ORDER OF DISMISSAL
In consideration of United Transportation Union's motion for a preliminary injunction, the defendants' motions to dismiss, the oral argument held, the entire record herein, and in accordance with the Court's memorandum opinion issued contemporaneously herewith, it is this 27th day of November, 1985, hereby
ORDERED that said motion for preliminary injunction is denied; and it is
FURTHER ORDERED that the complaint in the above-captioned action is dismissed pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure; and it is
FURTHER ORDERED that the Temporary Restraining Order issued by the Court on October 31, 1985 shall be and is hereby no longer in effect.
MEMORANDUM OPINION AND ORDER
United Transportation Union ("UTU") filed a complaint for declaratory and injunctive relief with this Court on October 25, 1985. The complaint sought review and the setting aside of an arbitration award ("the Award") issued on September 25, 1985, in favor of the defendants, Norfolk and Western Railway Company ("N & W"), Southern Railway Company ("Southern") and Interstate Railroad Company ("Interstate"). A three-member Arbitration Panel ("the Panel"),
selected by the National Mediation Board ("NMB") in response to a petition of the defendants and an Interstate Commerce Commission ("ICC" or "the ICC") notice, had issued the Award. The Award authorized the November 1, 1985 effectuation of an April 17, 1985 document that was designed to implement three ICC-approved consolidation proposals
of the defendants. The Panel had characterized said document as a tentative implementing agreement reached by the parties after considerable arbitration. UTU had, however, objected to the arbitration proceedings from their inception, and presently controverts the ICC's characterization. In its complaint, UTU contends that, by forcing UTU to arbitrate and by abrogating certain employee protective conditions of twenty-seven UTU members during said arbitration, the defendants have violated several provisions of the Railway Labor Act ("RLA" or "the RLA"), 45 U.S.C. § 151, et seq. As a result, UTU argues that the Award must be declared invalid and set aside.
The Court granted UTU's application for a temporary restraining order on October 31, 1985, after conducting a hearing in which counsel for the defendants participated fully. That order enjoined the defendants from placing into effect the controversial implementing agreement until the Court could conduct a hearing on UTU's motion for a preliminary injunction on November 14, 1985. In response to a subsequent request of the parties, the Court continued said hearing and extended the temporary restraining order until November 21, 1985, so that the parties could properly brief the numerous legal issues involved in this case.
At the preliminary injunction hearing, the Court focused chiefly on the motion of defendants to dismiss the complaint as to Southern for lack of subject matter jurisdiction.
In addition, the Court addressed defendants' motion as to both N & W and Interstate for lack of personal jurisdiction and for improper venue. Finally, the Court questioned counsel for the parties briefly about the merits of UTU's motion for a preliminary injunction: in particular, counsel were required to discuss the likelihood of UTU's success on the merits of the case.
After obtaining the consent of the parties to extend the temporary restraining order until it could render a memorandum opinion and order, the Court took the matter under advisement. Having evaluated the substantial papers filed and lengthy argument conducted in this case, the Court has concluded that in several respects it lacks subject matter jurisdiction and in other respects it would be inappropriate to address UTU's complaint as to all of the defendants. The complaint must therefore be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Accordingly, the Court declines to comment on the issues of in personam jurisdiction and venue where N & W and Interstate are concerned, and will not address the merits of UTU's preliminary injunction motion.
UTU is an unincorporated labor organization. It is a "representative" as that term is used in the RLA, 45 U.S.C. § 151, et seq.
Defendant N & W is a Virginia corporation engaged in the transportation of property and goods by rail in interstate commerce; and, as such, N & W is a "carrier" within the meaning of the RLA and a "common carrier" subject to the Interstate Commerce Act ("ICA" or "the ICA"), 49 U.S.C. § 10101, et seq. Defendant Southern is a corporation, whose state of incorporation has not been made clear to the Court,
engaged in the transportation of property and goods by mail in interstate commerce; and, as such, it is also a carrier and common carrier subject, respectively, to the RLA and the ICA.
Defendant Interstate, twenty-seven of whose employees will allegedly be injured by the implementation agreement in question, is incorporated in Virginia. In addition, it is a wholly-owned subsidiary of Southern, and is also subject to both the RLA and the ICA. All three defendants are controlled by Norfolk Southern Corporation ("NSC"), whose state of incorporation is not known by the Court.
