# Jurisdictional Statement — Transit Union v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0836%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1967 - **Citation:** 385 U.S. 38 ## Text & 4 Washington,. D. C. 20005 | j itiPa et COURT, Ue Aa; Offiee-Supreme Court, US. — es ies BILED..| \ AUG 29 1966 eos | ) VIS, cLERK iN THE JOHN F. DAVIS, C ae ea Supreme Court of the United States a ee Ocroser THM, 1966 4 } \- 4 va e | # No. 4 G 6 AMALGAMATED TRANSIT Untow, “AFL-CIO, A ppellgnt ‘ - t 4 v. ee ree. ‘ UnItep STATES oF AMERICA and INTERSTATE CoMMERCE CoMMIssIoON, Appellees, and Amentoan BUSLINES, ‘Ino. and ein ax ASSOCIATION + OF Motor Bus Ownnns, Intervenor-Appellees. On Appeal From The United States District Court | dees the District of Columbia JURISDICTIONAL STATEMENT HERMAN STERNSTEIN | WiuiaM B. Peer. . pe soe 1155 15th Street, N. W. Washington, D. C. 20005 - . Attorneys for Appellant ° ‘= ZIMRING, GROMFINE and STERNSTEIN. 1155 15th Street, N.. W. Of Counsel ' Purss or Byron S. ADAMS Provrine, Inc., WASHINGTON, D.C. 4 ¢ ° . ‘ 3 Poi . “a s ¢ 9 - - e _ I J. Gromrine_—_.--_—— SS 4 “ a ‘TABLE OF CONTENTS ee 3 Page Jurisdictional Statement-.............. ener e | Opinions Below ...........,...0008- cued pens 2 ES eer SRR OawAeneees jaeare, | Statutes Involved .........:...eeeeee. Pesto aie Questions: Presented ........ eee evecccess 8 Statement of the Case .. TE ern fx " ieowees 4 Introduction .......... COE TE ere te OO OE a a ' The Transfer Proceeding Before The Commission — 4. Amalgamated’s Petition To Reopen The Record and Commission Hearings Thereon ....... Sc —— Amalgamated’s Proposed Conditions and The Com- mission’s ‘Denial Thereof 7..............000:- - i Judicial Review of Commission’s Decision and | . -» Remand to The Commission .................. ee The Judgment From Which This Appeal Is Taken 13 The Questions Presented Are Substantial .......... 14. WRU 5 6c iciversssany st iteaenas 14 1. The Statutory © Requirement of a - Parity of ‘OE Sasce conga eRe uankecacvcseees as ae 2. The ‘Constitutionality of Section eae en nv ae Conclusion ...‘..... LARS SESS REARS DECADES CaRenes . 31 APPENDICES: ; 3 | = A. The Decision of hs Court NE si Nisisscue “la B. The Decision of .the Commission, 97 M.C.C. 6 8a C. "The Statutes Involved :..........0.005 Sees 32a »: , cs 2st Pp tf vi ; “i r a _ Contents Continued _ AUTHORITIES orpip oe CasEs:_ | a Page. Amalgamated Association v. ‘United States, 221 F. Supp, 958 (D-D.C. 1968) ......0...s0-peccerees 11,26 Baggett Transportation Co —Purchase—Hunt Freight . ' Brotherhood o ines, -Inc., 75 M.C.C. 147. foe kes a Sew . Bolling v. er 347 U.S. 497 Maintenance’ of Way Employes v. United States, 366 U.S. 169 (1961) .......... 2, 10,16 Burlington Truck Lines v. United States, 371 U.S. 156 | RN aes M ERP ME oe eo dd 26 | Chicago, Burlington and Quine Ry. Co. Abandonment, Be GR Ee OED nn eon ccc tqenvata se cvees Chicago & North Western Railway Co. Merger, 261 I EE errr e rere eee e eee 5. Chicago, Rock Island & Gulf Railway Co. Trustees ‘Lease, 230 1.C.C, 181 (1938) ....:......-...0:. 16 ~ Coordination of Motor Transportation, 182 1.0.C, 263 Interstate Commerce Commission v. IT Transport We gk Te ee ore 26 Interstate Commerce Commission v: Railway Labor Executives’ Association; 315 U.S. 373 (1948) . 2 . Motor Bus and Motor Truck Operation, 140 1.C. C. 685 | EE SGC Sle Cea dcdensb hed eat abcde sa veakas 00:3 18 — Ohio Bell Telephone v. PUC, 301 U.S. 292 ( 1937) . 24. EER ere er Peet ee ee eee » 18,19 | The Greyhound Corp _—Control—Southeastern Grey- hound, 57 M.C. ce > 2a be 16. Hudson Bus Lines—Conttol—Boston & Maine Trans- portation .Co.; 58 M.C.C. 133 (1951) .......... 19 Indiana Motor. Bus Co .—Purchase—Chicago, South Shore and South Bend R.R., — M.C.C, —, Docket Noe MC-F-8122 (1963) 2... cece cece ccccoveees 16 . Oklahoma Ry. Co. Trustees Abandonment, 257 I. OC. Pe 5 Eee eee 10 Overnite Transportation Co. _"Purchase—Putherford Freight Lines, Inc., 97 M.C.C. 568 (1966) -. 0.5... 16 Railway Labor Executives’ Association v. United ° =f States, — koe a 8) a ee Schneider.v. Rusk; 377 U.S. 163 (1964) ....... pera 22 Short Line, Ine. -_Purchase—New England Transp. Co. 77 M.C.0, 83 (1958) ..........0..+ee0e. 16, 19, 20 . Fe ae A ily ot Contents Continued oe hii Southern Railway Co.—Controf—Central of Georgia United States v. Petrillo, 382 U.S.-1 (1947) ........ Srarures **. Pe: ee Interstate Commerce Aci, 49 U.S.C. §1 et seg. > Section 5(2)(b) Heotensteecea teas ee eag BBL BB MO IO, Sih i ic ccuaucbcsces deca 2, 3,20, 21° : _ Section 5(2)(f) .f.u... imei ans Vevdus Geaeaee , 20, 21 Section 5(4)(b), 48 Stat. 217-...............0.05. Section 17(11) ........ SePeRRKhRKeeeak ees keener ae | Motor Carrier Act of 1935, 49 Stat. 543.......... ...18-19 . SI enka Bus bid eer ce cn dca Seats 19 . BSeotion 213 °......,....4. EE OR errr’ 19 United States Code. Annotated . Pelee OB, Bodiien 1908 * sf cs is ccssse ee 3 I I I cess cccisdonvedacecces a Title 28, Section 1398 ...... iwuawe Kaeeaaas veer 2 «Title 28, Section 2284 ........ ‘Lats eieesathieeses.: aa Title: 28, Sections i. beekdekene ls ae CONGRESSIONAL MATERIAL: ‘ | Eastman, Report of the Federal Coordinator of Tranms- portation, 1934, B.R. Doc. No. 89, 74th Cong. Ist ‘Sess. (1935) ......... Seca PANE ES banhehikee des 18 Hearings on 8S. 1629 Before the Senate Committee on : Interstate Commerce, 74th Cong. 1st Sess. (1934) . 18, 19 _S, Rep. No. 482, 74th Cong. Ist Sess. S| eer .. 18 MISCELLANEOUS: Brief of the United’ States and Interstate Commerce Commission in Brotherhood of Maintenance of | Way Employes v. United States, 366 U.S. 169 - SEE Aah haads ey hee ctiksteeeitansenascee 26 MT CHM sos cn sane: Pele iaess ec ca ons 18 Page | uae ° . > . ° “4 * ° ‘ ° ’ » . 4 . . « f > . ° } ‘ o | j ; & e 7 . . . . o . . j j ‘ - - + ‘ . ' } } ; . ‘ ° - : ° ; - a” . _ . . . ‘ . : a a° ° - < ° a ad ° ; ~ 12. 2 , IN THE _Srorene Court of the Huiten States | OcrosEr TERM, 1966 2 S aanaEanaEEEEEEeieEea No. ¢ + { AMALGAMATED TRANSIT Union, AFL-CIO, Appellant paige eres - 1 : , ‘Unrrep States or AMERICA and INTERSTATE COMMERCE CoMMISSION, Appellees, AMERICAN BusLiNEs, INC., and NATIONAL ASSOCIATION or Motor. Bus Owners, Intervenor-A ppellees, - - On Appeal From The United States: District Court For the District of Columbia , JURISDICTIONAL STATEMENT Appellant appeals from the judgment of the United States District Court for the District of Columbia, _ elitered on May 4, 1966, which affirmed an ordér of the - Interstate Commerce Coimmission: and -submit¥ this Statement to show that the Supreme Court of fhe ’ » J ' We JY - , . i » net yr TEI Et prem orere ~~ ~ “* Pa 2 Uniteh States has jurisdiction of tle apptal and that’ - substantial questions are presented. ! You "OPINIONS BELOW > The opinion of the court below is reported at 253 F. Supp. 481, and it may be found as Appendix A. attached hereto. The two opinions of the Interstate Commerce Commission involved herein are reported at 90 M.C.C. .173 (1962), and 97 M.C.C. 426 (1964), the latter of © which is i. oe hereto as Appendix B. ar JURISDICTION , This suit was brought under 28 U.S.C.A. Sections 1336, 1398, 2321-2325, and 2284, to set aside and vacate an order of the Interstate Commerce Commisgion. The judgment of the three-judge District Court was entered on May 4, 1966, and the notice of appeal was filed in _ that court on Jung 30, 1966.