Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT I & M RAIL LINK’S MOTION TO DISMISS AND DEFENDANT C.P. RAIL/SOO LINE RAILROAD’S MOTION FOR JUDGMENT ON THE PLEADINGS AND TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION BENNETT, District Judge. TABLE OF CONTENTS I.INTRODUCTION. 915 A. Factual Background. 915 B. Procedural Background. 916 II. LEGAL ANALYSIS. 917 A. Applicable Standards. 917 B. The RLA Claim .i. 919 1. RLA provisions and causes of action. 919 2. Availability of the cause of action to job applicants. 921 3. Does Nelson preclude the Track Workers’RLA claim?. 922 a. “Transfer” employees. 922 b. Conspiracy to violate the RLA. 923 c. “Per se” violations by Soo Line. 924 d. “Successor” liability for RLA violations. 924 C. The FELA Claim. 927 1. The purpose and scope of the FELA. 928 2. Does the FELA authorize a cause of action for retaliation against a claimant?. 929 3. Does Iowa public policy authorize the cause of action?. 932 4. The relief available. 932 5. Can “applicants” assert a FELA retaliation claim?. 933 D. The ADA Claim. 933 1. Pre-employment inquiries concerning disabilities. 934 2. Does § 12112(d) authorize a cause of action for improper inquiries? ... 935 3. Pleading of disability and perceived disability. 937 E. Civil Conspiracy . 939 1. Civil conspiracy under Iowa law. 939 2. Can a state-law civil conspiracy claim be based on an alleged violation of federal law?. 941 III. CONCLUSION. 944 In an attempt to derail some of the plaintiffs’ claims before they ever leave the station, the defendant railroads have moved to dismiss or for judgment on the pleadings for failure to state a claim or lack of subject matter jurisdiction. The challenged claims assert anti-union animus in violation of the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., discrimination and retaliation for filing claims under the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., prohibited inquiries and discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and civil conspiracy to violate each of these federal acts and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., arising from the failure of one of the defendant railroads to rehire the plaintiff track maintenance workers when it purchased eleven hundred miles of track from the other defendant railroad, re-employed all managers and most track maintenance workers, and allegedly assumed all contracts and obligations of the predecessor. The court must consider not only the adequacy of the pleading of such claims, but their availability to persons in the circumstances of the plaintiffs. I. INTRODUCTION A. Factual Background As this matter comes before the court on motions to dismiss and for judgment on the pleadings, the factual background for the present ruling is based upon the allegations of the complaint, which are taken as true. See, e.g., Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The plaintiffs, all railroad track workers (the Track Workers), were employed by defendant C.P. Rail, a/k/a Soo Line Railroad Company (Soo Line), until May or June of 1997. The complaint, alleges that the Track Workers average forty-three years of age and fourteen years of experience and that all were qualified for and were performing their job duties with Soo Line. However, they were not rehired by defendant I & M Rail Link, L.L.C. (I & M), when I & M. bought approximately 1100 miles of Soo Line’s track on April 5, 1997, even though I & M did rehire the majority of Soo Line’s managers and employees previously responsible for maintaining that section of track. According to the complaint, I & M’s purchase included, inter alia, all of Soo Line’s physical facilities, including track from Winona, Minnesota, to Kansas City, Missouri, buildings, equipment, tools, cars, locomotives, and all of Soo Line’s contracts and business obligations. The Track Workers allege that “I & M is a successor business entity to and, in the context of the facts of this case, is the alter ego of the Soo Line.” Complaint, ¶ 23. The Track Workers allege that I & M and Soo Line (collectively the Railroads) reached an agreement for the purchase of the track and employment of Soo Line’s employees in November of 1996, although I & M was not incorporated until February 28,1997, and did not begin operating as a common carrier until April 5, 1997, when its purchase of Soo Line’s track was consummated. In December of 1996,1 & M announced its intention to retain all managers of Soo Line in the areas purchased and to retain all qualified maintenance-of-way employees. I & M requested employment applications from all non-management workers on or about November 26, 1996, and interviewed applicants in December of 1996 and January of 1997. In those interviews, the Track Workers allege that they were asked whether they had any physical problems or disabilities; whether they had been injured on the job while working for Soo Line; whether they had made any claims for any on-the-job injuries at Soo Line; and whether they had filed any union claims or grievances while employed at Soo Line. Following the interviews, on May 30, 1997, and June 2, 1997, I & M refused to hired any of the plaintiffs, except Yahn and Petty, who were later disqualified without cause. The Track Workers allege that, prior to the interviews and continuing until I & M made its hiring decisions, Soo Line managers impermissibly provided information to I & M concerning each plaintiffs employment history, including information about the Track Workers’ union activities — such as activism, leadership, strike support, and claim filings— medical condition and work-related injuries, claims for work-related injuries, and disabilities. The Track Workers allege that Soo Line managers then participated in I & M’s hiring decisions, and that those decisions were motivated at least in part by an intent to retaliate or discriminate against the Track Workers for union activities, disabilities, or injury claims. B. Procedural Background The Track Workers filed their complaint in this lawsuit on November 26, 1997, and a first amended and substituted complaint on February 26, 1998. In the amended complaint, the Track Workers assert seven causes of action: (1) violation of the Railway Labor Act (RLA), 45 U.S.C. § 161 et seq., by conspiring to and actually denying them employment based in whole or in part on their participation in protected union activities; (2) violation of the express and implied provisions of the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., and "regulations of the Federal Railroad Administration (FRA), 49 C.F.R. § 225 et seq., which purportedly prohibit retaliation or discrimination based on reporting or filing claims for work-related injuries on the railroad; (3) violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by denying the plaintiffs reemployment because of disabilities or perceived disabilities within the meaning of the ADA; (4) age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.; (5) conspiracy