have been numerous instances where Railway Adjustment Boards have dealt with grievances of Canadian-based employees covered by the contract. While this policy and practice under the agreement is thus clearly established, there is no indication that the union, the employer or the individuals involved ever questioned the authority of the Railway Adjustment Board process. This anomalous situation may well have occurred because Canadian law apparently insists upon arbitration in situations of this type.
Here, authority to arbitrate under the RLA is challenged and that challenge must be sustained as a matter of law in spite of past practice.
In an effort to avoid remand in the event plaintiffs are allowed to proceed with a straight forward contract action, defendants seek to establish federal question jurisdiction. This effort must also fail. While there is no doubt that LMRA provides federal question jurisdiction if an action concerns enforcement of that Act, this begs the question. Illinois v. City of Milwaukee, 406 U.S. 91, 31 L. Ed. 2d 712, 92 S. Ct. 1385 (1972). Here, the collectively bargained contract cannot be read to provide that Canadian employees such as plaintiffs must arbitrate under RLA over their objection because this would extend RLA, contrary to law. Thus LMRA does not come into play. Moreover, LMRA, like RLA, is inapplicable to Canadian citizens working in Canada. Smith v. Evening News Assn., 371 U.S. 195, 9 L. Ed. 2d 246, 83 S. Ct. 267 (1962); Windward Shipping Ltd. v. American Radio Assn., 415 U.S. 104, 110, 39 L. Ed. 2d 195, 94 S. Ct. 959 (1974); Benz v. Compania Naviera Hidalgo, 353 U.S. 138, 1 L. Ed. 2d 709, 77 S. Ct. 699 (1957).
Plaintiffs' original choice of forum must be restored by remanding this case to the Superior Court. Defendants' motion for summary judgment must be left for resolution by that court since, for reasons stated in the full paragraph on page 3 of plaintiffs' April 26, 1988, memorandum in opposition to defendant CSX Corporation's motion for summary judgment, discovery may be required before that motion can be addressed. There are equally pressing reasons to allow discovery, but discovery issues must be left to the trial court and this Court, lacking jurisdiction, can take no position as to its proper scope. Similarly, class certification must be further briefed and then addressed in the Superior Court.
An Order denying defendants' motion to dismiss and remanding this case to the Superior Court of the District of Columbia is filed herewith.
For the reasons set forth in the Court's Memorandum filed herewith, it is hereby
ORDERED that defendants' motion to dismiss is denied and plaintiffs' motion to remand this case to the Superior Court of the District of Columbia is granted and the case is hereby remanded to that Court; and it is further
ORDERED that pending motions for summary judgment, to stay discovery and for class certification are left for resolution by the Superior Court.