Opposition Brief — Byrne v. Mass Transit Administration

84-1290

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No. D-464 | F Office - Supreme Court, US.

ED

In THE MAR 11 1988

, me a. oe

ates

Supreme Court of the Unitec

OctToBEerR TERM, 1984

RICHARD BYRNE,

Petitioner,

Vv.

THE MASS TRANSIT ADMINISTRATION

AND

AMALGAMATED TRANSIT WORKERS UNION

DIVISION 1300, AFL-CIO,

b Respondents.

On Writ or CERTIORARI TO THE COURT OF

APPEALS OF MARYLAND

OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

JosEPH S. KAUFMAN,

KENNETH D. Pack,

MELNICOVE, KAUFMAN, WEINER

& Smouse, P.A.,

600 Charles Center South,

36 South Charles Street,

Baltimore, Maryland 21201-3060,

(301) 332-8505,

Attorneys for Respondent

Mass Transit Administration.

The Daily Record Co., Baltimore, MD 21202

~ BEST AVAILABLE coPY ot

i

QUESTIONS PRESENTED FOR REVIEW

I. Whether The National Labor Relations Act Is

Applicable To A Dispute Between A State Agency

Employer And Its Public Employee?

II. Whether Section 13(c) Of The Urban Mass Transpor-

tation Act Of 1964, A Federal Funding Statute, Super-

sedes State Law And Confers A Federally Derived Right

Of Fair Representation Enforceable Against A State

Employer?

STATEMENT OF PARTIES TO

THESE PROCEEDINGS

The Petitioner, Richard Byrne, an employee of the State

of Maryland, was the Plaintiff, and Appellant below. The

Mass Transit Administration, an agency of the State of

Maryland, and Amalgamated Transit Workers Union,

Division 1300, AFL-CIO, were the Defendants and

Appellees below.

il

TABLE OF CONTENTS

QUESTIONS PRESENTED For REVIEW ..........-.0cccee00ee.

STATEMENT OF Parties To THESE ProcrepiNcs ...

LOWER Cour OPINIONS. ........ccccccccccccsccccccccceceecccceeee

ARGUMENT:

I. Review Is Inappropriate Because State

And Local Government Employers And

Their Employees Are Exempt From

Coverage Under The Labor Manage-

| | ae

Ii. Section 13(c), Urban Mass Transporta-

tion Act Does Not Apply ........0000..c0..

Oe RT SPOT cn teh Ben Hh ae Se

AMELIE hci Phe ho ee

TABLE OF AUTHORITIES

Cases

Abood v. Detroit Bd. of Education, 431 U:S.

209, 223, 97 S. Ct. 17BB (1977) ....ccccccecccoceecce.

A.T.U. Div. 819 v. Byrne, 568 F.2d 1025 (3rd

UEP . sicsnisisinestintclecaniah cease tet carat

Ayres v. I.B.E.W., 666 F.2d 441 (9th Cir..

OU aes en lissuteadacinineada binicea

Bowen v. United States Postal Service, 459

U.S. 212, 103 S. Ct.,588 (1983) ......................

Byrne v. Mass Transit Administration, 58

Md. App. 501, 473 A.2d 956 (1984) .00.0000..0....

Crilly v. Southeastern Pennsylvania Trans-

portation Auth., 529 F.2d 1355 (3rd Cir.

TD stsivinnicrpnalinainsaipasaindanadaedaanaa ee

la

1,3,4,5

ill

Garcia v. San Antonio Metro. Transit Auth., sss

Nos. 82-1913 and 82-1951 (Feb. 19, 1982 Slip

Opimion) ..............sccssescercseesseseesesccssceesnensesseasens 5

Harden v. MTA, 277 Md. 399, 354 A.2d 817

RN Tn s srinshs nnaninevounninnengeanedanoanoncnen 4

Jackson Transit Authority v. Local Division

1285, ATU, 457 U.S. 15, 102 S. Ct. 2202,

al a de shcendidnesimnnctlinesudidennnscnenencecs 5,6,7,8

Local Division 589, ATU v. Massachusetts,

666 F.2d 618 (1st Cir. 1981), cert. denied, 102

es acacanepsaninnne seventhisuegneresences 7

MTA v. Household Finance Corp., 292 Md.

