ass’n, 908 F.2d 144, 158 (7th Cir. 1990) (“Filing a Section 6 notice may
kick off a major dispute; it does not transform a minor dispute into a major dispute.”).
                                           3
of subject matter jurisdiction. See Ass’n of Flight Attendants v. Mesa Air Group, Inc.,

567 F.3d 1043, 1049 (9th Cir. 2009). Each party shall bear their own costs on appeal.




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                                                                              FILED
                                                                              MAY 31 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
Int’l Assn of Sheet Metal etc v. BNSF Railway Company, Case No. 15-35747
Rawlinson, Circuit Judge, concurring in the judgment:




I concur in the judgment affirming the denial of a preliminary injunction and

remanding for dismissal due to lack of subject matter jurisdiction. I write

separately to expressly disavow any reliance on the out-of-circuit authority cited in

the main disposition.




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