Burlington Northern & Santa Fe Railway Co. v. Brotherhood of Maintenance of Way Employees

 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 01-10538 _______________ BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY; CONSOLIDATED RAIL CORPORATION; CSX TRANSPORTATION, INC.; KANSAS CITY SOUTHERN RAILWAY COMPANY; NORFOLK SOUTHERN RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY, Plaintiffs- Counter Defendants- Appellees, VERSUS BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Defendant- Counter Claimant- Appellant. _________________________ Appeal from the United States District Court for the Northern District of Texas _________________________ April 4, 2002 Before SMITH and DEMOSS, Circuit Judges, I. and DUPLANTIER,* District Judge. A union appeals an injunction issued under the Railway Labor Act (“RLA”). The six ap- JERRY E. SMITH, Circuit Judge: pellee railroad carriers have obtained, on sum- mary judgment, an injunction against appellant Brotherhood of Mai ntenance of Way * Employees (“BMWE”) requiring it to give ten District Judge of the Eastern District of days’ notice before initiating a “strike, work Louisiana, sitting by designation. stoppage, picketing or other self help” against before the affected carrier could obtain a tem- any of the carriers. Burlington N. & Santa Fe porary restraining order.” Id.1 R.R. v. BMWE, 143 F. Supp. 2d 672, 696 (N.D. Tex. 2001) (“Burlington Northern”). BMWE claims that its policy of surprise In that published Memorandum Opinion and strikes does not violate the RLA and that the Order, the district court provides an injunction is forbidden by the Norris- impressive and detailed evaluation of the facts LaGuardia Act (“NLGA”). We conclude that and law and a persuasive explanation of its the BMWE’s actions violated its duties under reasons for entering the injunction. Finding no the RLA and that the NLGA does not bar an error, we affirm, essentially on the basis of the injunction under the specific circumstances of district court’s well-crafted opinion, except to this case. the extent that we provide further analysis below. II. A. As the district court found, the BMWE has We first consider the BMWE’s duties under a long history of launching strikes without the RLA. It is well established that “the major warning, including many that are illegal under purpose of Congress in passing the Railway the RLA. See id. at 694 (finding that “[t]he Labor Act was to provide a machinery to pre- court can, and does, infer from the facts thus vent strikes.” Tex. & New Orleans R.R. v. found that BMWE has a pattern, practice, and Bhd. of Ry. & Steamship Clerks, 281 U.S. policy of authorizing, encouraging, permitting, 548, 565 (1930) (quotations omitted). To fur- calling or engaging in strikes, work stoppages, ther this goal, § 152 First of the RLA picketing, and other self-help against plaintiffs comprehensively requires that labor and and their subsidiaries over what BMWE claims management “exert every reasonable effort . . . are unilateral changes in agreements . . . . to settle all disputes . . . in order to avoid any [T]he conduct of the BMWE in engaging in interruption to commerce or to the operation activities of that kind without giving the of any carrier growing out of any dispute affected carrier advance notice . . . violate[s] between the carrier and the employees BMWE’s duties under § 152 First.”). Since thereof.” 45 U.S.C. § 152 First (1994) 1993, “BMWE has struck, attempted to strike, (emphasis added). “[T]he obligation under or threatened to strike plaintiffs at least § [152] First is central to the effective working eighteen times, including nine cases in which of the Railway Labor Act,” and compliance pickets went up and/or operations were dis- rupted until the affected plaintiff was able to 1 obtain a temporary restraining order.” Id. at The district court made these factual findings 679. without an evidentiary hearing; it provides a detailed explanation of why it believes no hearing was required. Burlington Northern, 143 F. Supp. In the year preceding the injunction, 2d at 45-55. We do not consider whether this was “BMWE . . . accelerated its practice of strikes error, because BMWE does not raise the issue as against the plaintiffs, with four incidents” be- a ground for reversal. “We liberally construe tween February 2000 and early 2001. Id. “In briefs in determining issues presented for review; each case, BMWE planned its strike in secret however, issues not raised at all are waived.” and made every effort to implement the strike Carmon v. Lubrizol Corp., 17 F.3d 791, 794 (5th Cir. 1994). 2 therefore can be enforced by injunction. In addition to violating § 152 First, many of Chicago & N.W. Ry. v. United Transp. Union, BMWE’s surprise strikes were held to be in 402 U.S. 570, 578-79 (1971). violation of the requirement that unions can resort to strikes in a dispute over “minor” is- BMWE contends that the legislative history sues only if they first have exhausted the of the RLA mandates a narrower construction RLA’s compulsory dispute resolution mechan- of the RLA than the text alone would dictate. isms. Burlington Northern, 143 F. Supp. 2d at Even if the BMWE’s view of the legislative 680-85 (describing seven cases in which history is sound, this argument is unavailing, BMWE was enjoined from striking the because “[l]egislative history is relegated to a appellees because the dispute at issue was mi- secondary source behind the language of the nor).3 This circumstances strengthens the con- statute in determining congressional intent; clusion that BMWE was engaged in a pattern even in its secondary role legislative history of illegal activity. must be used cautiously.” Aviall Serv., Inc. v. Cooper Indus., Inc., 263 F.3d 134, 140-41 B. (5th Cir.) (internal citations omitted), vacated Precedent from other circuits supports this for rehearing en banc, 278 F.3d 416 (5th Cir. conclusion. Judge Leventhal, writing for the 2001).2 District of Columbia Circuit, held that “the continuing duty of responsible bargaining un- BMWE’s deliberate policy of repeatedly der the [RLA] fairly embraces reasonable no- calling surprise strikes violates the statutory tice of a strike or lockout or other self help.” requirement that railroads and unions “exert Del. & Hudson Ry. v. United Transp. Union, every reasonable effort . . . to settle all dis- 450 F.2d 603, 622 (D.C. Cir. 1971). putes . . . in order to avoid any interruption to BMWE’s argument that Delaware & Hudson commerce.” 45 U.S.C. § 152 First. A was not decided under § 152 First is irrelevant, surprise strike makes it difficult or impossible because the reasoning of the court is based on to resolve the underlying dispute between a generalized RLA “duty of responsible labor and management without “interruption bargaining” that applies to § 152 First as to commerce.” Id. Because management is readily as to other provisions of the Act.4 Id. unaware that a strike is impending, it cannot take steps that might prevent it. In cases 3 where the contemplated surprise strike is See Burlington N.R.R. v. BMWE, 961 F.2d illegal under the RLA, the carrier cannot 86, 89 (5th Cir. 1992) (describing RLA dispute re- obtain an injunction against it until after the solution procedures for “minor” disputes and hold- strike has begun and an “interruption to ing that resort to them before striking is commerce” has already occurred. mandatory). 4 It is also incorrect to claim, as BMWE does, that Delaware & Hudson’s language requiring no- tice is mere dictum. The language occurs in the 2 Cf. Garcia v. United States, 469 U.S. 70, 75 same part of the opinion as do the instructions to (1984) (holding that “only the most extraordinary the district court, which had “continuing showing of contrary intentions would justify a limi- jurisdiction” over the dispute “for such further tation on the ‘plain meaning’ of the statutory lan- proceedings as may become appropriate, not guage”). (continued...) 