313, 439 A.2d 1104 (1982)... .eceeeeeeeseeeeeenees 4

United States Constitution

Article 6, Clatiae 2 .....ccscccccscsscccccssscccscccccescccscscesezes 7

Statutes

Labor Management Relations Act (LMRA):

29 U.S.C.—

§ 152(2)(3) (Wagner Act) ..........ceeeeeeeeees 5

alah a siraicnenndnnnensinnanonssnosesssens 2

Urban Mass Transportation Act of 1964

(UMTA) § 13(c), 49 U.S.C. § 1609 ...5..... 4,6,7,8

Md. Trans. Code Ann.—

ler laicds, invasscteaniniannnesionosnennetseen 4

I Beh ial cihialclcenchtnitaisebwbennsnensienieveroerons 3,5,8

Miscellaneous

C. Morris, The Developing Labor Law, Vol., Il

PE, REED scinnsssctcrescesonosoncssvecesssesvcevensnaveonsessse 6

No. D-464

In THE

Supreme Court of the United States

OcToBEeR TERM, 1984

RICHARD BYRNE,

Petitioner,

Vv.

THE MASS TRANSIT ADMINISTRATION

AND

AMALGAMATED TRANSIT WORKERS UNION

DIVISION 1300, AFL-CIO,

Respondents.

On Writ or CERTIORARI TO THE COURT OF

APPEALS OF MARYLAND

OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

LOWER COURT OPINIONS

The ruling of the Memorandum and Order of Judge

Norman P. Ramsey, of the United States District Court for

the District of Maryland is unpublished and appears in the

Appendix. The ruling of the Circuit Court Of Baltimore

City of the State of Maryland is unpublished and appears

in the Appendix. The Opinion of the Court of Special

Appeals of Maryland appears at 58 Md. App. 501, 473

A.2d 956 (Md. App. i984) as well as in Petitioner’s

Supplemental Appendix and the Order of the Court of

2

Appeals of Maryland denying Certiorari is found in the

Appendix to the Petition For A Writ Of Certiorari.

STATEMENT OF THE CASE

The Petitioner, Richard Byrne (“Byrne”), was dis-

charged by his state agency employer for theft of MTA

property after exhaustion of MTA grievance hearings and

a full evidentiary hearing before an Arbitrator, during

which he was represented by Respondent Amalgamated

Transit Workers Union, Division 1300, AFL-CIO

(“Union”) and its counsel, Bernard W. Rubenstein, Esq.

Byrne thereafter simultaneously filed two identical

actions against the MTA and the Union, the first in the

United States District Court for the District of Maryland

and the other in the Circuit Court for Baltimore City.

Both actions were expressly brought under the authority

of the Labor Management Relations Act of 1947

(“LMRA”), 29 U.S.C. § 185, et seg. and grounded in an

alleged breach of the duty of fair representation by the

Union.

On November 23, 1982 Judge Norman P. Ramsey

granted the Defendants’ Motions to Dismiss. Judge

Ramsey held that the LMRA particularly in light of Sec.

152 thereof could not apply because the coverage of the

Act does not extend to the MTA, as a State Agency, or to

its employees. (A copy of that opinion is appended, marked

Exhibit “A”). Petitioner did not appeal.

Judge J. Harold Grady of the Circuit Court for

Baltimore City subsequently granted MTA’s Motions

Raising Preliminary Objection and for Summary Judg-

ment and sustained the Union’s Demurrer to identical

claims filed with that Court, again alleging jurisdiction

under the federal LMRA.

3

The Court of Special Appeals affirmed the lower Court's

decision as to the MTA, holding that: (1) the federal

LMRA confers no coverage and therefore no jurisdiction

over a state agency employer and its employees and (2) the

decision of the Arbitrator was “final and binding” by

MTA’s enabling, authorizing statutory provision. Transp.

