author: HILLMAN, District Judge.

text:
    ANR PIPELINE COMPANY and ANR Storage Company, Plaintiffs, v. Eric J. SCHNEIDEWIND, Matthew E. McLogan, and Edwyna G. Anderson, Defendants.
    No. G84-438 CA.
    United States District Court, W.D. Michigan, S.D.
    Aug. 22, 1985.
    Mika, Meyers, Beckett & Jones by John C. Jones, Grand Rapids, Mich., for plaintiffs.
    Frank J. Kelley, Atty. Gen., by Don L. Keskey, R. Philip Brown, Jeffrey S. Fish-man, Asst. Attys. Gen., Lansing, Mich., for defendants.
   OPINION

HILLMAN, District Judge.

I. INTRODUCTION

This is an action for declaratory relief challenging defendants’ assertion of jurisdiction over plaintiffs’ securities issues under the Michigan public utilities securities statute, M.C.L.A. § 460.301, et seq, M.S.A. § 22.101, et seq., (hereinafter referred to as “Act 144”). The Michigan Public Service Commission (MPSC), originally a named defendant, was dismissed from the case by opinion and order entered on September 7, 1984. The remaining defendants are Eric J. Schneidewind, member and chairperson of the MPSC, and Matthew E. McLogan and Edwyna G. Anderson, the remaining two members of the MPSC, all in their official capacities.

The record in the case consists of a written stipulation of facts, an appendix thereto, the pleadings, plaintiffs’ answers to three sets of interrogatories and plaintiffs’ replies to two sets of requests for admissions. The parties have stipulated that the case should be determined on this record. The parties have submitted briefs on the legal issues to be decided, and the Court has heard oral arguments on those issues.

On the stipulated record, the following issues have been submitted to the court for decision: (1) whether federal regulatory schemes applicable to plaintiff companies have preempted the state regulation of securities issues provided by Act 144; (2) whether application of Act 144 to plaintiffs violates the Commerce Clause of the United States Constitution because (a) such application so infringes on national uniformity requirements as to materially and unreasonably burden interstate commerce, and/or (b) such application otherwise so materially and unreasonably burdens interstate commerce. On these grounds, plaintiffs seek a judgment declaring that the defendant commissioners, in their official capacities, have no jurisdiction to regulate or otherwise interfere with plaintiffs’ securities issues and plaintiffs may therefore lawfully issue their securities without obtaining the prior approval of defendants. II. DISCUSSION

A. Facts. Because the stipulation of facts is part of the record, only the minimum facts necessary to frame and resolve the legal issues will be restated here.

Plaintiffs ANR Pipeline Company (“Pipeline Company”), a Delaware corporation, and ANR Storage Company (“Storage Company”), are wholly-owned subsidiaries of American Natural Resources Company (“ANR”), a diversified holding company incorporated in Delaware. The principal offices of ANR, Pipeline Company, and Storage Company are located in Detroit, Michigan.

Pipeline Company owns and operates an interstate natural gas pipeline system which transports and sells natural gas for resale only to 51 gas distribution customers in Michigan, Wisconsin, Iowa, Illinois, Indiana, Kansas, Missouri, Ohio and Tennessee. Pipeline Company has no direct retail customers in Michigan.

Pipeline Company operates 15 gas storage fields in Michigan. Eight of those fields are owned by Michigan Consolidated Gas Company (“MCGC”) and leased to Pipeline Company. Pipeline Company owns and operates 773 miles of gas transmission pipeline and associated equipment located in Michigan, including two multiple, large-diameter pipelines entering Michigan from Indiana, one such pipeline entering Michigan from Ohio, and two transmission lines extending between Wisconsin and Michigan in the upper peninsula. Pipeline Company also owns and operates 195 miles of field and storage pipelines, two transmission compressor stations and ten underground storage compressor stations in Michigan. In 1983, over 50% of Pipeline Company’s sales were in Michigan, approximately 45% in Wisconsin, and less than 5% in other states.

Storage Company operates gas storage reservoirs to store gas for nonaffiliated customers. Storage Company does not sell natural gas. Four storage fields are presently operational in Michigan, all located in Kalkaska County in the northern lower peninsula. These fields are connected to transmission pipeline of Great Lakes Gas Transmission Company (“Great Lakes”) in Crawford County by approximately 24 miles of Storage Company’s underground storage lines.

During the summer, natural gas from Great Lakes is delivered to Storage Company by displacement, a commonly employed pipeline company practice of exchanging equivalent volumes of gas at a mutually convenient place in lieu of actual physical delivery of the storage gas. Storage Company stores the gas in one or more of its four gas storage fields and redelivers it on demand within contractual entitlement to Great Lakes for the account of the storage customer. The gas received and injected into storage is produced in Western Canada. The gas withdrawn and redelivered rejoins the gas stream flowing in Great Lakes’ pipeline.

All of the gas stored by Storage Company is supplied by its customers outside of Michigan for transmission to Storage Company’s facilities by displacement or otherwise. When withdrawn from storage, these volumes of gas are transmitted, by displacement or otherwise, back to Storage Company’s customers for use outside the state of Michigan. Thus, Storage Company’s customers use Great Lakes’ pipeline to transport their gas to and from Storage Company’s facilities. Storage Company’s storage charges include the costs associated with transporting the gas to and from Great Lakes’ transmission line through Storage Company’s pipelines to and from the storage fields themselves. Storage Company takes and relinquishes possession of the storage gas at the Deward, Michigan, interconnection between its pipeline and the Great Lakes’ transmission lines. In addition to its storage fields and lines, Storage Company has three compressor stations and associated gas injection and withdrawal facilities in Michigan.

Storage Company does not provide storage service to or for Pipeline Company. Storage Company’s reservoirs and facilities are not engineered or used as pressure apparatus in, nor are they necessary to, the proper operation of Pipeline Company’s system operations.

Storage Company has seven customers consisting of gas pipeline and transmission companies in Texas, Alabama, Missouri, Indiana, Tennessee and Manitoba. All but one of the customers use (d) Pipeline Company to transport their gas to and from Storage Company facilities. One customer used Great Lakes. None of Storage Company’s customers purchased their stored gas from Pipeline Company.

Pipeline Company is a “natural gas company,” as that term is defined in the Natural Gas Act (“NGA”), 15 U.S.C. §§ 717 et seq., and is therefore subject to the regulatory jurisdiction of the Federal Energy Regulatory Commission (“FERC”). Pursuant to the NGA, the FERC has regulatory jurisdiction over (1) the interstate transportation of gas (including gas storage used to balance fluctuating demand with supplier deliveries), (2) the interstate sale of gas for resale, and (3) the natural gas companies engaged in such interstate transportation and sale for resale. Accordingly, the FERC has jurisdiction over all of Pipeline Company’s transportation, storage, sales for resale, rates and charges, construction of new facilities, extension or abandonment of services and facilities, and certain other matters. The FERC has further jurisdiction to review and consider specific long-term financing plans for particular construction projects. The FERC requires issuance of certificates of public convenience and necessity for any significant expansion of the company’s facilities or services, but no FERC filings are necessary for short-term financing or for financing other than construction.

Storage Company, according to plaintiffs and as treated in FERC orders, is also a “natural gas company” under the NGA, thereby subject to FERC regulatory jurisdiction. Storage Company, like Pipeline Company, holds certificates of public convenience and necessity issued by the FERC when required for significant expansions of facilities or services, but no FERC filings are required for short-term financing or for financing other than construction.

All parties agree that the FERC does (and the MPSC does not) exercise general regulatory jurisdiction over Storage Company’s facilities and gas operations, and over all of Pipeline Company’s transportation, storage, sales for resale, rates and charges, construction of new facilities, extension or abandonment of service and facilities, and certain other matters. Although lacking general regulatory jurisdiction over either plaintiff, the MPSC has exercised authority under Act 144 over securities issued by Pipeline Company since Pipeline Company was established in 1945, except for the period of 1970-1979. Since 1979, Pipeline Company has received unconditional approval of all seven of its securities issue applications. Six applications gained approval within three to six weeks; the remaining application took 8 months to secure approval. The MPSC has exercised the same authority over securities issued by Storage Company, which was organized in 1978, continuously since 1979. During that period, Storage Company received unconditional approval of all three applications it submitted, each within three to six weeks. All applications filed since 1979 by either plaintiff have raised the issue of MPSC jurisdiction under Act 144, but the issue has never been litigated prior to this lawsuit.

B. Legal Issues

1. Preemption Claim

Plaintiffs claim that the federal regulatory schemes applicable to them have preempted the state regulation of securities issues provided by Act 144.

Act 144 provides that a utility may issue long-term securities only if authorized by the MPSC. In passing on written applications for securities issuance, the MPSC is authorized to investigate, hold hearings, examine witnesses and any written materials it deems of importance in reaching a determination. The MPSC must grant authority for the issuance if it is “satisfied that the funds derived from the [securities] issue ... are to be applied to lawful purposes and that the issue and amount is essential to the successful carrying out of the purposes,” although the MPSC may impose reasonable terms and conditions on the grant of authority.

State laws like Act 144 may be preempted by federal law in three different ways. Michigan Canners & Freezers Assoc., Inc. v. Agricultural Marketing & Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 2522, 81 L.Ed.2d 399 (1984). Congress, in the federal enactment, may explicitly mandate preemption of state law. E.g., Shaw v. Delta Airlines, 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Even absent express preemptive language, Congress may manifest an implied intent to occupy the field of regulation, thereby displacing state regulations in the same area. E.g., Fidelity Federal Savings & Loan Ass’n. v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Finally, state law is displaced to the extent it actually conflicts with federal law, even in the absence of express preemptive language or implied congressional intent to preempt. Such a conflict is recognized when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See also, Fidelity Federal Savings & Loan Ass’n., 458 U.S. at 153, 102 S.Ct. at 3022. Applying these principles to the facts of this case, I am satisfied that defendants’ assertion of jurisdiction over plaintiffs’ securities issues pursuant to Act 144 has not been preempted by federal law.