in violation of 42 U.S.C. § 1985(3) to violate the plaintiffs’ rights under the RLA, FELA, FRA, ADA, and ADEA; (6) a state-law civil conspiracy to violate the same federal rights; and (7) intentional interference with prospective contractual opportunities, apparently by Soo Line, which deprived the Track Workers of the opportunity to work for I & M in their home areas. Instead of answering the complaint, I & M moved to dismiss the RLA, FELA, ADA, and § 1985(3) claims on April 9, 1998. Although Soo Line answered the amended complaint on April 8, 1998, on May 13, 1998, Soo Line moved for judgment on the pleadings on the Track Workers’ RLA, § 1985(3), and state-law civil conspiracy claims, and to dismiss the Track Workers’ FELA claim for lack of subject matter jurisdiction. The Track Workers resisted the Railroads’ motions on June 5, 1998. However, in that resistance, the Track Workers concede that § 1985(3) generally does not apply to economic wrongs and requires a pervasive racial scheme; therefore, they have voluntarily dismissed that claim. Thus, the present ruling addresses the adequacy of the Track Workers’ RLA, FELA, ADA, and state-law civil conspiracy claims. The court heard oral arguments on the motions on June 10, 1998. The plaintiff Track Workers were represented by counsel Charles A. Collins of St. Paul, Minnesota, and Jim Arenson of Zimmerman, Miller & Arenson in Iowa City, Iowa. Defendant I & M Rail Link was represented by counsel William C. Davidson and Jed E. Brokaw of Lane & Waterman in Davenport, Iowa. Defendant C.P. Rail/Soo Line Railroad Co. was represented by counsel Susan M. Robiner of Leonard, Street & Deinard in Minneapolis, Minnesota. The court will consider the arguments of counsel, both written and oral, in its legal analysis after first detailing the standards applicable to the Railroads’ motions. II. LEGAL ANALYSIS A. Applicable Standards I & M has moved to dismiss the Track Workers’ RLA, FELA, and ADA claims, pre-answer, for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). After answering, Soo Line has moved for judgment on the pleadings on the Track Workers’ RLA, ADA, and civil conspiracy claims pursuant to Fed. R. Civ. P. 12(e), and to dismiss the Track Workers’ FELA claim for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). Thus, the court must begin by identifying the standards applicable to the Railroads’ motions. The court finds that, in the circumstances of this case, there is little practical difference among the applicable standards. A motion to dismiss may be made, inter alia, for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Such motions “can serve a useful purpose in disposing of legal issues with the minimum of time and expense to the interested parties.” Hiland Dairy, Inc. v. Kroger Co., 402 F.2d 968, 973 (8th Cir.1968), cert. denied, 395 U.S. 961, 89 S.Ct. 2096, 23 L.Ed.2d 748 (1969). The issue is not whether a plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to offer evidence in support of its claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989). In considering a motion to dismiss under Rule 12(b)(6), the court must assume that all facts alleged in the plaintiffs complaint are true, and must liberally construe those allegations. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Doe v. Norwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir.1997) (“In considering a motion to dismiss, we assume all facts in the complaint are true, construe the complaint in the light most favorable to the plaintiff, and affirm the dismissal only if" ‘it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief,”’ quoting Coleman v. Watt, 40 F.3d 255, 258 (8th Cir.1994)); WMX Techs., Inc. v. Gasconade County, Mo., 105 F.3d 1195, 1198 (8th Cir.1997) (“In considering a motion to dismiss, the court must construe the complaint liberally and assume all factual allegations to be true.”); First Commercial Trust v. Colt’s Mfg. Co., 77 F.3d 1081, 1083 (8th Cir.1996) (same). The court is mindful that in treating the factual allegations of a complaint as true pursuant to Rule 12(b)(6), the court must “reject conclusory allegations of law and unwarranted inferences.” Silver v. H & R Block, Inc., 105 F.3d 394, 397 (8th Cir.1997) (citing In re Syntex Corp. Securities Lit., 95 F.3d 922, 926 (9th Cir.1996)); Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990), (the court “do[es] not, however, blindly accept the legal conclusions drawn by the pleader from the facts,” citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987), and 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 595-97 (1969)); see also LRL Properties v. Portage Metro Hous. Auth., 55 F.3d 1097, 1103 (6th Cir.1995) (the court “need not accept as true legal conclusions or unwarranted factual inferences,” quoting Morgan, 829 F.2d at 12). Conclusory allegations need not and will not be taken as true; rather, the court will consider whether the facts alleged in the complaint, accepted as true, are sufficient to state a claim upon which relief can be granted. Silver, 105 F.3d at 397; Westcott, 901 F.2d at 1488. The United States Supreme Court and the Eighth Circuit Court of Appeals have both observed that “a court should grant the motion and dismiss the action ‘only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” Handeen v. Lemaire, 112 F.3d 1339, 1347 (8th Cir.1997) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); accord Conley, 355 U.S. at 45-46, 78 S.Ct. 99 (“A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief.”); Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir.1997) (“‘A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,’ ” quoting Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982)); Doe, 107 F.3d at 1304 (dismissal is appropriate only if “‘it appears beyond doubt that the plaintiff can prove no set of facts which would entitle the plaintiff to relief,’” quoting Coleman, 40 F.3d at 258); WMX Techs., Inc., 105 F.3d at 1198 (“Dismissal should not be granted unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts that would entitle relief,” citing Conley, 355 U.S. at 45-46, 78 S.Ct. 99). The Rule does not countenance dismissals based on a judge’s disbelief of a complaint’s factual allegations. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Thus, “[a] motion to dismiss should be granted as a practical matter only in the unusual case in which a plaintiff includes allegations that show on-the face of the complaint that there is some insuperable bar to relief.” Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir.1995) (internal quotation marks and ellipses omitted); accord Parnes, 122 F.3d at 546 (also considering whether there is an “insuperable bar to relief’ on the claim). Here, the Railroads contend that there is such an “insuperable bar” to relief on some of the Track Workers’ claims. On a motion for judgment on the pleadings pursuant to Rule 12(e), the court must also “accept as trae the well-pleaded allegations in the complaint and draw all inferences therefrom in favor of the non-moving party.” Independent Fed’n of Flight Attendants v. Cooper, 141 F.3d 900, 901-02 (8th Cir.1998) (citing Fed. R. Civ. P. 12(c), and Lion Oil Co. v. Tosco Corp., 90 F.3d 268, 270 (8th Cir.1996)). A distinction between a Rule 12(b)(6) motion and a Rule 12(c) motion “is purely formal, because [the court must] review [a] 12(c) motion under the standard that governs 12(b)(6) motions.” Westcott, 901 F.2d at 1488 (citing St. Paul Ramsey County Med. Ctr. v. Pennington County, 857 F.2d 1185, 1187 (8th Cir.1988), and Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987)). Although subject matter jurisdiction is a threshold issue for the court, which grants the district court “broader power to decide its own right to hear the case than it has when the merits of the ease are reached,” Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir.1993) (quoting Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990), which in turn quotes Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 371 (1994), in the circumstances of this case, there is little difference between the standard applicable to the Railroads’ Rule 12(b)(6) or 12(c) motions and Soo Line’s Rule 12(b)(1) motion. This is so, because Soo Line makes a facial challenge to subject matter jurisdiction over the FELA claim here, rather than mounting a factual challenge to the truthfulness of its aver-ments. See Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993) (distinguishing between facial and factual challenges to subject matter jurisdiction). Soo Line asserts that the FELA simply does not provide for the cause of action asserted in the Track Workers’ second claim. The court in Titus explained a facial challenge to subject matter jurisdiction as follows: In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction. Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 731-32 (11th Cir.1982).... Id. Thus, for all of the present motions, the court must take the factual allegations as true, then see whether, as a matter of law, they are sufficient to state a claim upon which relief can be granted or to state a claim over which the court has subject matter jurisdiction. B. The RLA Claim The Railroads challenge the adequacy of the Track Workers’ first cause of action, which is a claim of “anti-union animus” pursuant to the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq. The Track Workers allege that the Railroads have violated the RLA by conspiring to and actually denying them employment based in whole or in part on their participation in protected union activities, such as filing time claims, testifying in grievance hearings, making safety complaints, organizing, and related union and member functions, including holding union offices. The Track Workers assert that it is a per se violation of the RLA to ask whether an applicant has previously filed union claims, and that it is also a per se violation of the RLA for Soo Line officers to provide information about such union activities to I & M. They seek backpay and benefits, lost future income or placement at I & M, damages for emotional distress, travel expenses, and other losses compensable at law. I & M and Soo Line contend that this claim is inadequate as a matter of law, because the RLA does not apply to applicants for employment. Both Railroads rely on Nelson v. Piedmont Aviation, Inc., 750 F.2d 1234 (4th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2358, 86 L.Ed.2d 259 (1985). The Track Workers contend that they have not alleged anti-union animus simply in hiring decisions, which they acknowledge would fall outside the purview of the RLA, but retaliatory and discriminatory conduct by a predecessor corporation to purge its successor corporation of union activists and that the two entities thus acted in concert to do together what Soo Line was prohibited by the RLA from doing alone. 1. RLA provisions and causes of action “The RLA provides a mechanism for resolving labor disputes involving common carriers in interstate commerce without disrupting the nation’s transportation services.” Independent Fed’n of Flight Attendants v. Cooper, 141 F.3d 900, 902-03 (8th Cir.1998); accord Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) (Congress passed the Railway Labor Act “to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes”); Sheet Metal Workers’ Int’l Ass’n v. Burlington Northern R.R. Co., 893 F.2d 199, 202 (8th Cir.1990) (“One purpose of the RLA is to prevent the disruption of the Nation’s rail service by requiring unions and management to attempt to settle all contractual disputes and minor grievances using the procedures provided in the RLA.”); Landfried v. Terminal R.R. Ass’n of St. Louis, 721 F.2d 254, 254 (8th Cir.1983) (“[T]he purpose of [the RLA] is to promote stability in labor-management relations in the national railroad industry.”), cert. denied, 466 U.S. 928, 104 S.Ct. 1712, 80 L.Ed.2d 185 (1984). In the part of the act that is pertinent here, § 2 Third & Fourth, codified at 45 U.S.C. § 152 Third & Fourth, the RLA provides as follows: Third. Designation of representatives Representatives, for the purposes of this chapter, shall be designated by the respective parties without interference, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the purposes of this chapter need not be persons in the employ of the carrier, and no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier. Fourth. Organization and collective bargaining; freedom from interference by carrier; assistance in organizing or maintaining organization by carrier forbidden; deduction of dues from wages forbidden Employees shall have the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter. No carrier, its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in maintaining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization, or to deduct from the wages of employees any dues, fees, assessments, or other contributions payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions: Provided, That nothing in this chapter shall be construed to prohibit a carrier from permitting an employee, individually, or local representatives of employees from conferring with management during working hours without loss of time, or to prohibit a carrier from furnishing free transportation to its employees while engaged in the business of a labor organization. 45 U.S.C. § 152 Third & Fourth. These subsections, part of the 1934 amendments to the RLA, have been “ ‘viewed ... as addressing primarily the precertification rights and freedoms of unorganized employees.’ ” Brotherhood of Locomotive Eng’rs v. Kansas City So. Ry. Co., 26 F.3d 787, 795 (8th Cir.) (quoting Trans World Airlines, Inc. v. Independent Fed’n of Flight Attendants, 489 U.S. 426, 440, 109 S.Ct. 1225, 108 L.Ed.2d 456 (1989)), cert. denied, 513 U.S. 930, 115 S.Ct. 320, 130 L.Ed.2d 281 (1994). Nonetheless, the Eighth Circuit Court of Appeals has held that causes of action are available under these subsections in post-certification as well as pre-certification situations. Id.; accord Fennessy v. Southwest Airlines, 91 F.3d 1359, 1363 (9th Cir.1996) (“ ‘An implied right of action exists under [§ 152 Fourth],’ ” quoting Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 936 (9th Cir.1987)), cert. denied, -U.S.