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March 13, 1967

The LONG ISLAND RAILROAD COMPANY and Metropolitan Commuter Transportation Authority, Defendants

The opinion of the court was delivered by: MOTLEY

Opinion on Motion to Dismiss, Findings of Fact and Conclusions of Law

 MOTLEY, District Judge.

 This action is a sequel to The Long Railroad Co. v. System Federation No. 156, etc., et al., 368 F.2d 50 (2d Cir. Oct. 31, 1966). That action was brought by the Long Island Railroad Co. (the Railroad) a defendant in the instant action in the Eastern District of New York against Lodge 886 of the Brotherhood of Railway Carmen (the Brotherhood) plaintiff here and others.

 There, the Railroad secured a preliminary injunction enjoining the Brotherhood from "causing any acts which effect an intended delay in the Railroad's scheduled rail service" until the Brotherhood complied with the provisions of the Railway Labor Act (the Act) and utilized its procedures. The injunction was affirmed by the Second Circuit. The Long Island Railroad, supra. That dispute arose out of an attempt by the Brotherhood to negotiate rule changes and wage increases (known as Section 6 proposals) which the Railroad insisted were barred under the existing contract until January 1, 1967. *fn1" Following this refusal to negotiate, the Brotherhood effected the delay in rail service which was enjoined. In granting that injunction, as the Second Circuit noted, the Eastern District had ruled that "future failure of the Railroad to perform its duties under the Act could lead to dissolution of the injunction." Id. at p. 53.

 Thereafter, beginning June 6, 1966 the Railroad opened negotiations regarding changes in vacations despite the bar to such changes which it had previously pleaded. It also began informal discussions with the Brotherhood on its Section 6 proposals on July 5, 1966. *fn2" After this discussion, the Railroad again invoked the moratorium on such discussions until January 1, 1967. Subsequently, on August 1, 1966 the Railroad sent the Brotherhood a letter offering a 3.2% increase in wages at such time as the moratorium would expire. The Railroad also advised that if at the completion of negotiations a higher wage increase was agreed upon, the difference between the final amount and the offer then made would be adjusted on mutually agreeable terms. On August 5, 1966, the Brotherhood replied by letter that it would accept the Railroad's offer as a "down payment". On August 9, 1966, the Railroad sent the Brotherhood a letter telling it that further discussions of the wage offer would have to await replies from the other unions on the Railroad to which a similar wage offer had been made.

 On August 12, 1966, the Brotherhood advised it would be willing to meet at any convenient time. On September 9, 1966, a meeting was held at which time the Railroad and the Brotherhood discussed the wage offer. The Brotherhood's international vice president was in attendance. No agreement was reached. Thereafter, on September 21, 1966, the Railroad transmitted to the Brotherhood its counter Section 6 proposals for discussion. On September 26, the Brotherhood wrote that it had reviewed the Railroad's counter-proposals. It asked that a mutually agreeable date be set for further conference.

 Such a meeting was called for October 10, 1966. It was adjourned at the request of the Brotherhood until October 17, 1966, at which time the Railroad's counter-propsals were discussed. The Brotherhood's representative advised that the wage offer had to be voted upon by the membership. Another meeting was held on October 31, 1966, at which the authority of Mr. D'Avanzo, instead of the System Federation, to negotiate on major matters for the Brotherhood was discussed and later affirmed by the Brotherhood's national body.

 On November 3, 1966, another meeting was held and discussion was had on some of the Brotherhood's demands. On December 15, 1966, the Railroad, at a meeting, increased its wage offer to a firm 5% and additional vacation benefits. The wage offer was a 5% increase each year for 3 years beginning January 1, 1967. Fringe benefits and other items were discussed. Some items were denied and counter-offers were made on others. The 5% wage increase was rejected by the Brotherhood's representative. Another meeting was set for December 27, 1966. On that date no agreement on wages was reached. The meeting was adjourned until January 4, 1967. On that date, a meeting was held but only minor items unrelated to the negotiations were discussed. This was a regularly scheduled meeting on minor grievances. The Brotherhood's representative testified that on this date he requested the Railroad's representative to schedule another meeting.

 On January 9, 1967, not having heard from the Railroad, the Brotherhood requested by letter another meeting on its Section 6 proposals. The Railroad's negotiator testified he never received this letter and consequently did not reply. On the same date, the Railroad by letter requested that the Brotherhood withdraw its pension demand. This suggestion was complied with, pending the outcome of national negotiations on this question. On January 25, 1967, the Brotherhood's membership authorized Mr. D'Avanzo to call a strike.

 This suit was commenced on February 2, 1967, when the Brotherhood filed its complaint. An order to show cause, signed February 3, 1967, directed the Railroad and Metropolitan Commuter Transportation Authority (the Authority) to show cause on such hearing why an order should not be entered requiring defendants, under the provisions of the Act, to comply with the obligations imposed under the Act to bargain in good faith in an attempt to negotiate a new collective bargaining agreement between the parties. The moratorium on rules changes and wage increases had expired December 31, 1966.

 Defendants' motion to dismiss the complaint was heard on February 7, 1967, and granted on February 8, 1967, as to the Authority but denied as to the Railroad.

 The motion to dismiss the complaint urged several grounds: 1) lack of jurisdiction over the subject matter, 2) failure to state a claim against defendants upon which relief could be granted, 3) the Authority was improperly joined as a party defendant, 4) lack of requisite jurisdictional amount, 5) controversy not between citizens of different states, 6) controversy within exclusive jurisdiction of the National Mediation Board created and acting pursuant to provisions of the Act, 7) plaintiff has not exhausted its remedies under the Act and, 8) plaintiff has an adequate remedy at law.

 The complaint predicated jurisdiction on Title 28 U.S.C. §§ 1331 (federal question and $10,000) and 1337, (act of Congress regulating commerce, i.e., 45 U.S.C. § 151 et seq., Railway Labor Act and 49 U.S.C. § 1 et seq., Interstate Commerce Act). The gravamen of the complaint is that since December 1966 the Railroad "has not indicated any desire to sit down and negotiate a new contract" with the Brotherhood and its bargaining representative, Mr. Anthony D'Avanzo.

 The only allegations made as to the Authority are that: 1) it is an authority created under the laws of the State of New York, 2) it owns all the capital stock of the Railroad, and 3) "either or both of the two defendants have not followed the procedures provided for by the ...

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