Art. § 7-602(d). Petitioner Byrne has requested this Court

to issue a Writ of Certiorari to review this component of

the Court of Special Appeals Opinion. With respect to the

Union, the Court of Special Appeals reversed and

remanded with instructions that the Trial Court permit an

amendment to allow Byrne to state a cause of action for

breach of contract against the Union. The Court of Special

Appeals recognized that a private cause of action for

breach of the duty of fair representation can lie against

the Union under state law, pursuant to a breach of

contract theory.

The Petitioner then filed a Petition For Writ Of

Certiorari in the Court of Appeals of Maryland on May 29,

1984. That Petition was denied by that Court September

14, 1984.

ARGUMENT

I.

REVIEW IS INAPPROPRIATE BECAUSE STATE AND LOCAL

GOVERNMENT EMPLOYERS AND THEIR EMPLOYEES ARE

EXEMPT FROM COVERAGE UNDER THE LABOR MANAGEMENT

RELATIONS ACT.

The Petitioner maintains that the Court of Special

Appeals of Maryland erred in holding that the duty of fair

representation did not arise under the Federal LMRA in

this action by a State employee against his State

employer. Byrne v. Mass Transit Administration, 58

Md. App. 501, 473 A.2d 956 (1984) (hereinafter “Byrne’).

In fact, the Court of Special Appeals and the United States

q

District Court correctly held that there could be no

jurisdiction to maintain an action against the MTA under

the LMRA because the express language of that Act

precludes any claim by a state agency employee against

his/her state government employer.

Section 152(2) of the LMRA (Wagner Act) expressly

excludes from the definition of an “employer” “any wholly

owned Government Corporation, . . . or any State or

poiitical subdivision thereof... .” (emphasis by Court) (p.

4). The MTA is clearly a State agency, Md. Transp. Code

Ann. § 7-101 et seg. (1979); MTA v. Household Finance

Corp., 292 Md. 313, 314, 439 A.2d 1104, 1105 (1982):

‘Harden v. MTA, 277 Md. 399, 354 A.2d 817 (1976); and

therefore is not a covered employer. Moreover, public

transit employers and employees are excluded from the

provisions of the federal LMRA. Crilly v. Southeastern

Pennsylvania Transportation Auth., 529 F.2d 1355 (3rd

Cir., 1976). See also Ayres v. 1.B.E.W., 666 F.2d 441 (9th

Cir., 1982); A.T.U. Div. 819 v. Byrne, 568 F.2d 1025, 1029

(3rd Cir. 1977). Consequently, the Maryland court cor-

rectly held that “an action against the MTA under claim

of the LMRA will not lie.” 473 A.2d at 959.

This Court has already held that disputes between

publicly owned municipal transit systems and their

employees are not subject to the National Labor Relations

Act.

“Thus, Congress made it.absolutely clear that it did

not intend to create a body of federal law applicable

to labor relations between lecal governmental!

entities and transit workers. Section 13(c) would

not supersede state law, it would leave intact the

exclusion of local government employers from the

National Labor Relations Act, and state courts

would retain jurisdiction to determine the appli-

cation of state policy to local government transit

labor relations.” (Emphasis supplied).

ee

5

Jackson Transit Authority v. Local Division 1285, ATU,

457 U.S. 15, 27, 102 S. Ct. 2202, 2207 (1982) (“Jackson”)

(Blackmun, J. for unanimous Court). This Court recently

reiterated this state and local exemption from the NLRA.

See Garcia v. San Antonio Metro. Transit Auth., Nos.

82-1913 and 82-1951 (Feb. 19, 1985) Slip Opinion at p. 24.

Abood v. Detroit Bd. of Education, 431 U.S. 209, 223, 97 S.

Ct. 1782 (1977).

The MTA is not an “employer” within the meaning of

the LMRA. Therefor its workers cannot be “employees” as

required for standing under the Act. Section 152(3) (the

Wagner Act) expressly excludes from its coverage those

workers employed by employers, like the MTA, not

covered by the Act. 29 U.S.C. §152(3) (1976).' Thus,

Petitioner has no standing under the Act and the asserted

underlying basis for Petitioner’s claim, the LMRA, is not

applicable.