-, 117 S.Ct. 1692, 137 L.Ed.2d 819 (1997). Therefore, the Eighth Circuit Court of Appeals has recognized that a private cause of action will lie under either of these subsections if the complaining party presents “ ‘adequate evidence that [the railroad’s] actions have been motivated by anti-union animus or that [the railroad’s] actions were an attempt to interfere with its employees’ choice of their collective bargaining representative.’” Id. (quoting Tello v. Soo Line R.R., 772 F.2d 458, 462 (8th Cir.1985), and also citing National R.R. Passenger Corp. v. International Ass’n of Machinists & Aerospace Workers, 915 F.2d 43, 51 (1st Cir.1990)). To put it another way, •“[i]n situations ... know as ‘post-certification’ controversies, Section 2, Fourth has been interpreted as providing protection where the plaintiff can show that the employer’s actions ‘strike a fundamental blow to union or employer activity and the collective bargaining process itself.’ ” Dempsey v. Atchison, Topeka & Santa Fe Ry. Co., 16 F.3d 832, 841 (7th Cir.) (quoting Trans World Airlines, Inc., 489 U.S. at 442, 109 S.Ct. 1225), cert. denied, 513 U.S. 821, 115 S.Ct. 82, 130 L.Ed.2d 35 (1994). The Seventh Circuit Court of Appeals recently explained that a claim that anti-union animus motivated an employment decision is analyzed using the “same burden-shifting method employed in unlawful discharge claims brought under the National Labor Relations Act (NLRA).” Lebow v. American Trans Air, Inc., 86 F.3d 661, 665-66 (7th Cir.1996). To establish such a claim under § 152 Fourth, an employee must demonstrate that (1) he or she “ ‘engaged- in union ... activities; (2) the employer knew of the employee’s involvement in protected activities; (3) the employer harbored animus toward those activities; and (4) there was a causal connection between the employer’s animus and its discharge decision.’ ” Id. at 666 (quoting Carry Cos. of Ill., Inc. v. NLRB, 30 F.3d 922, 927 (7th Cir.1994)). Furthermore, “[a]n employee may prove his [or her] ease using either direct or circumstantial evidence.” Id. 2. Availability of the cause of action to job applicants Although the Track Workers have alleged retaliatory or discriminatory acts motivated by anti-union animus that might otherwise be sufficient to sustain a cause of action under § 152 Third or Fourth, the Railroads contend that the Track Workers’ RLA claim must be dismissed, because the RLA does not apply to applicants for jobs with a railroad, and the Track Workers were only applicants for jobs with I & M. The seminal case for this proposition, as the parties recognize, is Nelson v. Piedmont Aviation, Inc., 750 F.2d 1234 (4th Cir.1984), cert. denied, 471 U.S. 1116, 105 S.Ct. 2358, 86 L.Ed.2d 259 (1985). In Nelson, the Fourth Circuit Court of Appeals considered whether a replacement pilot who had flown for one airline during a strike could state a claim pursuant to § 152 Fourth when he was not later hired by another airline, allegedly because the other airline feared delays and maintenance problems if it hired a pilot who had flown for an airline during a strike. Nelson, 750 F.2d at 1236. The Fourth Circuit Court of Appeals’ analysis of the availability of such a claim was as follows: Nothing in the statutory language or the legislative history of the RLA (which extends to common carriers by air, 45 U.S.C. § 181) supports appellant’s contention that applicants for employment are covered. The purpose of the statute is to establish the mechanics for collective bargaining between interstate carriers and their employees through freely selected representatives of both parties, Nashville, C. & St. L. Ry. v. Railway Employees Dept., 93 F.2d 340 (6th Cir.1937), cert. denied, 303 U.S. 649, 58 S.Ct. 746, 82 L.Ed. 1110 (1938); see also Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789 (1937). The statute defines an “employee” in clear language: The term “employee” as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate in the orders of the Interstate Commerce Commission.... 45 U.S.C. § 151 Fifth (emphasis added). In construing a statute, we must begin with the ordinary meaning of the words used and, absent a clearly expressed legislative intent to the contrary, regard the language as conclusive. American Tobacco Co. v. Patterson, 456 U.S. 63, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982); see also United States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). Here the statutory language does not admit of doubt. At the time of his application to Piedmont, appellant was not “in the service of a carrier” and did not “perform any work” for an airline as specified by' 45 U.S.C. § 151 Fifth. See Nashville, C. & St. L. Ry. v. Railway Employees Dept., 93 F.2d 340 (6th Cir.1937), cert. denied, 303 U.S. 649, 58 S.Ct. 746, 82 L.Ed. 1110 (1938). Therefore, appellant was plainly not subject to the protections of 45 U.S.C. § 152 Fourth, prohibiting an employer from interfering with an employee’s free choice of whether or not to join a labor organization. The only section of the RLA that deals with prospective employees is 45 U.S.C. § 152 Fifth, prohibiting a carrier from requiring a person seeking employment to sign any agreement promising to join or not to join a labor organization. The presence of this section demonstrates Congress’ ability to cover prospective employees when it wishes, and appellant makes no claim that Piedmont attempted to extract any promises from him in violation of this provision. There are 1,381 pages of legislative history pertaining to the Railway Labor Act and its several amendments. Not one considers the possibility of extending coverage to discrimination in the hiring of employees. No case supports appellant’s arguments .... Nelson, 750 F.2d at 1236. The court noted further that other statutes to which Nelson compared the RLA were inapposite, because [t]he difference in wording between those statutes and the RLA makes clear the more limited nature of the latter’s coverage. While the National Labor Relations Act (“NLRA”), 29 U.S.C. § 151 et seq., § 158(a) (1982), and the Federal Labor-Management and Employee Relations Act, 5 U.S.C. § 7101 et seq., § 7116(a) (1982), protect prospective employees in their spheres of coverage, the RLA does not. Id. at 1237. This court can find no decision rejecting Nelson’s conclusion that the RLA does not protect prospective employees or applicants. Indeed, the Seventh Circuit Court of Appeals also specifically embraced the holding of Nelson in Air Line Pilots Ass’n v. United Air Lines, Inc., 802 F.2d 886 (7th Cir.1986), cert. denied, 480 U.S. 946, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987), holding that “trainees and applicants simply do not fall within the RLA’s definition of employee.” 