As reported in the April 2000 issue of the BMWE JOURNAL, BMWE members withdrew services and set up picket lines on February 24 last year. The strike was called because UP announced that the track panel assembly plant operated by maintenance of way employees would be closed down and that future panels would be purchased from outside contractors.

"It is unfortunate that Union Pacific Railroad management has so little regard for its employees and its agreements that they have unilaterally taken the action to close the Laramie facility and threaten the livelihood of our members and their families," said David Tanner, BMWE General Chairman, in a press release issued February 24.

Four hours after the strike began, Judge Joseph F. Bataillon, of the U.S. District Court for the District of Nebraska, issued a temporary restraining order pending a hearing originally scheduled for February 28 in Omaha but transferred to Denver where the BMWE had filed suit on February 22.

On March 2 Judge Zita Weinshienk of the U.S. District Court in Denver found that UP's threat to close the panel plant and instead install track panels made by contractors was a "major dispute" — a violation of the plain language of the BMWE/UP collective bargaining agreement — and granted the BMWE's motion to enjoin UP from closing the plant. The Judge also ordered that fabricating track panels must be done by BMWE-represented employees since it is clearly maintenance of way work.

In reversing the District Court in a decision issued on January 8, the 10th Circuit panel found that "what the Union is really seeking is enforcement of the existing collective bargaining agreement" and that "any attempt to resolve the dispute will inevitably involve interpretation of that agreement."

"The lower federal courts are undermining the Supreme Court's ruling in Conrail v. RLEA," said BMWE General Counsel William Bon. "Under that standard, a dispute is ‘major' if the carrier's interpretation is frivolous or insubstantial. The District Court made fact-findings that the dispute was major. But the 10th Circuit ignored that fact. Essentially, if the carrier waves a collective bargaining agreement about, the courts are finding disputes ‘minor' without engaging in the Conrail-based analysis. The courts are telling rail labor that we cannot have a fair hearing under established law."

The BMWE has petitioned the full Tenth Circuit Court to review the panel's decision.