Petitioner then asserts that in enacting the LMRA,

Congress has conferred upon state and local employees

federal rights arising under that Act which preempt state

law under the Supremacy Clause of the United States

Constitution. It must be self evident that by excluding

public employers and employees from the federal labor

acts, Congress expressly declined to preempt state law.

Therefore, the applicable state law must apply. As Chief

Judge Gilbert of the Maryland Court of Special Appeals

observed in his opinion in Byrne, the express statutory

requirement of § 7-602(d) of the Maryland Transportation

Article requires that the decision of the Arbitrator in

grievances “is final and binding on all disputed matters.”

Id. at 959. The statute is clear, there are no exceptions.

The Arbitrator, after full hearing, upheld the discharge.

That decision, by statute, must be final and binding upon

the parties except where an arbitrator exceeds his

authority.

‘ Inexplicably Petitioner relies upon the Wagner Act in

support of his preemption theory.

6

Thus, the applicability of the LMRA to this dispute

between a state employer and its employee presents no

novel issues of statutory construction requiring this

Court’s review and analysis. The express terms of the

federal labor laws, and the applicable case law preclude

any need for further consideration.

I.

SECTION 13(c), URBAN MASS TRANSPORTATION ACT

DOFS NOT APPLY.

Petitioner contends that the duty of fair representation

has been preserved as a collective bargaining right,

pursuant to Section 13(c) of the Urban Mass Transporta-

tion Act (UMTA) of 1964, 49 U.S.C. $1601 et seq., a

federal funding statute.

First, the duty of fair representation is not a collective

bargaining right, and thus not within the purview of the

asserted language of UMTA § 13ic). Second, such rights

cannot invalidate, supersede or pre-empt State law.

Relationships between local transit authorities and their

unions are to be governed by State law and not the

National Labor Relations Act. Finally, it was never

intended that §13(c) create a permanent set of specific

collective bargaining conditions.

Even if §13(c) does preserve collective bargaining

rights, the duty of fair representation is not a collective

bargaining right. Those rights are contractual, won by the

union for the employees, in negotiations with the em-

ployer. The duty of fair representation is the union’s

statutory duty judicially implied from the NLRA. Bowen v.

United States Postal Service, 459 U.S. 212, 103 S. Ct. 588,

604 (1983); C. Morris, The Developing Labor Law, “The

Duty of Fair Representation, at 1285 (BNA, 1983).”

Therefore, neither § 13(c) nor Jackson is relevant to this

issue. Both address only with employer-union contract

rights.

7

Even if the right of fair representation were a collective

bargaining right, state law, not federal would control.

Petitioner maintains that federal labor law applies to

disputes between these parties by means of § 13(c) and the

Supremacy Clause of the United States Constitution,

Article 6, Clause 2. According to Petitioner, Congress,

through § 13(c) evidenced its intent to preempt the entire

field of public urban mass transportation labor relations.

Petitioner cannot assert Congressional preemption in the

face of this Court’s pronouncement in Jackson, at 457 U.S.

at 23, 27, that “Section 13(c) evinces no congressional

intent to upset the decision in the National Labor

Relations Act to permit state law to govern the relation-

ships between local governmental entities and the unions

representing their employees,” and that:

“Section 13(c) would not supersede state law, it

would leave intact the exclusion of local govern-

ment employers from the National Labor Relations

Act and state courts would retain jurisdiction to

determine the application of state policy to local

government transit labor relations.” (Emphasis

supplied).

In Crilly, supra, the Court of Appeals for the Third Circuit

squarely held that Congress did not intend to preempt the

labor relations between that public transit authority and

its union.

Petitioner further asserts that under the Supremacy

Clause, those rights arising under UMTA § 13(c) “cannot

be vitiated by State action.” This Court disagreed.

“Section 13(c) would not supersede st..e law. . .

Jackson, 457 U.S. at 27; Local Division 589, ATU uv.

Massachusetts, 666 F.2d 618, 633 (1st Cir. 1981), cert.

denied, 102 S. Ct. 2928 (Ҥ 13/c), . . . is not intended to

lead to the invalidation of any state law.”).