First, neither the NGA nor the federal Securities Act of 1933, 15 U.S.C. § 77a et seq., contains express preemptive language with respect to utilities securities transactions, nor do they manifest Congressional intent to occupy the entire field of utilities securities transactions. Accordingly, plaintiffs rely on the third preemption ground, namely, that state law is displaced to the extent it actually conflicts with federal law. Plaintiffs claim that Act 144 is potentially disruptive of the FERC’s broad regulatory authority under the NGA and of the “delicate balance Congress created between this broad general regulation of natural gas companies under NGA and the type of regulation of security issuances by such companies provided by the federal securities statutes.” On the basis of this “potential disruption”, plaintiffs conclude that Act 144, as applied to them, is in actual conflict with and must be preempted by the combined effect of the referenced federal statutes. I disagree.

Under the NGA, the FERC has authority to review financing information in certificate proceedings, including authority to review and consider specific long-term financing plans for certain construction projects. See 15 U.S.C. § 717f(c) and (e); 18 C.F.R. 157.14(a)(14). The FERC also has authority to review financing information in rate matters pursuant to 15 U.S.C. § 717d. See 18 C.F.R. 154.62 and .63. No FERC certification, however, is required for short-term financing or for financing unrelated to construction. Most significantly, nowhere does the NGA grant specific authority to the FERC to regulate the securities issues of natural gas companies. No FERC pre-issuance approval is required.

The federal Securities Act of 1933, 15 U.S.C. § 77a et seq., (hereinafter the “1933 Act”), and the Michigan Uniform Securities Act, M.C.L.A. § 451.501, et seq.; M.S.A. § 19.776(101), et seq., generally govern securities transactions. Both schemes require prior disclosure by proposed securities issuers through filing of a registration statement. If the registration statement discloses the statutorily required information, the statement automatically becomes effective 20 days after filing. See, 15 U.S.C. § 77h(a); M.C.L.A. §§ 451.702(c) and .703(c). The objective of the 1933 Act was to “provide investors with full disclosure of material information concerning public offerings of securities in commerce, to protect investors against fraud and, through the imposition of specified civil liabilities, to promote ethical standards of honesty and fair dealing.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 195, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976). The Michigan Uniform Securities Act was similarly designed to protect the public from deception or fraud in securities transactions within the State of Michigan by requiring that certain securities and transactions be registered prior to issuance. People v. Dempster, 396 Mich. 700, 242 N.W.2d 381, 384 (1976).

Michigan’s Act 144 is intended to protect both investors in utility securities, creditors of those utilities and utility ratepayers. In Michigan Gas Storage Company v. Michigan Public Service Comm., 405 Mich. 376, 275 N.W.2d 457 (1979), the Michigan Supreme Court recognized that utilities securities regulation was intended to serve interests which facilities, service and rate regulation by the FERC might not be sufficient to protect. In addition to protecting investors from “the evils of overcapitalization,” Id., 275 N.W.2d at 462, the Supreme Court identified the following additional objectives of Act 144:

"... Proper securities regulation serves the interests of the ratepayers in assuring continued service without interruption from utilities and in receiving that service at reasonable rates. For example, physical property of a company within the state, essential to the company’s ultimate service to the public, could be jeopardized by inadequate financing, resulting in a failure in that service. We see no reason to conclude that the Legislature would have intended to forego participation in regulating matters affecting interests with respect to which the state may properly exercise its protective powers because it is not also regulating some other aspects of the business.”

Id.

Plaintiffs do not argue, nor could they, that joint compliance with the NGA, the 1933 Act, and Act 144 is a “physical impossibility.” Instead, they claim that although joint compliance is physically possible, the “cumbersome and ill-defined” regulatory process under Act 144 may “potentially” delay, disrupt or disapprove proposed is-suances needed to finance FERC approved projects. This “potential disruption,” plaintiffs claim, stands as an obstacle to execution of the full objectives of the federal regulatory scheme, and hence must be deemed preempted by federal law.

The record reveals that since 1979, plaintiffs’ combined securities issue applications, totaling 10, have all received unconditional approval under Act 144, with all but one of the 10 receiving that approval within three to six weeks. Accordingly, the average potential delay beyond the 20-day automatic effective date for registration statements under the 1933 Act is limited to three weeks or less. There is no indication that any FERC certification or rate proceeding has ever been disrupted or in any way affected by these Act 144 proceedings. Thus, compliance with both the federal and state regulations has historically been accomplished with minimal, if any, delay or disruption.

Further, Act 144 proceedings are well-defined. Short-term borrowings are exempt under Act 144. As to other borrowings, the MPSC’s inquiry is “limited to whether there is a need to issue securities to obtain funds for a lawful purpose of the utility and does not extend to whether, to accomplish that purpose, there is need for the project to which the funds will be devoted.” Kelley v. Michigan Public Service Comm., 412 Mich. 385, 316 N.W.2d 187, 190 (1982). In other words, the reasonableness of the underlying project is not a material inquiry in such a proceeding; instead, the proceeding “is limited to a review of the financial decisions of the utility.” Id., 316 N.W.2d at 193. Although Act 144 authorizes the MPSC to hold hearings, examine witnesses, and make any inquiry or investigation it considers of importance in reaching a decision, all ten of plaintiffs’ combined applications since 1979 have been approved ex parte, without hearings. Rather than bolstering plaintiffs’ contentions, these facts tend to weaken their claim that Act 144’s “cumbersome and ill-defined” regulatory process is potentially disruptive of or an obstacle to execution of the full objectives of the federal regulatory scheme.

In reviewing the legislative history and genesis of FERC regulatory jurisdiction under the NGA, the United States Supreme Court noted the following in Panhandle Eastern Pipe Line Co. v. Comm’n., 332 U.S. 507, 520, 68 S.Ct. 190, 196-97, 92 L.Ed. 128 (1947):

“The Natural Gas Act created an articulate legislative program based on a clear recognition of the respective responsibilities of the federal and state regulatory agencies. It does not contemplate ineffective regulation at either level. We have emphasized repeatedly that Congress meant to create a comprehensive and effective regulatory scheme, complementary in its operation to those of the states and in no manner usurping their authority.”

The Supreme Court emphasized that the NGA was “motivated, designed and shaped to bring about more effective regulation ... particularly more effective state regulation,” Id., at 519, 68 S.Ct. at 196, and observed that:

“[t]he Act, though extending federal regulation, had no purpose or effect to cut down state power. On the contrary, perhaps its primary purpose was tS* aid in making state regulations effective, by adding the weight of federal to supplement and reinforce it in the gap created by prior decisions. The Act was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way.”

Id., at 517-18, 68 S.Ct. at 195-96. The Supreme Court further explored the purpose of the NGA in Maryland v. Louisiana, 451 U.S. 725, 747-48, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981):

“In 1938, Congress enacted the Gas Act to assure that consumers of natural gas receive a fair price and also to protect against the economic power of the interstate pipelines ... The Gas Act was intended to provide the Federal Power Commission, now the FERC, with authority to regulate the wholesale pricing of natural gas in the flow of interstate commerce from wellhead to delivery to consumers.” (Citations omitted)

To that stated end, the NGA permits comprehensive regulation of facilities, services and rates of natural gas companies, but nowhere does it explicitly authorize the FERC to regulate the securities issuances of those companies. Further, review of financial data in the context of certificate or rate proceedings is not the functional equivalent of requiring pre-issuance approval by FERC, and no FERC review is even required for short-term financing or financing unrelated to construction.

Plaintiffs insist that an inextricable connection exists between a company’s rates, services and facilities, on the one hand, and its method of financing on the other. They conclude that regulation of securities issuance under Act 144 therefore creates an impermissible- “prospect of interference with the federal regulatory power” over plans for financing, construction or extension of facilities under the NGA. Plaintiffs’ own history of successful joint compliance with the NGA, the 1933 Act and Act 144 belies such an assertion. Unlike Northern Natural Gas Co. v. Kansas Comm’n, 372 U.S. 84, 83 S.Ct. 646, 9 L.Ed.2d 601 (1963), on which plaintiffs rely, collision between Act 144 and the federal regulations is neither an inevitable consequence nor an “imminent possibility,” such that Act 144 must be declared a nullity in order to assure effectuation of Congress’ comprehensive federal regulations.

Furthermore, the legislative history and express terms of the NGA, as interpreted by the Supreme Court, reveal a calculated intent on the part of Congress to permit the coexistence of the NGA and existing state regulation, such that state regulatory power would not be handicapped or diluted in any way by the NGA. Finally, there may come a time when Congress determines that state securities regulation of natural gas companies is inconsistent with federal policy and appropriately seeks to amend the NGA to give the FERC or some other federal agency express and exclusive authority over such issuances. Until then, the “potential disruption” of which plaintiffs complain is purely hypothetical. Plaintiffs fear but can point to no instance where a security issuance presentedi to defendants prevented a FERC certified project from going forward. In fact, plaintiffs can point to no instance of actual disruption of FERC authority under the NGA by virtue of any of defendants’ assertions of jurisdiction under Act 144.

As the Supreme Court observed in Arkansas Elec. Coop. v. Arkansas Public Service Comm’n., 461 U.S. 375, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983):

“Maintaining the proper balance between federal and state authority in the regulation of electric and other energy utilities has long been a serious challenge to both judicial and congressional wisdom. On the one hand, the regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States ... On the other hand, the production and transmission of energy is an activity particularly likely to affect more than one State, and its effect on interstate commerce is often significant enough that uncontrolled regulation by the States can patently interfere with broader national interests.” (Citations omitted) Id., at 377, 103 S.Ct. at 1908-09.
* s}¡ * * # *
“There may come a time when the REA changes its present policy, and announces that state rate regulation of rural power cooperatives is inconsistent with federal policy ... We will not, however, in this facial challenge to the PSC’s mere assertion of jurisdiction, assume that such a hypothetical event is so likely to occur as to preclude the setting of any rates at all.” (Citations omitted) Id., at 389, 103 S.Ct. at 1915.

On the record before me, I am similarly unwilling, on this facial challenge to the defendants’ mere assertion of jurisdiction under Act 144, to assume that the “potential disruption or interference” which plaintiffs fear is so likely to occur as to preclude any regulation of securities issuances under Act 144 at all. I conclude that compliance with both federal and state regulations is not a physical impossibility, and Act 144 does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Accordingly, I hold that regulation of securities issuance under Act 144 is not preempted by federal law.