- The jurisdiction of the Supreme Court to review this decision by direct appeal is conferred. by 28 U.8.C.A. Section 1253. The follow- ing decisions sustain the jurisdiction of this Court to review the judgment of the District Court: Brother- _hood of Maintenance of Way “Employes v, United States, 366 U.S. 169 (1961) ; Railway Labor Executives’ Association v. United States, 339 U-S. 142 (1950) ; In- terstate Commerce Commission v. Railway Labor Ex- cutives’ Association, 315 U.S. 373 (1943) ; and United States va. Lowden, 308 U.S. 225 (1989). ap a _ STATUTES INVOLVED ° The statutory provisions involved in this appeal are _ Sections 5(2)(b), (ec) and ‘(f) of the Interstate Com- merce Act, 49 U.8.C.A. Sections 5(2)(b), (ce), and (f). The provisions are attached hereto as Appendix C POR TS oR ET oe | | QUESTIONS PRESENTED F (i) Did the court below err:in upholding the Com- a YT mission’s interpretation’ of Section 5€2)(c) of the . Interstate Commerce Act, which interpretation denies to motor carrier employees adversly affected by a Sec- tion 5 transaction protective /conditions that have regularly been considered as n&écessary to the fair — equitable treatment of the interests of railros m- - ployees suffering the idemttical adverse effe (2) Did the court, below err in failing to conclude that Section 5(2)(¢) of. the Act; as interpreted and ‘applied by the Commission in this case violates thé Due ‘Process Clause of the Fifth Amendment of the Con- stitution of the United States and is unconstitutional, for the reason that the Section arbitrarily and capri-_ . ciously classifies motor carrier employees, and effects tion afforded against losses incurred as 4 result of the — transfer of motor carrier operating rights under Sec tion 5 of the Act? (3) Does the decision and ilies of the court below violate the Due Pcess Clause of the Fifth Amendment of the Constitution of the United States in that the decision an} judgment is void of any findings based upon evidence of record, and that the decision ‘and judgment is instead premised on matters de hors the record which were yever presented to the Oom- mission, were not relied Tipon by the Commission and which Appellant was not afforded the en to meet, rebut or answer? (4) Did the court below err in failing to conclude that the Commission arbttrafily and capriciously relied 4 - invidious discrimination against. them in the protec-. _ upon the same ground previously relied upon and deter- © + . mined adversely to it by a three-judge District Court in a prior appeal, to deny protective conditions against the loss of wages and reduction in earnings suffered . by the employees ? ‘ (5) Did the court below err in failing to conclude that thé Commission’s findings against the need for comprehensive employee. protective conditions were without any basis in the record, arbitrary and capri- cious, and contrary to law? | STATEMENT OF THE CASE Introduction. This case involves a denial by the Interstate Com- merce Conimission of employee protective’ Gonditions in a motor carrier transfer proceeding under Section 5(2) of the Interstate Commerce Act, 49 U.S.C.A. sec. 5(2). Appellant Amalgamated Transit Union, AFL- CIO (sometimes referred to hereinafter as ‘“Amalga- mated”’), asthe bargaining representative of the bus ' drivers affected, sought from the Commission the same _ measure of protection for the employees as the Com- ~ mission has customarily afforded railroad employees adversely affected in the same ways. The Commission has refused to grant the protection requested. Because of this refusal the employees have suffered losses in wages, reduction in earnings, additional moving costs and living expenses, and other burdens, against which they are unprotected. The Transfer Proceeding Before The Commission This case began on November 18, 1958, when Ameri- ean Buslines, Inc., made application to the Commission for approval under Section 5(2) of the Act to sell and ‘* v.° 5 ‘transfer certain of its operating rights to two other ie carriers, Midwest Buslines, Inc.,- and- Continental Tehnessee Lines, Inc. Amalgamated, on behalf of the bus drivers represented on American, intervened in the Commission proceedings under autliority of Section 17(11) of the Act, 49 U.S.C.A. see. 17(11). Amalga- * mated argued, inter alia, that if the application were approved, the Commission should impose, a8 a condition to the approval of the transfer, certain provisions for the protection of the employees whose jobs were being . transferred to the other carriers, including provisions . protecting them from loss of earnings resulting. from displacement, monthly allowances for dismissed em- ployees, and severance allowances, all in accordance with the Commission’s regular practice in railroad cases*under Section 5. After hearings were ‘held on the application, first a Hearing Examiner and then the Commission on November 12, 1959, granted the application but denied the specific protective conditions requested by Amalga- mated. Instead, a three year “‘reservation of juris- diction’? was imposed by. the Commission in order to rive Amalgamated the opportunity to establish sub- sequently\that the bus drivers had suffered adversly from the’ approved transaction. See 80 M.C.O. 681 (1959). | 1 At the time of the hearing before the Hearing Examiner, the American drivers. were on strike against American. Thus, it could not be readily determined what adverse effects they would suffer if and when they returned to work with American after the sale of the routes. The Commission has commonly imposed similar “‘reservations’’ in motpr carrier cases, and until 1946, the Com- mission had also done so in railroad cases. See Chicago & North- ~ western Railway Merger, 261 1.C.C. 672, 675 (1946). ‘ ee a Amalgamated’s Petition To Reopen The Record and Commission Hearings Thereon On April 11, 1960 Amalgamated requested that the Commision reopen the record, that further hearings be held and that specific conditions be imposed for the . protection of the employees. This petition was granted by the Commission and in J anuary, 1961, hearings were held. At thé hearings before the Commission, Amalga- mated’s proof established the following facts concern- ‘ing-the adverse effects suffered by the American bus drivers: | | Prior to the sale and transfer of American’ s operat- ing rights to Midwest and Continental, American had employed 41 drivers on the routes at issue. With the sale consummated, and 41 fewer jobs available ‘with American, 22 drivers who had lost their jobs exercised | their master seniority with American and obtained new : assigriments elsewhere on American. In.so doing, these — 22 drivers displaced or.“‘bumped’’ other less ‘senior = drivers who, in_turn, ‘‘bumped’’ other: junior “drivers into new assignments. Amalgamated introduced into evidence before the Commission eleven exhibits de- picting the. earnings of drivers both before and after displacement, in order to illustrate the losses in earn- ings sustained. These statistical comparisons showed that the drivers, in many months after being displaced and after locating new assignments, earned substan- tially less than their average monthly earnings had been before displacement. Many of the drivers affected had been ‘employed by American in what was known as the ‘‘southern senior- 7 ity district”, which was completely eliminated with the sale of the routes involved. Each of these drivers fost his employment in that district and had to move to American’s ‘‘eastern seniority district’ to remain employed. For some of these drivers, the first assign- “ments available in the eastern district were lower-pay- ing and irregular extra-board work.. For others, even the availability of regular assignments did not assure equivalent earnings, and they earned less in many months than they had averaged before. Of the 22 drivers, others had been employed in American’s ‘‘central seniority district’”’ prior to the sale. .Because some assignments still existed in this district after the sale, and because they still had a> home seniority district in which to bid, these drivers were restricted in securing assignments in the eastern district. Before these drivers could bid into the east- ern district, they had to be in furlough status in the central district. Then if, once having secured an as- signment in the eastern district, a job reopened in the ~. central district which they were eligible to bid, the drivers had to return to the central arninict or forfeit all seniority rights. Many of the central drivers did acquire aan | status and bid into the eastern district in search of hetter paying, more secure work. However, soon there- after, jobs again reopened in the central district and _ they were forced to return. Amalgamated’s evidenice showed the results of these moves: for example, in one case the driver earned after the sale of the routes what‘ he had averaged before in only three of the twelve months analyzed. For another, in only two of the twelve months studied was the driver able to earn what he had averaged before and, in one of those months, he 8. had to drive more than 4,000 niore miles than he had previously averaged in order to achieve the higher earn- ing level. Testimony from the drivers themselves was also prof- : fered by Amalgamated. Mr. Elmgre’s testimony may be cited as illustrative.’ Before the sale .of -his route, Mr. Elmoreheld down a regular run in the central dis- trict. He aad his wife lived in a home they rented in Springfield, Missouri. When Mr. Elmore returned to work following the sale, he was unable t hold an assignment because he was continually ‘‘bumped’’ by more senior drivers. Finally he was furloughed in ‘the central district and, in November, 1959, he was able — to bid into the eastern district on a regular run. -He worked in the eastern district until the end of Juge, 1960, when he was recalled to the central district where he had to’ take an extra-board saspavaie in Big Springs, Texas. Mr. El)more testified that for the first two months. of his employment in the easterti district, his wife remained in Springfield, Missouri, because he was un- certain of the duration of his eastern district assign- raent. During :these two months, he shared a hotel room in Pittsburgh, Pa. with several other displaced - drivers. Subsequently, Mr. Elmore’s wife joined him and they rented an apartment in Pittsburgh. Then,. when he was recalled to the central district, he and his wife moved to an apartment i in Big Springs, Texas, civing up their home in Springfteld. Mr. Elmore’s total wage loss for this period was $243.49. This doés not include the $112. 05 in wages lost while moving from Pittsburgh to Big Springs. His new accommoda-— tions cost him $12.50 more per month than he had paid in Springfield. He also incurred expenses in moving os PSP I See sa art 9° his wife and household furnishings to the different locations. Amalgamated, in presenting its evidenice of adverse effects, did so on the theory that under Section 5(2) of the Act, motor carrier employees are entitled to the .same measure of protection as the Commission: has held to be ‘‘fair and equitable’’ for railroad employees . under similar adverse circumstances. Accordingly, Amalgamated had tailored its proof to the Commission to demonstrate the likenesses between the losses in - earnings, moving expenses and additional living costs incurred by motor carrier employees, and those incur- red by railroad employees in similar Section 5 cases. Amalgamated proceeded on the assumption that if the needs of the two Passes of employees are indistinguish- able, and unless good cause can‘be presented for treat- ing each* class differently, thén no reason appears for imposing in motor carrier cases conditions less protec- tive than those ordinarily —? in railroad cases. ( ‘ Amalgamated’s Secnindl Conditions and The - Commission's Denial Thereof eer the close of the earings before the Commission, briefs were submitted by the. several parties. In its” brief Amalgamated set forth in detail the-conditions it proposed: to protect against the adverse effects sus- tained by the employees as established in the record. $(1). For employees who retained employment status but who were displaced from their former jobs, . a monthly ‘‘displacement allowance’’ was to be - paid if their actual monthly earnings in the new . ‘job were below the average earnings in the old. Job; re ree arn. 20 @: ‘For dismissed eaten those wae lost their jobs: entirely, either a monthly ‘‘dismissal allow- ance,’’ equal to the displacement allowance, or a - lump sum “separation allowance’’ based upon length of service would be paid; \ (3) ‘Protective conditions insuring against losses - sustained in the sale of real estate, broken leases, and for reimbursement of moving and other ex- penses ; and \ (4) arbitration procedures to dition pone aris- ing out of the application of seis acimemaea’ 7 conditions.” In Mer, 1961, a Hearing Peasinos ere the — Amalgamated’s request for a specific set of employee protective conditions. The Examiner found that drivers had in fact suffered -adverse effects but he held that these adverse effects were not those against which the Commission, under “the established policy in motor bus eases,’’ had provided protection. On ap- peal to the Commission, the Commission in March, 1962, affirmed | the Examiner’ 8 Report. See 9) M.C.C. 173. ‘8 ‘Amalgamated’ 8 — formula of protective conditions was based on three sets of railroad conditions: (1) the Washington Agreement of 1936, see United States v. Lowden, 308 U.S. 225 (1939) ; Brotherhood of Maintenance of Way Employes v. United © States, 366 U.S..169, 173 (1961) ; (2) the **Oklahoma Formula,’’ see Oklahoma Ry. Co. Trustees Abandonment, 257 I.C.C. 177, 179 (1944); and (3) the ‘‘Burlington Conditions,’’ see Chicago, Burlington and Quincy Ry. Co. en, 257 1.C.C. 700, 704 (1944). ~* Amalgamated’s rend jmuiiinees appear at 90 M.C.C. at 188- 192 (1962). An analytical comparison betwéen these conditions, and the railroad conditions from ‘which they were derived, ap- pears at pp. 38-46 of Amalgamated’s Brief to the Hearing _ Examiner, February 27, 1961, which brief is a part of the original record before this Court. ee . | Judicial Review of Commission's Decialon asd Remand to the Commission ‘Thereafter, Amalgamated brought suit-to set aside and vacate the order of the Commission to the extent that protective conditions were denied to the drivers adversely affe¢ted.. By order and judgment dated ' August -2, 1963, a unanimous three-judge District Court for the District of Columbia set aside the Com- - mission’s order, and remanded the case for further | - proceedings. Amalgamated Association v. United ' - States, 221 F. Supp. 958... In thé order vacated by the Court, the Couimninsion had relied upon three’ separate and’ independent grounds, including a finding that the drivers had re- fused to avail themselves of alternative employment with American after the - sale, . and had, therefore, brought the injuries upon themselves as a matter of. their own free ‘‘choice.’? 90 M.C.C. at 187. However, - - on appeal, the Court disagreed, and held ‘‘the grounds — on which the Commission relied in denying relief were accordingly erroneous.’’ 22]. F. Supp. at 961.. With — respect to Amalgamated’s claim that motor carrier _- employees are entitled te*the same measure of: protec- ; - tiori as railroad employees, the Court held: ‘“‘But we think that if any particular.measure of | relief is one which would ordinarily be granted to railroad workers similarly situated, the Commis- sion should not deny it to the employees of Ameri-— can Buslines, Inc., without a reasoned explana- tion of its denial, consistent with what has here been said.’? 221 F. Supp. at 961. : _Dpon remand, the Commission reopened the : mat- ter ‘‘for reconsideration on the record as made.” No further hearings were held, and. no additional testi- 3B. 12 mony was taken or evidence received. Qn August ® - 1964, the Commission rendered its decision which is ene at 97 M.C. i 426, and i is sét forth in Appendix B, infra. | In this latest decision, the Commission ‘again re- fused to condition its order upon the conditions pro- - posed by Amalgamated. Because of the Commission’s treatment of the case at this point, the issues may be . oe. into three separate categories. First, for the drivers who had to accept poorer pay- ee ing and irregular assignments elsewhere with Ameri- . can, the Commission made no provision whatever for - their losses in earnings. This was because, the Com-. mission held, ‘‘the lesser-wages . . . resulted from their own choice not to aceept employment paying more than they were then earning” with American. 