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July 10, 1995

ALTON & SOUTHERN RAILWAY CO., et al., Plaintiffs,

The opinion of the court was delivered by: HOGAN

 Pending before the Court is the Motion of Defendant BMWE to Alter or Amend Judgment. The defendant Brotherhood of Maintenance of Way Employes ("BMWE") asks this Court to reconsider its decision of April 28, 1995, in which it enjoined the BMWE and others associated with the BMWE from engaging in strikes or other forms of self help against the plaintiff rail carriers relating to disputes arising from the notices served in the round of collective bargaining that began on or about November 1, 1994. The plaintiffs have opposed this motion. After carefully reviewing the parties' arguments, the applicable legal authority, and the record in this case, the Court rejects most of the arguments raised in the BMWE's motion. However, the Court will grant the BMWE's motion in part by increasing the bond that the plaintiffs must post.


 The Court has already issued two Memorandum Opinions in this case and will not reiterate the entire background of this litigation. *fn1" The plaintiffs are a group of 29 rail common carriers. The defendant BMWE is a union representing workers employed by the plaintiff carriers. The plaintiff carriers have designated the National Carriers' Conference Committee to act as their authorized national multi-employer bargaining agent to represent them in negotiations with railway labor unions, including the BMWE. The BMWE rejects multi-employer bargaining, and seeks to bargain on a local basis with each individual carrier. The dispute in this case revolves around whether the carriers can insist upon multi-employer bargaining or whether the BMWE can insist upon carrier-by-carrier bargaining. This presents a difficult legal question which requires the Court to analyze various provisions of the Railway Labor Act, 45 U.S.C. §§ 151 et seq. ("RLA").

 On April 28, 1995, the Court granted the plaintiff carriers' motion for a preliminary injunction and enjoined the BMWE from engaging in any form of self help related to the issue in dispute until this Court has ruled upon the plaintiffs' request for a permanent injunction. *fn2" The BMWE asks this Court to reconsider several aspects of its decision to issue the preliminary injunction. Specifically, the BMWE argues that the plaintiffs lack standing to obtain the injunction, that the injunction is overly broad, and that the nominal bond posted in this case is insufficient to protect the BMWE.


 The BMWE brings this motion pursuant to Fed. R. Civ. P. 59(e). This rule permits a party to ask the Court to alter or amend a judgment within 10 days after the entry of the judgment. Because the Court's preliminary injunction is an appealable order, the parties appear to agree that the injunction is a judgment within the meaning of Rule 59(e). Such motions are not vehicles for advancing theories or arguments that were not advanced earlier, but must be based on an intervening change in controlling law, the availability of new evidence that was previously unavailable, or a need to correct clear error or correct manifest injustice. National Resources Defense Council Inc. v. United States Envtl. Protection Agency, 705 F. Supp. 698, 701-02 (D.D.C.), vacated on other grounds, 707 F. Supp. 3 (D.D.C. 1989). Reviewing the BMWE's arguments in light of the standard for Rule 59(e) motions, the Court finds that most of the union's arguments fail to justify altering or amending the Court's injunction. However, the Court finds that it is proper to amend its injunction to increase the bond that the plaintiffs must post in this case.

 A. The Plaintiffs' Standing to Obtain the Injunction

 The BMWE argues that this Court erred when it held that the carriers had standing to seek a preliminary injunction. The BMWE insists that the Norris-LaGuardia Act, 29 U.S.C. §§ 101 et seq., deprives the carriers of standing to seek an injunction in this case. This was the primary argument that the BMWE made against the injunction in its papers and at the Court's hearing on April 26, 1995. The Court carefully evaluated this argument and addressed the standing issue at length in its Memorandum Opinion of April 28, 1995. Although the BMWE asserts that this Court's earlier analysis was incorrect, the Court is not persuaded that it clearly erred in finding that the carriers had standing to obtain the injunction.

 Section 8 of the Norris-LaGuardia Act prohibits a federal court from issuing an injunction when the party seeking the injunction "has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration." 29 U.S.C. § 108. As the Court explained in its earlier Memorandum Opinion, it cannot find that the carriers have failed to comply with any of their legal obligations. Rather, the carriers have relied upon well-settled law in this circuit as a basis for their position that they may insist upon multi-employer bargaining in this case. See Brotherhood of R.R. Trainmen v. Atlantic Coast Line R.R. Co., 127 U.S. App. D.C. 298, 383 F.2d 225, 229 (D.C. Cir. 1967), cert. denied, 389 U.S. 1047, 19 L. Ed. 2d 839, 88 S. Ct. 790 (1968). Similarly, the Court has found that because of the carriers' good faith reliance upon this authority, it cannot find that the carriers have failed to make every reasonable effort to settle the instant dispute. The BMWE has proffered no argument that persuades the Court that its prior interpretation of Atlantic Coast Line, the RLA or § 8 of the Norris-LaGuardia Act is clearly incorrect. Additionally, the BMWE has failed to convince the Court that its alternative holdings on the standing issue were clearly incorrect. *fn3" Therefore, the Court denies this aspect of the BMWE's motion and affirms its earlier finding that the carriers had standing to seek the preliminary injunction that was issued on April 28, 1995. *fn4"

 B. Breadth of the Injunction

 The BMWE next argues that the Court should amend its preliminary injunction because the injunction improperly orders the union to take affirmative action to enforce this Court's order. Specifically, the BMWE challenges language in the preliminary injunction that states:

the defendant shall make all reasonable efforts to prevent its divisions, lodges, locals, officers, General Chairmen, agents, employees, members, and all persons acting in concert with any of them from engaging in conduct enjoined by this injunction, and shall discipline those who engage in such conduct.

 Alton & Southern, 883 F. Supp. at 766.

 Although the language in the Court's injunction is quite similar to the language proposed by the plaintiffs, the union never challenged the proposed language prior to the issuance of the injunction. Now, however, the BMWE asserts that the above-quoted portion of the Court's injunction is overly broad. It argues that by requiring the BMWE to take reasonable efforts to prevent its members from violating the injunction and by requiring the union to discipline those who violate the injunction, the Court has violated the Norris-LaGuardia Act. The BMWE argues that there is no evidentiary basis for the Court's decision to ...

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