3 The Eleventh Circuit recently has held that mandate that labor and management “exert “[w]hen the public interest, commerce, and a every reasonable effort . . . to settle all clear statutory provision are implicated, we disputes . . . in order to avoid any interruption will not shy away from holding the parties to to commerce,” which occurs in the same their duties under the RLA so as to avoid ‘any sentence of § 152 First as does the provision interruption to commerce.’” Delta Air Lines, enforced by the Eleventh Circuit. Inc. v. Air Line Pilots Ass’n, Int’l, 238 F.3d 1300, 1308 (11th Cir.) (quoting § 152 First), Because we are persuaded by the plain text cert. denied, 532 U.S. 1019 (2001). That of the statute, by the reasoning of the District court held that § 152 First’s requirement that of Columbia and Eleventh Circuits, and by the the parties “exert every reasonable effort to desirability of avoiding a circuit split, we easily make and maintain” agreements qualified as a conclude that the BMWE did indeed violate its “clear statutory provision” that could be en- statutory duties under § 152 First. We need forced by injunction whenever there is a threat not, however, go as far as the District of Col- of “any interruption to commerce.” Id. The umbia Circuit did in concluding that any “de- same reasoning applies to the section’s liberate timing of a strike without prior warning” violates the statute. Delaware & Hudson, 450 F.2d at 622. For purposes of the 4 (...continued) present case, we decide only that the statute inconsistent with the opinion of this Court.” forbids an ongoing, repeated practice of Delaware & Hudson, 450 F.2d at 623. surprise strikes that are doomed later to be held illegal and enjoined. See Burlington The District of Columbia Circuit evidently ex- Northern, 143 F. Supp. 2d at 679-85 pected that, although it had overturned an earlier (describing extensive history of surprise strikes injunction, an anti-strike injunction, possibly in- cluding a notice provision, might become by the BMWE against appellees that later were necessary. Indeed, the language asserting a enjoined). We need not and do not address requirement of notice immediately follows the the question whether the RLA forbids all court’s condemnation of an earlier union effort to surprise strikes. Nor do we need to reach the “call a strike . . . without direct notice to the Eleventh Circuit’s holding that anti-strike in- railroads.” Id. at 622. junctions are appropriate any time a union’s violation of a “clear statutory provision” The circuit court likely feared that such action threatens “interruption to commerce.” Delta, might be repeated. It noted that the union’s earlier 238 F.3d at 1308. strike activity was “lawful” only because of “an as- sumption of good faith as to its stated purpose of C. the strike” and warned that “[t]he District Court BMWE argues that recognizing an en- has continuing jurisdiction to reappraise the joinable statutory duty to avoid surprise strikes union’s good faith in the light of either substantial evidence not previously available or developments under § 152 First also would allow courts to as to tactics and methods following notice to the enjoin a variety of other union and carriers of the strike call.” Id. at 623 (emphasis management practices that arguably evidence added). The latter passage suggests that the circuit a failure to “exert every reasonable effort . . . court may have expected that the district court to settle all disputes.” 45 U.S.C. § 152 First. would not allow future strikes without prior “notice For example, BMWE claims that a broad to the carriers of the strike call.” Id. 4 interpretation of § 152 First would allow reasoning that “[w]e find it quite impossible to courts to enjoin carriers’ refusals to settle a say that no set of circumstances could arise minor dispute or to maintain the status quo where a strike injunction is the only practical, pending arbitration. effective means of enforcing the command of § [152] First.” Id. These and other similar examples are readi- ly distinguishable from surprise strikes, BMWE’s strategy of calling numerous sur- because § 152 First applies only to actions that prise strikes is precisely the sort of violation of cause “interruption to commerce or to the op- the RLA for which an injunction “is the only eration of any carrier growing out of any dis- practical, effective” remedy. Id. BMWE re- pute between the carrier and the employees peatedly has demonstrated its willingness to thereof.” 45 U.S.C. § 152 First. The actions call surprise strikes that violate its obligations posited by BMWE, while they may make dis- under the RLA. Normally, such illegal pute resolution more difficult, do not, in and of conduct could be deterred through after-the- themselves, interrupt commerce, while surprise fact actions for damages. This court, though, strikes undeniably do. And strike prevention, specifically has held that there is no damage not dispute resolution per se, was “the major remedy for violations of § 152 First. See purpose of Congress in passing the Railway Burlington N. R.R. v. BMWE, 961 F.2d 86, 89 Labor Act.” Texas & New Orleans, 281 U.S. (5th Cir. 1992); Nashville R.R. v. Brown, 252 at 565. F.2d 149, 155 (5th Cir. 1958). III. Preemptive injunctive relief is the only A. available remedy for illegal surprise strikes by Having concluded that the BMWE’s the BMWE. An injunction issued only after an actions violated the RLA, we turn to the illegal strike has begun cannot undo the question whether the injunction is barred by damage caused to the carriers from the the NLGA. That statute “expresses a basic beginning of the strike to the issuance of the policy against the injunction of the activities of injunction. labor unions.” Int’l Bhd. of Machinists v. Street, 367 U.S. 740, 772 (1961) (citing 29 More importantly, an after-the-fact injunc- U.S.C. § 101). Nonetheless, “the [NLGA] tion cannot prevent the “interruption of does not deprive the federal courts of commerce” that will have occurred during this jurisdiction to enjoin compliance with various period; stopping such disruption is, as we have mandates of the Railway Labor Act.” Id. seen, the main purpose of the RLA. 45 U.S.C. § 152 First. Finally, after-the-fact injunctions When considering requests for injunctive would not give the BMWE any incentive to re- relief under the RLA, “courts should hesitate frain from illegal strikes in the first place, be- to fix upon the injunctive remedy unless that cause it still would receive the benefit of any remedy alone can effectively guard the damage to the carriers inflicted before the in- plaintiff’s right.” Chicago & North Western, junction went into effect. 402 U.S. at 582. The Supreme Court, however, also has said that the NLGA does To be sure, the district court could have not bar injunctive relief under § 152 First, chosen to enjoin only unambiguously illegal 5 surprise strikesSSthose that are over “minor” United States Steel, 519 F.2d at 1245. Here, issues. But if the carrier learns of the strike the court merely required ten days’ notice of a only after the fact, it cannot litigate the strike and did not come close to enjoining the “major-minor” issue until after the strike has right to strike itself. begun. At that point, if the carriers prevail in court, they still will not receive compensation Second, United States Steel is for the disruption of operations inflicted by the distinguishable because it was decided under strike while it lasted. Supreme Court precedent that forbids enjoining any strike under the Taft-Hartley Act The case might well be different if the absent “a finding in each case that the strike BMWE had not utilized illegal surprise strikes was over an arbitrable issue.” Id. There is no on so many occasions. If such tactics were such requirement under the RLA. limited to rare, isolated instances, there might be no need for an injunction to address the United States Steel’s requirement that problem, which would be unlikely to recur. In “[e]very order granting an [anti-strike] the present case, however, a long history of injunction . . . shall be specific in its terms systematic abuse left the district court with no [and] shall describe in reasonable detail . . . act choice but to resort to an injunctive remedy. or acts sought to be restrained,” id. at 1245- There was no other way to prevent the 46, presumably is still applicable to the present extensive disruption of commerce and damage case. The injunction does not run afoul of it, to the carriers caused by an ongoing policy of however. The injunction undeniably is surprise strikes. “specific in its terms,” requiring that the union provide ten days’ notice of all strikes against B. the plaintiff carriers. Id. Unlike the situation BMWE argues, nonetheless, that, under the in United States Steel, in which there was “no NLGA, the injunction is improper in light of specific act . . . complained of in the motion United States Steel Corp. v. United Mine for . . . injunction,” here the carriers complain Workers, 519 F.2d 1236 (5th Cir. 1975). of a longstanding BMWE strategy of calling There, we did indeed condemn “overbroad surprise strikes that violate the RLA. Id. at use” of anti-strike injunctions; we required that 1246. “[e]very order