2. Commerce Clause Claims

The power of the States to impose burdens on or interfere with interstate commerce is impliedly limited by the Commerce Clause. Western & Southern Life Insurance Co. v. Board of Equalization, 451 U.S. 648, 652, 101 S.Ct. 2070, 2074, 68 L.Ed.2d 514 (1981). Whether state regulation exceeds Commerce Clause limitations is determined by a “balance-of-interests” approach reformulated and expressed in Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970):

“Where [a] statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” (Citations omitted)

The Bruce Church test, explicitly endorsed as the modern jurisprudential approach to Commerce Clause questions, gives state regulation more latitude than earlier formalistic, “bright-line” approaches. Arkansas Elec. Coop., 461 U.S. at 390, 103 S.Ct. at 1915.

The initial inquiry under Bruce Church involves the nature of the local public interests) served by the regulation. The Michigan Supreme Court discussed those interests in two cases consolidated for hearing and argument: Michigan Gas Storage Co. v. MPSC, 405 Mich. 376, 275 N.W.2d 457 (1979), and Indiana & Michigan Power Co. v. State of Michigan, 405 Mich. 400, 275 N.W.2d 450 (1979). It concluded that regulation of securities issuances under Act 144 was motivated “by the evils and injurious effects on the public of overcapitalization,” and “was intended to, and does, protect interests which rate regulation alone could not effectively control.” Indiana & Michigan Power Co., 275 N.W.2d at 453.

“Proper securities regulation serves the interests of the ratepayers in assuring continued service without interruption from utilities and in receiving that service at reasonable rates. For example, physical property of a company within the state, essential to the company’s ultimate service to the public, could be jeopardized by inadequate financing, resulting in a failure in that service. We see no reason to conclude that Legislature would have intended to forego participation in regulating matters affecting interests with respect to which the state may properly exercise its protective powers because it is not also regulating other aspects of the business.”

Michigan Gas Storage Co., 275 N.W.2d at 462.

“It serves the interests of both the investors in, and creditors of, a company organized and operating and issuing securities under the law of this state and those of ratepayers in efficient and uninterrupted service at reasonable rates.”

Indiana & Michigan Power Co., 275 N.W.2d at 453.

It is true, as plaintiffs point out, that both of these cases are factually distinguishable from the case at bar. However, those factual differences, while deserving discussion, do not, I believe, alter the applicability of the Michigan Supreme Court’s conclusions to the case before the court.

Michigan Gas Storage Co. was a Michigan corporation and a wholly owned subsidiary of Consumers Power Company, a Michigan public utility. Michigan Gas Storage purchased natural gas in interstate commerce and sold all of it to Consumers Power,. Consumers then sold the natural gas at retail to the public. Michigan Gas Storage Company had no facilities or significant assets outside Michigan and there was no evidence on whether or how much, if any, of the gas it sold to Consumers Power was ultimately consumed outside the State. Indiana & Michigan Power Company was also a Michigan corporation organized solely to acquire, complete construction of and operate the Donald C. Cook Nuclear Electricity Generating Plant and to sell the electricity generated thereby to its parent, Indiana & Michigan Electric Company, an Indiana corporation, which then sold the electricity retail in Michigan and Indiana. All of Indiana & Michigan Power Company’s facilities and assets were located in Michigan and its sales to the parent company occurred strictly intrastate.

In the case at bar, Storage Company’s operations, facilities and assets are all located in Michigan. It is a Michigan corporation. Although all of its gas storage customers are located outside Michigan, the service contracts with those customers are usually negotiated in Michigan. Power Company, although not a Michigan corporation, operates 15 gas storage fields and close to 800 miles of gas transmission pipelines and associated equipment in Michigan. In 1983, over 50% of its sales were within the State of Michigan. Its pipelines entering the State of Michigan connect with the State’s primary local gas distribution utilities which then sell the gas at retail to the consuming public.

I am satisfied that the Michigan Supreme Court’s conclusions in Michigan Gas Storage Co. and Indiana & Michigan Power Co. are properly applicable to this case, given these strong Michigan connections. The same local public interests are served by regulation of plaintiffs under Act 144 as were served by regulation of Michigan Gas Storage Company and Indiana & Michigan Power Company in the two cited cases. A financial failure of either Storage Company or Pipeline Company due to overcapitalization would directly impact on this State, either upon the customers of the local gas distribution utilities who receive and resell Pipeline Company’s gas, or those involved, directly or indirectly, with Storage Company’s wholly intrastate storage facilities and operations. The pipelines and storage fields of both plaintiffs within Michigan affect private property rights of Michigan citizens. Inadequate financing, even if not resulting in failure of service, may result in inadequate maintenance of these intrastate facilities thereby posing potential safety threats to those living and working at or near plaintiffs’ facilities. The mere fact that plaintiffs sell natural gas in interstate commerce, or contract for its storage solely with out-of-state customers, does not render the state powerless to regulate any of their activities where local public interests such as those listed above are served by the regulation.

The next inquiry under Bruce Church involves the nature of the state regulation and the degree to which it burdens interstate commerce. Act 144’s applicability is limited to long-term offerings, specifically exempting short-term borrowings from MPSC approval under Act 144. Accordingly, plaintiffs may issue notes payable at periods of 24 months or less without securing MPSC approval, and may do so pending action on an application for a long-term securities issuance. This option minimizes if not altogether eliminates potential impairment of plaintiffs’ ability to raise necessary capital.

The authority of the MPSC under Act 144 is expressly limited to ascertaining whether the funds derived from the issue are to be applied to lawful purposes and whether the issue and amount are essential to the successful accomplishment of the purpose, or that the issue fairly represents accumulated and undistributed earnings invested in capital assets and not previously capitalized. Once the MPSC has satisfied itself to such effect, it must authorize the issuance. Although the MPSC has discretion to impose reasonable terms and conditions on the grant of authority, every application of plaintiffs since 1979 has received unconditional approval from the MPSC. Further, I am satisfied that defendants’ discretion under Act 144 is sufficiently circumscribed so as to minimize, if not eliminate, the likelihood of arbitrary decisions based on purely parochial concerns. Act 144 appears to regulate evenhandedly. Any burden imposed on interstate commerce is equally imposed on intrastate commerce.

As previously discussed, the average delay beyond the automatic 20 day effective period for registration statements under federal Act of 1933 is approximately three weeks or less, according to plaintiffs’ history of applications before the MPSC. No evidence has been presented that any FERC certification or rate proceeding has ever been disrupted or affected by defendants’ proceedings under Act 144. Neither have plaintiffs presented any evidence that the average three week delays in securing MPSC approval on their applications have ever adversely affected either the cost or the overall marketability of any of plaintiffs’ securities issues.

What the record reveals is an evenhanded and relatively limited state regulation which, as applied to plaintiffs, has historically had an indirect and minimal effect on interstate commerce. In light of the legitimate local public interests previously identified, this is not a regulation which violates Commerce Clause principles under the Bruce Church analysis.

Plaintiffs next argue that the regulation must be invalidated on a “uniformity” analysis. State regulation of interstate commerce has been held constitutionally impermissible where the subject matter requires national uniformity for that commerce to function. Morgan v. Commonwealth, 328 U.S. 373, 377, 66 S.Ct. 1050, 1053, 90 L.Ed. 1317 (1946). Plaintiffs claim that .national uniformity in regulation of natural gas company securities issues is necessary because of potentially conflicting multi-state regulation and the potential disruptive effect if every state in which plaintiffs conducted business adopted regulations similar to Act 144. Although there are various state supreme court cases supporting this position, those cases involve challenges to similar state statutes as applied to companies with minimal local interests compared to those of plaintiffs in this case.

In United Air Lines, Inc. v. Nebraska State Railway Commission, 172 Neb. 784, 112 N.W.2d 414 (1961), and United Air Lines, Inc. v. Illinois Commerce Comm’n., 32 Ill.2d 516, 207 N.E.2d 433 (1965), two of the cases relied upon by plaintiffs, minimal percentages (.45% and .90-1.36%, respectively) of United’s overall route miles where within the borders of Nebraska and Illinois. Less than 1% of United’s property was located in Nebraska, and although United, a Delaware corporation, had its executive offices in Illinois, its central operating base and chief overhaul bases were located in other states. As of 1965, United’s interstate system served 32 states, the District of Columbia, and Canada, and 80% of its operations were interstate. In Panhandle Eastern Pipeline v. Public Util. Comm’n., 56 Ohio St.2d 334, 383 N.E.2d 1163 (1978), Panhandle, a Delaware corporation, purchased, transported and sold natural gas in interstate commerce. Less than .35% of its overall gas sales by volume were accounted for in Ohio and 4.9% of its transmission pipeline was located in Ohio. In Western Union Telegraph Company v. Public Service Comm’n., 127 Mich.App. 88, 338 N.W.2d 731 (1983), Western Union, a Delaware corporation with principal offices in New Jersey, derived only 5 to 7% of its revenues from intrastate operations and only 1.8% of its plant investment was located in Michigan. Western Union’s interstate system served all 50 states. The Western Union court, although conceding that Act 144’s underlying interests were substantial, found, as applied to the case before it, that those local interests were only “incidentally involved, if involved at all.” Similar “as applied” analyses form the basis for the findings in the United and Panhandle cases. In each instance, the nature and percentage of the companies’ business in the forum state was minimal enough so that, when balanced against the adverse effects to interstate commerce, the states’ interests justifiably lost out.

By contrast, the local interests in the case at bar cannot be characterized as “only incidentally involved.” One hundred percent of Storage Company’s physical plant investment is located in Michigan, and it is a Michigan corporation. Over 72% of the gas Pipeline Company sold during 1983 went to its three largest customers, MCGC, Wisconsin Gas Company and Wisconsin Natural Gas Company. Over 50% of Pipeline Company’s 1983 sales were in Michigan, approximately 45% in Wisconsin and less than 5% in other states. As of 1983, Pipeline Company had plant investments in 17 states, including Michigan. The net plant investment in Michigan was $309,491,427.00. Louisiana, the state with the next highest plant investment, showed a comparative net investment of only $160,-776,399.00. Only federal waters contain a net plant investment ($241,455,320.00) anywhere near the size of that located in Michigan. As to Storage Company, no other state has any interest which would justify regulation. As to Pipeline Company, only Wisconsin has interests approaching those of Michigan. Plaintiffs have, accordingly, failed to convince me that national uniformity in the regulation of natural gas company securities issues is necessary, on the record before me, to avoid a potentially chaotic situation due to multi-state regulation.

