United States Court of Appeals,

                                             Fifth Circuit.

                                             No. 91–1440.

         BURLINGTON NORTHERN RAILROAD CO., a corporation, Plaintiff–Appellant,

                                                   v.

     BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, an unincorporated
association, et al., Defendants–Appellees.

                                            May 22, 1992.

Appeal from the United States District Court For the Northern District of Texas.

Before WISDOM, JONES, and SMITH, Circuit Judges.

          WISDOM, Circuit Judge.

          The plaintiff-appellant, Burlington Northern Railroad Company ("BN"), contends that the

district court erred by dismissing its demand for monetary relief. BN challenges the district court's

application of Louisville & Nashville Railroad Co. v. Brown,1 a decision of this Court, to the facts

of this case. BN also questions the continued validity of that precedent. We affirm.



I. BACKGROUND

          The defendant-appellee, the Brotherhood of Maintenance of Way Employees ("BMWE" or

"the union"), is the collective bargaining representative of certain employees of BN. BMWE and BN

are parties to a collective bargaining agreement that governs the hours of service, rates of pay, and

working conditions of the covered employees ("the Schedule Agreement"). BMWE and BN are also

parties to a supplemental agreement concerning employment of union members in the process of

laying railroad ties, specifically in connection with the use of the P811–S, a machine that lays concrete

ties ("the P811–S Agreement").



          In March 1990, BN notified BMWE that it intended to utilize a newly developed clip and


   1
       

(5th Cir.), cert. denied, 

, 

, 

(1958).
insulator installation machine ("the clipcar") in the process of laying concrete ties. BN stated that the

contractor's personnel would be operating this new machine rather than BMWE members. BMWE

objected to BN's plans to contract out this work, and requested a conference to discuss the matter.



          During the conference held on April 5, 1990, BN argued that it was entitled to contract out

this work by virtue of provisions in the Schedule Agreement that allow BN to contract out work

under specified conditions. BMWE, on the other hand, stated that this work was covered by the

provisions of the P811–S Agreement that require all "clipping" work to be "bulletined"2 to BMWE

members.



          In May 1990, BMWE notified BN that if BN proceeded to contract out this work, the union

would consider this to be a unilateral change in the P811–S Agreement.3 BN responded that it had

the right to contract out this work and that to do so would not constitute a unilateral change in any

of the agreements between the parties.



          BN had learned that BMWE planned to strike over this issue and filed an action against

BMWE4 seeking injunctive relief and damages. BN also moved for a temporary restraining order.

The district court issued a TRO at 2:30 a.m. on June 26, 1990, enjoining the strike. On June 26,

   2
       A bulletin is the procedure whereby members of BMWE bid on jobs.
   3
    In the terminology used in discussions of the Railway Labor Act, a dispute over changes in
rates of pay, rules, or working conditions is a "major dispute". A dispute arising out of grievances
or out of the interpretation or application of agreements concerning the rates of pay, rules, or
working conditions is a "minor dispute".

                  Under the Act, minor disputes are subject to compulsory arbitration and the parties
          may not resort to self-help. Thus, a district court may enjoin a strike over a minor dispute.
          Major disputes are the subject of voluntary arbitration, and the parties may resort to
          self-help only after the procedures described in the Act have been exhausted. A strike by
          the union over a major dispute may also be enjoined prior to exhaustion of those
          procedures, unless the carrier has already violated the status quo by making a unilateral
          change in working conditions.
   4
   The complaint also named as defendants several individual officers of BMWE. For
convenience, the defendants will be referred to collectively as "BMWE".
1990, at 6:00 a.m., before being served with the TRO, BMWE initiated a twenty-four hour strike

against BN in response to BN's contracting out for the clipcar work. Upon notice of the entry of the

TRO, BMWE ceased all strike activity. The parties agreed to continue the TRO until after a hearing

on BN's motion for a preliminary injunction.



