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March 5, 1980


The opinion of the court was delivered by: MISHLER

Memorandum of Decision

This action arises within the context of a labor controversy between those employees of the Long Island Rail Road (the "Railroad") whose exclusive bargaining representative is the United Transportation Union (the "UTU"), and the Railroad and its parent agency, the Metropolitan Transportation Authority (the "MTA"). On December 6, 1979, as the parties were on the verge of exhausting the collective bargaining procedures mandated by the Railway Labor Act, 45 U.S.C. §§ 151 et seq., (the "Act"), the UTU filed this suit seeking: (a) a declaratory judgment that the relationship between the parties was governed by the Act and that the employees could thus not be subjected to the sanctions of Sections 200 to 214 of the New York Civil Service Law (the "Taylor Law") in the event they engaged in the "self-help" authorized by the Act; and (b) injunctive relief to protect those rights of the employees guaranteed by the Act, including an injunction against the commencement or prosecution of a state court action seeking to invoke the Taylor Law. On December 8, 1979 the UTU employees went on strike. On December 14, 1979, President Carter established an Emergency Board pursuant to section 10 of the Act, 45 U.S.C. § 160, and the employees returned to work. The "cooling off" period triggered by the Presidential action was to expire on February 14, 1980.

On January 17, 1980 the defendants took their first action in this suit, filing a motion to dismiss in which they claimed that no justiciable case or controversy existed since they did not believe that the Taylor Law could be invoked against the UTU's members and thus had no intent of invoking its sanctions. According to the defendants, while the Railroad was a subsidiary corporation of the MTA, it was not a "public benefit subsidiary corporation," and thus, as a matter of state law, its employees were not "public employees" subject to the Taylor Law. See N.Y. Public Authorities Law § 1265(9)(a); N.Y. Civil Service Law § 201(7)(A).

 On February 8th, however, before the motion to dismiss could be heard, the defendants changed their posture completely by converting the Railroad from a private stock corporation to a public benefit corporation whose employees would be facially subject to the Taylor Law. On February 12th, the UTU responded by moving for a temporary restraining order and injunctive relief preliminarily restraining the defendants from commencing a state court action grounded on the Taylor Law to enjoin a strike by the UTU's members. The undersigned denied the motion on the record. At that time, because the parties appeared to agree that all pertinent facts were a matter of record, the court suggested that they expeditiously attempt to arrive at an agreed statement of facts so that the case might be speedily decided. The suggestion, however, was not followed.

 Instead, on February 13th two days before the expiration of the "cooling-off" period the Railroad, by order to show cause, commenced suit against the UTU and other unions in Supreme Court, New York County, seeking an injunction under the Taylor Law against the impending strike. Long Island Rail Road Co. v. United Transportation Union, et al., 484 F. Supp. 1290 (Sup.Ct.N.Y.Co.). Justice Peggy Bernheim issued a temporary restraining order and set down a hearing on the Railroad's motion for a preliminary injunction for February 15th. On February 14th, the unions removed that action to the United States District Court for the Southern District of New York, and moved to have the action transferred to this court and consolidated with the instant action. Long Island Rail Road Co. v. United Transportation Union, et al., 103 Misc.2d 220, 425 N.Y.S.2d 518 (S.D.N.Y.). The Railroad moved to remand the state action. With the consent of the parties, the temporary injunction against the strike was continued while Chief Judge MacMahon considered the motions.

 On February 21st, the defendants filed their answer in the instant action. As is pertinent here, paragraph four of the answer admits the allegation in paragraph four of the complaint that the Railroad "interchanges freight with railroads engaged in interstate commerce." *fn1" However, it denies the remaining allegations of that paragraph, including the averments that the Railroad "is a Class I railroad engaged in business as a common carrier for hire in the transportation of passengers and property in interstate and foreign commerce ... and is a "carrier' within the meaning of that term as defined in the Railway Labor Act." The answer further affirmatively alleges that the Railroad is a public benefit corporation engaged "essentially (in) intrastate commuter service" (P 18) and that its employees are governed by the Taylor Law rather than the Act.

 On February 25th, Chief Judge MacMahon, in a written opinion, granted the Railroad's motion to remand the action before him to the state court. On February 27th, the unions moved before Justice Sidney Leviss in Supreme Court, Queens County, to transfer the state action from New York County to Queens. Justice Leviss continued the temporary restraining order against the union's threatened strike and directed that the Railroad refrain from seeking a preliminary injunction in New York County pending his decision on the venue motion. *fn2"

 Finally, on February 28th, the plaintiff in the instant action sought and obtained from the undersigned an order to show cause bringing on the summary judgment motion which is the subject of this opinion. Argument was heard on March 4th. *fn3" At the conclusion of the argument the court granted the relief which we will outline below and advised the parties that this written opinion would be issued shortly. A copy of the judgment which was entered on March 4th pursuant to the court's oral opinion is appended hereto.

 The Issues

 There are three major issues confronting us:

(1) Is the Railroad a "carrier" subject to the Act;
(2) If so, does the Act preempt the application of the Taylor Law to the Railroad's employees;
(3) If the Taylor Law may not be applied to bar a strike by the plaintiff's members, what is ...

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