As a result of an earlier transaction approved of by the ICC in Norfolk Southern Corp.--Control--Norfolk & W Ry. Co., 366 I.C.C. 171 (1982), N & W, Southern, and Interstate were consolidated as "mechanical services." On November 5, 1984, N & W and Southern petitioned ICC (Finance Docket No. 30582) for an exemption under 49 U.S.C. § 10505 ("Authority to exempt rail carrier transportation")
from the prior review requirements of 49 U.S.C. § 11343 ("Consolidation, merger, and acquisition of control"), to enable N & W to operate under contract the properties of Interstate. Concurrently, Interstate sought a similar exemption from the prior review requirements of 49 U.S.C. § 10901 ("Authorizing construction and operation of railroad lines"), so that it could construct "connecting tracks at Norton and Tacoma, Virginia"; and, finally, N & W sought an exemption from the same provision in order to conduct N & W operations over an additional 2.3 miles of Southern's lines in southwestern Virginia.
UTU contends that, in their three-exemption petition, the defendants "stated in detail the manner in which they proposed to effectuate their contemplated transaction, including their intentions to alter seniority rights and to unilaterally [sic] select the forces to perform certain operations." Complaint, at 4 (emphasis added). Thus, in response to the defendants' petition, UTU, and the Railway Labor Executives' Association ("RLEA"), filed a letter of protest with the ICC.
In mid-January, 1985, the defendants notified various UTU representatives of the carriers' respective employees that NSC, the parent corporation, intended to "coordinate and/or consolidate track and engine service, forces and seniority rosters on the Interstate and . . . [N & W]" in connection with the November 5, 1984 exemptions petition pending before the ICC. This notice was served on UTU pursuant to Article I, Section 4 of the employee protective conditions set forth in New York Dock Ry.--Control, 360 I.C.C. 60, aff'd, New York Dock Ry. v. United States, 609 F.2d 83 (2d Cir. 1979). See infra note 8 and p. 9. Reluctantly, UTU participated in negotiations with the defendants during late January, late February, and mid-April of 1985. Although the Panel would later characterize an April 17, 1985 document as a "tentative implementing agreement," UTU maintains that "these conferences failed to produce an implementing agreement acceptable to all the parties." Complaint, at 5.
Meanwhile, on February 19, 1985, ICC issued a "Notice of Exemption" under 49 U.S.C. § 10505 that exempted from prior ICC review the "contract to operate" and "acquisition of trackage rights" proposals petitioned for by the respective defendants in November of 1984. In its decision, ICC stated that the exemptions were warranted, because N & W, Southern, and Interstate were already members of the same corporate family (i.e., that of NSC), so that the approved transactions would not result in changes in service levels, significant operational changes, or a change in the competitive balance with carriers outside the corporate family. See 49 U.S.C. § 10101; 49 C.F.R. § 1180.2(d)(3). ICC's exemption order required, however, as follows:
As a condition to use of this exemption, any employees affected by N & W-Southern contract to operate the properties of Interstate will be protected pursuant to Mendocino Coast Ry., Inc.--Lease and Operate, 354 I.C.C. 732 (1978) and 360 I.C.C. 653 (1980). Any employees affected by N & W's acquisition of trackage rights over Southern will be protected pursuant to Norfolk and Western Ry.Co.--Trackage Rights--BN, 354 I.C.C. 605 (1978), as modified in Mendocino Coast, supra, 360 I.C.C. 653 (1980). Together, these conditions satisfy the statutory requirements of 49 U.S.C. § 10505(g)(2).
(Emphasis added) (footnote added). On March 8, 1985, the ICC, under 49 U.S.C. § 10505, exempted from the prior review requirements of 49 U.S.C. § 10901 the defendants' track construction proposal petitioned for in November of 1984, this time finding that the imposition of employee protective conditions would not be necessary. Thus, all three exemptions petitioned for by the defendants were granted.
Hours after ICC had issued its February 19 order, but several days before ICC had served the same on UTU, UTU submitted, again with RLEA, "Supplemental Comments" to its earlier letter of protest. The comments of UTU and RLEA noted
that the railroads intend to (1) consolidate seniority rosters of Interstate train and engine service employees with similar rosters of N & W's Pocahontas Division, with the result that N & W employees on the consolidated roster will perform work on Interstate; (2) transfer Interstate train dispatching work to the N & W; (3) abolish four Interstate train dispatching positions; and (4) allow N & W employees to perform maintenance-of-way work on Interstate which is now being performed by employees of Southern.