ORDER

ROBERT F. ROSSITER, Jr., District Judge.

On July 22, 2016, counsel for the parties appeared before this Court for a hearing on Plaintiff Alton & Southern Railway Co.'s (A&S) Motion for a Temporary Restraining Order (Filing No. 2) against Defendant Brotherhood of Railroad Signalmen "its divisions, lodges, locals, officers, agents, employees, members and all persons acting in concert or participation with any of them" (collectively, BRS) from authorizing or participating in a strike and requiring BRS to make reasonable efforts to prevent such activity until this Court can conduct a hearing and enter an order regard a motion for preliminary injunction filed by A&S.

A&S asserts Federal Rule of Procedure 65(b) governs its motion and that the Court must apply the factors enumerated in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). Under Dataphase, "[w]hether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." In its brief, A&S acknowledged, "When a party seeks to enjoin a labor strike, Section 7 of the Norris-LaGuardia Act ("NLGA"), 29 U.S.C. § 107 may also come into play."1 (Emphasis added). At oral argument, A&S argued the Court should focus on the Dataphase factors.

BRS takes a different view. Noting Rule 65 does not modify "any federal statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee," Fed. R. Civ. P. 65(e)(1), BRS maintains § 107 not only applies, but applies exclusively. In BRS's view, A&S must meet the more-demanding standard of § 107 and has failed to show BRS has threatened and will commit unlawful acts that would cause A&S to suffer substantial and irreparable injury.

The Court need not resolve the parties' dispute as to the proper standard because A&S fails to satisfy either standard at this time. See Baker Electric Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994) (explaining the burden of establishing the need for a temporary restraining order is on the movant). Under § 107, A&S has not, at this time, provided evidence that "unlawful acts have been threatened and will be committed unless restrained." Even under Dataphase, A&S must show a "threat of irreparable harm." Dataphase, 640 F.2d at 109. No such "threat" has been proven. In the Court's view, BRS's mere refusal to agree with A&S that the parties' dispute was minor does not rise to the level of a threat of unlawful acts.

Based on the record of this court, the exhibits received in evidence, the written submissions, and the arguments and representations of counsel, A&S has not shown the need for a temporary restraining order. Accordingly, the Motion for Temporary Restraining Order (Filing No. 2) is DENIED.

IT IS SO ORDERED.