802 F.2d at 913 (citing Nelson, 750 F.2d at 1234-36). 3. Does Nelson preclude the Track Workers’ RLA claim? a. “Transfer” employees However, the lack of authority contrary to Nelson does not necessarily mean that Nelson precludes the Track Workers’ RLA claim here, even though the Track Workers, then employees of Soo Line, were “applicants” for employment with I & M. In Pyles v. United Air Lines, Inc., 79 F.3d 1046 (11th Cir.1996), the Eleventh Circuit Court of Appeals considered whether “the statutory definition of employee means that the RLA applies when an employee of one [common carrier] has a dispute with another [common carrier].” Pyles, 79 F.3d at 1051. The court found that the employee in question, Pyles, was “clearly someone who performed services as an employee for ‘a carrier’ — Pan Am,” but his dispute was over the failure of another airline, United, to hire him when United acquired certain aircraft, ground facilities, and routes from Pan Am and agreed to exercise its best efforts to hire Pan Am’s flight crews from these aircraft and routes. Id. at 1048 & 1051. The court concluded that the intent of the RLA would be served by applying the RLA to such circumstances. Id. at 1051. Although Pyles asserted that Nelson required a contrary conclusion, the Eleventh Circuit Court of Appeals concluded as follows: We find Nelson inapposite. Nelson is distinguishable because Pyles was not a mere applicant for employment off the street but rather was employed by an air carrier both prior to and subsequent to the route purchase transaction. More importantly, it was by virtue of his position with Pan Am that appellant was given an opportunity to be considered for a job at United; his employment with Pan Am, not to mention his affiliation with ALPA, put him in a position to be considered before other potential job applicants. As an ALPA member, he benefitted from representation by a national union throughout the course of the transfer negotiations. He cannot accept this status when it benefits him, then disavow it when it is no longer beneficial. We believe this is precisely the sort of dispute that belongs before a system board of adjustment. During all relevant times, Pyles remained in the employ of an airline. The agreements contemplated just such a direct transfer of employees from one airline to another. In fact, Pyles’ entire claim is premised on his allegation that he was contractually entitled, pursuant to a modified CBA, to transfer to United.. We thus regard Pyles as an employee as defined by, and thus within the scope of, the RLA. Pyles, 79 F.3d at 1051-52. The Track Workers contend that, like Pyles, they were “transfer” employees covered by the RLA entitled to consideration for positions with I & M because of their employment with another common carrier, not just “applicants” for positions with I & M. The court agrees that, as alleged in the complaint, the Track Workers were not mere applicants for employment off the street, but employees of one of the Railroads prior to the track purchase agreement; it was by virtue of their positions with Soo Line that they had an opportunity to be considered for jobs with I & M before other potential job applicants; and I & M had allegedly announced its intention to transfer qualified employees of Soo Line to I & M. Compare id. Thus, pursuant to Pyles, the Track Workers would be able to pursue their RLA claim. The Railroads, however, assert that- Pyles is inapposite, because the Track Workers have not alleged that they were “transfer” workers, but that they were “applicants” for employment with I & M. However, the Track Workers, whether or not they ever described themselves as “transfer” employees in the amended complaint, have alleged facts that place them squarely within the ambit of the RLA as interpreted in Pyles. The Railroads also assert that Pyles is inapposite, because that decision involved the question of whether Pyles’s state-law claim for breach of a collective bargaining agreement was pre-empted by the RLA. See Pyles, 79 F.3d at 1050. They contend that Nelson, by contrast, considers precisely the claim asserted here, a claim of an RLA violation brought by an applicant for employment. Therefore, they assert that Nelson is the more persuasive authority. Although Nelson involved a similar claim, the facts in that case are distinguishable from those presented here: Nelson apparently was not employed by any common carrier at the time he applied for employment with Piedmont Aviation. Nelson, 750 F.2d at 1236 (Nelson had been employed by Wien Air Alaska “during a two-year period when the Air Line Pilots Association (‘ALPA’) was on strike against Wien,” but “subsequently” sought employment with other airlines). The Track Workers, however, at least according to their allegations, were in almost precisely the same situation as was the “applicant” in Pyles: Pyles was an employee of one common carrier who sought employment with another when his employer sold routes and aircraft to the other common carrier, who had agreed to hire qualified employees who were presently flying those routes. See Pyles, 79 F.3d at 1048. Furthermore, although the claim Pyles was seeking to prosecute differs from the RLA claim asserted by the Track Workers here, the decision in Pyles-considers precisely the factual situation presented here of an employee with one common carrier who was seeking employment with another common carrier who had bought his route, and articulates the principles applicable to the question presented here of whether or not the RLA applies to such a person. Id. at 1051-52. In short, the Railroads are looking at the wrong set of facts in attempting to distinguish Pyles— those pertaining to the nature of the plaintiff’s claim — rather than the facts that are pertinent to the question of whether or not the RLA applies — those pertaining to the plaintiffs employment status with one common carrier while seeking employment with another common carrier who had bought the plaintiffs route. Thus, the court concludes that Pyles, not Nelson, is the more persuasive authority here. Nelson does not bar the Track Workers’ RLA claim, and the Railroads’ motions to dismiss the Track Workers’ RLA claim must be denied on that account. b. Conspiracy to violate the RLA The Track Workers also contend that, unlike the airline employee in Nelson, they have alleged concerted activity by the Railroads to take actions that, had Soo Line committed by itself against its employees, would have violated the RLA. This contention, however,, is barred by a decision of this circuit’s court of appeals. It is the law of this circuit that “[fjederal courts have no jurisdiction to review claims of a conspiracy to violate either a labor contract or federal labor law such as the Railway Labor Act.” Brotherhood of Ry. Carmen v. Missouri Pac. R.R. Co., 944 F.2d 1422, 1430 (8th Cir.1991) (citing