97 . | at 439. This is‘precisely the same ground reli previously by the Commission, and one:of the re&Soris ' _. yajected by the Court as inadequate and erroneous fh ). the first appeal. , ~ Second, for the less senjor drivers who- had been . ‘‘bumped’’ by one of the 22 other drivers, the Com- missior® found it ‘‘ymnec¢ssary and inappropriate to provide, benefits t6 them’’ because “‘the adverse effect, if any, seems impossible to ascertain, minor ‘in extent and difficult to attribute to this transaction. oie MCC. at 441 n.'6. Third, the only protective condition Papoeed by the ‘Commission was oné p oviding ‘‘a Tump-sum payment. approximately. equal. to the cost incurred in moving . their households.” his proviso was drastically lim- _ . ited in that it was ‘effective for only one year, and be-_ ‘eause it contained no provision for losses sustained in. the sale of real estate, or for en costs inthe forced termination of leases. : , r | . H J , , 3 - a 1s , The ‘Jadgindas from ‘Which This Appeal Is Taken Both American and Amalgamated sued to set aside agd vacate the Commission’s latest.order; with Ameri- - can and the Natiorial Association of Motor Bus Owners | being granted leave to intervene in Amalgamated’s ©. | suit. Amalgamated’s basic clai was that the drivers. were entitled to the same measuterof protection. rail- | road employees, would have received sinder the same. circumstances, and that the Commission had flouted — the Court’s directive by failing to give a ‘“‘reasoned: - €xplanation’’ why ' granted this _relie nalgamated’s brief to ‘the coyrt established how the Commission’s order deviated - from the course which would have been followed in a railroad . case, and that the pfotection which was granted was tantly ge that accordéd rail- road employees similarly situated. Amalgamated | also showed that. the Commission had, with tespect to the first category, reiterated a. ground relied upon. - previously. and rejected, and that the Commission’s findings not only lacked Support in the > record, but were contrary to the record and based on matters’ de hors the. record. ; ¢= A three-judge Court iia, the order of the Com-: | mission on employee’ protection.” The Court held that the standard of what is ‘‘fair and equitable”’ for motor carrier employees is not to. be found in what\is, fair | 8 After the Anterican and. Amalgamated suits had been filed, the - Initernational. Brotherhood of Teamsters filed an action against the Commission, ‘C.A. 894-65, in the sane court, and: raised issues . concerning the protection accorded truck drivers adversely’ . affected by transfer proceedings under Section 5 of the Act similar to those raised herein. That action was consolidated with .the _ other. two suits, and the single opinion .rendered by ‘the court éovers all three stiits. We are advised by counsel that an appeal has beem taken in that action also and that a Jurisdictional State- ar ah ese by, the iBT in this Court presently; at. J . > . ’ é ° a otor, carrier employees were not 14 and equitable for veltpeatt employees, that the Com- yaission is not required under Section 5 of the Act to follow the railroad conditions as a guide to the pro- tection given motor carrier employees, and that the ‘Commission’s policy of distinguishing: between the two classes of employees is supported by a rational basis. In an effort to support these conclusions, the Court found that the needs of motor carrier employees | are not as, great or as pressing as those of railroad employees, and therefore less protection for’bus drivers is ‘permissible. It is from this decision and judgment of the court below that this appeal is. taken. THE QUESTIONS PRESENTED ARE SUBSTANTIAL The primary issue in this case is on? which goes to the basic philosophy behind the Interstate Com- merce. Act of even-handed regulation of competing modes of transportation. That issue is whether the Commission under Section 5 of the Act may be per- mitted to deny protective conditions to motor carrier employees under circumstances that would not have warranted dénid] of ghe same measure of protection to _ vailroad loy@e#'similarly situated: If the order - of the Commission and of the Court below, to the effect that the Commission is not required to impose the same measure of protection to ‘both ‘classes of employees, is correct, then a serious and substantial constitutional question is presented respecting the interpretation and application of Section 5 of the Act.. Section 5, as already construed by the Commission, requires ‘fair and equitable’”’ treatment of both classes of employees. If. what. is “fair and equitable’~ for bus drivers is something other than, and substantially less than, . f 15 what is ‘‘fair and equitable” for locomotive engineers, then Section 5 is unconstitutional. For, as will ‘be shown, that distinction cannot be ia sg ih any reasonable statutory purpose.‘ This is the first occasion for the issue of protec- tive conditions for motor carriér employees to be be- fore this Court. However, there is nothing episodic in the effort by the Amalgamated to gain fair, reason- _ able and adequate protection for the American bus drivers. —_ Amalgamated is the predominant union jn the pas- senger transit industry. It represents more than a hundred thousand bus drivers.and other employees in both locdl and inter-city transit in all parts of the” ' United States. For example, the employees of the Greyhound Bus System, and many of the employees of _ the Transcontinental Bus System, the system with which American is affiliated as a wholly-owned sub- sidiary, are represented by Amalgamated. For many years this union has seen the members of its locals adversely affected as operating rights have been traded back and forth among motor carriers. Since 1940, * The doubt surrounding this issue is compounded by the conflict- ing positions taken on this question in the two appeals by counsel for the Commission. On the first appeal, counsel for the Commis- sion conceded that the Commission does not have the discretion to deny protection to motor carrier employees under circumstances in which the Commission would not have derfted protection in a railroad case. Counsel argued that protection Pe gi to the American drivers not because they were motor employ- ees, but because of considerations which would have warranted denial of protection to railroad employees also. In the second appeal, cortnsel adopted a quite different position and stated on brief to the court below that ‘‘What is fair and equitable for railroad employees... . provides no standard for the minimum fair and equitable protection the Commission must grant to motor carrier employees.’’ 16 Amalgamated has attempted to obtain from the Com- mission conditions attached to its orders, so that the employees could share in the benefits derived by the carriers from the transfers of operating rights, and so that these employees would not be adversely affected. Year after year the Commission has denied the relief requested.® © For railroad Pie SA ais situation has been quite different. Since the 1930’s, since even before the Act was amended in 1940 to specifically set forth in Section 5(2)(f) the protection deemed fair and equitable for railroad employees, see Chicago, Rock Island & Gulf Railway Co. Trustees Lease, 230 1.C.C. 181 (1938), aff’d sub nom. United States v. Lowden, 308 U.S. 225 ‘ (1939), railroad employees have been accorded com- prehensive income protection and other protective con- ditions in Section 5 cases.° These railroad conditions © * were used as a pattern for Amalgamated’s request to 5 The usual practice of the Commission in these motor carrier cases is to impose 4 ‘‘reservation of jurisdiction’’ only. See-e.g., The Greyhound Coerp.—tControl—Southeastern Greyhound, 57 M.C.C. 123, 156 (1950). In The Short Line, Inc.