Finally, plaintiffs have also failed to convince me that application of Act 144 to plaintiff companies otherwise so materially and unreasonably burdens interstate commerce as to be invalid under the Commerce Clause of the U.S. Constitution. As I have already indicated, substantial, legitimate state interests are served by Act 144 regulation. Act 144 regulates evenhandedly. It does not favor local commerce over out-of-state commerce, and imposes no burden on interstate commerce that it does not also impose on intrastate commerce. The record satisfies me that its effects on interstate commerce are not clearly excessive in relation to the putative local benefits served by regulation. In short, this statutory scheme cannot be said to impose an impermissible burden on interstate commerce.

III. CONCLUSION

For the reasons stated above, I hold that Act 144 regulation of plaintiffs’ securities issuances is not preempted by federal law and does not violate the Commerce Clause of the United States Constitution.

      . The two pipelines entering Michigan from Indiana connect to three local gas distribution utilities in the western lower peninsula of Michigan: MCGC, Michigan Power Company and Michigan Gas Utilities Company.

      . Outside the state of Michigan, Pipeline Company owns and operates 6,947 miles of gas transmission pipeline and associated equipment, 3,507 miles of gathering lines, 35 transmission compressor stations and 54 field compressor stations.

      . 15 U.S.C. § 717a(6) defines natural gas company as "... a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale.”

      . 15 U.S.C. § 717(b).

      . 15 U.S.C. § 717f.

      . 15 U.S.C. § 717f(c)(l)(A).

      .Although admitting that the FERC does exercise general regulatory jurisdiction over Storage Company’s facilities and gas operations, defendants contend that the FERC has no such jurisdiction because gas storage, in their view, is not within the ambit of “sale or transportation of natural gas in interstate commerce."

      . During the 1970's, the MPSC concluded that such security issuances were not subject to MPSC consideration under Act 144, pursuant to the Michigan Court of Appeals’ decision in Great Lakes Transmission Co. v. MPSC, 24 Mich.App. 77, 180 N.W.2d 59 (1970). However, following and pursuant to the Michigan Supreme Court’s decision in Michigan Gas Storage Co. v. MPSC, 405 Mich. 376, 275 N.W.2d 457 (1979), securities issuance applications were again filed with the MPSC under Act 144.

      . M.C.L.A. § 460.301(1), M.S.A. § 22.101(1), provides, in pertinent part:
      "A ... corporation ... organized or authorized to do business under the laws of this state ... exercising or claiming the right to carry or transport natural gas for public use, directly or indirectly ... or engaged in the business of piping or transporting natural gas for public use, directly or indirectly, or engaged in the business of purchasing natural gas for distribution may issue stocks, bonds, notes, or other evidences of indebtedness payable at periods of more than 12 months after the date of issuance, if necessary for the acquisition of property, the construction, completion, extension, or improvement of facilities or for the improvement or maintenance of service or for the discharge or lawful refunding of obligations and may issue stock to represent accumulated earnings invested in capital assets and not previously capitalized, if the Michigan public service commission issues an order authorizing the issue and the amount of the issue, and states that in the opinion of the commission the use of the capital or property to be acquired to be secured by the issue of the stock, bonds, notes, or other evidences of indebtedness, is reasonably required for the purposes of the ... corporation ... or that the issue of the stock fairly represents accumulated and undistributed earnings invested in capital assets and not previously capitalized ..."

      . M.C.L.A. 460.301(2); M.S.A. § 22.101(2).

      . M.C.L.A. § 460.301(3); M.S.A. § 22.101(3).

      . M.C.L.A. § 460.301(2); M.S.A. § 22.101(2).

      . The stipulation of facts indicates two instances where applications were filed by plaintiffs and then withdrawn by them when the MPSC indicated that a hearing would be held. See, Stipulation of Facts, pp. 13 & 24. Plaintiffs cannot expect me to speculate on the "ill-defined and cumbersome” nature of a hearing process they have never submitted to.

      . The regulatory "gap” created by prior deci- ■ sions was that between wholesales of natural gas in interstate commerce, strictly committed to exclusive federal regulation, and direct sales for consumptive uses. See, Northern Natural Gas Co. v. Kansas Comm’n., 372 U.S. 84, 91, 83 S.Ct. 646, 650, 9 L.Ed.2d 601 (1963).

      . M.C.L.A. § 460.301(4), M.S.A. § 22.101(4), provides, in pertinent part:
      “A ... corporation ... may issue notes for lawful purposes, payable at periods of not more than 24 months, without authority from the commission ...”

      . M.C.L.A. § 460.301(3), M.S.A. § 22.101(3), provides, in pertinent part:
      “If from the application filed and other information obtained from the investigation authorized in this act the commission is satisfied that the funds derived from the issue of stocks, bonds, or notes are to be applied to lawful purposes and that the issue and amount is essential to the successful carrying out of the purposes, or that the issue of the stock fairly represents accumulated and undistributed earnings invested in capital assets and not previously capitalized, the commission shall grant authority to make the issue. In granting the authority, the commission may impose as a condition of the grant reasonable terms and conditions that the commission considers proper." (Emphasis added.)

        .Id.

      , See Appendix to Stipulation of Facts, Tab No. 7.


source: Caselaw Access Project

author: NEALON, Chief Judge.

license: Public Domain

text:
    Eugene KRUSHINSKI, Plaintiff, v. ROADWAY EXPRESS, INC., Defendant.
    Civ. No. 84-1485.
    United States District Court, M.D. Pennsylvania, Third Circuit Division.
    Sept. 5, 1985.

      Peter G. Loftus, Scranton, Pa., for plaintiff.
    Jeffrey Ivan Pasek, Paul Feldman, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

NEALON, Chief Judge.

Plaintiff began this action in the Court of Common Pleas for Monroe County, Pennsylvania on September 11, 1984 by filing a praecipe for a writ of summons. After a formal complaint was filed October 22, 1984, Defendant Roadway Express, Inc. [Roadway] filed a petition for removal in this court pursuant to 28 U.S.C. § 1446, dated November 6, 1984. On February 1, 1985, defendant filed a Motion to Dismiss the Complaint, attaching deposition testimony and an affidavit thereby requesting the court to treat the motion as one for summary judgment pursuant to Fed.R. Civ.P. 56. Plaintiff opposed this motion by brief filed March 6, 1985 to which defendant replied on March 22, 1985. Plaintiff failed to file any counteraffidavit or deposition testimony in opposition to that submitted by defendant in support of its Motion for Summary Judgment. By Order dated May 9,1985, plaintiff was required to file a supplemental brief responding more specifically to defendant’s Motion for Summary Judgment. Plaintiff filed his amended memorandum on May 20, 1985 and defendant filed its supplemental reply on May 30,1985. The motion is now ripe for disposition. For the reasons set forth below, defendant’s motion for summary judgment will be granted.

1. FACTS

The gravamen of plaintiff's complaint centers upon his termination of employment from Roadway on September 24, 1982. Plaintiff, previously employed as a dock worker by Roadway, alleges that he was discharged because of his religious beliefs. As a member of The Worldwide Church of God, plaintiff maintains that his religion observes a doctrine which requires abstaining from work from Friday at sundown until Saturday at sundown. Plaintiff alleges defendant denied him time off from work to observe the Sabbath and, as a result, plaintiff was forced to use personal and sick leave time. When these days were exhausted, plaintiff did not report for work and was subsequently suspended and terminated from his employment.

Plaintiff has alleged a myriad of claims: a direct cause of action under the Pennsylvania Constitution; the common law tort claim of wrongful discharge; intentional infliction of emotional distress; the common law claim of breach of contract; claims arising under the Pennsylvania Human Relations Act; as well as conspiracy, damage to reputation or credit rating and standing and invasion of privacy. These will be addressed seriatim.

II. MERITS

A. The Pennsylvania Constitution

Plaintiff alleges that Roadway violated Article I, Sections 3 and 4 of the Pennsylvania Constitution. In its Motion for Summary Judgment, Roadway argues that plaintiff cannot maintain a direct action under these sections because of the absence of governmental activity. The court agrees. “Article I is entitled “Declaration of Rights” and all of the first twenty-six sections of Article I which state those specific rights, must be read as limiting the powers of government to interfere with the rights provided therein.” Commonwealth v. National Gettysburg Battle Tower, Inc., 454 Pa. 193, 200, 311 A.2d 588 (1973). Further, in Murphy v. Harleysville Mutual Ins. Co., 282 Pa.Super. 244, 258, 422 A.2d 1097, cert. denied 454 U.S. 896, 102 S.Ct. 395, 70 L.Ed.2d 211 (1981) the Pennsylvania Superior Court cited Gettysburg Battle Tower, supra for the proposition that the provisions of Article I are only intended to be limits upon the actions of state government. See also NAACP v. Pennsylvania Public Utility Comm’n., 5 Pa.Commw. 312, 290 A.2d 704 (1972). Plaintiff relies upon Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir.1983). to support his position that a direct cause of action exists, but the court finds this reliance misplaced. Contrary to plaintiffs assertion, the court does not read Novosel as recognizing a direct cause of action under the Pennsylvania Constitution for private sector employees. Rather, Novosel involved a non-union, at-will employee claiming a common law tort claim of wrongful discharge based upon public policy. Our Third Circuit Court of Appeals, applying the logic of Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974) found that Pennsylvania law permits a cause of action for wrongful discharge where the employment termination abridges a significant and recognized public policy. Novosel, supra at 898. The decision did not rest upon the Pennsylvania Constitution.