Russom v. Sears, Roebuck & Co., 558 F.2d 439, 441 n. 3 (8th Cir.1977), cert. denied, 434 U.S. 955, 98 S.Ct. 481, 54 L.Ed.2d 313 (1977)). Counsel for the Track Workers opined that the quoted statement probably applies to collective bargaining disputes, but counsel for the Railroads asserted that the decision says what it means and must be followed. The court concludes that it cannot simply ignore the plain statement in Brotherhood of Railway Carmen, a controlling precedent of this circuit. Nor can the court find that the quoted language is dicta, because in Brotherhood of Railway Carmen, the Eighth Circuit Court of Appeals’ sole ground for affirming the district court’s grant of summary judgment on the Carmen’s claim that the defendants had conspired to violate certain provisions of the RLA was the lack of subject matter jurisdiction over such a claim. Brotherhood of Ry. Carmen, 944 F.2d at 1430. Thus, the Eighth Circuit Court of Appeals’ statement concerning subject matter jurisdiction over such a claim was necessarily involved in the determination of the cause, not merely incidental or collateral to it. Cf. Boyer v. County of Washington, 971 F.2d 100, 102 (8th Cir.1992) (per curiam) (noting that a statement in a prior case “was not necessary to decide the issue in the case and is not binding authority [here]”), cert. denied sub nom. Boyer v. DeClue, 508 U.S. 974, 113 S.Ct. 2966, 125 L.Ed.2d 666 (1993); accord Erickson, 89 F.3d at 1582. Therefore, this court finds itself bound by Brotherhood of Railway Carmen. Consequently, the Track Workers’ RLA claim cannot survive the Railroads’ motions to dismiss on the basis of allegations of conspiracy to violate the RLA, id., although it can survive on the basis of allegations that the Track Workers were “transfer” employees, as explained in the preceding subsection. See Pyles, 79 F.3d at 1051-52. c. “Per se” violations by Soo Line Furthermore, giving the Track Workers’ RLA claim the liberal construction to which it is entitled on a motion to dismiss, Conley, 355 U.S. at 45-46, 78 S.Ct. 99, the Track Workers have alleged that Soo Line alone committed wrongs against them while the Track Workers were employed by that Railroad and plainly covered by the RLA— wrongs such as providing the records of the Track Workers’ union activities to the alleged “successor” corporation and advising the alleged “successor” corporation on which employees to hire or not to hire on the basis of the employees’ union activities, allegedly for the purpose of retaliating or discriminating against the employees for those past union activities. These allegations are sufficient to state a claim under the RLA that Soo Line’s “ ‘actions [against its own employees] have been motivated by anti-union animus or that [the railroad’s] actions were an attempt to interfere with its employees’ choice of their collective bargaining representative.’ ” Brotherhood of Locomotive Eng’rs, 26 F.3d at 795 (quoting Tello, 772 F.2d at 462). Therefore, Soo Line’s motion to dismiss the RLA claim will be denied on this further ground. d. “Successor” liability for RLA violations The Track Workers contend that the RLA applies to I & M as a “successor” to Soo Line, and that its actions should be scrutinized to ensure that it does not discriminate against the predecessor’s employees, citing Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 36, 107 S.Ct. 2225, 96 L.Ed.2d 22 (1987). They contend that Fall River, although it is an NLRA case, is instructive as to the RLA. as well, citing Hawaiian Airlines v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). In Fall River, the Supreme Court considered a successor corporation’s obligation to bargain with a union that had represented the employees of its predecessor. Fall River, 482 U.S. at 29, 107 S.Ct. 2225. The Court wrote, We observed in [NLRB v.] Burns [International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972),] that, although the successor has an obligation to bargain with the union, it “is ordinarily free to set initial terms on which it will hire the employees of a predecessor,” 406 U.S. at 294, 92 S.Ct. 1571, and it is not bound by the substantive provisions of the predecessor’s collective-bargaining agreement. Id. at 284, 92 S.Ct. 1571. We further explained that the successor is under no obligation to hire the employees of its predecessor, subject, of course, to the restriction that it not discriminate against union employees in its hiring. Id. at 280, and n. 5, 92 S.Ct. 1571; see also Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 262, and n. 8, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974). Thus, to a substantial extent the applicability of Bums rests in the hands of the successor. If the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor, then the bargaining obligation of § 8(a)(5) is activated. This makes sense when one considers that the employer intends to take advantage of the trained work force of its predecessor. Fall River, 482 U.S. at 40-41, 107 S.Ct. 2225. The Court therefore held that a successor’s obligation to bargain with the predecessor’s union was not limited to the situation in which the union had only recently been certified. Id. at 41, 107 S.Ct. 2225. The Track Workers assert that this “successorship doctrine” should be expanded to apply to their RLA claim, because both the RLA and the NLRB seek to maintain labor-management peace at almost any price. In Fall River, the Court explained that the determination of whether a successorship situation is present “is primarily factual in nature and-is based- upon the totality of the circumstances of a given situation,” but the “focus [is] on whether the new company has ‘acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor’s business operations.’ ” Id. at 43, 107 S.Ct. 2225 (quoting Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973)). The question of “substantial continuity” involves consideration of a number of factors, including “whether the business of both employers is -essentially the same; whether the employees of the new company are doing the same-jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers.” Id. The Railroads contend that the Track Workers have not alleged any factual basis for “successorship” liability, if it is otherwise applicable, but have instead pleaded merely the conclusion that I & M bought assets of Soo Line and that it is the “successor” of Soo Line. The Track Workers have indeed alleged that “I & M is a successor business entity to and, in the context of the facts of this case, is the alter ego of the Soo Line.” Complaint, ¶ 23. However, they have alleged more than that.