—Purchase—New England Transportation Co., 75 M.C.C. 33 (1958), and Baggett - Transportation Co.—Purchase—Hunt Freight Lines, Inc., 75 ~ M.C.C. 147 (1958), the Commission granted a three-month sever- ance allowance. In 1963, the Commission added. to this severance allowance a three-month ‘‘displacement’’ or income protection allowance. .Indiana Motor Bus Co.—Purchase—Chicago, South Shore R.R.,.— M.C.C. —, Docket No. MC-F-8122 (1963), But, in neither the instant case, nor in the companion case, Overnite Transportation Co.—Purchase—Rutherford Freight Lines, Inc., 97 M.C.C. 568 (1964), did the Oomanietton grant a “displacement” allowance. . *The Commission has cited to this Court a near-hundred rail- road cases in which comprehensive protective conditions have been imposed in Section 5 proceedings. See Appendix to the Brief of thé United States and the Interstate Commerce Commission in Brotherhood of Maintenance of Way Employes v. United States, 366. U.S. 169 (1961). 17 the Commission, and it was these eonditions which the Commission refused to impose in this case. The capriciousness of the Commission’s interpre- tation of Section 5, to deny to motor carrier employees the same measure of relief afforded railroad em- ployees, is highlighted by a single Commission prac- tice.. In the.United States, there are many bus drivers who are, because of the corporate structure of their employer, technically employed by railroad companiés. ‘Yet, these drivers are not otherwise engaged in rail- way labor; they drive buses for a living, or they work as bus mechanics. They are, as far as their job de- © scription is concerned, precisely like those drivers be- fore this Court in this case. Notwithstanding these facts, and notwithstanding the identity of their em- ployment and job function, the Commission treats these © bus drivers as railroad employees and grants them railroad protective conditions. Amalgamated agrees these employees are entitled to this ‘‘fair and equi- table’’ treatment. Obviously, they should not be treated differently simply because they drive a bus, rather than a locomotive, for a living. But, an important and substantial question of the application of Section 5, - and of the continued administration of that Sectiori by the Commission, is presented, when other bus« . drivers, no y differently situated, are arbitrarily. denied protection because they are motor carrier employees. 1. The Statutory Requirement of @ Parity of Treat- ment. There can be little question that the Commis- sion’s denial of protective conditions to motor carrier employees deviates from the Congressional purpose. As originally enacted, the Interstate Commerce Act applied only to the railroad industry. In 1935, the Motor.Carrier Act, 49 Stat. 543, was passed, and it be- came Part II of the Interstate Commerce Act in -2 —._3 1940. See 54 Stat. 919. The Motor Carrier Act brought the motor bus and trucking industries under the control and regulation of the Commission. Sections. 212 and 213 of the Motor Carrier Act, 49 Stat. 555, conferred upon the Commission the same basic con- trol over the transfers of motor carrier operating rights as existed under Section 5 for. the railroads, — The legislative history of the Motor Carrier Act reflects clearly the Congressional intent of even-handed . regulation of both forms of transportation.~- The Fed- . eral Coordinator of Transportation cited, as one of the primary reasons for the new legislation, the oversupply of unregulated transportation facilities in competition with the well-regulated railroad industry. His pro- posal was to bolster the competitive position of the railroads, whose financial position was of national con- eern, by regulation of the motor carrier industry on ‘terms equal to the regulation of the railroads.’ But, this was not to be accomplished at the expense of the © employee interests: ‘‘fair treatment of labor’’ was to be recognized and promoted.” Unquestionably, this 7 Hearings on S. 1629 Before the Senate Committee -6n Inter- state Commerce, 74th Cong., Ist Sess. 50 (1934). In 1928 and 1932 the Interstate Commerce Commission had made exhaustive studies of the motor carrier industry, the effect of its competition on the railroads, and the need for federal regulation. See Motor Bus and Motor Truck Operation, 140 1.C.C. 685 (1928) ; Coordina- tion of Motor Transportation, 182 1.C.C. 263, 379 (1982). See. also Magnuson, ‘‘The Motor Carrier Act of 1935: A Legislator Looks At The Law,’’ 31 Geo. Wash. L. Rev. 37, 40-41 (1962). ® Hearings on S. 1629 Before The Senate Committee on Inter- state Commerce, 74th Cong., Ist Sess. 51 (1934). See also Eastman, Report of the Federal Coordinator of Transportation, 1934, H. R. _ Doe. No. 89, 74th Cong., 1st Sess. 8 (1935). This Report, and the statement of objective set forth therein, is also referred to in the Senate report accompanying favorable action on the Eastman bill, S. Rep. No. 482, 74th Cong. 1st Sess. 3 (1935). Pe re ee nn , 19 conclusion was based in part upon the Commission’s own findings that unrestrained and unregulated motor carrier competition had the ‘‘tendency to break down wages and conditions of employment.’” Representa- tives of labor likewise testified on the need.for stabi- lized working conditions in the motor carrier industry, and in favor of a parity of treatment for both indus- tries, so as to avoid continuation of the unfair com- petitive advantage held by the motor carriers.” Through the years the Commission has, at best, paid scant attention to this legislative history. .On the ene hand, the Commission has stated, ‘‘the Act, taken as a whole, makes clear the congressional intent that public - »xolicy demands fair and equitable treatment of em- ployees of motor carriers.”” Short Line, Inc.—Pur- chase—New England Transp. Co.,,77 M.C.C. 33, 37 (1958). And, in the first order in the instant case, the Commission held that its refusal to act ‘(should not be construed as opposing in all instances’’ the im- position of railroad conditions for the protection of _ motor earrier employees. 90 M.C.C. at 188." How-. ever, on the other hand, as the Commission itself con- . eedes, ‘In no instance ... has the Commission dm- - posed such conditions where only motor carrier em- ployees were involved,’’ Tbid., and the Commission will not impose such conditions ‘unless compelling _ reasons so dictate.’? 97 M.C.C. at 440. This is, it is ° ® Coordination of Motor Transportation, 182 I.C.C. at 383. 10 Hearings on S. 1629 Before the Senate Committee on Inter- ’ state Commerce, 74th Cong., Ist Sess. 417, 423, 476, 542 (1934). 11 Eleven years earlier, in Hudson Bus Lines—Control—Boston & Maine Transportation ‘Co., 58 M.C.C..133, 135 (1951), the Com- mission stated that the parties to a motor carrier case should use the railroad conditions ‘‘as their guide” in reaching an agreement on efnployee protection. mo ee yr ee 20 respectfully suggested, something other than an even- ar on interpretation and application of Sectien 5, og and is wholly capgicious and contrary to the statutory } ‘ rpose. The correctness of this interpretation de- serves this Court’s- attention, for. maintenance of the competitive relationship between the competing modes -_ of transportation turns i in large part on this. provision. 2. The Constitutionality of Section 5. If this Court finds no error in the Commission’s interpretation and application of Section 5, which results in different ” - ,standards of protection for motor carrier and rail- © -road employees, a substantial constitutional question is -presented involving the contravention of the Due Proc- ess Clause of the Fifth Amendment of the Constitution of the United States. The Commission has historically justified its de- nial of protective conditions to motor carrier em- ployees on the ground that protection for railroad em- ployees is ‘‘mandatory”” under Section 5(2) (f), where- as for motor carrier employees under Section 5(2) ( c) conditions are merely COATT. The answer to this is two-fold. First, as the Com- | mission held in Short Line, supra, p. 19, motor carrier _ employees are entitled to ‘‘fair and equitable’’ treat- ment also, just as railroad employees are entitled. Fur- thermore, nothing appears in Section 5, ar anywhere else in the Act, to support the proposition that what is ‘‘fair and equitable’? for motor carrier employees is yrotection substantially less than that afforded rail- road employees as “fair and equitable.’’ | Second, it would appear that the “mandatory”’- ‘‘diseretionary’’ dichotomy. which the Commission now reads into the Act is actually a post hoc rationali- | 21 zation formulated to obscure the discrimination prac- ticed by the Commission scans motor carrier employees.’™ Under former Section 5(4) (b) of the Act, 48 Stat. 217, the Commission was given general authorization only to impose conditions which would ‘‘promote the public interest.’’ Acting on this general authorization alone, the Commission granted, with the approval of the Supreme Court, see United States v. Lowden, 308... U.S. 225 (1939), protective conditions which do not differ substantially from those which Amalgamated now seeks. This general authorization remains in the Act in Section 5(2)(b): The only difference is that today the Act spells out in Sections 5(2)(c) and (f) ~ that the ‘‘interest of the carrier employees affected’’ is to be given specific weight, and that ‘‘fair and equitable’’ conditions are to be afforded. If the Commission was impelled in Lowden to pro- vide full protection for railroad employees at a time . when the only statutory authority was a general one, it is hard to accept the Commission’s present rationale whieh completely ignores the same general authoriza- tion in 5(2)(b), and rests exclusively on the specificity of 5(2)(f). The Commission has never explained, and certainly the court below did not, why the substan- | tial protective conditions imposed in Lowden to pro- mote the public interest in 1938, are not appropriate in 1966 to promote the same public interest, under the ‘same showing of adverse effects. 118 The -claim that conditions, beyond the statutory minimum, are ‘‘mandatory’’ under Section 5(2)(f) is not accurate. What is ‘‘fair and equitable’’ for railroad employees is not flied.’ The history of railroad conditions has been one of continual expansion on a case-by-case basis. Cf. Seaboard Air Tine R.R.—Merger— Atlantic Coast Line R.R., 320 1.C.C. 122, 200-205 (1963). 22 This Court has held that the Due Process Clause embodies the standards requisite to constitutional legis- lative action, and the prohibitions against invidious classification and discrimination, found in the Equal * Protection Clause of the Fourteenth Amendment. ' Schneider v. Rusk, 377 U.S. 163, 168 (1964) ; Bolling v. Sharpe, 347 U.S. 497, 499 (1954) ; Umited States v.. Petrillo, 332 U.S. 1 (1947). In order to hold that Sec- tion 5 of the Interstate ‘Commerce Act does not fall. ‘afoul of this equal protection standard, it must be de- termined_that the distinction, which the Commission groups of employees, is somehow related to the pur has held exists between the relief to be accorded the _ poses served by the statute. Otherwise, Section 5 fal within’ the ambit of prohibited legislative action be- ' eause the provision effects invidious discrimination against motor carrier employees as a class. In the preamble to the Transportation Act of 1940, Congress declared the National Transportation Policy to include the’ encouragement of “‘fair wages and equitable working conditions.’’ 54 Stat. 899. In Sec- tion 5(2) (b) of the Act, Congress authorized the Com- mission to impose “terms and conditions’’ which are deemed ‘‘just and reasonable,’’ so as to mitigate the - adverse effects upon employees of Section 5 trans- actions. ; This Court has aie examined the ways in which employee protection promotes the National Transpor-. tation Policy by encouraging adequate and efficient trapsportation service, and how employee protection helps develop, coordinate and preserve the national transportation system. See United States v. Lowden, 308. U.S. 225 (1939). To paraphrase the Court’s de- cision is that case, unless the hardships caused to em- ployees by Section 5 proceedings are mitigated, and . a A PO e 2 OU Be nde 8A ew a unless employees are afforded treatment which will assure high morale and which will reduce the possibil- ity of an interruption to servicé by labor disputes, the ‘Congressional scheme will necessarily falter. The injuries sustained by the bus drivers in this case have been noted. Their losses in earnings, re-~ duced wages,.additional moving and living costs, do not differ from those suffered by railroad employees: in a Section 5 proceeding. The Commission has acted to mitigate the damages of railroad employees. It has not done so for motor carrier employees. Section 5, as applied by the Commission, thus condones the placing of burdens on motor carrier. employées which, have been lifted from railroad employees. Nothing in | the National Transportation Policy justifies this un-. equal protection of the law. The classification of motor. - carrier employees is discriminatory, This discrimina- tion is invidious, it has no reasonable statutory basis or purpose, and it is therefore unconstitutional. . _. 3. There is also presented in this case the substantial ; _question of the proper standards by which Commissiorr decisions, and appellate review of those decisions, are to be adjudged. For the fact is if the customary ‘‘sub- stantial evidence of record”’ standards are used.to test the validity of the Commission ordd and the court’s affirmance of. this order, the judgment of the court below must be reversed. One of the general grounds relied upon, first by the . Commission and then by the Court, to distinguish the protection required by motor carrier. employees was “the expanding nature of the motor carrier industry, and the high degree of transferability of motor carrier employees within the industry.” 97 M.C.C. at 440. ; : hen : 24 However, this Court may search in vain the record be- fore the Commission for-evidence probative on these critical findings. “The carriers offered no evidence that the motor carrier industry is an expanding one, rather than a contracting one. And*there was no evidence | proffered to show that the American drivers possessed skills which were more transferable than those of railroad workers. Furthermore, the Commission’ s de- - eision is barren of the requisite articulation of the rele- vance of these findings to.the issue presented of whether tlte- employees were entitled to protection for losses which even the Commission concedes they suffered. * Be as if the Commission took ‘administrative no- tice’’ of certain facts, and used these facts to determine the cause against Amalgamated. Amalgamated had no opportunity to meet, answer or rebut the claim that the motor carrier industry i is an expanding one, or that the skills of bus drivers are easily transferable to other . employment. Obviously, there are limits to what an agency may do in the name of administrative notice. . [T]o’press the doctrine , . . and to do that retro- actively” after the case had been submitted, would be to turn the doctrine into a pretext for dispensing with a trial.’”? Ohio Bell Telephone v. PUC, 301 U.S. 292, 302 (1937). These limits have been exceeded here, and. the denial of due process to Amalgamated could not be more clear. ~ The denial of due process to ketihieiiatin is also present i in the court’s reiteration of the same Commis- sion findings. ‘The court compounds the error by fur- ther stating that the needs of railroad employees are greater than those of motor carrier employees because ‘‘Displaced railroad employees~meet with more diffi- culties in obtaining similar positions... .’’ Not even . — Le egee Ty are Ue SOTO EET ant DP SN ORES, eer CED 25 Or. F%. e the Oobeitianliais went so far, and the court’s conclusioii appears to be of whole cloth.” Son \ \ The court’s treatment of the anil ormula of em. ployee’ protection awarded by the Co ion to am . American drivers, and of Amalgamated’: rabjecti thereto, is peculiar. All that the court states a retet : ence to the American drivers specifically i is: ‘“‘The only financial loss to employees ‘that the \Commission could here attribute to the Midwest Buslines (sic) occurred with its employees who were required to change their place of residence .... The majority of the Commission has pes. ie nteit , only such protection as the employees wouldrhave been entitled to had they followed their work, and. such protection seems fair and equitable to em- ployees of American Buslines.’ ™%8 253. F. Supp at ‘484. 12 The court’s opinion i in this respect was undoubtedly based, in part at least, on certain representations made by the Government in its brief to the court which found no support in the record. The Government devoted considerable space in its brief to an examina- tion of recent special consideration given railroad employees in other forums and by. other bodies. Apparently, this was intended _ to justify the Commission’s finequal treatment of motor carrier employees, even though the Commission itself had never alluded to © this consideration as d&erminative. Amalgamated objected to this extra-record, post hoc rationalization by the Government, see Burlington Truck Lines v. United States, 371 U.S. 156, 168 ( ), but the.court below nevertheless accepted: these rep resenfa ions fact ‘and relied upon them, 18 The court has apparently confused. the carriers involved and the employer of the drivers adversely affected. The employees so affected were American drivers, not Midwest employees. Amalga- mated was appearing on behalf of the American ‘drivers who lost their jobs and who were compelled to take other-assignments on American in order to remain employed. . No ‘‘Midwest’’ drivers ‘were required to change their place of residence. . ~—— 26 This holding is vague, confusing amd not responsive - to what the Commission actually decided in its ‘latest order. In the first place, the court had already held, on the previous appgal, that the American drivers were not required to ‘‘ follow their work,’’ by accepting offers of employment with Midwest and Continental, which had purchased the routes, because those offers did not include recognition of full seniority rights. 221 F. | Supp. at 961. Secondly, as shown above, many Ameri- can drivers did exercise their choice, when the oppor- tunity presented -itself, did bid assignments in other locales, did move their households and families, and did suffer losses, including reduced earnings, for which the — Commission’s protective conditions do not compensate. What the Court actually meant by this conclusion is not clear. + a What the Commission did on the specific formula of employee protection was to treat separately three dif- ferent issues. On none of these is the Commission’s decision, supported by the ‘‘substantial evidence’”’ of record required for legitimate a istrative action. See,Burlington Truck Lines v. United States, 371 U.S. 156, 968 (1962); and Interstate Commerce Commision ion v. Z: Transport Co., 368 U.S. 81, 93°(1961). ~ (a) Displaced Drivers~Who Stiffered Losses In Earnings. The ways in which the. Ameriéan drivers, who lost their jobs by the sale of the:routes, sustained losses in earnings, and the evideride of these losses, has already been detailed, supra, pp. 6-9. The Commis- sioyein its first order, denied protection to these em- ployees opthe basis of a finding that they failed to take advantage of better paying jobs elsewhere on American, and therefore the injuries sustained_were a matter of 7 a their own free ‘‘choice.” 90 M.C.C. at 187. On appeal from this first order, the court held that all ‘‘the grounds”’ relied upon by the Commission ‘‘ were accord- ingly erroneous,” and reversed and remanded. 221 F: Supp. at 961. On remand, the Commission repeated, as the reason for denying protection to these displaced drivers, the same ground litigated adversely to it: ‘‘the lesser wages ... resulted from their own choice not to uccept employment paying more than they were then earning.’’ 97 M.C.C. at 439. Patently, the court below erred in failing to apply the principles of res judicata on this issie, and by letting stand in favor of the Com- mission a ground which had been litigated adversely to it previously. The displaced drivers had no ‘‘choice’’ in this matter. Those who had been employed in’ the. “‘southern’’ seniority district had nowhere else to bid and’ were ~ compelled to accept assignments in the ‘‘eastern”’ dis- trict where many were unable-to earn as much as they had averaged before the sale. ‘‘Central’’ seniority dis- trict drivers, who still had bidding rights, did not ‘“‘choose,’’ in the voluptary sense implied by the Com- mission, to ‘‘ride-out bids and not move to the carrier’s eastern district,’’ as the Commission states, 97 M.C.C. at 433. They were in fact required by contract to re- main in their home seniority district unless and until furloughed in that district, and then and only then were they permitted bidding rights into the ‘‘eastern”’ dis- trict. As shown above, even when this happened and they secured these new bidding rights,.they were still vnable, ‘for many months, to earn as much as they had averaged before. The conclusions of the Commission to the contrary are not enly not supported by substantial cvidence, they are indeed contrary to the record. 28 (b) “Bumped” Drivers. The Commission refused tu grant any conditions for the protection of the drivers who, because . of their lower seniority ranking, were ‘“bumped’’ by the 22 other drivers who lost their jobs because of the sale. 97 M.C.C. at 441 n. 6. Under the circumstances of this case, this eet is par- ticularly unfortunate. At the hearings before is Conmalesion, Amalga- | mated attempted to introduce into evidence specific illustrative examples. of employees who had been bumped into lesser paying or otherwise less desirable jobs. But, on objection from the carriers, Amalga- mated was refused the oppo ity to do so by the Hearing Examiner, and Amalgamated was limited to an offer of proof on this point. It is grossly unfair now for the Commission to hold the adverse effects seem impossible to ascertain, minor in extent ‘and diffi- cult to attribute to the transaction. This was the Com- mission’s doing, not Amalgamated’s, and the court be- - low erred in failing to rectify the matter. Before the court below, the Commission conceded that ‘‘there may have been biffapings.”’ But, the Gov- _ ernment went on to.contend that the record did not show these bumpings were ‘‘unavoidable,’’ or that they ‘resulted directly from the transaction.’’ Again, the record is otherwise, and does not support the Commis- sion’s contention. Both drivers who testified at. the hearing, one from the ‘‘southern’’ district and the other from the ‘‘central,”’ testified they had bumped other less senior drivers when they took jobs in the ‘‘eastern’’ district. One even testified that he had him- self been bumped by a more senior driver after the “na 29 \ sale and that this was one of the reasons why his earn- ings were lower.