granting an [anti-strike] injunction . . . shall be specific in its terms, IV. shall describe in reasonable detail, and not by In summary, BMWE has persisted in un- reference to the complaint or other document dermining the purposes of the RLA by re- the act or acts sought to be restrained.” Id. at peatedly engaging in strikes that are plainly 1245-46. unlawful. The district court has carefully tai- lored a remedy designed to take care of this United States Steel is readily distinguishable specific factual situation. Following the lead from the present case. The injunction against of two sister circuits that have approved the BMWE is much less sweeping than that in availability of injunctions to thwart similar United States Steel, which “was nothing less violations of law, we AFFIRM the judgment of than an injunction against striking for the life permanent injunction. of the contract[,] an order to work every day.” 6 DUPLANTIER, District Judge, dissenting: Id. at 303. The Railway Labor Act, 45 U.S.C. §151, None of the statutes regulating the rela- et seq., (RLA) regulates in great detail the tionship between railroads and the unions rep- relationship between railroads and the unions resenting railroad employees requires advance which represent railway employees. Section notice of a union’s intention to strike, and 152 First of the RLA provides that carriers during the many years since the enactment of and their employees have a duty “to exert those statutes, no railroad has sought a every reasonable effort . . . to settle all dis- statutory amendment to require such notice.5 putes . . . in order to avoid any interruption to commerce or to the operation of any carrier This suit, which was not filed in response to a strike or in anticipation of a threatened strike, growing out of any dispute between the car- represents in effect an attempt by the railroads to rier and the employees thereof.” Because I amend the RLA through judicial interpretation rather conclude that a court has no authority to add than legislative amendment, a tactic one carrier has to that duty a requirement that a railway union previously tried unsuccessfully.6 provide advance notice before engaging in a strike, work stoppage, or other job action The six railroad appellees initiated this suit, seeking a declaratory judgment to the effect that against a carrier, I respectfully dissent. BMWE has violated §152 First, by authorizing, encouraging, permitting, calling, or engaging in self- Appellant Brotherhood of Maintenance of help, including strikes, without notice, over disputes Way Employees (BMWE) is a labor union involving what BMWE characterizes as unilateral which represents those employees of numer- changes in agreements, and by engaging in such conduct as a pattern, practice, or policy. The rail- ous railroads who are responsible for main- roads also sought an injunction requiring BMWE in taining, repairing and rehabilitating railroad the future to give ten days advance notice of its intent tracks throughout the United States. Since to commence any job action against any of the 1993 BMWE has engaged in twelve strikes or plaintiff railroads, thereby giving the railroad the planned strikes, each one against at least one opportunity to obtain a restraining order in advance of of the six railroads who are plaintiffs in this suit. In each instance, the union gave no 5 advance notice to the railroad of its intent to At oral argument, counsel for the railroads commence a strike. The railroad in question advised that in the 76 years since the RLA’s ultimately obtained injunctive relief against enactment no railroad had ever sought such an each of the strikes, on the ground that the amendment from Congress. dispute which gave rise to the strike was a 6 In 1998, Burlington Northern and Santa Fe “minor dispute,” as to which a strike is un- Railway Company, an appellee herein, filed suit in lawful. See Consolidated Rail Corp. v. Rail- the Northern District of Texas seeking, among way Labor Executives Assn., 491 U.S. 299, other things, a mandatory injunction requiring the 304 (1989). In each injunction suit brought union to give 3 days advance notice of future by the railroad, the union contended that the strikes. Burlington N. & Santa Fe Ry. Co. v. strike or planned strike was lawful, primarily Brotherhood of Maintenance of Way Employees, because the disagreement between the parties 93 F.Supp. 2d 751 (N.D. Tex.2000) The district involved a major dispute. Where a major dis- judge denied the railroad that relief but suggested pute is involved, a party may resort to a strike that on a different record such an injunction after exhausting the bargaining and mediation regulating futur e conduct by the union might be process mandated by §§5 and 6 of the RLA. justified. Id. at 760. The district court’s denial of the injunction was not appealed. the threatened union action. The railroads urged that relationship between railway unions and railroad the advance notice requirement was warranted to carriers, such as the RLA, the statute cannot be prevent significant economic losses resulting from an construed to impose such an obligation upon a union. illegal strike, losses for which the railroads cannot recover damages from the unions. See Louisville & I agree with the majority that the district court’s Nashville Railroad Company v. Brown, 252 F.2d 149, opinion provides “a persuasive explanation of its 155 (5th Cir. 1958). reasons for entering the injunction,” but I disagree that it supports the judgment granting the injunction. The district court granted the railroads’ motion for A requirement of advance notice of intent to strike summary judgment, based in large part upon the may well be sound public policy; however, the decisions in eighteen prior suits7 between the imposition of such a requirement is for Congress, not railroads and BMWE over an eight year period in the court. nine different federal district courts. Each of these suits resulted ultimately in a grant of a railroad’s The procedural history of the RLA is significant petition for an injunction halting an ongoing strike or and somewhat unusual. After extensive negotiations, prohibiting what was perceived as a threatened strike. the railway unions and the railroads presented a In granting the injunction on appeal before us, the proposed statute to Congress, which enacted into law district court also relied upon statements made by the precise agreement submitted by the unions and the union executives in depositions and press releases. carriers. Thus the RLA strikes a delicate balance Upon this summary judgment record the railroads between the competing interests of the unions and the convinced the district court that BMWE had dem- carriers. The advance notice requirement imposed by onstrated a pattern, practice, and policy of engaging the district court forever shifts the balance embodied in illegal self-help activities. Based upon that finding, in the RLA, as between the plaintiff railroads and the the district judge in effect amended the RLA (as BMWE. applicable to parties to this litigation), to add a requirement that the union must give the railroad ten The importance of maintaining the delicate days advance notice before initiating any job action, balance embodied in the RLA has been consistently including a strike. The injunction contained no recognized. In both Norfolk Southern Ry. Co. v. temporal or geographic limitation, nor was it Brotherhood of Locomotive Engineers, 217 F.3d 181, restricted only to union actions taken in response to 190 (4th Cir. 2000) and CSX Transportation, Inc. v. specific circumstances. Marquar, 980 F.2d 359, 380 (6th Cir. 1992), the court relied upon the desirability of maintaining this While advance notice of a union’s intent to strike delicate balance between the railroads and the railway or to utilize any self-help action may be a laudable unions as the rationale for denying railroads the right objective in any comprehensive statute regulating the to recover damages from unions which had breached their duty to arbitrate a minor dispute by engaging in an illegal strike. As noted above, the railroads 7 contend they should be granted an injunction because In his Memorandum Opinion and Order the they cannot recover damages for an unlawful strike. district judge refers to eighteen suits in which a The very reason for denial of damages applies equally temporary restraining order or an injunction was to an injunction: “[d]amages awards between railroads issued against the union. Burlington N. & Santa and unions . . . threaten the delicate balance intended Fe Ry. v. BMWE, 143 F.Supp. 2d 672, 679-685 by the RLA.” Id. So too would the court-created (N.D. Tex. 2001). However, only nine involved advance notice requirement at issue here. actual strikes by the union. The other nine in- Had Congress wanted to impose a duty of advance volved either what the railroads perceived as a notice on unions, it certainly knew how to do so. In threatened strike, including what the district court my view, the district court usurped the legislative characterized as situations where “BMWE refused function of Congress by imposing a duty that may well to provide assurance that it would not strike,” or be beneficial for the common good, but is not au- a counterclaim filed by the carrier seeking an thorized by §152 First or any other statute. injunction in a suit initiated by the union. 