”

The First Circuit court also held that a state law, passed

subsequent to UMTA §13(c) collective bargaining as-

LABLE COPY §

8

surances, could take precedence over any particular § 13(c)

assurance. Jd. Therefore, the plain language of § 7-602(d)

of the Transportation Article must prevail over any

UMTA § 13(c) assurances.

Petitioner’s position that §13(c) guarantees all col-

lective bargaining terms permanently also has been

rejected. Congress intended only “limited,” “provisional

protections” to ease the “transitional effects” from the

private to the public sector. Jd.

Thus, Petitioner raises no new issues of statutory

construction arising under § 13(c). This Court resolved all

issues raised here with its opinion in Jackson Transit

Authority v. Local Division 1285, ATU, supra.

CONCLUSION

For the foregoing reasons, the Mass Transit Admin-

istration respectfully requests that this Honorable Court

deny Petitioner’s Request For Writ Of Certiorari.

Respectfully submitted,

JosEePH S. KAUFMAN,

KENNETH D. Pack,

MELNICOVE, KAUFMAN, WEINER

& Smouss, P.A.,

600 Charles Center South,

36 South Charles Street,

Baltimore, Maryland 21201-3060,

(301) 332-8505,

Attorneys for Respondent

Mass Transit Administration.

eee

la

APPENDIX

In The United States District Court

for the District of Maryland

Civil Action No. R-82-2990

Richard Byrne,

Plaintiff

v.

Mass Transit Administration

and

Amalgamated Transit Union

Defendants

MEMORANDUM AND ORDER

Plaintiff, Richard Byrne, a former employee of Mass

Transit Administration (hereinafter cited as MTA) and a

member of Amalgamated Transit Union, Division 1300

(hereinafter cited as Amalgamated), defendants herein,

brings this action under the Labor Management Relations

(Taft-Hartley) Act of 1947 §30i(a), 29 U.S.C. § 185(a)

(1976) (hereinafter cited as the Act). In his complaint,

plaintiff alleges that MTA’s discharge of him on or about

October 21, 1981, was without just cause, thereby

violating the collective bargaining agreement then in

effect between MTA and Amalgamated. Plaintiff also

alleges that Amalgamated’s conduct durir ~ the grievance

proceedings concerning his discharge constituted material

breaches of the duty of fair representation that Amalga-

mated owed him.

Presently pending before this Court are motions to

dismiss filed by both defendants in the above-captioned

action. In support of their motions, defendants argue that

2a

this Court lacks subject matter jurisdiction over this

proceeding under the Act, and that this Court should

abstain from entertaining this suit in light of plaintiff's

commencement of an identical action in state court. In his

response to these motions, plaintiff admits that Congress

exempted state instrumentalities from the coverage of the

Act. Nonetheless, plaintiff argues that the conduct by

defendants of which he complains presents a cognizable

claim under the commerce clause of the United States

Constitution or under the Federal Arbitration Act, 9

U.S.C. § 1 et seg. (1976). In addition plaintiff argues that if

the Court finds it lacks jurisdiction over his complaint, the

Court should dismiss the action without prejudice to his

pending state court proceeding. Oral argument is un-

necessary and the Court rules pursuant to Local Rule 6.

For the following reasons, the Court grants defendants’

motions to dismiss.

As a preliminary matter, plaintiff’s invocation of this

Court’s jurisdiction pursuant to the commerce clause of

the federal Constitution or to the Federal Arbitration Act

is belated. A well-established tenet of federal jur-

isprudence holds that the subject matter jurisdiction of a

federal court must be alleged on the face of the complaint

and not in plaintiff’s response to a motion to dismiss. See,

e.g., McNutt v. General Motors Acceptance Corp., 298 U.S.

178 (1936); Fed. R. Civ. P. 8(a)(1). See generally Wright,

Miller & Cooper, Federal Practice & Procedure: Jur-

isdiction § 3522 (1975) and cases cited therein. Another

time-honored principle holds that if the jurisdictional facts

are challenged, the party claiming jurisdiction has the

burden to demonstrate that the federal court has subject

matter jurisdiction. See, e.g., Thomson v. Gaskiil, 315 U.S.