Geary, supra recognized a non-statutory cause of action for a wrongful discharge of an at-will employee for reasons violative of public policy. While the Geary court looked to the Pennsylvania Constitution, it did so only to establish that the plaintiff was complaining of a matter of public policy and not to establish that a cause of action was arising directly from the Constitution itself. Plaintiff does not allege that Roadway’s conduct can be classified as state action. An examination of Pennsylvania case law, see Gettysburg Battle Tower, supra; Murphy, supra, convinces this court that a direct cause of action under §§ 3, 4 of the Pennsylvania Constitution arises only when state action is present. Thus, the court finds no support for plaintiff’s argument that he has a cause of action against a private employer flowing directly from the Pennsylvania Constitution and those claims will be dismissed.

B. Wrongful Discharge

Plaintiff alleges that his termination due to his religious beliefs gives rise to a common law claim of wrongful discharge.

To maintain a common law tort claim of wrongful discharge, plaintiff must fit within the ambit of Geary, supra. In Geary, an at-will employee alleged he was wrongfully discharged after he told his superiors that a product manufactured by the company was dangerous and defective. As a result of plaintiff’s expression of reservations concerning the product, it was withdrawn from the market. Shortly thereafter plaintiff was fired. While Geary’s complaint was ultimately dismissed, the Pennsylvania Supreme Court recognized that a common law cause of action for wrongful discharge may lie when the severance of the employment relationship results in violating a clear mandate of public policy. Geary, supra at 184-85, 319 A.2d 174. Finding that under the facts presented no clear public policy had been violated, the Geary court dismissed the action. Id. at 184, 319 A.2d 174.

The cases which have established a tort or contract remedy for employees discharged for reasons violative of public policy have relied upon the fact that in the context of their case the employee was otherwise without remedy and that permitting the discharge to go unre-dressed would leave a valuable social policy to go unvindicated.
It is clear that the whole rationale under-girding the public policy exception is the vindication or protection of certain strong policies of the community. If these policies or goals are preserved by other remedies, then the public policy is sufficiently served. Therefore, application of the public policy exception requires two factors: (1) that the discharge violate some well established public policy; and (2) that there be no remedy to protect the interest of the aggrieved employee or society.

Wehr v. Burroughs Corp., 438 F.Supp. 1052, 1054-55 (E.D.Pa.1977) aff'd with modification on other grounds 619 F.2d 276 (3d Cir.1980).

While it is clear that an employee’s discharge based upon the employee’s religious beliefs would violate public policy, plaintiff fails to meet the second requirement, viz., that there is no other remedy available to vindicate the protected interest. Clearly, the Pennsylvania Human Relations Act “not only establishes one’s right to be free from a number of types of discrimination, but also creates a remedy to safeguard these rights.” Wehr, supra 438 F.Supp. at 1055. Thus, like the Wehr court, this court finds it inappropriate to create a common law remedy in this instance.

The court further notes that plaintiff was not an at-will employee. Rather, he was a member of the International Brotherhood of Teamsters, Local 229 and the terms and conditions of his employment were governed by one or more collective bargaining agreements. Deposition of Eugene Krushinski, Document 3 of the Record, Exhibit 2 at 2-3. The narrow public policy exception enunciated by the Geary court is limited to employees “at-will.” Harrison v. Fred S. James, P.A. Inc., 558 F.Supp. 438, 444 (E.D.Pa.1983); accord Smith v. Greyhound Lines, Inc., 614 F.Supp. 558 (W.D.Pa.1984). Because plaintiff was not an “at-will” employee and he had other statutory remedies available to him, he may not maintain a common law wrongful discharge claim. As a result, this claim will be dismissed.

C. Breach of Contract

As noted supra, as a member of Local 229, the terms and conditions of plaintiffs employment were governed by the collective bargaining agreements negotiated between the Teamsters and Roadway. The issue raised by plaintiff’s breach of contract claim is whether the alleged contract violation is properly brought pursuant to a state law contract claim or if the claim is governed exclusively by federal law pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. 185(a). Plaintiffs breach of contract claim is grounded upon the allegation that Roadway failed to comply with its own rules and regulations. Complaint, Document 1 of the Record, Paragraph 15H. It seems apparent that if Roadway is obligated to follow its rules and regulations as to plaintiff, that obligation arises under the collective bargaining agreement. Plaintiff, however, cites no authority in support of his contention.

Generally, Section 301 provides the exclusive remedy for violations of collective bargaining agreements. An employee, protected by such an agreement, may sue his employer only after he has pursued the grievance remedies provided by the contract, and he establishes that his right of fair representation was violated. Vosch v. Werner Continental, Inc., 734 F.2d 149 (3d Cir.1984). In Vosch, our Court of Appeals held that plaintiff-employees had failed to state a cause of action pursuant to Section 301 when they failed to challenge the fairness or adequacy of their union’s representation in the arbitration procedure. Here, plaintiff makes no claim that he was denied fair representation. The court concludes that any breach of contract claim must be governed by Section 301 of the Labor Management Relations Act and that plaintiff has failed to state a cause of action.

D. Intentional Infliction of Emotional Distress

Plaintiff alleges that as a result of the intentional wrongful acts of the defendant plaintiff has suffered and will continue to suffer, inter alia, strain to his emotional and nervous system. Thus he attempts to set forth a claim for intentional infliction of emotional distress.

Pennsylvania recognizes such a cause of action and adopted the definition set forth in the Restatement Second of Torts, § 46(1):

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subjected to liability for such emotional distress, and, if such bodily harm to the other results from it, for such bodily harm.

As a preliminary matter, the court must determine whether defendant's conduct may be regarded as so extreme as to permit recovery. Id. at comment h.

The court agrees with defendant that plaintiff’s own deposition testimony belies such an assertion.

Q. Please take a look at page 4, paragraph 12 of the Complaint.
A. Okay.
Q. The reference in paragraph 12 to the defendant having a consistent policy, practice, custom, and scheme of hounding and harassing an employee is [sic] because of religion refers to the fact that you received warning and suspension letters as a result of absences, does it not?
A. Yes, it does.
Q. Does it refer to anything else?
A. No, it does not.
Q. In fact, you were not hounded or harassed in any other manner as a result of your religion aside from the fact that you received warning letters and suspension letters and a discharge notice relating to absenteeism?
A. That’s correct.
Q. The reference in paragraph 12 to transferring does not apply to you, does it?
A. No, it does not.
Q. The reference in paragraph 12 to laying off does not apply to you, does it?
A. No, it does not.
Q. The reference in paragraph 12 to discharging refers only to the fact that you were discharged because of your attendance?
A. For religious reasons, yes.
Q. Based on the conflict between your religious observance and your scheduled work performance?
A. Right.
Q. The reference in paragraph 12 to denying common consideration refers to the fact that Roadway Express would not permit you to take off as excused absences your religious holidays and Sabbath, is that correct?
A. Yes.
Q. Does it refer to anything else?
A. No.

Deposition of Eugene Krushinski, 626 F.Supp. 472, Document 17 of the Record at 150-51.

Q. Did any non-managerial or non-supervisory employee ever harass you or discriminate against you with regard to your religious observances or beliefs?
A. No.
Q. Did any supervisor or managerial employee ever discriminate against you with regard to your religious observances or beliefs aside from the issuance of letters to you relating to your absences?
A. Aside from letters and terminations, if you are talking about harassment, no.
Q. You were not harassed in any way by any supervisor or manager of Roadway Express because of your religious beliefs or observances?
A. No.
Q. Did any supervisor or manager at Roadway Express ever make any derogatory comments to you about your religious beliefs or observances?
A. No.
Q. Aside from the letters that were issued to you warning you, suspending you, or discharging you because of your absence, is it correct to say that you were in no other way discriminated against on the basis of your religion?
A. Yes, you could say that.

Id. at 102-103.

Q. What were you referring to by harassment?
A. Letters.
Q. What letters?
A. The letters I received for taking off.
Q. Are those warning letters?
A. Some.
Q. Were there other letters?
A. Suspension.
Q. Those are formal disciplinary letters of some type that you are referring to?
A. Yes.
Was there any other kind of harassment besides the letters that you were referring to?
From Roadway personnel?
Yes.
No.
Was there any other harassment that you were subjected to by anyone as a result of your observance of your religious beliefs?
No.

Id. at 50-51.

There is simply no evidence to support a finding of extreme and outrageous conduct on the part of the defendant. Further, plaintiff supplies no counter-affidavits which would refute this conclusion. As a result, this claim will be dismissed.

E. Claims Pursuant to the Pennsylvania Human Relations Act

Plaintiffs remaining claims are brought pursuant to the Pennsylvania Human Relations Act [PHRA]. These claims are set forth in paragraph 15 of the complaint.

Defendant maintains that these claims are barred as plaintiff is required to file his complaint under the PHRA within 90 days of the discriminatory event. Defendant contends plaintiff's only timely claim arising under the PHRA is plaintiff’s actual discharge since that occurred September 24, 1982 and the PHRA complaint was filed December 22, 1982. Therefore, all claims arising before the discharge would be untimely filed. Plaintiff, however, maintains these claims are viable in that they represent “continuing violations” which apparently culminated in plaintiffs discharge. The court finds it unnecessary to decide this issue in light of our finding that Roadway sufficiently attempted to accommodate plaintiff. Plaintiff maintains that he is not arguing that there is an affirmative duty to accommodate under the PHRA but rather the PHRA imposes a duty not to discriminate.

A careful review of plaintiffs documentation and memorandums, however, belies this assertion. Plaintiffs essential claim is that his religion requires abstention from working on Saturday. When plaintiff continued to report off for work on Saturday, he was discharged. This, plaintiff maintains was religious discrimination. The logical extension of this analysis is that Roadway should have allowed plaintiff to not report on Saturday. To do otherwise, would be discrimination. Thus, plaintiff, regardless of assertions to the contrary, is arguing that Roadway had a duty to accommodate.

Even if the PHRA required an employer to accommodate an employee’s religious observance of his Sabbath, and the court expresses no opinion on the issue, this court has already determined that the efforts made by Roadway to accommodate plaintiff’s religious need were reasonable. Krushinski v. Roadway Express, Inc., 626 F.Supp. 472 (1985).

In the instant case, plaintiff’s work schedule was determined on the basis of a routine application of the seniority system applicable to all of the defendant’s dock workers. To have accommodated plaintiff’s needs Roadway would have been required to ignore seniority provisions of the contract which dictate when an employee shall work and when an employee shall have time off. Under this seniority system, Roadway was not free to let plaintiff have time off from sundown Friday to sundown Saturday unless every other employee with more seniority was first offered the same opportunity.

