COMMISSION, Appellees 1989.CDC.103
On Appeal from the United States District Court for the District of Columbia, Civil Action No. 82-2216.
Robinson, Mikva, and Buckley, Circuit Judges. Opinion for the Court filed by Circuit Judge Mikva.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA
This case involves the definition of "carrier" under the Railway Labor Act ("Act"), 45 U.S.C. § 151, First. Appellant, the International Longshoremen's Association, AFL-CIO , challenges the decision of the National Mediation Board ("NMB" or "Board") that the North Carolina State Ports Authority is not a "carrier" within the meaning of the Act. The district court dismissed appellant's complaint and sustained the NMB. We reverse, because we find that the NMB did not apply the statutory test for "carrier" in a rational and reviewable manner. I.
The SPA is an agency of the State of North Carolina, created for the purpose of owning and operating the ocean port terminals at Wilmington and Morehead City, North Carolina. See N.C. Gen. Stat. §§ 143B-452 through 143B-467 (1987). There is a small switching railroad at each port, and in 1970 the NMB certified the ILA as the bargaining representative for certain dockmen, warehousemen, and security guards who worked on the railroads. See North Carolina Port Authority, 5 N.M.B. 288 (1970).
In 1979, the North Carolina General Assembly created the North Carolina Ports Railway Commission , see N.C. Gen. Stat. §§ 143B-469 through 143B-469.3 (1987), and mandated that
as soon as practicable, the North Carolina State Ports Authority shall transfer to the North Carolina Ports Railway Commission its railway equipment, railway property, and railway operations. This transfer shall include tracks, yards, equipment, trackage rights, franchises, licenses, and leases connected with the railway operations.
1979 N.C. Sess. Laws ch. 159 § 9.
In 1980, negotiations between the ILA and SPA had failed to produce a collective bargaining agreement and the ILA sought to invoke the services of the NMB. SPA moved to dismiss the NMB proceeding on the ground that it was no longer a "carrier" within the jurisdiction of the NMB because its railroad functions had been transferred to the PRC. The NMB agreed with SPA, and ruled that "the certifications held by the ILA are no longer of any effect since the Ports Authority is no longer a carrier within the meaning of the Railway Labor Act." North Carolina State Ports Authority and North Carolina Ports Railway Commission, 9 N.M.B. 398, 402 (1982). The NMB found that although the PRC was a carrier, 9 N.M.B. at 402, the PRC "is not directly or indirectly owned or controlled by the" SPA, id., and therefore the SPA was no longer a carrier.
The ILA filed a complaint in United States district court, alleging that the NMB had failed to apply properly section 1, First of the Act, which provides:
The term "carrier" includes . . . any company which is directly or indirectly owned or controlled by or under common control with any carrier by railroad and which operates any equipment or facilities or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, storage, and handling of property transported by railroad . . ..
45 U.S.C. § 151, First (emphasis added). The ILA argued that the NMB did not apply the "common control" test, because it failed to consider the possibility that the SPA was "under common control with" the PRC. The ILA maintained that even though the SPA and PRC might be independent
[whether it] operates any equipment or services or performs any service (other than trucking service) in connection with the transportation, receipt, delivery, elevation, transfer in transit, refrigeration or icing, ...