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May 19, 1989


Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE

This case raises the question of how long the National Mediation Board (Board) may withhold arbitration of a labor dispute involving a labor union and a commuter railroad, on the basis that the Board is engaged in mediation, when no active mediation has been occurring for a very substantial period of time. The case is here on cross-motions for summary judgment.


 This saga began on July 9, 1985, when Local 808, Building Maintenance, Service and Railroad Workers (hereinafter Union) *fn1" served a notice on the Metro-North Commuter Railroad (Railroad) *fn2" pursuant to section 6 of the Railway Labor Act, 45 U.S.C. § 156, *fn3" proposing various changes in pay, rules, and working conditions of the Railroad's track workers. *fn4" Thereafter, the Railroad served its own section 6 notice on the Union. The conference phase of the process, during which the Union and the Railroad met for bargaining a number of times, lasted from August 1, 1985 to June 10, 1986, or approximately ten months. When the conferences did not succeed in resolving the dispute, the Union invoked the mediatory services of the Board on June 13, 1986, and five days later, on June 18, 1986, the dispute was docketed by the Board.

  A number of mediation sessions, some attended by a mediator, some by a Board member, some by both, were held between October 29, 1986 and February 25, 1988, a period of sixteen months. The Railroad's final offer was made on February 25, 1988, but it was overwhelmingly rejected by the Union membership. *fn5" Six days after the rejection, on March 29, 1988, the Railroad served on the Union a new proposal that was substantially less favorable to the employees in proposed pay rates and conditions than the proposal that had been rejected.

 On April 18, 1988, twenty-two months after the dispute had been docketed at the Board, the Union requested that the Board end the mediation phase *fn6" and instead proffer arbitration to the parties as well as the procedures provided in section 9A of the Act, 45 U.S.C. § 159a. See infra.7 Specifically, the Union advised the Board that "the parties have reached the point where it is apparent that continued mediation will not result in a settlement. It is time to begin the procedures prescribed in § 9A of the Act; perhaps Emergency Board proceedings will lead to settlement." *fn8"

 However, the Board refused to proceed to arbitration or to the section 9A proceedings. Indeed, as of June 24, 1988, the date the complaint was filed here, and as of the time of the briefing of the issues before this Court in October to December 1988, the Board had still refused to initiate the arbitration process. *fn9" There was likewise no change in that status as of the time of oral argument on the pending motions and as of the time of the issuance of this Opinion. *fn10"

 Thus, the dispute has been before the Board one month short of three years *fn11" and well over one year since the Union requested an end to mediation and the start of arbitration. The parties have not met privately in contract negotiations since June 10, 1986; no mediation sessions have been held since February 25, 1988; and each party has been adhering to its last stated position. The issue before the Court is whether, in that posture, the Board's refusal to proceed to the next, the arbitration step of the process, is arbitrary and may be made the subject of an appropriate judicial order.


 Under the Railway Labor Act, disputes between labor and management are categorized as major or minor, the dispute here being a major dispute. *fn12" The Act's procedures for major disputes were described in BRT v. Jacksonville Terminal Co., 394 U.S. 369, 378, 22 L. Ed. 2d 344, 89 S. Ct. 1109 (1969), in these terms:

 In 1981, Congress amended the Act to add in section 9A a special procedure for major disputes involving rail carriers in commuter service. 45 U.S.C. § 159a. That special procedure, which may be invoked by either party to the dispute, or by the governor of any state through which the commuter rail service operates, *fn13" has the effect of extending by 240 days the status quo following the termination of mediation (unless the dispute is settled before then by voluntary agreement or arbitration). During that 240-day period, the National Mediation Board convenes two emergency boards, one to investigate and make recommendations, the other to select from the parties' final settlement offers the one it finds most reasonable. 45 U.S.C. §§ 159a(b), (c), 160, 159a(e)-(g). *fn14" However, until the Board declares under section 5 of the Act, 45 U.S.C. § 155 First, that an amicable settlement through mediation has been unsuccessful, there can be no recourse to arbitration or to the section 9A procedures.

 In the instant case, neither arbitration nor the section 9A process has been invoked, even though section 5 of the Act requires that, when mediation efforts are unsuccessful, the Board "shall at once" endeavor to induce the parties to submit the controversy to arbitration. It is the Union's basic claim that mediation has proved to be unsuccessful, and that the Board is arbitrarily refusing to move to the arbitration phase. Accordingly, it requests that the Court order the Board to do so. Before considering the arguments in support of and in opposition to ...

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