Id. at 475. A duty to accommodate does not require an employer to take steps inconsistent with an otherwise valid agreement and, in order to accommodate plaintiff, the employer would have to violate the union contract. Id. at 475. See also Estate of Thornton v. Caldor, Inc., — U.S. -, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985) (Connecticut statute requiring absolute accommodation violates the Establishment Clause).

To the extent the PHRA could be construed as requiring accommodation, the court has already found Roadway’s efforts were sufficient.

      . Plaintiff argues that this court does not have subject matter jurisdiction over this action and that defendant improperly removed to this court. Plaintiff bases this contention upon the fact that he alleged that defendant maintained its principal place of business in Pennsylvania, thus diversity of citizenship does not exist. Defendant, however, has submitted affidavits demonstrating that Roadway is incorporated in the State of Deleware and maintains its principal office in the State of Ohio. Plaintiff does not submit counteraffidavits but argues instead that the court may only examine the face of the complaint and may not properly consider defendant’s affidavits. This argument is simply without merit. See e.g., Rubin v. Baltimore and Ohio Railroad, 324 F.Supp. 204 (E.D.Pa.1971); Wright, Miller & Miller, § 3721 at 211. The court is satisfied that jurisdiction exists pursuant to 28 U.S.C. § 1332. See Petition for Removal, Document 1 of the Record.

      . Plaintiff had filed a related Title VII action in this court against defendant predicated upon the plaintiffs discharge. By Memorandum and Order dated May 30, 1985, summary judgment was granted in favor of the defendant. 626 F.Supp. 472.

      . Plaintiff maintains that the Pennsylvania Rules of Civil Procedure should apply. This contention is without merit. Fed.R.Civ.P. 81(c). Additionally, the doctrine of abstention does not apply to this action. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

      . Sections 3 and 4 of Article I of the Pennsylvania Constitution provide:
      Sec. 3 Religious Freedom
      All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.
      Sec. 4 Religion
      No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.

      . This paragraph 12 is contained in the complaint filed in Civ. No. 84-1006. In this action, however, paragraph 12 of the complaint is identical.

      . The Pennsylvania Human Relations Act provides in pertinent part:
      It shall be an unlawful discriminatory practice ... (a) for any employer because of the ... religious creed ... of any individual ... to discharge from employment such individual.... 43 P.S. § 955 (Supp.1985).

      . Specifically, plaintiff contends that defendant practiced discriminatory limitations, segregation or classification of employees; maintained a discriminatory working atmosphere; maintained discriminatory wage, fringe benefits and leave of absence policies and practices; maintained discriminatory promotion and transfer policies; utilized discriminatory segregated job classifications or seniority rosters; maintained an established policy of disciplining, laying off or discharging employees solely on religion; and knowingly allowed and encouraged ranking officers to maintain a policy of invidious discrimination.

      .Plaintiff argues that he is not asking for special treatment. He contends that Roadway has accommodated Christian denominations which observe Saturday evening and Sundays as the Sabbath and, therefore, the same accommodation should be afforded to his religion. Plaintiff does not support this bald and conclusory statement with any factual support or deposition. Indeed, he admits he is unaware of any other employee having been granted time off for religious observance. Plaintiff does not cite one employee who has been accommodated while he has not. Further, plaintiff, in his deposition, admits that shifts are assigned on the basis of seniority. Deposition of Eugene Krushinski, Document 17 of the Record at 99 [Civ. No. 84-1006]; Document 3 of the Record at 100. In fact, plaintiff avers that the only other example of discrimination by Roadway that he could remember was a person who requested and was denied two hours off on Sunday. See 626 F.Supp. 472, Document 17 of the Record at 98-99.


author: WILLIAM C. LEE, District Judge.

text:
    AMERICAN TRAIN DISPATCHERS ASSOCIATION, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.
    Civ. No. F 85-383.
    United States District Court, N.D. Indiana, Fort Wayne Division.
    Oct. 1, 1985.
    On Motions for New Trial and to Amend Nov. 14, 1985.

      Carl M. Miller, Miller & Miller, New Haven, Ind., Gordon P. MacDougall, Washington, D.C., for plaintiff.
    Anthony S. Benton, Stuart & Branigin, Lafayette, Ind., Thomas W. Yoder, Livingston, Dildine, Haynie & Yoder, Fort Wayne, Ind., for defendant.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on plaintiff’s Motion for Preliminary Injunction, filed September 9, 1985. A status conference was held on September 11, 1985, at 9:00 a.m. Defendant filed its brief in opposition to the plaintiff’s motion for a preliminary injunction on September 20, 1985. The defendants argue that the district court is without jurisdiction because of the policies embodied in the Railway Labor Act. This court interprets this argument as a motion to dismiss. Plaintiff’s reply memorandum was filed on September 24, 1985. Both parties have filed supporting affidavits. For the following reasons, plaintiff’s motion for a preliminary injunction will be denied and defendant’s motion to dismiss will be granted.

Discussion

Plaintiff, American Train Dispatchers Association (ATDA) seeks preliminary and permanent injunctive relief from changes in work assignment duties by the defendant, Norfolk and Western Railway Company (N & W) implemented pursuant to a notice to ATDA issued August 27, 1985.

N & W has installed at various locations defective equipment detectors designed to alert N & W personnel when a train in operation has a hot bearing, is dragging equipment, or is losing a wheel. The output generated by the defective equipment detectors is transmitted over open wire lines or telephone lines to ink pen chart recorders at central locations which produce a tape of the information. At Fort Wayne, output from fourteen defective equipment detector locations is received and displayed on tapes (“recorder tapes”) produced by ten defective equipment chart recorders located in the N & W Operations Center. These ink pen chart recorders are installed, maintained and repaired by members of the N & W Signal Department. The recorder tapes are removed from the defective equipment chart recorders, and are then reviewed and evaluated to determine whether a train at a given location has an equipment defect.

Until late August, 1985, the task of removing the recorder tapes (which includes the job of writing the time and location of the equipment monitored onto the recorder tape), as well as the review and evaluation of the tapes, was performed by employees known as train dispatchers, members of the ATDA bargaining unit.

On August 27, 1985, N & W issued a notice (inadvertently dated September 27, 1985) advising ATDA that the recorder tapes would henceforth be removed by N & W Operator/Clerks (“Operators”) who would then immediately deliver them to the Assistant Chief Train Dispatcher. Operators are not train dispatchers, and are not represented by ATDA. The Assistant Chief Train Dispatcher would then review the tapes and notify train dispatchers whether or not exceptions existed on the tapes. The Assistant Chief Train Dispatcher, based upon his evaluation of the tape, either clears a train to proceed ahead or orders it halted to be inspected for defective equipment.

•ATDA responded to defendant's August 27, 1985 notice by orally advising N & W that this change would be in violation of the July 24, 1978 Implementing Agreement (Agreement) because the monitoring of recorder tapes was given in part to non-ATDA personnel. N & W countered by advising ATDA that the monitoring of the recorder tapes was still being performed by ATDA bargaining unit personnel.

ATDA sent N & W a telegram on August 28, 1985, stating its position that the railroad was in violation of Article XI of the Agreement and characterizing the matter as a “major dispute” under the Railway Labor Act. On the next day N & W sent a responsive telegram indicating that the Train Dispatchers continued to monitor the tapes in question and the fact that ATDA relied on Article XI of the Agreement constituted clear recognition that no “major dispute” existed. This lawsuit followed.

In its motion for a preliminary injunction, ATDA contends that N & W’s transfer of the work of removing the recording tapes from the defective equipment monitors constitutes a violation of the Agreement. ATDA argues that the violation is so egregious that it constitutes a “major” dispute warranting immediate injunctive relief.

N & W argues that the nature of the complaint is a “minor” dispute within the meaning of the Railway Labor Act. N & W further contends that since the interpretation and the application of the collective bargaining agreement are required to determine the merit of the dispute, this dispute is subject to the exclusive arbitration jurisdiction of the National Railroad Adjustment Board. After ATDA filed this action, N & W, in accordance with the Railway Labor Act, filed its notice with the National Railway Adjustment Board, Third Division, of its intention to present an ex parte submission with respect to this unadjusted dispute.

This dispute is governed by the Railway Labor Act, 45 U.S.C. § 151 et seq. Designed to avoid interruptions to commerce caused by labor disputes while seeking to “provide for the prompt and orderly settlement of all disputes,” § 151a, the Act sets forth a two-tiered structure for resolution of labor disputes. If a dispute is considered “major,” the parties are required to negotiate, § 152, and if that fails, to go to mediation under the auspices of the National Mediation Board, § 156. If mediation fails, and the Board adjudges the controversy a threat that would substantially interrupt interstate commerce, the President shall be notified, and at his discretion, an emergency board may investigate the dispute. § 160. During the time of mediation and investigation by an emergency board, no change in rules or working conditions may be made. §§ 156, 160.

Minor disputes, on the other hand, are settled through the mechanism of § 153 First or § 153 Second. If initial negotiation fails, the dispute proceeds directly to arbitration by the National Railway Adjustment Board, 45 U.S.C. § 153, First, or a special board of adjustment (Public Law Board), 45 U.S.C. § 153, Second. United Transportation Union v. Penn Central Transportation, 505 F.2d 542 (3d Cir.1974). Only in limited instances can there be judicial review of such arbitration awards. 45 U.S.C. § 153, First (p). Federal court intervention into minor disputes is limited to: enjoining a union from striking a carrier while minor dispute procedures are being exhausted, Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad, 363 U.S. 528, 534, 80 S.Ct. 1326, 1330, 4 L.Ed.2d 1379 (1960), and to preserving the jurisdiction of a Board of Adjustment over a minor dispute which has been submitted to it, Southern Railway v. Brotherhood of Locomotive Firemen & Engineers, 384 F.2d 323 (D.C.Cir.1967). The case before this court involves neither of these exceptions. If there is no judicial review as provided, the Railway Labor Act requires that such decisions be final and binding. 45 U.S.C. § 153, First (m).