8 In affirming the district court, the majority relies pleadings, depositions, answers to interrogatories, and in part upon the desire to avoid a split between the admissions on file, together with the affidavits, if any, circuits. I submit that denial of the injunction sought show that there is no genuine issue as to any material by the railroads would not create a circuit split. fact and that the moving party is entitled to judgment Neither case cited by the majority involved the as a matter of law." Fed. R. Civ.Pro. 56(c). A situation presented here: an injunction for an genuine issue of fact exists where the evidence is such unlimited period of time, involving future activity that a reasonable party could return a verdict for the under unspecified circumstances, in a suit filed at a non-moving party. See Anderson v. Liberty Lobby, time when no adverse activity by the union is pending Inc., 477 U.S. 242, 248 (1986). The moving party or then threatened. In Delta Air Lines, Inc. v. Air must “demonstrate the absence of a genuine issue of Line Pilots Ass’n. Int’l, 238 F.3d 1300, 1311 (11th Cir. material fact.” Celotex Corp. v. Catrett, 477 U.S. 2001), the court limited the injunctive relief to 317, 323 (1986). If the moving party satisfies that directing the union “to take further steps to end the burden, then the non-movant must go beyond the pilots’ no-overtime campaign” then pending. In Del. pleadings and identify specific facts demonstrating & Hudson Ry. Co. v. United Transp. Union, 450 F.2d that there is a genuine issue of material fact for trial. 603 (D.C. Cir. 1971), the court of appeals reversed the Id. at 324. Factual controversies are resolved in favor district court’s order enjoining the union then of the non-moving party. Little v. Liquid Air Corp., involved in a wage and rule dispute with various 37 F.3d 1069, 1075 (5th Cir. 1994). railroads from conducting a selective strike against fewer than all of the plaintiff railroads. The court The majority declines to consider whether it was concluded that the district judge granted the in- error for the district court to make “factual findings junction based upon an erroneous legal premise. The without an evidentiary hearing . . . because BMWE court of appeals remanded the case, subject to the does not raise the issue as a ground for reversal.” continuing jurisdiction of the court of appeals, noting What the union clearly does raise on appeal is that the that the obligation of a carrier and a union “to treat summary judgment record does not support the with each other through responsible conduct of the district court’s characterization of the union’s prior process of collective bargaining . . . is not consistent activities as an unlawful "pattern, practice, and policy with such actions as a deliberate timing of a strike of authorizing, encouraging, permitting, calling, or without prior warning, with the purpose of enhancing engaging in strikes, work stoppages, picketing, or plant damage, or some other garrotte of jungle other self-help" against the railroads. BMWE’s briefs warfare.” Id. at 622 (internal quotation and citation clearly challenge the district court’s findings of omitted,). I respectfully disagree with the majority’s undisputed facts to support summary judgment. conclusion that the quoted statement is not dicta. Indeed, the record excerpts submitted on appeal by Needless to say, the denial of an injunction in the BMWE include the affidavits of Steven V. Powers, the instant case could not cause a split with another assistant to the president of the BMWE, in which he circuit which also denied an injunction. Moreover, sets forth specific facts disputing various “undisputed Del. & Hudson Ry. v. United Transp. Union did not material facts” relied upon by appellees in moving for involve a request for an injunction such as the one at summary judgment. issue in this case. There, unlike here, there was a To conclude that BMWE’s pattern of behavior specific disagreement and a specific threatened act warrants imposing a requirement that it provide triggering a request for specific injunctive relief. advance notice of its intent to utilize self-help, it is not enough simply to look at the union’s “won-loss” Moreover, assuming arguendo that §152 First record in previous litigation. To reach such a authorizes a court to impose a duty of advance notice conclusion it would be necessary to examine the back- upon a union which has demonstrated in the past a ground of each suit to determine whether the union pattern, practice or policy of illegally engaging in self- undertook the challenged activity with a reasonable help, the summary judgment evidence before the dis- belief that the dispute giving rise to the challenged or trict court does not support its conclusion that threatened activity constituted a major dispute appellant has engaged in such illegal activities. between the parties, which would have justified the strike which was the subject of the suit. That inquiry Summary judgment is proper only “if the is essential because, as the Supreme Court has 9 recognized, “distinguishing between major disputes concerning whether the union acted in good faith in and minor disputes” can be a “difficult task.” undertaking the job actions in the prior suits between Consolidated Rail Corp. v. Railway Labor Executive the union and a carrier. The summary judgment Assn., 491 U.S. at 310. The validity of that record developed before the district court does not observation is borne out by the following analysis of support its conclusion that the union has demonstrated the prior suits between appellant and appellees. a pattern, practice, and policy of illegally engaging in self-help activities. In two of the nine suits involving actual strikes, the union prevailed at the district court level, only to The foregoing analysis of the district court’s lose on appeal.8 Additionally, in Atchison, Topeka & decision to issue an injunction on summary judgment Santa Re Ry. Co, v. Brotherhood of Maintenance of is not intended to weaken the conclusion that the Way Employees, No. 94C2765 (N.D. Ill. May 4, injunction sought by appellees should not issue in any 1994), in granting the railroad a temporary event. restraining order after concluding that a minor dispute was involved, the district court acknowledged I would reverse the summary judgment entered by that “BMWE raise[d] a substantial argument” that the the district court and remand to the district court for dispute at issue was properly characterized as a major further proceedings not inconsistent herewith. dispute. The railroads do not challenge the union’s contention that in three additional situations the railroads voluntarily ceased the action giving rise to the strike.9 The district court also relied in part upon the union’s stated policy that it “will do what it has to do” to protect its members. That policy is simply a statement that the union will do its duty toward its members; it does not support a conclusion that the union planned to engage in unlawful activity in the future. The district court developed an insufficient record 8 Brotherhood of Maintenance of Way Em- ployees v. Atchison, Topeka & Santa Fe Ry. Co., No. 96-1515, 96-1524, (C.D. Ill. December 17, 1996, reversed on appeal 138 F.3d 635 (7th Cir. 1998); Brotherhood of Maintenance of Way Employees v. Union Pacific Railroad Co., No. 00-2-396 (D. Colo. 2000), reversed No. 00-1105 (10th Cir. December 21, 2000). 9 CSX Transp., Inc. v. Brotherhood of Main- tenance of Way Employees, No. 95-813 (M.D. Fla. August 28, 1995); Norfolk Southern Ry. Co. v. Brotherhood of Maintenance of Way Em- ployees, (W.D. Va.. November 8, 1996); Con- solidated Rail Corp. v. Brotherhood of Main- tenance of Way Employees, No. 98-CV- 4277 (E.D. Pa. August 14, 1998). 10 


[by Smith]