442 (1942); Wright, Miller & Cooper, supra at § 3522, and

cases cited therein. Accordingly, the Court will not

address the alternative jurisdictional allegations con-

3a

tained in plaintiff's response to defendants’ motions to

dismiss.’

Section 185 of the Act provides in pertinent part that

this Court shall have jurisdiction over “|sjuits for violation

of contracts between an employer and a labor organization

representing employees in an industry affecting commerce

as defined in this chapter, or between any such labor

organizations. . .” 29 U.S.C. § 185(a) (1976). Section 152

of the Act further provides that:

“[t]lhe term ‘employer’ includes any person acting

as an agent of an employer, directly or indirectly,

but shall not include the United States or any

wholly owned Government corporation, or any

Federal Reserve Bank, or any State or political

subdivision thereof... .”

Id. at § 152(2).

Aithough it does not appear that the Fourth Circuit has

addressed the question of whether the Act applies to state

employees, recent decisions in other jurisdictions that

have construed section 152(2) have held that this section

exempts state and local governments and their employees

from the Act. In Ayres v. IBEW, 666 F.2d 441 (9th Cir.

1982), the Ninth Circuit held that, in the absence of clear

Congressional intent to the contrary, “section 301\a) of the

Act, 29 U.S.C. §185(a), does not grant this court

jurisdiction over the claims of an individual employed by a

political subdivision of a state.” Jd. at 444. Similarly, the

Third Circuit also concluded that public employees were

excluded from the provisions of the Act a* -r an in-depth

examination of its plain language and accompanying

legislative history. See Crilly v. Southeastern Pennsylvania

' Even though the Court need not consider the jurisdictional

allegations contained in plaintiff's response, the Court notes

parenthetically that plaintiff has failed to carry his burden of

showing subject matter jurisdiction as required by Thomson,

supra.

4a

Transportation Authority, 529 F.2d 1355 (3d Cir. 1976)

(seminal case construing § 152(2)). See also Amalgamated

Transit Union, Division 819 v. Byrne, 568 F.2d 1025, 1029

(3rd Cir. 1977) (“. . . the statutory definition of the term

‘employer’ specifies that it does not include ‘any State or

political subdivision thereof.’ 29 U.S.C. § 152 (Supp. 1977).

Thus, to the extent that New Jersey is here acting like a

private purchaser of services, Congress has explicitly

exempted it from the proscriptions of the NLRA.”). In

construing section 13(c) of the Urban Mass Transportation

Act of 1964, the Supreme Court noted in dictum that

section 152(2) excluded public employees from the oper-

ation of the Act:

ee

. labor relations between local governments

and their employees are the subject of a long

standing statutory exemption from the National

Labor Relations Act. 29 U.S.C. § 152(2). Section

13(c) evinces no congressional intent to upset the

decision in the National Labor Relations Act to

permit state law to govern the relationships

between local governmental entities and the unions

representing their employees.”

Jackson Transit Authority v. Local Division 1285, ATU,

102 S. Ct. 2202, 2207 (1982). The Supreme Court’s

delineation of the scope of section 152(2) in Jackson

Transit Authority is squarely consistent with the con-

struction of that section as articulated in the above-

mentioned decisions of circuit courts in other jurisdictions.

Accordingly, this Court adopts this construction and holds

that section 152(2) excludes state governments and their

employees from the operation of the Act.

MTA, one of the defendants herein, is undisputably an

agency and instrumentality of the State of Maryland. See

Md. Transp. Code Ann. §7-101 et seg. (1977); Mass

Transit Administration v. Household Finance Corp., 292

Md. 313, 439 A.2d 1104, 1105 (1982) (“MTA is a unit in

va

the Department of Transportation, a principal! department

of the State of Maryiand.”); Harden v. Mass Transit

Administration, 277 Md. 399, 354 A.2d 817 (1976). Indeed,

plaintiff alleges in his complaint that MTA “.. . is an

agency of the State of Maryland .. .” Pursuant to the

holdings of the above-mentioned authorities, MTA, as an

agency of the State of Maryland, is not an “employer”

within section 152(2), and, therefore, is not an “employer”

within section 185(a) of the Act. See, e.g., Ayres, 666 F.2d

at 444; Crilly, 529 F.2d at 1360-63. Absent any other basis

for invoking this Court’s jurisdiction, the Court lacks

subject matter jurisdiction over the claim plaintiff asserts

against MTA. Consequently, the motion to dismiss filed bv

MTA is hereby granted.

