On August 28, the U.S. Court of Appeals for the 5th Circuit issued its decision in BNSF et al v. SMART-TD (Case No. 20-10162) concerning crew consist. The decision vacated an injunction issued by the U.S. District Court for the Northern District of Texas and is a long-awaited victory for the Sheet Metal, Air, Rail Workers-Transportation Division (SMART-TD).

The injunction forced SMART-TD General Committees to bargain over crew consist, despite the existence of moratoria which bar such negotiation. SMART-TD has always read those moratoria clauses to bar the service of Section 6 Notices to negotiate over crew consist until the last protected employee voluntarily separated from service. But despite the long-standing nature of these clauses, the carriers presented a new and novel theory that the moratoria did not actually bar crew-consist negotiations.

The carriers tested this theory out by filing suit in the Northern District of Texas against SMART-TD in October 2019. The carriers then moved for a preliminary injunction in December 2019.

In their request for an injunction, the carriers asked the Northern District of Texas to force SMART-TD to bargain now in spite of the moratoria. The district court issued its decision on February 11, finding that even though the dispute over the moratoria was minor, and no arbitral determination had been made, SMART-TD was required to bargain now.

Under the Railway Labor Act (RLA), minor disputes must be resolved through arbitration, not Section 6 bargaining. In its opinion, the 5th Circuit walked through the various bases on which an injunction can be issued in RLA disputes. The 5th Circuit found that none of the bases existed in the present matter.

Instead, the appellate court concluded that the carriers had failed to exhaust the administrative remedy provided under the RLA arbitration regarding the moratoria clauses.

The 5th Circuit’s decision is available for review here.

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