- To the extent the factors identified in Fall River are applicable to railroads, the court finds that the Track Workers have alleged sufficient .factual basis for asserting that I & M is the “successor” of Soo Line. The Track Workers have alleged that the business of I & M is essentially the same, in fact, that it is identical, in the section of the Soo Line that I & M has purchased, see Complaint, 1122 (I & M agreed to purchase “all contracts and business obligations” of Soo Line); the entire management of the predecessor company was hired by I & M as were most of the employees, who are performing precisely the same tasks under essentially the same supervisors, see Complaint, ¶¶26 (I & M announced “it would retain all managers of Soo Line in the areas purchased”), 27 (“I & M stated its’ [sic] intention to retain all qualified maintenance of way employees.”), 39 (the Soo Line managers became employees of I & M on the date of the transfer of assets); and from these facts it can reasonably be inferred that the services provided by I & M are essentially the same, and for the same customers, as they were when the route was Soo Line’s. Fall River, 482 U.S. at 40-41, 107 S.Ct. 2225. However, one difficulty with the Track Workers’ assertion of “successor” liability of I & M for violations of the RLA is that the one court to consider whether the “successor-ship doctrine” concerning union representation applies to the RLA as well as the NLRA has rejected that argument. See Railway Labor Executives’ Ass’n v. Wheeling & Lake Erie Ry., 741 F.Supp. 595, 599 (E.D.Va.), aff'd, 914 F.2d 53 (4th Cir.1990) (table opinion). In Wheeling, Judge Ellis of the United States District Court for the Eastern District of Virginia first defined the “suecessorship doctrine” as stated in Fall River: “This doctrine holds that in certain circumstances a successor employer may have a duty to bargain with the representative certified to the predecessor employer.” Wheeling, 741 F.Supp. at 596 n. 2 (citing Fall River, 482 U.S. at 27, 107 S.Ct. 2225, and NLRB v. Burns Int’l Sec. Serv., Inc., 406 U.S. at 272, 92 S.Ct. 1571). However, he rejected the contention that the doctrine should be imported into the RLA, in the process specifically rejecting the argument the Track Workers make here that both the NLRA and the RLA seek peace at any price. See id. at 598-99. Judge Ellis found that the NLRA and RLA “are not animated by the same balance of policy considerations,” because the RLA seeks to avoid strikes, while the NLRA proscribes strikes and picketing only in specific circumstances. Id. at 598. Furthermore, Judge Ellis found, by enacting [a] comprehensive RLA scheme and by creating the [National Mediation Board (NMB) ] and granting it exclusive power over representation disputes, Congress has deliberately left no room for the courts to engraft a suecessorship doctrine onto the RLA. Indeed, it is plain that such a doctrine, even assuming it were to fit the facts at bar, is incompatible with the mandatory RLA, § 2 Ninth procedure and the NMB’s exclusive jurisdiction over representation disputes. To hold otherwise would have this Court decide what is the appropriate craft or class and who is, or are, the authorized bargaining representative(s). But Congress has committed these decisions exclusively to the NMB. It follows, then, that to import a successor-ship doctrine into the RLA context would wrongly have this Court usurp the functions Congress committed solely to the NMB. Wheeling, 741 F.Supp. at 599. In this case, the Track Workers would have this court, by analogy with the suecessorship doctrine of the NLRA, which applies only to questions of representation, authorize a cause of action under the RLA against the successor corporation and predecessor corporation jointly for refusal of the successor corporation to rehire some of the predecessor’s employees, allegedly because of an anti-union animus. Such an expansion of the suecessorship doctrine to the RLA, where the more limited doctrine has been found to be a poor fit, appears to be inappropriate. This brings the court to the second difficulty with the Track Workers’ “successor liability” argument, which is that, while the NLRA specifically protects new hires from discrimination on the basis of union activity, the RLA does not, see, e.g., Nelson, 750 F.2d at 1237; thus, at least at first blush, successor liability of the type sought by the Track Workers is more appropriate to the NLRA than it is to the RLA. Although NLRA concepts may be instructive in RLA cases, courts “will not find NLRA precedent persuasive ... in the face of relevant RLA precedent.” Brotherhood of Locomotive Eng’rs, 26 F.3d at 795. Wheeling is such persuasive RLA precedent, which, although not binding, is more directly on point than NLRA precedent, such as Fall River, particularly when Wheeling has considered and rejected the applicability of that NLRA precedent in the context of an RLA claim. This is not to say that the Track Workers’ argument is wholly without appeal: After all, why should a successor and predecessor corporation be allowed to evade the RLA by acting jointly to rid the successor’s workforce of union activists? There are cogent reasons for allowing a cause of action to prevent such evasion of the RLA. First, the law recognizes that, although there is no “successor liability'’ for a purchasing corporation when the acquisition takes the form of a purchase of assets, there are exceptions to this general rule that are or may be applicable here, see United States v. First Dakota Nat'l Bank, 137 F.3d 1077, 1080 (8th Cir.1998) (applying South Dakota law); Cooper v. Lakewood Eng’g and Mfg. Co., 45 F.3d 243, 245 (8th Cir.1995) (applying Minnesota law); Grand Lab., Inc. v. Midcon Lab., 32 F.3d 1277, 1283 (8th Cir.1994) (applying Iowa law); Pancratz v. Monsanto Co., 547 N.W.2d 198, 200 (Iowa 1996), taking the allegations of the amended complaint as true. Conley, 355 U.S. at 45-46, 78 S.Ct. 99. These exceptions include the following: (1) when the purchasing corporation expressly or impliedly agrees to assume the selling corporation’s liability, First Dakota, 137 F.3d at 1080; Cooper, 45 F.3d at 245, Pancratz, 547 N.W.2d at 200-01; (2) where the purchasing corporation is merely a continuation of the selling corporation, Cooper, 45 F.3d at 245; Grand Lab., Inc., 32 F.3d at 1283; Pancratz, 547 N.W.2d at 200; and (3) where the transaction is entered into fraudulently in order to escape liability. Cooper, 45 F.3d at 245; Pancratz, 547 N.W.2d at 200. The Track Workers allege that I & M specifically agreed to assume all of Soo Line’s contracts and business obligations and announced its intention to hire all of Soo Line’s managers and qualified employees; they allege that I & M is a .continuation of Soo Line; and they allege that Soo. Line and I & M took advantage of the transfer of assets to allow I & M not to rehire union activists, with the advice and connivance of Soo Line managers, even though Soo Line could not itself fire those union activists, suggesting that the transfer was a fraud for the purpose of committing anti-union acts. Furthermore, Wheeling is distinguishable. Wheeling rejected the narrowly defined “successorship doctrine” — which concerns a successor’s obligation to bargain with a predecessor’s collective bargaining