The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the plaintiff and counter-defendant's
motion to dismiss the counter-claim and the defendant,
counter-plaintiff's motion for summary judgment on the issue
of the counter-defendant's liability.
The plaintiff and counter-defendant, Burlington Northern,
Inc., ("Burlington Northern") is a Delaware corporation,
engaged in the business of transporting freight and passengers
by rail in interstate commerce, and is a "carrier" as defined
in Section 1 of the Railway Labor Act, 45 U.S.C. § 151.*fn1
and counter-plaintiff, The American Railway Supervisors
Association ("ARSA") is an incorporated labor organization
with headquarters in Chicago, Illinois. The plaintiff
initiated the instant action against ARSA and other defendants
seeking, inter alia, a declaration that plaintiff is not
required to bargain, arbitrate or otherwise treat ARSA as the
representative of any of plaintiff's employees and an order
enjoining ARSA from further prosecuting its demand for
arbitration of the parties' disputes alleged herein.*fn2
On August 21, 1972 this Court held that it was without
jurisdiction to entertain the instant complaint involving a
representation dispute under the R.L.A.*fn3 See Burlington
Northern, Inc. v. American Railway Supervisors Association,
350 F. Supp. 897 (N.D.Ill. 1972).
The only part of the instant action which remains is the
defendant ARSA's counter-claim against the plaintiff
Burlington Northern. The defendant and counter-plaintiff ARSA,
in the counterclaim, seeks an order compelling Burlington
Northern to submit the parties' disputes to arbitration under
the Burlington Northern merger protection agreement and an
award of damages for Burlington Northern's alleged refusal to
The plaintiff, counter-defendant Burlington Northern, in
support of its motion to dismiss the counter-claim, contends:
1. On August 21, 1972 this Court ruled that the
issues presented by the complaint in this
case are within the exclusive jurisdiction of
the National Mediation Board and therefore
the Court lacks jurisdiction to determine
2. In its counter-claim, ARSA sought a contrary
determination of the same issues. Thus, the
counterclaim sought a judgment declaring that
Burlington Northern is required to submit the
parties' disputes to arbitration and sought
an order requiring Burlington Northern to
submit to such arbitration and to pay damages
for failing to do so.
3. Accordingly, the Court's ruling that it lacks
jurisdiction to determine the issues
presented by the complaint is equally
applicable to the only claim asserted in the
The defendant and counter-plaintiff ARSA, in support of its
motion for summary judgment as to liability on the
counter-claim, and in opposition to Burlington Northern's
motion to dismiss contends that the Court has jurisdiction
over the counter-claim and should adjudicate that Burlington
Northern is liable to ARSA for damages.
It is the opinion of this Court that in accordance with this
Court's prior ruling it does not have jurisdiction at the
present time over the instant counter-claim because essential
to the proper disposition of the counter-claim for damages is
the resolution of the representation question presented by the
instant complaint which can only be determined by the National
Mediation Board (NMB). See Burlington Northern, Inc. v.
American Railway Supervisors Association, supra. Obviously,
ARSA cannot recover damages for Burlington Northern's failure
to recognize it as the representative of any Burlington
Northern employees if ARSA is not entitled to recognition.
More specifically, the threshold question presented by
ARSA's counter-claim for damages is whether the Burlington
Northern must recognize ARSA as the bargaining representative
of the employees that ARSA claims to represent. This Court has
previously held that it lacks jurisdiction to determine that
very question. Only the NMB can properly determine and resolve
this representation dispute. Burlington Northern, Inc. v.
American Railway Supervisors Association, supra.
Since the Court lacks jurisdiction to decide that ARSA does
not represent the employees, it also lacks jurisdiction to
decide that ARSA does represent the employees. Before claiming
damages for non-recognition ARSA should obtain a determination
by the NMB of the threshold question upon which damages are
predicated, namely its right to recognition as a
representative of Burlington Northern's employees. Thus the
counter-claim should be dismissed.
Accordingly, it is hereby ordered that the
plaintiff-counter-defendant's motion to dismiss ...