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September 25, 1985


The opinion of the court was delivered by: MACMAHON

MacMAHON, District Judge.

Plaintiffs move, pursuant to Rule 56 Fed.R.Civ.P., for summary judgment of their claims based on violations of the Railway Labor Act (RLA), 45 U.S.C. §§ 151 et seq. (1972). Defendants move, pursuant to Rules 12(b)(6) and 56, Fed.R.Civ.P., for an order dismissing the complaint. Since the essential facts are not in dispute, this action is ripe for summary judgment.


 Since January 1, 1985, the five individual plaintiffs have been employed by defendant Metro-North Commuter Railroad Company (Metro-North) as passenger engineers and have been members of the United Transportation Union (UTU), the bargaining representative for firemen, conductors and brakemen employed by Metro-North. UTU does not represent engineers in collective bargaining.

 Defendant Brotherhood of Locomotive Engineers (BLE) is the executive bargaining representative for the class of passenger engineers employed by Metro-North. At various times, three of the individual plaintiffs have been members of BLE.

 The current collective bargaining agreement negotiated by BLE and Metro-North provides for rates of pay, hours of work, health and welfare benefits, seniority rights and other terms and conditions of employment for the engineers. The agreement also contains discipline and investigation rules for the resolution of disputes involving the interpretation and application of the agreement's provisions.

 Rules 22 and 23 of the agreement provide that: a claim by a passenger engineer for compensation "may be made only by a claimant, or, on his behalf, by a duly accredited representative;" the passenger engineer and "his duly accredited representative will have the right to be present during" disciplinary investigations; and the representative may accompany the claimant at appeal hearings and may process appeals of any claim, grievance or disciplinary action on behalf of the engineer. Rule 1(c) defines "duly accredited representative" as the "General Chairman, Local Chairman of the [BLE] having jurisdiction or any elected or appointed officer of the [BLE] designated by the General Chairman." In addition to having the right to be represented by BLE, engineers have the right to represent themselves in disciplinary hearings and in appeals under Rules 22 and 23.

 Each of the five individual plaintiffs was subject to a disciplinary investigation by Metro-North in 1983 or 1984, and each sought to have UTU representation at those proceedings. Although Metro-North initially allowed one plaintiff to so proceed, it later determined that BLE was the only union which could represent engineers at grievance and disciplinary proceedings. Metro-North refused to permit UTU representatives to participate at such proceedings, except as observers.

 There is no dispute that, pursuant to the BLE/Metro-North agreement, engineers are restricted to representation by BLE at grievance and disciplinary proceedings. Defendants contend that an engineer has no right to have UTU representation. Plaintiffs argue, however, that the restriction violates §§ 2 and 3 of the RLA, 45 U.S.C. §§ 152 and 153, and seek to have the restriction invalidated.



 BLE initially argues that, pursuant to §§ 2 Ninth and 3 First of the RLA, 45 U.S.C. §§ 152 Ninth and 153 First, we lack subject matter jurisdiction to resolve this dispute. Section 2 Ninth of the RLA places exclusive and primary jurisdiction for the resolution of employee disputes concerning representation with the National Mediation Board.

 BLE asserts that the question presented here is whether UTU or BLE will represent the individual plaintiffs at grievance and disciplinary proceedings, and, therefore, jurisdiction lies with the National Mediation Board. Alternatively, BLE argues that this action concerns a minor dispute involving the interpretation of who is a "duly accredited representative" under Rule 1(c) of the BLE/Metro-North agreement. Resolution of these minor disputes, including interpretation or application of agreements, is left to the National Railroad Adjustment Board (NRAB), pursuant to § 3 First (i) of the RLA.

 The Supreme Court has determined that district courts have no authority to resolve jurisdictional controversies between unions and placed jurisdiction for resolution of these representational disputes with the National Mediation Board. *fn1" However, the Supreme Court has not addressed the issue presented here, that is, "whether an employee's assertion of 'the privilege of choosing his own representative for the prosecution ...

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