       The hearing on the preliminary injunction was held on August 20, 1990. The court, without

ruling on BN's demand for monetary relief, granted the preliminary injunction. The court found a

substantial likelihood that the dispute was a minor dispute under the Railway Labor Act, and that

therefore BMWE could not resort to self-help.5



       In January 1991, BN moved for summary judgment on its demands for a permanent injunction

and for monetary relief. In February 1991, BMWE moved to dismiss BN's demand for monetary

relief. On February 14, 1991, the district court granted BN's motion for summary judgment with

respect to the permanent injunction, but denied the motion with respect to the demand for monetary

relief. On March 7, 1991, the district court granted BMWE's motion to dismiss BN's demand for

monetary relief, and entered a final judgment. After the district court granted a motion to reconsider,

and amended the permanent injunction, BN timely noticed this appeal from the order granting

BMWE's motion to dismiss the demand for monetary relief.



II. DISCUSSION

       On appeal, BN contends that the district court erred in dismissing its demand for monetary

relief. The district court granted BMWE's motion to dismiss on the authority of this Circuit's decision

in Louisville & Nashville Railroad Co. v. Brown. BN contends that the district court incorrectly

applied Brown to the facts of this case. BN argues alternatively that, if Brown does control this case,

it should be overruled.


   5
    The parties have not appealed any of the court's rulings with respect to the preliminary
injunction.
A. The applicability of Brown.

        In Brown, a railroad brought suit against several of its employees seeking damages caused

by the employees' inciting a strike that shut down the railroad for three days. On appeal this Court

recognized that 45 U.S.C. § 152 First creates a duty on the part of the employees "to exert every

reasonable effort ... to settle all disputes ... in order to avoid any interruption to commerce or to the

operation of any carrier". The Court held, however, that § 152 First did not create a cause of action

for damages caused by an illegal strike.



        In this case, BN seeks damages caused by BMWE's short-lived, illegal strike.6 BN contends

that BMWE is liable for the losses suffered by BN due to BMWE's violation of its duty under § 152

First and § 153 First (i) to submit a minor dispute to binding arbitration. BN argues on appeal that

Brown, which held that damages were not available for a violation of this duty, can be distinguished

from the present suit.



        BN first attempts to distinguish Brown on its facts. Apparently, BN would have this Court

limit the holding of Brown to situations in which the employer sues individual employees rather than

the union. While the factual situations may differ, the holding in Brown was not limited to its

particular facts. Furthermore, we see no reason to so limit the holding of Brown. Indeed, other

courts have recognized Brown as holding that there is no cause of action against a union for damages

for a breach of the § 152 First duty.7



        BN also argues that Brown did not consider whether damages could be awarded as part of

   6
    BMWE's strike must be considered illegal in light of the district court's finding that the
dispute was minor. BMWE does not challenge this finding.
   7
    See, e.g., Kennedy v. Long Island R.R., 

, 372 n. 7 (2d Cir.), cert. denied, 

, 

, 

(1963); Maas v. Frontier Airlines, Inc., 

,
227 (D.Colo.1987); and National Airlines, Inc. v. Airline Pilots Ass'n Int'l, 

, 54
(S.D.Fla.1976). See also Dennis A. Arouca, Damages for Unlawful Strikes Under the Railway
Labor Act, 32 Hastings L.J. 779, 793 (1981) (In Brown the Fifth Circuit "refus[ed] to allow
damages to carriers for union violation of sections 2 First and 3").
equitable relief. BN argues that this Court's decision in United Industrial Workers of the Seafarers

Int'l Union v. Board of Trustees of Galveston Wharves,8 holds that monetary relief may be awarded

as part of the equitable relief ordered by the court. In Galveston Wharves the Court awarded back

pay to employees who were wrongfully discharged when the carrier unilaterally altered the terms of

a collective bargaining agreement without following the procedures dictated by 45 U.S.C. § 156.



       Galveston Wharves is inapposite to this case. The monetary award in Galveston Wharves was

in response to a violation of § 156; Brown addressed a violation of § 152 First. The holding of

Galveston Wharves that monetary relief is available for a breach of § 156 does not conflict with the

holding of Brown that no monetary relief is available for a breach of § 152 First.9 Nor do we find that

the holding of Brown is limited to a situation in which the plaintiff classifies the damages as a legal

remedy as opposed to an equitable remedy. Regardless of the label attached to the damages sought,

the nature of the relief sought in this case is identical with that sought in Brown—the railroad wants

to recover the money it expended as a result of the illegal strike. Galveston Wharves provides no

support for BN's position.



