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NORFOLK & W. RY. CO. v. UNITED TRANSP. UNION

March 10, 1978

NORFOLK AND WESTERN RAILWAY COMPANY, Plaintiff
v.
UNITED TRANSPORTATION UNION, T. W. KEATING, JR., DONALD W. DUNLEVY, A. P. PROZZLEY, PETER L. PATSOURAS, DAVID L. KABAKER and SPECIAL BOARD OF ADJUSTMENT No. 861, Defendants


Weber, C.J.


The opinion of the court was delivered by: WEBER

In a very ancient Greece questions of extreme gravity, private, dynastic and public, from all the cities and states of the Hellenic world were submitted to the Oracle at Delphi. It was truly a national tribunal. However, the answers to the questions posed were spoken by a priestess in an unknown tongue, and were interpreted by a priest in a form of poetry. Sometimes the answer lost something in the translation, or was interpreted with such poetic license that its meaning was not immediately clear but only became clear by the unfolding of later developments. Naturally, the answers of the Oracle were not always satisfactory to some party, but Greek history does not disclose the existence of a tribunal for judicial review.

 We have advanced in these many millennia. A modern equivalent of the Oracle of Delphi is supplied by 45 U.S.C. § 153 and a party disappointed by an answer thereunder has brought the matter to this United States District Court.

 Plaintiff Norfolk & Western Railway Co. (herein called Railroad) sued in this Court to vacate an award of Supplemental Board of Adjustment No. 861, *fn1" basing jurisdiction upon § 3 of the Railway Labor Act, 45 U.S.C. § 153, and upon 28 U.S.C. § 1337. Defendant Union has moved to dismiss the Complaint.

 The following facts are undisputed. By its order of June 24, 1964, the Interstate Commerce Commission approved the merger of the Nickel Plate Railroad into the Railroad as well as the lease by Railroad of the line and certain facilities and properties of the Pittsburgh & West Virginia R.R. That order incorporated by reference the April 16, 1962 Merger Protective Agreement between the Railroad and the predecessor unions of the Defendant herein, which in turn incorporated the provisions of the Washington Job Protection Agreement of 1936.

 On April 11, 1975, the Railroad posted a notice of intended coordination of certain facilities taken over in the 1964 merger, which coordination would affect both seniority rights and schedule agreements in the territory from Pittsburgh Junction, Ohio, to Connellsville, Pennsylvania. The parties to this suit met several times but failed to agree on how the proposed coordination should be implemented. The Railroad petitioned the National Mediation Board to establish a Supplemental Board of Adjustment to resolve the dispute. S.B.A. No. 861 was then designated by the appropriate procedures. *fn2"

 The questions submitted to the Board were as follows:

 
"(A) Does the implementing agreement proposed by the Carrier . . . meet the criteria set forth in Section 1(b) of the January 10, 1962 merger protective Agreement, and in the Washington Job Protective Agreement of May, 1936, as amended by the parties for the purposes of the said January 10, 1962 agreement, in effecting the unification, merger, consolidation and coordination of the Carrier's facilities, operations and services previously performed by the former Pittsburgh and West Virginia Railway Company, and by the former WLF District of the former New York, Chicago and St. Louis Railroad Company, as more fully described in Carrier's Notice of Intended Coordination dated April 1, 1976?
 
(B) If the answer to (a) is 'No', what agreement would be appropriate in this particular case?"

 In its opinion and award the Board clearly found that it had jurisdiction over the dispute involved and held that the implementing agreement proposed by the Railroad was inconsistent with the 1962 Merger Protective agreement.

 The award provided in full as follows:

 
"The answer to Item (a) of the Question at Issue is 'No.'

 In its brief on the Motion to Dismiss, the Defendant Union argued that the complaint asks the court to review the award in a manner that is beyond its power under 45 U.S.C. § ...


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