Miller v. Norfolk Southern Ry. Co., No. 3:01 CV 7273.

• Decision Date: 16 January 2002
• Docket Number: No. 3:01 CV 7273.
• Citation: 183 F.Supp.2d 996
• Parties: Richard MILLER, et al., Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

183 F.Supp.2d 996

Richard MILLER, et al., Plaintiffs, v. NORFOLK SOUTHERN RAILWAY COMPANY, et al., Defendants.

No. 3:01 CV 7273.

United States District Court, N.D. Ohio, Western Division.

January 16, 2002.

Howard M. Hackman, Law Office of Howard M. Hackman, Columbus, OH, for Plaintiffs.

Jeffrey S. Berlin, Sidley Austin Brown & Wood, Washington, DC, John B. Lewis, Baker & Hostetler, Cleveland, OH, Juan P. Morillo, Sidley Austin Brown & Wood, Mark E. Martin, Sidley Austin Brown & Wood, Washington, DC, Michelle Warner Waller, Baker & Hostetler, John S. Kluznik, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, John S. Kluznik, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, OH, for Defendants.

ORDER

CARR, District Judge.

Plaintiffs bring this action under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c) and (d) ("RICO"). Plaintiffs assert jurisdiction pursuant to 28 U.S.C. § 1331. Pending is defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), or, in the alternative, for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, defendants' motions shall be granted.

BACKGROUND

Plaintiffs were supervisors for Conrail, the predecessor to defendant Norfolk Southern Railroad Corporation ("Norfolk Southern"). While employed at Conrail, plaintiffs were members of the United Railway Supervisors Association ("Union").

In 1997, members of the Union held a meeting to consider whether to decertify the Union when Conrail merged with Norfolk Southern, whose supervisors were not unionized. Initially, the members voted against decertification. Norfolk Southern thereafter proceeded to hold nine meetings to discuss decertification and related issues. Defendants Hernan and Kerr represented the railroad at these meetings.

Plaintiffs allege that Norfolk Southern, through its defendant-employees, made representations that Union members did not need to be part of the Union to receive the same salary benefits as Union members. Plaintiffs allege that Norfolk Southern, through its defendant-employees, also represented: 1) plaintiffs would receive greater fringe benefits, equivalent wages, and credit for vacation time; 2) every supervisor would have an assistant supervisor with whom to work; 3) members would never have unpaid days; and 4) plaintiffs would retain their supervisory positions.

Plaintiffs allege that members of the Union, relying on these representations, thereafter voted to decertify the Union. They claim that the representations were false and have not been fulfilled.

Plaintiffs brought this suit alleging violations of RICO and unfair labor practices, under 29 U.S.C. §§ 157 and 158, for defendants' alleged fraudulent and coercive misrepresentations resulting in the decertification of the Union.

DISCUSSION

I. Subject Matter Jurisdiction and the Railway Labor Act

The Sixth Circuit has stated that motions to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) fall into two different categories: facial and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994).

A facial attack is a challenge to the sufficiency of the complaint. Id. When a party makes a facial attack, the court must consider all of the complaint's material allegations as true and construe them in the light most favorable to the nonmoving party. Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

A factual attack is a challenge to the court's authority and power to hear the case. Id. When a party makes a factual attack, the court does not presume the truthfulness of the complaint's factual allegations. Id. (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990)). The plaintiff, furthermore, must prove that the court has subject matter jurisdiction. Ohio Nat'l Life Ins., 922 F.2d at 324. The court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Ritchie, 15 F.3d at 598. It is within the district court's discretion to accept affidavits and documents with the motion and conduct an evidentiary hearing. Ohio Nat'l Life Ins., 922 F.2d at 325. The district court is required to "weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist." Id.

Defendants state that federal statutory schemes deprive this court of jurisdiction, so that it does not have the power or authority to hear this case. Defendants, therefore, make a factual attack on subject matter jurisdiction, and plaintiffs have the burden of proving the existence of jurisdiction.

