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INTERNATIONAL LONGSHOREMEN'S ASSN. v. NATIONAL MED

March 28, 1985

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Plaintiff,
v.
NATIONAL MEDIATION BOARD, et al., Defendants


Thomas Penfield Jackson, United States District Judge.


The opinion of the court was delivered by: JACKSON

Plaintiff International Longshoremen's Association, AFL-CIO ("ILA"), challenges a decision of the National Mediation Board ("NMB" or "Board") that it no longer possesses jurisdiction over employees of the North Carolina State Ports Authority ("SPA" or "Ports Authority"), because the Ports Authority has ceased to be a "carrier" within the meaning of the Railway Labor Act, 45 U.S.C. § 151 et seq. ("RLA" or the "Act"). The result of the determination is that the ILA ceases to be the Board-certified representative of the SPA's employees for collective bargaining purposes.

 The parties have filed cross-motions for summary judgment which present two issues: first, whether judicial review of the NMB's determination is available at all; second, whether the Board's finding that the SPA is not a carrier is erroneous. *fn1" For the reasons set forth below, the Court concludes that it is itself without jurisdiction to review the Board's decision and will, therefore, grant defendants' motion for summary judgment and dismiss the complaint with prejudice.

 The material facts appear from the administrative record and are not in dispute.

 Plaintiff ILA is a labor organization representing workers in the longshore, warehouse and railroad industries. Defendant SPA is an agency of the State of North Carolina which owns and operates seaport facilities at Wilmington and Morehead City, North Carolina. In 1970, when the SPA also owned and operated terminal railroads connecting the ports with two main trunk line haul railroads passing through the state, the NMB, after a proper election, certified the ILA as the collective bargaining representative of the SPA's dockmen, warehousemen and security guards. There then followed a period of litigation concerning both the certification and the SPA's corresponding obligation to bargain with the union. *fn2" When it ended favorably to the ILA, two successive collective bargaining agreements were struck, the first covering the period July, 1975, through December, 1977, and the second January, 1978, through December, 1980.

 In 1979, however, the North Carolina General Assembly passed "An Act to Establish the North Carolina Ports Railway Commission," N.C. Gen. Stat. § 143B-469 et seq., creating the codefendant North Carolina Ports Railway Commission ("PRC" or "Railway Commission"), to take over and operate the SPA's railroad facilities, and the SPA and PRC entered into a number of agreements to accomplish the transfer.

 In August, 1980, the ILA initiated a Board investigation of a dispute with the SPA over rate-of-pay rules and working conditions. The following January the SPA moved to dismiss the case for lack of jurisdiction, asserting that the transfer of its railroad equipment and functions to the PRC had divested it of its character as a "carrier" under the Act. *fn3" Following a series of hearings in June and July, 1981, the NMB issued its "Findings Upon Investigation," 9 NMB No. 120, of June 8, 1982, in which it concluded that the SPA was, in fact, no longer a carrier, and the ILA's authority to represent its employees therefore at an end. Plaintiff filed this action on July 30, 1982.

 
Except to the extent that --
 
(1) statutes preclude judicial review; or
 
(2) agency action is committed to agency discretion by law. . . .
 
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.

 5 U.S.C. §§ 701, 702. Thus, the presumption of the availability of judicial review created by the APA might indicate that, absent a statutory command to the contrary, the NMB's actions are as subject to scrutiny as those of any other agency.

 Defendants contend, however, that the Supreme Court found just such a command when it decided Switchmen's Union v. National Mediation Board, 320 U.S. 297, 88 L. Ed. 61, 64 S. Ct. 95 (1943), an appeal from the NMB's resolution of a dispute between two unions representing yardmen employed by a single railroad company, as it had earlier in American Federation of Labor v. NLRB, 308 U.S. 401, 60 S. Ct. 300, 84 L. Ed. 347 (1940) in connection with an attempt to appeal a National Labor Relations Board certification order. Reversing the court of appeals which had affirmed a district court decision upholding the Board on the merits, the Supreme Court held in Switchmen's Union that the district court had no jurisdiction to review the NMB's certification decision notwithstanding it might have been based upon an erroneous interpretation of the statute. The Court discerned a congressional intent to appoint the Board the "last terminal point" for the resolution of such matters; "there was to be no dragging out of the controversy into other tribunals of law." 320 U.S. ...


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