The distinction between “major” and “minor” disputes has been the subject of substantial litigation. Generally, “major” disputes evolve from the bargaining process for a new or altered contract. Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); Elgin, Joliet & Eastern Railroad v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1946); Chicago & Northwestern Trans. Co. v. United Trans. Union, 656 F.2d 274, 277-78 (7th Cir.1981). They look to the future acquisition of rights as opposed to the assertion of rights claimed to have vested in the past, Elgin, 325 U.S. at 723, 65 S.Ct. at 1290, and cannot be resolved by reference to an existing agreement. Chicago & Northwestern Trans. Co., 656 F.2d at 278.

“Minor” disputes, on the other hand, are disputes over the meaning of an existent collective bargaining agreement, Trainmen, 353 U.S. at 33, 77 S.Ct. at 636. A minor dispute presumes the existence of a contract, Elgin, 325 U.S. at 723, 65 S.Ct. at 1290, and involves the interpretation of the terms of that agreement. Chicago and Northwestern Trans. Co., 656 F.2d at 278.

A common thread about contract interpretation has been applied by various courts as an aid to determining whether a “major” or “minor” dispute is present. As noted before, the Seventh Circuit Court of Appeals held in Chicago and Northwestern Transportation Company v. United Transportation Union, 656 F.2d 274 (7th Cir.1981), that determinations that involve the interpretation of an existing collective bargaining agreement are “minor disputes.” The Eighth Circuit declared that “the test to be applied is that if the contract is reasonably susceptible to the interpretation sought by both the carrier and the union, the dispute is minor and within the exclusive adjustment jurisdiction.” United Transportation Union v. Burlington Northern, Inc., 458 F.2d 354, 357 (8th Cir.1972). In United Transportation Union General Committee of Adjustment v. Baker, 499 F.2d 727, 730 (7th Cir.), cert. denied, 419 U.S. 839, 95 S.Ct. 69, 42 L.Ed.2d 66 (1974), the Seventh Circuit quoted with approval the test enunciated by the District of Columbia Circuit in Southern Railroad Co. v. Brotherhood of Locomotive Fire & Enginemen, 384 F.2d 323, 327 (D.C.Cir.1967):

We think that, where the railroad asserts a defense based upon the terms of the existing collective bargaining agreement, the controversy may not be termed a “major” dispute unless the claimed defense is so obviously insubstantial as to warrant the inference that it is raised with intent to circumvent the procedures prescribed by § 6 for alteration of existing agreements.

Baker presents a similar factual pattern to the present case. The carrier, Penn Central, had substituted a computer printout to replace crew boards that had been maintained pursuant to a term in a collective bargaining agreement. The change consisted primarily of discontinuing the use of mimeographed and handwritten crew sheets and substituting in their place computer print-out lists showing the standing of crews and extra men. The union sought an injunction complaining that the substitution was a unilateral change of the collective bargaining agreement constituting a major dispute. The railroad argued that the instituted change was authorized under the collective bargaining agreement, and at the most it was a “minor” or Section 3 dispute under the Railway Labor Act. The Seventh Circuit reversed the injunction that the district court had granted. After reviewing the facts, the court stated:

The fundamental inquiry in deciding whether to assume jurisdiction to grant injunctive relief (to maintain the status quo) is not to interpret the contract; rather, the Court must decide whether the asserted contractual defense (claim or a “minor” dispute) is frivolous.

Baker, 499 F.2d at 730. The court in Baker also noted that the district court had conducted a detailed analysis of the merits of the case, but had “failed to scrutinize the critical question of whether the railroad’s contract claim is merely colorable.” Baker, 499 F.2d at 731. The Seventh Circuit has carried forward the rule of Baker recently in Atchison, Topeka & Santa Fe v. United Trans. Union, 734 F.2d 317, 321 (7th Cir.1984), when the court said “[wjhere the parties disagree as to whether the existing contract permits the carrier’s actions, the dispute is minor unless the carrier’s claims of contractual justification are frivolous’ or ‘obviously insubstantial.’ ” (Emphasis supplied).

In considering the present case in light of the Baker test, it is apparent that the railroad’s contractual defense, namely, that the substitution of Operators to remove completed recorder tapes from the defective equipment detector locations is not a violation of the Agreement, is not frivolous. Central to N & W’s and ATDA’s positions is the interpretation of the existing agreement, specifically the term “monitor” as used in Article XI. ATDA interprets “monitoring” as including the process of removing the recorder tapes from the defective equipment detectors. N & W, on the other hand, views “monitoring” as the process of reviewing and evaluating the recorder tape, a process clearly left to the Assistant Chief Train Dispatcher. Such an interpretation is not frivolous if the parties intended “monitor” to mean warning and instructing train crews as to defective equipment. This definition is one of several ways to define “monitor”; ATDA’s alternative definition in its reply brief suggests that the dispute here is about a term of the contract, both as to its definition and scope. Disputes about a term of the collective bargaining agreement are, as noted above, clearly minor disputes.

The court therefore finds that this is a “minor” dispute under the provisions of the Railway Labor Act. This finding has important consequences for the jurisdiction of this court. Under the Act, minor disputes must go to arbitration with either the National Railway Arbitration Board, § 153 First, or special boards of adjustment, § 153 Second. The Supreme Court has made it clear that the jurisdiction of the National Railway Adjustment Board is exclusive, Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 322, 92 S.Ct. 1562, 1564, 32 L.Ed.2d 95 (1972), so that federal courts are preempted from hearing a minor dispute prior to the exhaustion of remedies with the Board. Thus, actions in federal court are subject to dismissal while the dispute has not yet made its way through the Board. See Spencer v. Missouri Pacific R. Co., 743 F.2d 627, 628 (8th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 912, 83 L.Ed.2d 925 (1985); Minehart v. Louisville & Nashville R.R. Co., 731 F.2d 342, 344-45 (6th Cir.1984); Dorsey v. Chesapeake & Ohio Ry. Co., 476 F.2d 243, 254 (4th Cir.1973); Adams v. United Airlines, Inc., 578 F.Supp. 26, 28 (N.D.Ill.1983). N & W’s arguments concerning the exclusive jurisdiction of the Board are correct, and interpreting them as a motion to dismiss, the court will grant the motion. Given the fact that the Board’s jurisdiction over minor disputes preempts federal court jurisdiction, the motion for a preliminary injunction must be denied.

For the reasons stated above, plaintiff’s Motion for a Preliminary Injunction is hereby DENIED and defendant’s Motion to Dismiss is hereby GRANTED.

ON MOTIONS FOR NEW TRIAL AND TO AMEND

This matter is before the court on plaintiff’s (“ATDA”) motions for a new trial, to amend the court’s October 1, 1985 findings, and to amend its complaint. The motions have been fully briefed. For the following reasons, the motion to amend the court’s findings will be granted in part and denied in part, and the motions for a new trial and to amend the complaint will be denied.

This cause arises out of changes in the assignment of work duties by the defendant (“N & W”) implemented pursuant to a notice to ATDA issued August 27, 1985. That notice provided that fourteen defective equipment detectors would have their printers located in the Fort Wayne, Indiana Operator’s Office, and that when a train passed over one of the detectors, an Operator/Clerk would take the recorder tape produced by the printer and present it to the Assistant Chief Train Dispatcher for review, and the Assistant Dispatcher would then notify the Train Dispatchers whether any problems were noted on the recorder tape. According to the complaint, the task of removing the recorder tapes was previously done by personnel known as train dispatchers, who were in the ATDA bargaining unit. Operator/Clerks are not in the ATDA unit.

ATDA objected to this change in work duties, and notified N & W of its objection. ATDA then filed this action seeking a preliminary and permanent injunction against N & W. In its order of October 1, 1985, this court denied the request for injunctive relief and granted N & W’s motion to dismiss on the grounds that this is a “minor” dispute under the Railway Labor Act, 45 U.S.C. § 151, et seq., and therefore within the exclusive jurisdiction of the National Railway Adjustment Board. The court’s ruling was based in large part on the fact that the collective bargaining agreement between ATDA and N & W contained language in Article XI which appeared to govern the assignment of duties of the train dispatchers, so that resolution of this dispute involved an interpretation of the collective bargaining agreement, the classic definition of a “minor” dispute. ATDA has now filed motions seeking amendments in the court’s findings, a new trial and amendments to the complaint.

Motion to Amend Court’s Findings

ATDA seeks two changes in the language of the court’s October 1, 1985 order, changes which ATDA claims can be made without changing the result of the October 1, 1985 order. Motions to amend a court’s findings are governed by Rule 52(b) of the Federal Rules of Civil Procedure. These motions are intended to correct manifest errors of law or fact or to present newly discovered evidence; they are not intended to be a vehicle for obtaining a rehearing or the relitigation of old matters. Davis v. Matthews, 450 F.Supp. 308 (E.D.Cal.1978); Evans, Inc. v. Tiffany & Co., 416 F.Supp. 224, 244 (N.D.Ill.1976). See 5A Moore’s Federal Practice ¶ 52.11[3],

The first amendment ATDA seeks is to add the phrase “but not limited to” to the court’s quotation of the language of Article XI. Apparently, ATDA believes that the court focused only on the change in the monitoring of the defective equipment detectors in defining this dispute; ATDA emphasizes in its brief that its complaint against N & W is about the assignment of work duties in the August 27 notice, and not just the reassignment of monitoring duties. Thus ATDA seeks this amendment so as to “make it clear that the preservation of work and duties is not limited to ‘monitoring,’ however defined, but embraces all of the work and duties which were being consolidated into the Fort Wayne train dispatcher’s office, pursuant to the ‘implementing agreement’ consolidating former Wabash and Nickel Plate facilities.” ATDA Memorandum in Support, p. 2.

ATDA does not state what significance this clarification would provide. The apparent premise behind ATDA’s argument is that by defining the change of work duties in more global terms, the nature of the dispute changes from “minor” to “major.” As will become clearer in the discussion of the motion for a new trial later in this order, the fact that other duties may have been changed in addition to the monitoring of the recorder tapes does not alter the nature of the dispute because its resolution depends upon the interpretation of Article XI of the collective bargaining agreement. The court’s deletion of the “but not limited to” language in setting forth Article XI served only to focus on the language relating to monitoring of the defective equipment detectors, as that is the only work duty change identified in the complaint. Because the analysis is the same whether there is one or several work duties involved here, the court concludes that the proposed change in the October 1 order would have no effect on its decision because this reference to the language of Article XI only reinforces the conclusion that this dispute is minor. The court therefore finds no need to amend its order on this point.