       While the Brown holding did not directly address a violation of § 153 First (i), we find that



   8
    

(5th Cir.1968), cert. denied, 

, 

, 

(1969).
   9
    The duties created by the two sections of the Act are not identical. Section 156 concerns the
carrier's and the union's duty to maintain the status quo while negotiating changes in collective
bargaining agreements. There are no cases stating that damages are not available to the carrier if
the union violates this duty.

               Because it considers a different section of the Act, Galveston Wharves would not
       control the outcome of this case even if this Court were considering the issue on a clean
       slate. Note also that the Court in Galveston Wharves did not even mention Brown, which
       indicates that the issues in the two cases were not thought to be related.

               BN also suggests that Franklin v. Gwinnett County Public Schools, ––– U.S.
       ––––, 

, 

(1992), undermines Brown. Franklin holds that
       damages are available in a suit under Title IX. Again, even if this Court were considering
       the issue on a clean slate, Franklin would not control.
a violation of this section is within the holding of Brown.10 Section 153 First (i) mandates compulsory

arbitration to resolve minor disputes.11 When an illegal strike occurs over a minor dispute, the

employees or the union have violated not only § 152 First but also § 153 First (i). We find that the

holding in Brown is not limited to the situation in which the carrier fails to plead the violation of the

latter section. We are also not aware of any case in which damages have been awarded for violation

of § 153 First (i).12



        This Court previously held in Brown that a carrier had no cause of action under the Railway

Labor Act for damages caused by an illegal strike. The district court correctly held that the holding

in Brown controlled the disposition of the present suit.



B. The continued validity of Brown.

         BN argues alternatively that Brown should be overruled. "In this circuit one "panel may not

overrule the decision, right or wrong, of a prior panel' in the absence of en banc reconsideration or

superseding decision of the Supreme Court."13 This Court has never considered the issue en banc.14

BN has not directed the attention of this Court to any Supreme Court decision holding that monetary

relief is available for a breach of the § 152 First duty.15 Thus, this panel is bound to follow the

   10
     See, Arouca, supra note 7, at 792–93 (indicating that Brown held that damages were not
allowed for a violation of § 152 First or for a violation of § 153).
   11
     Brotherhood of R.R. Trainmen v. Chicago River & Ind. R.R., 

, 39, 

,
639, 

(1957).
   12
     In Chicago River the Supreme Court held that an injunction could issue to enjoin compliance
with § 153 First (i); the Court did not address the question of whether damages could be
awarded.
   13
     Pruitt v. Levi Strauss & Co., 

, 465 (5th Cir.1991) (quoting Brown v. United
States, 

, 1336 (5th Cir.1989)) (other citations omitted).
   14
    Indeed, in the history of the Railway Labor Act, the Brown panel is the only federal appellate
court to have considered the question.
   15
    There are no reported cases awarding damages for the breach of the § 152 First duty. In
Denver & R.G.W.R.R. v. Brotherhood of R.R. Trainmen, 

, 

, 

(1967), the Supreme Court was presented with a case in which the district court had
holding in Brown.



III. CONCLUSION

       The district court correctly dismissed the demand for monetary relief on the authority of

Brown. The decision of the district court is AFFIRMED.




awarded damages. The only issue decided by the Supreme Court, however, was a venue issue;
the Court did not address the issue of monetary relief. On remand to the district court, the case
was apparently dismissed with prejudice and the damages were never collected. Thus, Denver
does not provide any authority for the proposition that monetary relief is available.

               See also, Harry Lustgarten, Principles of Railroad and Airline Labor Law (1984):

               The Railway Labor Act does not specifically authorize a carrier to recover
               damages for an unlawful strike and there has been no judicial decision indicating
               that such a right exists. It appears unlikely, moreover, that the courts in the future
               would be inclined to allow such damages in view of the potential impact it might
               have upon the unions' ability to represent the employees.