 JERRY E. SMITH, Circuit Judge: I. A union appeals an injunction issued under the Railway Labor Act (“RLA”). The six appellee railroad carriers have obtained, on summary judgment, an injunction against appellant Brotherhood of Maintenance of Way Employees (“BMWE”) requiring it to give ten days’ notice before initiating a “strike, work stoppage, picketing or other self help” against any of the carriers. Burlington N., Santa Fe Ry. v. BMWE, 143 F.Supp.2d 672, 696 (N.D.Tex.2001) ("Burlington Northern”). In that published Memorandum Opinion and Order, the district court provides an impressive and detailed evaluation of the facts and law and a persuasive explanation of its reasons for entering the injunction. Finding no error, we affirm, essentially on the basis of the district court’s well-crafted opinion, except to the extent that we provide further analysis below. As the district court found, the BMWE has a long history of launching strikes without warning, including many that are illegal under the RLA. See id. at 694 (finding that “[t]he court can, and does, infer from the facts thus found that BMWE has a pattern, practice, and policy of authorizing, encouraging, permitting, *805 calling or engaging in strikes, work stoppages, picketing, and other self-help against plaintiffs and their subsidiaries over what BMWE claims are unilateral changes in agreements.... [T]he conduct of the BMWE in engaging in activities of that kind without giving the affected carrier advance notice ... violate[s] BMWE’s duties under § 152 First.”). Since 1993, “BMWE has struck, attempted to strike, or threatened to strike plaintiffs at least eighteen times, including nine cases in which pickets went up and/or operations were disrupted until the affected plaintiff was able to obtain a temporary restraining order.” Id. at 679. In the year preceding the injunction, “BMWE ... accelerated its practice of strikes against the plaintiffs, with four incidents” between February 2000 and early 2001. Id. “In each case, BMWE planned its strike in secret and made every effort to implement the strike before the affected carrier could obtain a temporary restraining order.” Id. 1 BMWE claims that its policy of surprise strikes does not violate the RLA and that the injunction is forbidden by the Norris-LaGuardia Act (“NLGA”). We conclude that the BMWE’s actions violated its duties under the RLA and that the NLGA does not bar an injunction under the specific circumstances of this case. II. A. We first consider the BMWE’s duties under the RLA. It is well established that “the major purpose of Congress in passing the Railway Labor Act was to provide a machinery to prevent strikes.” Tex. & New Orleans R.R. v. Bhd. of Ry. & Steamship Clerks, 281 U.S. 548, 565 , 50 S.Ct. 427 , 74 L.Ed. 1034 (1930) (quotations omitted). To further this goal, § 152 First of the RLA comprehensively requires that labor and management “exert every reasonable effort ... to settle all disputes ... in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.” 45 U.S.C. § 152 First (1994) (emphasis added). “[T]he obligation under § [152] First is central to the effective working of the Railway Labor Act,” and compliance therefore can be enforced by injunction. Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570, 578-79 , 91 S.Ct. 1731 , 29 L.Ed.2d 187 (1971). BMWE contends that the legislative history of the RLA mandates a narrower construction of the RLA than the text alone would dictate. Even if the BMWE’s view of the legislative history is sound, this argument is unavailing, because “[l]egislative history is relegated to a secondary source behind the language of the statute in determining congressional intent; even in its secondary role legislative history must be used cautiously.” Aviall Serv., Inc. v. Cooper Indus., Inc., 263 F.3d 134, 140-41 (5th Cir.) (internal citations omitted), vacated for rehearing en banc, 278 F.3d 416 (5th Cir.2001). 2 *806 BMWE’s deliberate policy of repeatedly calling surprise strikes violates the statutory requirement that railroads and unions “exert every reasonable effort ... to settle all disputes ... in order to avoid any interruption to commerce.” 45 U.S.C. § 152 First. A surprise strike makes it difficult or impossible to resolve the underlying dispute between labor and management without “interruption to commerce.” Id. Because management is unaware that a strike is impending, it cannot take steps that might prevent it. In cases where the contemplated surprise strike is illegal under the RLA, the carrier cannot obtain an injunction against it until after the strike has begun and an “interruption to commerce” has already occurred. In addition to violating § 152 First, many of BMWE’s surprise strikes were held to be in violation of the requirement that unions can resort to strikes in a dispute over “minor” issues only if they first have exhausted the RLA’s compulsory dispute resolution mechanisms. Burlington Northern, 143 F.Supp.2d at 680-85 (describing seven cases in which BMWE was enjoined from striking the appellees because the dispute at issue was minor). 3 This circumstances strengthens the conclusion that BMWE was engaged in a pattern of illegal activity. B. Precedent from other circuits supports this conclusion. Judge Leventhal, writing for the District of Columbia Circuit, held that “the continuing duty of responsible bargaining under the [RLA] fairly embraces reasonable notice of a strike or lockout or other self help.” Del. & Hudson Ry. v. United Transp. Union, 450 F.2d 603, 622 (D.C.Cir.1971). BMWE’s argument that Delaware & Hudson was not decided under § 152 First is irrelevant, because the reasoning of the court is based on a generalized RLA “duty of responsible bargaining” that applies to § 152 First as readily as to other provisions of the Act. 4 Id. The Eleventh Circuit recently has held that “[w]hen the public interest, commerce, and a clear statutory provision are implicated, we will not shy away from holding the parties to their duties under the RLA so as to avoid ‘any interruption to *807 commerce.’ ” Delta Air Lines, Inc. v. Air Line Pilots Ass’n, Int’l, 238 F.3d 1300, 1308 (11th Cir.) (quoting § 152 First), cert. denied, 532 U.S. 1019 , 121 S.Ct. 1958 , 149 L.Ed.2d 754 (2001). That court held that § 152 First’s requirement that the parties “exert every reasonable effort to make and maintain” agreements qualified as a “clear statutory provision” that could be enforced by injunction whenever there is a threat of “any interruption to commerce.” Id. The same reasoning applies to the section’s mandate that labor and management “exert every reasonable effort ... to settle all disputes ... in order to avoid any interruption to commerce,” which occurs in the same sentence of § 152 First as does the provision enforced by the Eleventh Circuit. Because we are persuaded by the plain text of the statute, by the reasoning of the District of Columbia and Eleventh Circuits, and by the desirability of avoiding a circuit split, we easily conclude that the BMWE did indeed violate its statutory duties under § 152 First. We need not, however, go as far as the District of Columbia Circuit did in concluding that any “deliberate timing of a strike without prior warning” violates the statute. Delaware & Hudson, 450 F.2d at 622 . For purposes of the present case, we decide only that the statute forbids an ongoing, repeated practice of surprise strikes that are doomed later to be held illegal and enjoined. See Burlington Northern, 143 F.Supp.2d at 679-85 (describing extensive history of surprise strikes by the BMWE against appellees that later were enjoined). We need not and do not address the question whether the RLA forbids all surprise strikes. Nor do we need to reach the Eleventh Circuit’s holding that anti-strike injunctions are appropriate any time a union’s violation of a “clear statutory provision” threatens “interruption to commerce.” Delta, 238 F.3d at 1308 . C. BMWE argues that recognizing an en-joinable statutory duty to avoid surprise strikes under § 152 First also would allow courts to enjoin a variety of other union and management practices that arguably evidence a failure to “exert every reasonable effort ... to settle all disputes.” 45 U.S.C. § 152 First. For example, BMWE claims that a broad interpretation of § 152 First would allow courts to enjoin carriers’ refusals to settle a minor dispute or to maintain the status quo pending arbitration. These and other similar examples are readily distinguishable from surprise strikes, because § 152 First applies only to actions that cause “interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.” 