Plaintiffs' complaint alleges that defendants' fraudulent and coercive misrepresentations abridged plaintiffs' right to organize. (Doc. 1 at ¶ 25). Plaintiffs' brief cites to § 2, Fourth of the Railway Labor Act ("RLA"),¹ which states that an employer may not interfere with employees' right to organize.² Plaintiffs contend that § 2, Fourth of the RLA controls because "[a]t the crux of Plaintiffs' claim against Defendants is the allegation that Defendants conspired together in a pattern of racketeering activity to deny Plaintiffs their right of organization and interfered with this right in violation of [the Railway Labor Act]." (Doc. 31 at 6). Activities which allegedly violate RICO are the alleged method of this interference.

Defendants argue that this court does not have subject matter jurisdiction over plaintiffs' claims because the dispute involves a representation issue. Defendants contend that § 2, RLA Ninth³ controls when the dispute is representational, and the National Mediation Board ("Board") has exclusive jurisdiction over such disputes.

Defendants further argue that the assertion that defendants interfered with plaintiffs' ability to bargain collectively is baseless. Defendants contend, "Plaintiffs (or at least plaintiff Minks, who is still an NSR employee) have always been free to pursue whatever rights the RLA gives them to be represented by URSA or any other union." (Doc. 36 at 5).

Defendants therefore, argue this dispute is representational and arises under § 2, RLA Ninth, while plaintiffs argue the dispute falls under § 2, RLA Fourth, for interference with the right to organize.

Federal courts can hear a claim brought under § 2, RLA Fourth. See Air Line Pilots Ass'n, Int'l v. Transamerica Airlines, Inc., 817 F.2d 510, 514 (9th Cir. 1987) ("Federal courts have jurisdiction to enforce the provisions of 45 U.S.C. § 152 Third and Fourth prohibiting interference with effective representation and organization.") (citations omitted); Adams v. Federal Express Corp., 547 F.2d 319, 320-21 (6th Cir.1976) (district court had jurisdiction over claims brought pursuant to § 2, Third and Fourth of the RLA); International Ass'n of Machinists & Aerospace Workers, AFL-CIO v. Continental Airlines, Inc., 754 F.Supp. 892, 893-94 (D.D.C.1990) ("The NMB has exclusive jurisdiction to conduct employee elections and decide representation disputes.... The right of employees subject to the Act to select their own representatives free of employer intrusion is judicially enforceable.") (citations omitted). This court, therefore, has jurisdiction over disputes under § 2, RLA Fourth.

When, however, a dispute is arguably representational, a district court should not exercise jurisdiction. United Transp. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1213-14 (7th Cir.1996). As the Seventh Circuit stated in Gateway, "when the precise character of the dispute is in doubt (when the dispute, in other words, is only `arguably' representational), a federal court should not proceed, for `the NMB has primary jurisdiction to determine whether it has exclusive jurisdiction over the dispute.'" Id. (citing United Transp. Union v. United States, 987 F.2d 784, 789 (D.C.Cir.1993); International Ass'n of Machinists & Aerospace Workers v. Northeast Airlines, Inc., 536 F.2d 975, 977 (1st Cir.1976)).

Defendants contend, "Any claim that [Union], a labor union that represented Conrail employees, is somehow entitled to the status of collective bargaining representative of NSR's employees, is within the exclusive jurisdiction of the NMB under § 2, Ninth." (Doc. 18 at 11). Defendants' argument has merit. This dispute is at least arguably representational.

I decline to go beyond my initial determination that this dispute is "arguably representational" and determine the precise character of the dispute in this case. The better approach is that adopted by the Seventh and District of Columbia Circuits, whereby an "arguably representational" dispute will be resolved by the Board, which "has primary jurisdiction to determine whether it has exclusive jurisdiction over the dispute." United Transp. Union, 987 F.2d at 789; accord Gateway, 78 F.3d at 1213-14.

This approach properly defers to the remedial scheme fashioned by Congress. If this dispute truly is representational, the Board has exclusive jurisdiction. Plaintiffs should not be able to avoid the Board's jurisdiction or the designated remedial scheme by asserting a RICO claim or a claim for organization interference.⁴

Defendants' motion to dismiss plaintiffs' claims under the RLA for lack of subject matter jurisdiction shall be granted.

II. Failure to State a Claim Under RICO

No complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiff's claim that, construed in plaintiff's favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F.Supp. 187, 191 (N.D.Ohio 1996). The court...