The second requested change in the October 1 order involves the court’s recitation of the facts leading up to this lawsuit. This court stated that ATDA responded to N & W’s August 27 notice by advising N & W that the change would be in violation of the Agreement, while ATDA points out that it informed N & W that it believed that change violated the Railway Labor Act. An examination of the underlying facts, as set forth in the affidavits of Robert Rafferty and John Gereaux, as well as the telegram from Rafferty to Gereaux attached as exhibit 1 to Gereaux’s affidavit, reveals that ATDA’s response to the August 27, 1985 notice by N & W was, in pertinent part, as follows:

In view of the clear provisions contained in Article XI of the July 24, 1978 Implementing Agreement ... prohibiting the transferring of these monitoring duties to other classes of employees, such action is in violation of Section 2 Seventh and Section 6 of the Railway Labor Act, and effectively constitutes a major dispute.

In setting forth the facts, the court relied on the reference to Article XI in stating that ATDA alleged a violation of the collective bargaining agreement, while ATDA seeks to emphasize the last part of this quoted language to state that it claimed a violation of the Railway Labor Act.

ATDA fails to explain the significance of the fact that it believed the Act and not the Agreement was violated. The premise behind the argument is that violations of the Act are major disputes, which is not true. The sections referred to in the ATDA response telegram — Section 2 Seventh, 45 U.S.C. § 152 Seventh, and Section 6, 45 U.S.C. § 156 — prohibit changes in working conditions or rules. Yet what the rules or conditions are, and whether they are changed, is a function of what is permitted under the collective bargaining agreement, and the interpretation of that agreement would make a dispute “minor” for purposes of jurisdiction. Thus, the finding concerning what ATDA told N & W is irrelevant to the ultimate outcome of this case. However, the court will grant the motion, and therefore will order the following revisions to the October 1, 1985 order:

On page 3, the first full paragraph, lines 2-3 [page 944]: change the language “violation of the July 24, 1978 Implementing Agreement” to read “violation of the Railway Labor Act”;
On page 3, second full paragraph, lines 2-3 [page 944]: change “in violation of Article XI of the Agreement” to read “in violation of the Railway Labor Act,” with footnote 1 to appear after the term “Article XI” in lines 6-7 of that same paragraph; and
On page 4, line 3 [page 944]: change the word “Agreement” to read “Railway Labor Act.”

However, ATDA’s suggested revision to page 8 of the order is unnecessary and will not be implemented.

Motion for a New Trial

Motions for a new trial are governed by Rule 59(a) of the Federal Rules of Civil Procedure. Of course, an essential prerequisite of a request for a new trial is that there be an old trial — that is, a motion for a new trial is inappropriate when there has been no trial in the case. See Davis v. Matthews, 450 F.Supp. 308, 318 (E.D.Cal.1978). See generally 11 Wright & Miller, Federal Practice and Procedure, §§ 2805, 2808-09; 6A Moore’s Federal Practice Ml 59.05, 59.07, 59.12. Thus, the only possible motion that ATDA could raise in this situation is a Rule 59(e) motion.

Under Rule 59(e), a movant in effect asks the court to reconsider its judgment and correct errors of law. A.D. Weiss Lithograph Co. v. Illinois Adhesive Products Co., 705 F.2d 249, 250 (7th Cir.1983); United States Labor Party v. Oremus, 619 F.2d 683, 687 (7th Cir.1982). Rule 59(e) provides a mechanism by which the trial judge may alter, amend, or vacate the judgment. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1249 (9th Cir.1982), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).

As the court interprets ATDA’s motion, the judgment should be altered or amended because the premise behind ATDA’s complaint is that N & W’s changes in the work duties of train dispatchers set forth in the August 27, 1985 notice constitutes a unilateral change in the collective bargaining agreement (“Agreement”). According to Article XI of the Agreement

In the application of existing rules agreements it is the intent of the parties that items of work and duties now performed by train dispatchers represented by the American Train Dispatchers Association ... will not be transferred to other classes of employees or officers....
Said items include, but are not limited to ... [the] work of monitoring defective equipment detectors presently performed by train dispatchers in ... the Fort Wayne dispatcher offices.

Given this court’s earlier ruling that minor disputes, which involve the interpretation of an existing collective bargaining agreement, cannot be brought within the jurisdiction of a district court, ATDA must be arguing that an attempt to unilaterally change the terms of an agreement is a “major” dispute, therefore justifying a trial before this court.

The court finds ATDA’s position illogical. The premise of ATDA’s complaint is that Article XI prohibits the assignment of work duties held by the train dispatchers to other classes of employees. N & W’s assignment of the task of collecting the recorder tapes and turning them over to the Assistant Chief Train Dispatcher is governed by the restriction of Article XI. The dispute here is simply whether or not N & W violated the agreement through this reassignment of duties, a dispute which involves the interpretation of Article XI itself, and whether the reading of the recorder tapes by the Assistant Chief Dispatcher can be interpreted as “monitoring” the detectors. This is not an attempt to amend the Agreement, as ATDA contends, because to adopt such a view would mean that any violation of a collective bargaining agreement would constitute an attempt to change or amend the agreement, thereby making the dispute major. Such a view would make minor disputes a nullity, in direct contradiction to the voluminous case law which recognizes the existence of minor disputes. This is, quite simply, a dispute about whether N & W’s change in work duties complies with Article XI, which involves the interpretation of the collective bargaining agreement. Under Seventh Circuit case law, disputes which involve interpretation of the Agreement are minor disputes, within the exclusive jurisdiction of the National Railway Adjustment Board. Atchison, Topeka & Santa Fe v. United Trans. Union, 734 F.2d 317, 321 (7th Cir.1984).

ATDA attempts to argue that N & W is attempting to change work duties other than the monitoring of the defective equipment recorders, as though that fact makes its case any stronger. However, even if the August 27 notice reassigned several duties formerly performed by train dispatchers to other personnel, the result here is the same. The effect of Article XI ‘ is to contractually assure that the duties performed by the train dispatchers do not get reassigned to someone else. The dispute here is whether the August 27 notice reneges on that agreement; the way to resolve the dispute is to look to Article XI and see whether the particular duty was performed by the train dispatchers and whether the August 27 notice reassigns it to someone else. This dispute resolution process is the same no matter how many duties were reassigned; because the process involves interpreting the collective bargaining agreement, this is a minor dispute. ATDA’s argument here may suggest that there is more than one minor dispute, but ATDA has offered no authority for the proposition that several minor disputes can somehow combine to make one major dispute. Simply stated, the court lacks jurisdiction over this case because this involves only minor dispute(s).

Finally, ATDA states that the October 1 order contains a “cryptic” footnote commenting on ATDA’s assertion that the court does not need to consider N & W’s definition of “monitor.” The message of the footnote is abundantly clear — ATDA’s position that other duties have been reassigned does not and cannot make this a major dispute. As this order repeatedly states, the argument refers to Article XI’s prohibitions on job reassignment, and thus ATDA’s position is inextricably tied to the interpretation of Article XI and the Agreement. ATDA’s attempts to obfuscate that issue by calling N & W’s actions an attempt to amend the collective bargaining agreement do not alter that obvious conclusion.

Thus, ATDA’s motion does not convince this court that this case, even in its proposed amended form, is anything other than a minor dispute subject to the exclusive jurisdiction of the National Railway Adjustment Board. Therefore, the motion for a new trial, interpreted as a Rule 59(e) motion to alter or amend the judgment, must be denied.

Motion to Amend the Complaint

ATDA seeks to amend its complaint in order to make clear that it claims ,N & W altered work duties other than the monitoring of defective equipment detector recorder tapes. Because the court will deny the motion for a new trial/motion to alter or amend the judgment, the motion to amend must be denied as moot because this order in effect reaffirms the earlier finding that this court has no jurisdiction over this dispute. In addition, the argument above makes clear that the proposed amendments do not alter that conclusion, because the multiple reassignment of work duties only leads to a multiplicity of minor disputes, all within the exclusive jurisdiction of the National Railway Adjustment Board. Therefore, the motion to amend the complaint will be denied.

Conclusion

For the reasons stated above, the plaintiff’s motion to amend the court’s October 1,1985 findings is hereby GRANTED. The October 1,1985 order in this case is hereby AMENDED as follows:

On page 3, the first full paragraph, lines 2-3 [page 944]: change the language “violation of the July 24, 1978 Implementing Agreement” to read “violation of the Railway Labor Act”;
On page 3, second full paragraph, lines 2-3 [page 944]: change “in violation of Article XI of the Agreement” to read “in violation of the Railway Labor Act,” with footnote 1 to appear after the term “Article XI” in lines 6-7 of that same paragraph; and
On page 4, line 3 [page 944]: change the word “Agreement” to read “Railway Labor Act.”

Plaintiffs motion for a new trial and the motion to amend the complaint are hereby DENIED.

      . Article XI of the Agreement provides in pertinent part:
      In the application of existing rules agreements it is the intent of the parties that items of work and duties now being performed by train dispatchers ... will not be transferred, to other classes of employees or officers (excluding Chief Train Dispatchers).
      Said items include ... [the] work of monitoring defective equipment detectors presently performed by the train dispatchers in the ... Fort Wayne Dispatcher’s Office! ].

      . ATDA’s argument that the court need not reach the issue of the definition of "monitor” is mysterious. ATDA claims that Article XI is not limited to monitoring the recording tapes, but includes other duties as well. However, the dispute here is about whether "monitoring" includes removing the recorder tapes from the defective equipment detectors — it does not implicate other parts of Article XI or the Agreement. ATDA’s reference to Article XI proves that the dispute here is about an interpretation of the Agreement, which the Seventh Circuit holds is a minor dispute. Atchison, Topeka & Santa Fe, 734 F.2d at 321. Thus, even if some other aspect of Article XI was involved here, the result would be the same.