representative — on the ground that the RLA provides exclusivé means for resolving such a claim without judicial intervention. Wheeling, 741 F.Supp. at 599. However, courts have recognized a judicial cause of action for “anti-union animus” in violation of 45 U.S.C. § 152 Third & Fourth, Brotherhood of Locomotive Eng’rs, 26 F.3d at 795, which means that the cause of action asserted against a successor here is not within the exclusive jurisdiction of the NMB. In these circumstances, Wheeling does not convince the court that the Track Workers’ RLA claim is barred. Thus, there is no “insuperable bar” to the Track Workers’ assertion of successor liability for RLA violations requiring dismissal of such a claim, Parnes, 122 F.3d at 546; Frey, 44 F.3d at 671, because, at this stage of the proceedings, it appears that there is some set of facts that could be proved consistent with the allegations that would entitle the Track Workers to relief on their RLA claim. Handeen, 112 F.3d at 1347; accord Conley, 355 U.S. at 45-46, 78 S.Ct. 99; Parnes, 122 F.3d at 546; Doe, 107 F.3d at 1304; WMX Techs., Inc., 105 F.3d at 1198. Therefore, on the grounds that the Track Workers have alleged that they were “transfer employees,” Pyles, 79 F.3d at 1051-52, that Soo Line alone has violated the RLA, and that there was a predecessor-successor relationship between Soo Line and I & M, the Railroads’ motions to dismiss the Track Workers’ RLA claims will be denied. C. The FELA Claim The Track Workers’ second cause of action is a claim alleging violations of the express and implied provisions of the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq., and companion regulations of the Federal Railroad Administration (FRA), 49 C.F.R. § 225 et seq. This claim alleges that I & M violated the FÉLA by asking questions of applicants about their prior work-related injuries and claims and by refusing employment to some existing workers of Soo Line on the basis of this information as well as similar information obtained from Soo. Line, and that Soo Line violated the FELA by providing to I & M information about applicants’ disabilities and injury claims while employed with Soo Line. The Track Workers allege that the Railroads conspired to deprive them of employment based in whole or in part on their legally protected acts of reporting injuries and filing claims for such injuries. They demand the identical relief asserted in their first cause of action, as well as declaratory and injunctive relief precluding further inquiry into or use of such information. I & M has moved to dismiss this cause of action for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), and Soo Line has moved to dismiss it for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). Whichever subdivision of Rule 12 is identified as the basis for motions, the Railroads both contend that the Track Workers’ FELA claim must be dismissed, because the FELA simply does not authorize the kind of claim the Track Workers have asserted. I & M contends that the FELA provides a remedy only for railroad employees who have suffered personal injuries as a result of negligence of their employer, which the Track Workers do not allege is the nature of their claim, and that, in any event, the FELA does not provide a cause of action for applicants. Soo Line asserts that the courts of appeals of this and other circuits have specifically rejected the contention that the FELA authorizes a cause of action for retaliation for filing a FELA claim, citing Landfried v. Terminal R.R. Ass’n of St. Louis, 721 F.2d 254 (8th Cir.1983), cert. denied, 466 U.S. 928, 104 S.Ct. 1712, 80 L.Ed.2d 185 (1984). Like I & M, Soo Line contends that the FELA does not apply to applicants for positions. The Track Workers counter that their cause of action fits within the language of 45 U.S.C. § 60 of the FELA and that, in any event, a retaliatory discharge for filing a FELA claim is contrary to the public policy of the state of Iowa and as such is actionable. 1. The purpose and scope of the FELA “FELA, enacted in 1908, creates a federal statutory cause of action for employees of interstate carriers (railroads) against their employers for injuries incurred in the course of employment.” Nordgren v. Burlington Northern R.R. Co., 101 F.3d 1246, 1249 (8th Cir.1996). The FELA also “preempts state-law personal injury claims by injured railroad employees against their employers and creates a uniform federal law of liability in this field.” Id. at 1250 (citing New York Central R.R. v. Winfield, 244 U.S. 147, 150, 37 S.Ct. 546, 61 L.Ed. 1045 (1917)). The Supreme Court has recognized that the FELA is a “broad remedial statute,” and therefore must be construed “liberally” in order to accomplish Congress’s goals. Id. at 1249 (citing Atchison, Topeka & Santa Fe Railway v. Buell, 480 U.S. 557, 562, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987)). “At the same time, the Court has maintained that FELA does have limitations and must be interpreted ‘in the appropriate historical context.’” Id. (quoting Monessen S.W. Railway v. Morgan, 486 U.S. 330, 337, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988)). Section 60 of the FELA, upon which the Track Workers assert their claim is based, provides, in pertinent part, as follows: § 60. Penalty for suppression of voluntary information incident to accidents; separability of provisions Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than o.ne year, or by both such fine and imprisonment, for each offense: Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports.... 45 U.S.C. § 60. 2. Does the FELA authorize a cause of action for retaliation against a claimant? As mentioned above, the Railroads contend that any claim of retaliation for filing FELA claims is barred by Landfried v. Terminal R.R. Ass’n of St. Louis, 721 F.2d 254 (8th Cir.1983), cert. denied, 466 U.S. 928, 104 S.Ct. 1712, 80 L.Ed.2d 185 (1984). In Landfried, the Eighth Circuit Court of Appeals considered whether railroad employees had a claim cognizable in federal court that they had been terminated in retaliation for bringing actions against their employer under the FELA. Landfried, 721 F.2d at 254. The railroad defendant contended that the plaintiffs were discharged for having violated various safety and work rules in a manner consistent with the agreements between the defendant and the unions to which the plaintiffs belonged. Id. at 255. The Eighth Circuit Court of Appeals first concluded that “it appears that resolution of plaintiffs’ claims will depend at least in part on interpretation of the applicable collective bargaining agreements. Under Andrews [v. Louisville and Nashville R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972),] such claims are subject to the RLA’s provisions for processing of grievances and the federal courts are barred from adjudicating them.” Id. The Eighth Circuit Court of Appeals then noted the following: We might reach a different conclusion if, as in Hendley v.