45 U.S.C. § 152 First. The actions posited by BMWE, while they may make dispute resolution more difficult, do not, in and of themselves, interrupt - commerce, while surprise strikes undeniably do. And strike prevention, not dispute resolution per se, was “the major purpose of Congress in passing the Railway Labor Act.” Texas & New Orleans, 281 U.S. at 565 , 50 S.Ct. 427 . III. A. Having concluded that the BMWE’s actions violated the RLA, we turn to the question whether the injunction is barred by the NLGA. That statute “expresses a basic policy against the injunction of the activities of labor unions.” Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 772 , 81 S.Ct. 1784 , 6 L.Ed.2d 1141 (1961) (citing 29 U.S.C. § 101 ). Nonetheless, “the [NLGA] does not deprive the federal courts of jurisdiction to *808 enjoin compliance with various mandates of the Railway Labor Act.” Id. When considering requests for injunctive relief under the RLA, “courts should hesitate to fix upon the injunctive remedy unless that remedy alone can effectively guard the plaintiffs right.” Chicago & North Western, 402 U.S. at 582 , 91 S.Ct. 1731 . The Supreme Court, however, also has said that the NLGA does not bar injunctive relief under § 152 First, reasoning that “[w]e find it quite impossible to say that no set of circumstances could arise where a strike injunction is the only practical, effective means of enforcing the command of § [152] First.” Id. BMWE’s strategy of calling numerous surprise strikes is precisely the sort of violation of the RLA for which an injunction “is the only practical, effective” remedy. Id. BMWE repeatedly has demonstrated its willingness to call surprise strikes that violate its obligations under the RLA. Normally, such illegal conduct could be deterred through after-the-fact actions for damages. This court, though, specifically has held that there is no damage remedy for violations of § 152 First. See Burlington N. R.R. v. BMWE, 961 F.2d 86, 89 (5th Cir.1992); Louisville & Nashville R. Co. v. Brown, 252 F.2d 149, 155 (5th Cir.1958). Preemptive injunctive relief is the only available remedy for illegal surprise strikes by the BMWE. An injunction issued only after an illegal strike has begun cannot undo the damage caused to the carriers from the beginning of the strike to the issuance of the injunction. More importantly, an after-the-fact injunction cannot prevent the “interruption of commerce” that will have occurred during this period; stopping such disruption is, as we have seen, the main purpose of the RLA. 45 U.S.C. § 152 First. Finally, after-the-fact injunctions would not give the BMWE any incentive to refrain from illegal strikes in the first place, because it still would receive the benefit of any damage to the carriers inflicted before the injunction went into effect. To be sure, the district court could have chosen to enjoin only unambiguously illegal surprise strikes — those that are over “minor” issues. But if the carrier learns of the strike only after the fact, it cannot litigate the “major-minor” issue until after the strike has begun. At that point, if the carriers prevail in court, they still will not receive compensation for the disruption of operations inflicted by the strike while it lasted. The case might well be different if the BMWE had not utilized illegal surprise strikes on so many occasions. If such tactics were limited to rare, isolated instances, there might be no need for an injunction to address the problem, which would be unlikely to recur. In the present case, however, a long history of systematic abuse left the district court with no choice but to resort to an injunctive remedy. There was no other way to prevent the extensive disruption of commerce and damage to the carriers caused by an ongoing policy of surprise strikes. B. BMWE argues, nonetheless, that, under the NLGA, the injunction is improper in light of United States Steel Corp. v. United Mine Workers, 519 F.2d 1236 (5th Cir.1975). There, we did indeed condemn “overbroad use” of anti-strike injunctions; we required that “[e]very order granting an [anti-strike] injunction ... shall be specific in its terms, shall describe in reasonable detail, and not by reference to the complaint or other document the act or acts sought to be restrained.” Id. at 1245-46. United States Steel is readily distinguishable from the present case. The in *809 junction against BMWE is much less sweeping than that in United States Steel, which “was nothing less than an injunction against striking for the life of the con-tractf,] an order to work every day.” United States Steel, 519 F.2d at 1245. Here, the court merely required ten days’ notice of a strike and did not come close to enjoining the right to strike itself. Second, United States Steel is distinguishable because it was decided under Supreme Court precedent that forbids enjoining any strike under the Taft-Hartley Act absent “a finding in each case that the strike was over an arbitrable issue.” Id. There is no such requirement under the RLA. United States Steel’s requirement that “[ejvery order granting an [anti-strike] injunction ... shall be specific in its terms [and] shall describe in reasonable detail ... act or acts sought to be restrained,” id. at 1245-46, presumably is still applicable to the present case. The injunction does not run afoul of it, however. The injunction undeniably is “specific in its terms,” requiring that the union provide ten days’ notice of all strikes against the plaintiff carriers. Id. Unlike the situation in United States Steel, in which there was “no specific act ... complained of in the motion for ... injunction,” here the carriers complain of a longstanding BMWE strategy of calling surprise strikes that violate the RLA. Id. at 1246. IV. In summary, BMWE has persisted in undermining the purposes of the RLA by repeatedly engaging in strikes that are plainly unlawful. The district court has carefully tailored a remedy designed to take care of this specific factual situation. Following the lead of two sister circuits that have approved the availability of injunctions to thwart similar violations of law, we AFFIRM the judgment of permanent injunction. . The district court made these factual findings without an evidentiary hearing; it provides a detailed description of the undisputed summary judgment evidence supporting its ruling. Burlington Northern, 143 F.Supp.2d at 678-85 . We do not consider whether this was error, because BMWE does not raise the issue as a ground for reversal. "We liberally construe briefs in determining issues presented for review; however, issues not raised at all are waived.” Carmon v. Lubrizol Corp., 17 F.3d 791, 794 (5th Cir.1994). . Cf. Garcia v. United States, 469 U.S. 70, 75 , 105 S.Ct. 479 , 83 L.Ed.2d 472 (1984) (holding that “only the most extraordinary showing of contrary intentions would justify a limitation *806 on the 'plain meaning’ of the statutory language”). . See Burlington N.R.R. v. BMWE, 961 F.2d 86, 89 (5th Cir.1992) (describing RLA dispute resolution procedures for "minor” disputes and holding that resort to them before striking is mandatory). . It is also incorrect to claim, as BMWE does, that Delaware & Hudson 's language requiring notice is mere dictum. The language occurs in the same part of the opinion as do the instructions to the district court, which had "continuing jurisdiction” over the dispute "for such further proceedings as may become appropriate, not inconsistent with the opinion of this Court.” Delaware & Hudson, 450 F.2d at 623 . The District of Columbia Circuit evidently expected that, although it had overturned an earlier injunction, an anti-strike injunction, possibly including a notice provision, might become necessary. Indeed, the language asserting a requirement of notice immediately follows the court's condemnation of an earlier union effort to "call a strike ... without direct notice to the railroads.” Id. at 622 . The circuit court likely feared that such action might be repeated. It noted that the union’s earlier strike activity was "lawful” only because of "an assumption of good faith as to its stated purpose of the strike” and warned that "[t]he District Court has continuing jurisdiction to reappraise the union's good faith in the light of either substantial evidence not previously available or developments as to tactics and methods following notice to the carriers of the strike call." Id. at 623 (emphasis added). The latter passage suggests that the circuit court may have expected that the district court would not allow future strikes without prior "notice to the carriers of the strike call.” Id. 


