these unsafe conditions. As the workers returned to work only two hours after calling the strike, with conditions unchanged, this court had no reason to infer such a causal connection. It was hard to imagine that the union would disregard the protection of the FRSA and order its members back to work if the real concern was a hazardous condition presenting "an imminent danger of death or serious injury." 49 U.S.C. § 20109(b)(B)(i). Nonetheless, the defendants' current motion, filed after the conclusion of discovery, presents more specific facts. Regardless of its persuasiveness, we now have before us evidence that the strike was called over the hazardous rodent situation at the Conway Yard.
Conrail contends that even if deference to the NRAB were otherwise appropriate, it is not due in this case because the defendants have not satisfied certain procedural requirements of the FRSA. For example, Conrail asserts that the FRSA requires that the defendants attempt to resolve safety disputes through "regular statutory means" before they strike
and to notify Conrail of any hazardous condition before they stop working.
Conrail states that the defendants failed to meet either requirement and thus are barred from FRSA protection.
It is not for this court to weigh the conflicting evidence on whether the June 8, 1995 strike was called for legitimate safety reasons or whether those reasons were merely pretextual. Nor is it our role at this point to determine whether all conditions of the FRSA have been met. Rather, it is for the NRAB to decide whether the defendants have stated and proved a valid dispute under the various provisions of the FRSA. See Lenfest, 799 F.2d at 800; see also Union Pacific R.R. v. Sheehan, 439 U.S. 89, 58 L. Ed. 2d 354, 99 S. Ct. 399 (1978). As the Supreme Court has noted, when a contract or statute refers disputes to an arbitration board, "the agreement is to submit all grievances to arbitration, not merely those that a court may deem to be meritorious." United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 567, 4 L. Ed. 2d 1403, 80 S. Ct. 1343 (1960); see also United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85, 4 L. Ed. 2d 1409, 80 S. Ct. 1347 (1960). Such deference remains appropriate when some threshold issues are unresolved. For example, in the recent Supreme Court decision of Vimar Seguros y Reaseguros v. M/V Sky Reefer, 132 L. Ed. 2d 462, 115 S. Ct. 2322 (1995), the petitioner argued that a federal court must determine what law applies to a particular arbitration provision before referring the action to the arbitrators. The Supreme Court disagreed, holding that the choice-of-law decision is itself a matter for the arbitrators, not the court. Id. at 2329-30.
For present purposes, we must assume that the defendants' factual presentation is true. On that basis, we conclude that the defendants now have made a sufficient showing to require this court to defer to the NRAB. The NRAB must determine whether the defendants have satisfied the conditions for invoking the FRSA and, if so, whether the June 8, 1995 strike was justified by a hazardous condition which presented "an imminent danger of death or serious injury." 49 U.S.C. § 20109(b)(B)(i). Though we decline to dismiss the entire action, we will stay further disposition of this case pending the outcome of NRAB proceedings. In doing so, we emphasize that the strike is concluded. We are not faced with a situation where the court must act speedily to prevent irreparable harm.
Once the NRAB has made its decision, which it must do within 180 days,
we can proceed with the case. Conrail's request for a permanent injunction to rectify an alleged pattern and practice of illegal behavior by the defendants will be considered at that point. As the June 8, 1995 strike is one of a number of strikes at the Conway Yard which allegedly constituted an illegal pattern and practice, we cannot adequately address Conrail's injunction request until the NRAB has had an opportunity to consider this incident. Once we have reviewed the NRAB's decision, we will also deal with Conrail's claim for damages.
45 U.S.C. § 153 (p)-(q). If after review of the NRAB's ruling the court finds that the defense under the FRSA was frivolous or otherwise improper under Rule 11 of the Federal Rules of Civil Procedure, the court, of course, may impose the appropriate sanctions.
Accordingly, we will deny the defendants' motion to dismiss the second amended complaint but will grant their motion for a stay. We will also deny Conrail's cross-motion for partial summary judgment.
AND NOW, this 19th day of November, 1996, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the renewed motion of defendants to dismiss the amended complaint is DENIED;
(2) the renewed motion of defendants to stay this action is GRANTED pending a decision by the National Railroad Adjustment Board ("NRAB") with respect to the reasons and justification for the June 8, 1995 strike at the Conway Yard and defendants' compliance with the Federal Railroad Safety Act. See 49 U.S.C. § 20109 and 45 U.S.C. § 153. The parties shall advise this court promptly of any decision by the NRAB. If the defendants fail to present the above issues to the NRAB within 15 days of this Order, the court will deem the issues waived, and it will vacate its Order for a stay; and
(3) the cross-motion of plaintiff for partial summary judgment is DENIED.
BY THE COURT: