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INTERNATIONAL ASSN. OF MACHINISTS v. METRO-NORTH C

August 24, 1993

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, Plaintiffs,
v.
METRO-NORTH COMMUTER RAILROAD and TRANSPORT WORKERS UNION, LOCAL 2001, Defendants.



The opinion of the court was delivered by: THOMAS P. GRIESA

 This action involves a labor dispute between two unions, the International Association of Machinists ("IAM") and the Transport Workers of America ("TWU"). Both unions contend that they are entitled to jobs at a Metro North facility in Brewster, New York.

 In September 1991 the court directed the parties to submit their dispute to the National Railroad Adjustment Board ("NRAB"). The Second Division of the NRAB subsequently awarded the jobs to IAM. Metro North complied with the award.

 TWU now petitions the court to set aside the NRAB award. The petition is granted.

 BACKGROUND

 In 1987 Metro North opened a new car shop in Brewster, New York. Metro North split the work in the shop, giving TWU 60% and IAM 40%. Neither side agreed with the split.

 Meanwhile, IAM and Metro North had engaged in a separate arbitration, the IAM Public Law Board ("IAM PLB"). TWU did not participate in this arbitration. On December 20, 1990 the IAM PLB ruled that Metro North had violated the Railway Labor Act by not first negotiating with IAM before unilaterally splitting the work. The IAM PLB ordered Metro North to bargain with IAM.

 In January 1991 Metro North complied with the TWU SBA and awarded all of the jobs to TWU. IAM immediately filed this action.

 After a number of conferences, the court directed the parties to submit their dispute to the NRAB. The separate proceeding between TWU and Metro North and the other separate proceeding between IAM and Metro North had been essentially useless. The real dispute was between TWU and IAM, and was not between either union and Metro North. A proceeding before the NRAB would provide a mechanism to resolve the issues between TWU and IAM. The court's ruling in this regard was made at the time of the reference and will not be further discussed in this opinion.

 The NRAB was established pursuant to the Railway Labor Act, 45 U.S.C. §§ 151 et seq. The Board is divided into four divisions. The Second Division, which is the relevant division in this case, has 10 members. Five of the members are selected by the railroads and five by the national unions. 45 U.S.C. § 153 First (h). One of the division's five union members is Mark Filipovic. Filipovic is an employee of IAM. TWU does not have any similar representative in the division.

 An arbitration in front of the Second Division is commenced by the filing of written submissions. After all parties have filed their submissions, the arbitration is formally docketed. The matter is then assigned to a panel consisting of two or more division members. The panel can conduct hearings and make findings but has no power to issue a final award. 45 U.S.C. § 153 First (k). If the panel is deadlocked -- which is the usual situation according to counsel -- the division shall "select a neutral person, to be known as a 'referee', to sit with the division as a member thereof and make an award." 45 U.S.C. § 153 First (l). According to an affidavit of Filipovic, the "long-established practice" of the Second Division is for the referee to sit with the division during a hearing and then to prepare a decision of his own. Once the referee completes his decision, he mails it to the division's Executive Secretary who then circulates it to the division members. The division members then hold an "adoption session" where the members decide whether to adopt the referee's position. The referee is not present at this session. A majority vote of the division members is then necessary to make an award. 45 U.S.C. § 153 First (n).

 In the arbitration at issue, Filipovic, as an employee of IAM, signed the IAM submission that was filed with the division. Once the matter was formally docketed on January 8, 1992, it was assigned to a panel consisting of two members of the division. Filipovic was one of those two panel members. The other member was a railroad representative, R. L. Hicks.

 Filipovic's affidavit states that he and Hicks "immediately deadlocked the dispute so that it would be decided by a neutral referee." On February 18, 1992 the division notified all parties that the matter was deadlocked and would be submitted to a referee. A hearing with the referee was then scheduled for April 1, 1992. Edward Suntrup, a professor of labor relations, was selected to be the referee. Filipovic declares that he had ...


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