“ : (ec) ““Iump-Sum” Settlement Allowance. The Com- mission, in imposing a limited form of protection as a “lump-sum” settlement allowance, departed from its customary practice in railroad cases and, without any reasoned explanation whatever, refused to grant con- ditions protective against the losses sustained in the forced sale of real estate and forced cancellation ‘of | leases. The Commission, again differently from its practice in railroad cases, also arbitrarily restricted _the protection accorded by — the provision to a — one-year period. -The Commission cites no basis in the record for | these restrictions. There is no support anywhere in the record that excess rents and utility costs experi- enced by the displaced drivers abruptly ceased at the end of one year. ~ Railroad employees ‘receive protec- tion in this regard-for a full four years and the Com- mission, absent some reasoned explanation, should have "The treatment by the Commission of bumped drivers also illustrates the discrimination practiced by the Commission against motor carrier employees, as compared with railroad employees. In a recent railroad proceeding, the carrier questioned whether bumped’ employees were within the scope of the protective condi- tions granted railroad workers. The Commission’s response was explicit : ‘It is ‘definitely. our intention that the protection afforded by the conditions shall be available to all employees dismissed or displaced as a: result of a chain reaction resulting from the exercise of seniority rights by an employee whose job is ' .abolished or whose work is transferred . . . Such ‘secondary?. results are within the scope of the conditiohs. ”” Southern Railway Co.—Control—Central of Georgia By, 317 I.C.C. 729, 730-731 (1963). 4 30 extended the same measure of relief to the motor car- rier employees affected herein. The Commission virtually conceded error in the court below by admitting that the Commission would have granted: this additional protection to railroad em- ployees. But, the Commission argued, because in cer- tain other regards the drivers received more protection against certain other unrelated miscellaneous costs than _ railroad employees receive, the drivers cannot be heard '- to complain. Clearly, however, the equal protection of the law cannot be negated so facilely. Each injury must be weighed, and each item of protection examined, to determine whether the Commission has supplied the reasoned explanation required by law in granting or denying protection. Only after this has been done. may it be said that the protection ordinarily given ° railroad employees has been properly denied to th American drivers.” _ . * One other ground was cited by the Commission in support of its denial of full protective conditions. The Commission, relying on data through the year 1958, attempted to portray a weakened . financial status of American. The reasons why the Commission limited its view to that period are unknown. The annual reports of the carrier to the Commission from 1960-1964 reflect a quite different picture. In 1960 American had net income of $667,000, and an earned surplus of $650,000. By .1964, the earned surplus had increased to $1,500,000, on a net income of $500,000. The Commission can hardly contend that American lacks the where- withal to pay employee protection. And no argument has yet been made why the employees should not share in the financial successes experienced by American since 1958. - 31 CONCLUSION For- the reasons stated, the questions presented in this case are substantial, they are deserving of this Court’s review, and jurisdiction should be noted. Respectfully submitted, I. J. GROMFINE HERMAN STERNSTEIN Wiu1M B. PEER 1155 15th Street, N. W. Washington, D. C. 20005 Attorneys for Appellant ZIMRING, GROMFINE and STERNSTEIN 1155 15th Street, N. W. ‘Washington, D. C. 20005 Of Counsel a eel ee ra — — sw a QO mM . 5 sil a hecte, APPENDIX A _ ac ™ (Filed April 20, 1966) | UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 644-65 ° - American Busines, Inc., Plaintiff, Unrrep Srares or America and Interstate ComMERCE a. Commission, Defendants... . cent AC EO ye tol RSD Civil Action No. 68465. Ama.caMatep Transit Union, AFL-CIO, Plaintiff, Lf Unirep Srares or AMERICA and INTERSTATE COMMERCE Commissio®, Defendants. ie AMERICAN BusLINEs, Inc., NaTIONAL ASSOCIATION OTOR Bus Owners, Intervening Defendants. e wo Civil Action No. 894-65 ; INTERNATIONAL BRorHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS oF America and LocaL ~ Union 549, Plaintiff's, si Vv. a Unitep States oF AMERICA and INTERSTATE COMMERCE ComMIssION, Defendants. oF Ceti TRANSPORTATION CoMPANY and Speman Freight Lives, Inc., Intervening Defendants. -. Opinion James EK. Wilson, Warren Woods, and Jon F. Hollen- green, of Washington, D. C., for the Plaintiff in C.A. 644-65 and for Intervening ‘Defendant, American Buslines, Inc., in C. A. 684-65. ; 3 ” al : 2a I. J. Gromfine and William B. Peer, of Washingtes, D. C., for the Plaintiff in C.A. 684-65. . Herbert S. Thatcher and David , Barr, of eases see : dD. C. for the Plaintiffs in C.A. 894-65. William H. Orrick, Jr., Assistant Attorney Quantal of the United Stites, and John H. D. Wiger, Department of Justice; David G. Bress, United States Attorney; Robert W. Cienana, General Counsel, and Leonard S. Goodman, Assistant General Counsel, Interstate Commerce Commis- | sion; of. Washington, D. C., for Defendants. Robert J. Corber, of Washington, D. C., for Intervening Defendant, Natiqnal Association of Motor Bus Owners, in C.A. 684-65. J. W. Alexander, Jr., of Charlotte, North Carolina, and W. T. Croft, of Washington, D. C., for Intervening Defend- ants Overnite Transportation Company and ewe Freight Lines, Inc., in C,A. 894-65. . «t | Before Burcer, United States Circuit Judge, and Mc- Gume and Curran, United States District Judges. - Curran, J.: Two of these consolidated civil actions in- volve attacks by two labor unions upon orders of the Inter- state Commerce Commission in Midwest Buslines, inc.— Purchase. (Portion)—American Buslines, Inc., 97 M.C.C. 426, and-in Overnite Transportation Co —Purchase-SRuth- _ erford Freight Limes, Inc., 97 M.C.C. 568, on the grounds that the Commission gave too little financial protection to adversely affected employees. in certain financial transac- — tions between motor carriers. The third action, filed by American Buslines, Inc., seeks to set aside the order en- tered in the Midwest case for the alleged reason that the Commission gave too much protection to the affected em- ployees. These three actions are filed pursuant to 28 T.S.C. §§ 1336, 1398, 2284, and 2321-2325. 3a & This is the second time that the Midwest case is before the Court, as néither the union nor the buslines company was satisfied with. the order of the Commission on the remand. The Overnite:case was filed by the Teamsters Union and is an attempt to. reargue the legal issues pre- sented in ‘the first appeal of the Amalgamated case. In- that case, the Corhmission approved the purchase of two of the American Buslines routes by Midwest Buslines and reserved jurisdiction for three years to entertain any ém- ployee petitions regarding needed financial protection from a possible adverse effect of the transaction. The purchase was completed December 31, 1959. On September 20, 1960, the Commission granted Amalgamated’s petition to reopen the proceeding, allowing it to show ‘‘specifically how, and to what. extent, particular employees of the carners, con- cerned have been adversely affected’’.. The Commission declined fo impose any conditions on behalf of the em- ployees in the reopened proceeding. This Court set aside the order of the Commission, stating it ‘‘need not attempt to delineate what measure of relief, if any, should be provided to the employees of American ’ Buslines, Inc.’’ and ‘‘that if any particular measure of relief is one which would ordinarily be granted to railroad workers similarly situated the Commission should not deny it to the employees of American Buslines, Inc., with- ont a reasoned explanation’ of its denial, consistent: with - what has here been said’’. On the remand of the Amalga- mated case, the Commission reopened its proceedings but stated that it was | ‘‘for consideration on the record as made’’, In August, 1964, the Canaan laa its nen on reconsideration. It conditioned its order upon payment by American of a ‘“‘lump sum settlement’? to certain of the employees to cover ‘‘loss of pay while moving, temporary maintenance of two househotds, and the excess of rents and utilities costs paid for a period of one year after the date --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0836%3A1. Public record. Not legal advice.