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February 27, 2004.


The opinion of the court was delivered by: CYNTHIA RUFE, District Judge


Before the Court is Defendant Northwest Airlines, Inc.'s Motion to Dismiss Plaintiffs' Amended Complaint. For the reasons below, the Motion is granted in part and denied in part.


  Plaintiffs Denise A. George and Timothy P. Kincaid bring this hybrid action against Defendants Northwest Airlines, Inc. ("Northwest") and International Association of Machinists and Aerospace Workers, Air Transport District 143, Local 1776 ("the Union") pursuant to the Labor Management Relations Act, ("LMRA"), 29 U.S.C. § 185, and Railway Labor Act, ("RLA"), 45 U.S.C. § 151 et seq.*fn1 At all relevant times Plaintiffs were Northwest customer service agents at the Lehigh Valley International Airport and members of the Union.

  On May 22, 2001, Northwest terminated Plaintiffs' employment because Plaintiffs had discounted airfares and provided transportation credit vouchers to friends, family members, Page 2 and acquaintances and had misled Northwest during its subsequent investigation. That same day, Plaintiffs grieved their terminations under the terms of a Collective Bargaining Agreement called the Gray Book ("CBA"). The most recent version of the CBA was executed by the Union on February 25, 1999. The CBA contains a three-step grievance procedure concluding with review by the System Board of Adjustment chaired by a neutral arbitrator. The CBA further provides that any employee whom the System Board of Adjustment finds was discharged without just cause will be reinstated. Plaintiffs allege they were discharged without just cause because their activities had been approved by their manager.

  On May 23, 2001, Northwest provided Plaintiffs with a Step One hearing, which resulted in denials of Plaintiffs' grievances. On May 30, 2001, the Union appealed the grievances, asking for a Step Two hearing, which was never held. On July 30, 2001, the Union sent Plaintiffs a Last Chance Agreement, which would have permitted reinstatement provided that Plaintiffs agreed to a disciplinary suspension without pay, admitted their wrongdoing, and agreed to waive the right to seek redress for any grievance, past or future, stemming from the agreement. Plaintiffs also would have been placed on probationary status for 24 months. Plaintiffs thereafter rejected this settlement proposal.*fn2

  On August 16, 2001, the Union notified Northwest that it had appealed the grievances to the System Board of Adjustment for a hearing and decision. On January 16, 2002, Plaintiffs were again offered a settlement similar to the Last Chance Agreement. The Union warned Plaintiffs that the failure to execute the settlement agreements would result in the Page 3 withdrawal of their grievances. On January 28, 2002, Plaintiffs again rejected the settlement offer. On February 7, 2002, the Union notified Plaintiffs that, upon reviewing the facts underlying the grievances and the terms of the CBA, and considering other factors, it had decided to withdraw Plaintiffs' grievances from arbitration. The instant litigation ensued.

  Plaintiffs' Amended Complaint advances claims against both the Union and Northwest. Plaintiffs allege that the Union violated its duty of fair representation when it denied them a Step Two hearing in violation of Article 16, Paragraph D of the CBA. Plaintiffs further allege that Northwest "was engaged in a concerted scheme to destroy the Union by setting up employees for discipline and then pressuring the [U]nion to refuse to process the employees' grievances." Pls.' Am. Compl. ¶ 45.

  In its Motion to Dismiss the Amended Complaint, Northwest asserts that Plaintiffs cannot advance their claims under the LMRA. Northwest further contends that jurisdiction under the RLA is lacking because Plaintiffs allege only a minor dispute that is subject to the mandatory and exclusive jurisdiction of the System Board of Adjustment. Finally, Northwest argues that this case does not fall within the limited exception to the exclusive jurisdiction of the System Board set forth in International Association of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700 (3d Cir. 1982).

  By Order dated September 30, 2003, the Court directed the parties to conduct jurisdictional discovery and scheduled an evidentiary hearing for December 22, 2003. The parties thereafter jointly requested that the Motion to Dismiss be decided on the present record. See Joint Mot. to Modify Scheduling Order [Doc. No. 27]. Page 4


  A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) may advance either a facial or factual challenge to subject matter jurisdiction. Fin. Software Sys. v. First Union Nat'l Bank, 84 F. Supp.2d 594, 596 (E.D. Pa. 1999) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Where, as here, a motion to dismiss creates a factual issue regarding subject matter jurisdiction, there is no presumption of truthfulness to the jurisdictional allegations in the complaint. Mortensen, 549 F.2d at 891. In assessing a Rule 12(b)(1) motion, the parties may submit, and the court may consider, affidavits and other relevant evidence outside the pleadings. Berardi v. Swanson Mem'l Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990). When a defendant advances its attack on jurisdiction with supporting evidence, the plaintiff has the burden of responding to the facts so stated. Mortensen, 549 F.2d at 891; Northwest Airlines, 673 F.2d at 711. In this case, Plaintiff George has submitted an affidavit in which she avers that Northwest and the Union conspired to put together a Last Chance Agreement that would subject senior employees to termination without any recourse and that the purpose and effect of their collusive effort was to undermine the Union.


 A. Plaintiffs cannot advance LMRA claims ...

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