[Dissent by Duplantier]

 DUPLANTIER, District Judge, dissenting: The Railway Labor Act, 45 U.S.C. § 151 , et seq., (RLA) regulates in great detail the relationship between railroads and the unions which represent railway employees. Section 152 First of the RLA provides that carriers and their employees have a duty “to exert every reasonable effort ... to settle all disputes ... in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.” Because I conclude that a court has no authority to add to that duty a requirement that a railway union provide advance notice before engaging in a strike, work stoppage, or other job action against a carrier, I respectfully dissent. Appellant Brotherhood of Maintenance of Way Employees (BMWE) is a labor union which represents those employees of numerous railroads who are responsible for maintaining, repairing and rehabilitating railroad tracks throughout the United States. Since 1993 BMWE has engaged in twelve strikes or planned strikes, each one against at least one of the six railroads who are plaintiffs in this suit. In each instance, the union gave no advance notice to the railroad of its intent to commence a strike. The railroad in question ultimately obtained injunctive relief against each of the strikes, on the ground that the dispute which gave rise to the strike was a “minor dispute,” as to which a strike is unlawful. See Consolidated Rail Corp. v. Railway Labor Executives’ Ass’n, 491 U.S. 299, 304 , 109 S.Ct. 2477 , 105 L.Ed.2d 250 (1989). In each injunction suit brought by the railroad, the union contended that the strike or planned strike was lawful, primarily *810 because the disagreement between the parties involved a major dispute. Where a major dispute is involved, a party may resort to a strike after exhausting the bargaining and mediation process mandated by §§ 5 and 6 of the RLA. Id. at 303, 109 S.Ct. 2477 . None of the statutes regulating the relationship between railroads and the unions representing railroad employees requires advance notice of a union’s intention to strike, and during the many years since the enactment of those statutes, no railroad has sought a statutory amendment to require such notice. 1 This suit, which was not filed in response to a strike or in anticipation of a threatened strike, represents in effect an attempt by the railroads to amend the RLA through judicial interpretation rather than legislative amendment, a tactic one carrier has previously tried unsuccessfully. 2 The six railroad appellees initiated this suit, seeking a declaratory judgment to the effect that BMWE has violated § 152 First, by authorizing, encouraging, permitting, calling, or engaging in self-help, including strikes, without notice, over disputes involving what BMWE characterizes as unilateral changes in agreements, and by engaging in such conduct as a pattern, practice, or policy. The railroads also sought an injunction requiring BMWE in the future to give ten days advance notice of its intent to commence any job action against any of the plaintiff railroads, thereby giving the railroad the opportunity to obtain a restraining order in advance of the threatened union action. The railroads urged that the advance notice requirement was warranted to prevent significant economic losses resulting from an illegal strike, losses for which the railroads cannot recover damages from the unions. See Louisville & Nashville Railroad Company v. Brown, 252 F.2d 149, 155 (5th Cir.1958). The district court granted the railroads’ motion for summary judgment, based in large part upon the decisions in eighteen prior suits 3 between the railroads and BMWE over an eight year period in nine different federal district courts. Each of these suits resulted ultimately in a grant of a railroad’s petition for an injunction halting an ongoing strike or prohibiting what was perceived as a threatened strike. In granting the injunction on appeal before us, the district court also relied upon statements made by union executives in depositions and press releases. Upon this summary judgment record the railroads convinced the district court that BMWE *811 had demonstrated a pattern, practice, and policy of engaging in illegal self-help activities. Based upon that finding, the district judge in effect amended the RLA (as applicable to parties to this litigation), to add a requirement that the union must give the railroad ten days advance notice before initiating any job action, including a strike. The injunction contained no temporal or geographic limitation, nor was it restricted only to union actions taken in response to specific circumstances. While advance notice of a union’s intent to strike or to utilize any self-help action may be a laudable objective in any comprehensive statute regulating the relationship between railway unions and railroad carriers, such as the RLA, the statute cannot be construed to impose such an obligation upon a union. I agree with the majority that the district court’s opinion provides “a persuasive explanation of its reasons for entering the injunction,” but I disagree that it supports the judgment granting the injunction. A requirement of advance notice of intent to strike may well be sound public policy; however, the imposition of such a requirement is for Congress, not the court. The procedural history of the RLA is significant and somewhat unusual. After extensive negotiations, the railway unions and the railroads presented a proposed statute to Congress, which enacted into law the precise agreement submitted by the unions and the carriers. Thus the RLA strikes a delicate balance between the competing interests of the unions and the carriers. The advance notice requirement imposed by the district court forever shifts the balance embodied in the RLA, as between the plaintiff railroads and the BMWE. The importance of maintaining the delicate balance embodied in the RLA has been consistently recognized. In both Norfolk Southern Ry. Co. v. Brotherhood of Locomotive Engineers, 217 F.3d 181, 190 (4th Cir.2000) and CSX Transportation, Inc. v. Marquar, 980 F.2d 359, 380 (6th Cir.1992), the court relied upon the desirability of maintaining this delicate balance between the railroads and the railway unions as the rationale for denying railroads the right to recover damages from unions which had breached their duty to arbitrate a minor dispute by engaging in an illegal strike. As noted above, the railroads contend they should be granted an injunction because they cannot recover damages for an unlawful strike. The very reason for denial of damages applies equally to an injunction: “[djamages awards between railroads and unions ... threaten the delicate balance intended by the RLA.” Id. So too would the court-created advance notice requirement at issue here. Had Congress wanted to impose a duty of advance notice on unions, it certainly knew how to do so. In my view, the district court usurped the legislative function of Congress by imposing a duty that may well be beneficial for the common good, but is not authorized by § 152 First or any other statute. In affirming the district court, the majority relies in part upon the desire to avoid a split between the circuits. I submit that denial of the injunction sought by the railroads would not create a circuit split. Neither case cited by the majority involved the situation presented here: an injunction for an unlimited period of time, involving future activity under unspecified circumstances, in a suit filed at a time when no adverse activity by the union is pending or then threatened. In Delta Air Lines, Inc. v. Air Line Pilots Ass’n. Int’l, 238 F.3d 1300, 1311 (11th Cir.2001), the court limited the injunctive relief to directing the union “to take further steps to end the pilots’ no-overtime campaign” then pending. In Del. & Hudson Ry. Co. v. *812 United Transp. Union, 450 F.2d 603 (D.C.Cir.1971), the court of appeals reversed the district court’s order enjoining the union then involved in a wage and rule dispute with various railroads from conducting a selective strike against fewer than all of the plaintiff railroads. The court concluded that the district judge granted the injunction based upon an erroneous legal premise. The court of appeals remanded the case, subject to the continuing jurisdiction of the court of appeals, noting that the obligation of a carrier and a union “to treat with each other through responsible conduct of the process of collective bargaining ... is not consistent with such actions as a deliberate timing of a strike without prior warning, with the purpose of enhancing plant damage, or some other garrotte of jungle warfare.” Id. at 622 (internal quotation and citation omitted,). I respectfully disagree with the majority’s conclusion that the quoted statement is not dicta. Needless to say, the denial of an injunction in the instant case could not cause a split with another circuit which also denied an injunction. Moreover, Del. & Hudson Ry. v. United Transp. Union did not involve a request for an injunction such as the one at issue in this case. There, unlike here, there was a specific disagreement and a specific threatened act triggering a request for specific injunctive relief. Moreover, assuming arguendo that § 152 First authorizes a court to impose a duty of advance notice upon a union which has demonstrated in the past a pattern, practice or policy of illegally engaging in self-help, the summary judgment evidence before the district court does not support its conclusion that appellant has engaged in such illegal activities. Summary judgment is proper only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.Pro. 56(c). A genuine issue of fact exists where the evidence is such that a reasonable party could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). The moving party must “demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). If the moving party satisfies that burden, then the non-movant must go beyond the pleadings and identify specific facts demonstrating that there is a genuine issue of material fact for trial. Id. at 324 , 106 S.Ct. 2548 . Factual controversies are resolved in favor of the non-moving party. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994). The majority declines to consider whether it was error for the district court to make “factual findings without an evi-dentiary hearing ... because BMWE does not raise the issue as a ground for reversal.” What the union clearly does raise on appeal is that the summary judgment record does not support the district court’s characterization of the union’s pri- or activities as an unlawful “pattern, practice, and policy of authorizing, encouraging, permitting, calling, or engaging in strikes, work stoppages, picketing, or other self-help” against the railroads. BMWE’s briefs clearly challenge the district court’s findings of undisputed facts to support summary judgment. Indeed, the record excerpts submitted on appeal by BMWE include the affidavits of Steven V. Powers, the assistant to the president of the BMWE, in which he sets forth specific facts disputing various “undisputed material facts” relied upon by appellees in moving for summary judgment. *813 To conclude that BMWE’s pattern of behavior warrants imposing a requirement that it provide advance notice of its intent to utilize self-help, it is not enough simply to look at the union’s “won-loss” record in previous litigation. To reach such a conclusion it would be necessary to examine the background of each suit to determine whether the union undertook the challenged activity with a reasonable belief that the dispute giving rise to the challenged or threatened activity constituted a major dispute between the parties, which would have justified the strike which was the subject of the suit. That inquiry is essential because, as the Supreme Court has recognized, “distinguishing between major disputes and minor disputes” can be a “difficult task.” Consolidated Rail Corp. v. Railway Labor Executives’ Ass’n, 491 U.S. at 310 , 109 S.Ct. 2477 . The validity of that observation is borne out by the following analysis of the prior suits between appellant and appellees. In two of the nine suits involving actual strikes, the union prevailed at the district court level, only to lose on appeal. 4 Additionally, in Atchison, Topeka & Santa Re Ry. Co, v. Brotherhood of Maintenance of Way Employees, No. 94C2765 (N.D.Ill. May 4, 1994), in granting the railroad a temporary restraining order after concluding that a minor dispute was involved, the district court acknowledged that “BMWE raise[d] a substantial argument” that the dispute at issue was properly characterized as a major dispute. The railroads do not challenge the union’s contention that in three additional situations the railroads voluntarily ceased the action giving rise to the strike. 5 The district court also relied in part upon the union’s stated policy that it “will do what it has to do” to protect its members. That policy is simply a statement that the union will do its duty toward its members; it does not support a conclusion that the union planned to engage in unlawful activity in the future. The district court developed an insufficient record concerning whether the union acted in good faith in undertaking the job actions in the prior suits between the union and a carrier. The summary judgment record developed before the district court does not support its conclusion that the union has demonstrated a pattern, practice, and policy of illegally engaging in self-help activities. The foregoing analysis of the district court’s decision to issue an injunction on summary judgment is not intended to weaken the conclusion that the injunction sought by appellees should not issue in any event. I would reverse the summary judgment entered by the district court and remand to the district court for further proceedings not inconsistent herewith. . At oral argument, counsel for the railroads advised that in the 76 years since the RLA's enactment no railroad had ever sought such an amendment from Congress. . In 1998, Burlington Northern and Santa Fe Railway Company, an appellee herein, filed suit in the Northern District of Texas seeking, among other things, a mandatory injunction requiring the union to give 3 days advance notice of future strikes. Burlington N. & Santa Fe Ry. Co. v. Brotherhood of Maintenance of Way Employees, 93 F.Supp.2d 751 (N.D.Tex.2000) The district judge denied the railroad that relief but suggested that on a different record such an injunction regulating future conduct by the union might be justified. Id. at 760 . The district court's denial of the injunction was not appealed. .In his Memorandum Opinion and Order the district judge refers to eighteen suits in which a temporary restraining order or an injunction was issued against the union. Burlington N. Santa Fe Ry. v. BMWE, 143 F.Supp.2d 672, 679-685 (N.D.Tex.2001). However, only nine involved actual strikes by the union. The other nine involved either what the railroads perceived as a threatened strike, including what the district court characterized as situations where “BMWE refused to provide assurance that it would not strike,” or a counterclaim filed by the carrier seeking an injunction in a suit initiated by the union. . Brotherhood of Maintenance of Way Employees v. Atchison, Topeka & Santa Fe Ry. Co., 1996 WL 904755 , No. 96-1515, 96-1524, (C.D. Ill. December 17, 1996, reversed on appeal 138 F.3d 635 (7th Cir.1998)); Brotherhood of Maintenance of Way Employees v. Union Pacific Railroad Co., No. 00-2-396 (D.Colo.2000), reversed 19 Fed.Appx. 731 , No. 00-1105 (10th Cir. December 21, 2000). . CSX Transp., Inc. v. Brotherhood of Maintenance of Way Employees, No. 95-813 (M.D.Fla. August 28, 1995); Norfolk Southern Ry. Co. v. Brotherhood of Maintenance of Way Employees, (W.D.Va. November 8, 1996); Consolidated Rail Corp. v. Brotherhood of Maintenance of Way Employees, No. 98-CV-4277 (E.D.Pa. August 14, 1998).