The dismissal of the action as to defendant MTA for the

above-mentioned reasons also mandates the dismissal of

the action against Amalgamated, the remaining defendant.

A plain reading of sections 185(a) and 152 of the Act

requires such a result under at least two alternative

grounds. First, as stated earlier, there are only two

circumstances under which this Court may entertain an

action pursuant to section 185(a): a suit alleging a

violation of a contract between an employer and a labor

union, or between two labor unions. Neither circumstance

is present in the instant proceeding. This action clearly

does not involve a contract dispute between two unions.

Absent the existence of an “employer” within the meaning

of the Act to which section 185(a) applies, there is no

contract dispute between an employer and union over

which this Court can exercise its juri.ui*tion. Conse-

quently, this Court lacks subject matter jurisdiction to

consider plaintiff's claim against Amalgamted. Second,

since MTA is not an “employer” within the meaning of the

Act, its workers are not “employees” within the meaning

of the Act. Section 152(3) specifically excludes from the

application of the Act those workers who are employed by

6a

employers that are not covered by the Act. 29 U.S.C.

$ 152(3) (1976) (“the term ‘employee’ shall include any

employee . . . but shall not include . . . any individual

employed . . . by any person who is not an employer as

herein defined.”). Consequently, Amalgamated is not “a

labor organization representing employees” whose contract

disputes with an employer fall within the application of

the Act under the circumstances presented herein. Jd. at

§$185(a) (emphasis added). Absent a contract dispute

involving a labor union whose members are employees

covered by the Act, this Court lacks subject matter

jurisdiction over the claim asserted by plaintiff against

Amalgamated.” Accordingly, this Court is required to

dismiss the action as to Amalgamated.

Because of the dismissal of the action for want of subject

matter jurisdiction, defendants’ alternative argument in

support of dismissal, i.e., abstention, has been rendered

moot and the Court need not address it.

Notwithstanding the inapplicability of the Act to

defendants herein, plaintiff's complaint nonetheless sug-

gests the type of alleged grievance which otherwise would

be traditionally actionable thereunder. In light of the

above-mentioned federal caseload directing public employ-

ees to seek their remedies in state courts, the court grants

defendants’ motions to aismiss without prejudice to

plaintiff’s pending action in state court.

* The court in Crilly would have agreed with the foregoing

analysis of the second basis warranting dismissal:

It should also be noted that the definition of employee in

§ 2(3), of the Wagner Act, 29 U.S.C. § 152(3), is dependent

upon the definition of employer. Thus, if SEPTA is not an

employer for the purposes of the Act, the Local’s members

cannot be employees, and there is no federal jurisdiction

over either the fair representation or the breach of contract

claims.

Crilly, 529 F.2d at 1357 n.5.

OP Bs ea ee

7a

For the reasons stated herein, it is this 23rd day of

November, 1982, by the United States District Court for

the District of Maryland,

ORDERED:

1. That defendants’ motions to dismiss are GRANTED

without prejudice to plaintiff's pending action in state

court; and,

2. That the Clerk will mail copies of this Memorandum

and Order to all counsel of record.

NorMAN P. Ramsey,

United States District Judge.

8a

In The United States District Court

for the District of Maryland

Civil Action No. R-82-2990

Richard Byrne,

Plaintiff

U.

Mass Transit Administration

and

Amalgamated Transit Union

Defendants

JUDGMENT

In accordance with the Memorandum and Order dated

November 23rd, 1982, and filed in the above entitled case,

it is

ORDERED and ADJUDGED:

That judgment is hereby entered in favor of the

defendants and against the plaintiff.

Norman P. Ramsey,

United States District Judge.