Opposition Brief — Railway Labor Executives' Ass'n v. Chicago & North Western Transportation Co.

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Text

No.

88-464

THE

Supreme Court of the United States

OCTOBER TERM, 1988

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Petitioners,

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

CARL V. LYON

FRVR Corporation

1101 30th Street, N.W.

Washington, D.C. 20007

(202) 338-9022

STEPHEN M. OLSON

KIRKPATRICK & LOCKHART

1500 Oliver Building

Pittsburgh, Pennsylvania 15222

(412) 355-6500

JOHN M. NANNES

SKADDEN, ARPS, SLATE, MEAGHER

& FLOM

1440 New York Avenue

Washington, D.C. 20005

(202) 371-7000

Attorneys for FRVR Corporation

October 17, 1988

RALPH J. MOORE, JR.*

RICHARD M. WYNER

D. EUGENIA LANGAN

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

JAMES P. DALEY

STUART F.. GASSNER

Chicago & North Western

Transportation Company

One North Western Center

Chicago, Illinois 60606

(312) 559-6100

Attorneys for Chicago & North

Western Transportation

Company

* Counsel of Record

WILSON - EPes PRINTING Co., INc.

789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Do federal courts have jurisdiction under the Railway

Labor Act to determine that carrier actions challenged

by rail labor as departures from the “status quo” are not

authorized under existing labor agreements, even though

the Act commits all disputes over the interpretation or

application of labor agreements to mandatory arbitration

by adjustment boards, whose jurisdiction over such dis-

putes is exclusive?

(i)

TABLE OF CONTENTS

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pe) FR PN Sey tly y | -. e

STATEMENT OF THE CASE .....W0000000.022ee eee

SUMMARY OF ARGUMENT .....W00000 oe.

it aE I LA Ee oe a ee a CO

IT.

THIS CASE DOES NOT WARRANT REVIEW

BE WIN Ie MIE OD asics scecnncetnnccnnscisncsnenennce

A. The Standard Challenged by RLEA Is

a accenlshpeniisbnianeneneaission

B. There Is No Conflict Among The Circuits....

THIS CASE DOES NOT MERIT REVIEW

SIMPLY BECAUSE OTHER LINE SALE

CASES ARE PENDING BEFORE THE

nei cain ciecarasermadeieeiveiaceineininctvntinssincinanss

A. This Case Is Legally and Factually Unrelated

To the Other Pending Cases ...............00...022.....

B. The Petition Should Be Disposed of Promptly,

Not Held In Abeyance Pending Decisions In

the Other Unrelated Line Sale Cases ............

ado Ione nindacactiistenniisdnapeairrcndeichansiocesoees

(iii)

——————————

TABLE OF AUTHORITIES

Cases: Page

Adickes v. Kress & Co., 398 U.S. 144 (1970) -.......... 14

Air Line Pilots Ass’n V. Eastern Air Lines, Nos.

88-7201 - 7204 (D.C. Cir. Sept. 30, 1988) -......... 21

Andrews v. Louisville & N. R. Co., 406 U.S. 320

SE ae ak aeioal nan ibladeg _ 15,17

AT&T Technologies v. Communications Workers,

I eee ME i cinas alee ister nieaanesessianislonsin ane 16

Baker v. United Transp. Union, 455 F. 2d 149 (3d

AE. p ) See ARS DP REMERON CR TERY Ree EBD Mee oN 20

Brotherhood of Maintenance of Way Employees V.

Burlington Northern R.R., 802 F.2d 1016 (8th

Cir. 1986) .......... See Or ae, TS DN Mar RRO ED 20

Burlington Northern R.R. v. United Transp. Union,

G46 F.2d S56 (Sth Cir. 1985) ...........................--... 21

Decker v. CSX Transp. Inc., 688 F. Supp. 98

(W.D.N.Y. 1988), appeal pending sub nom. CSX

Transp., Inc. v. United Transp. Union, No. 88-

en, Oe oY to. 2S St asecastemnmoaindiaes 21

Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711

he tie Saree hee tees AE See 2,8

Ex Parte No. 392, Class Exemption for the Acqui-

sition & Operation of Rail Lines Under 49 U.S.C.

10901, 1 1.C.C.2d 810 (1985), aff'd mem. sub

nom. Illinois Commerce Comm’n V. ICC, 817 F.2d

a ee Sie kcscase estore aiden. 5

First National Maintenance Corp. Vv. NLRB, 452

es Mn a ag ts aeseveineanemanetiees 6, 24

FRVR Corp.—Exremption—Acquisition & Opera-

tion—Certain Lines of Chicago & N.W. Transp.

Co., ICC Finance Docket No. 31205 (served Jan.

29, 1988), appeal pending sub nom. RLEA V.

BOC. Tee, BB -RED CO CAD ni ite oe cerns 5, 11, 26

Gateway Coal Co. v. Mine Workers, 414 U.S. 368

5 } Se aR aS ae Cen REET AR eraT eer mRP EO 16

Locomotive Engineers v. Louisville & N. R. Co.,

os Bis Se By. 5 RRM nennnreeme nner sisincccn, See

Locomoiive Engineers V. M.-K.-T. R. Co., 363 U.S.

Toh |) ee ae | 9

TABLE OF AUTHORITIES—Continued

Page

Maine Central R.R. v. United Transp. Union, 787

F.2d 780 (1st Cir.), cert. denied, 479 U.S. 848

} | RRR E Renmei a Me LAE RR 16

Order of Conductors y. Pitney, 326 U.S. 561

| PERE NS PRU nets Brae ee RS 17, 18, 19

Paperworkers Vv. Misco, 108 S.Ct. 364 (1987) ........ 16

Railway Clerks v. Florida E.C. R. Co., 384 U.S.

Be COD idinncosncctuccia eee 7

Railroad Trainmen v. Terminal Co., 394 U.S. 369

CRIED sskiniecsssensn sicedaanietaebnusa eee ante tee 6

REA Express, Inc. v. Brotherhood of Ry., Airline

& S.S. Clerks, 459 F.2d 226 (5th Cir.), cert.

denied, 409 U.S. 892 (1972) ......................000.. 20

RLEA Vv. Boston & Maine Corp., 808 F.2d 150 (1st

Cir. 1986), cert. denied, 108 S.Ct. 102 (1987)... 20

RLEA v. Chicago & N.W. Transp. Co., 848 F.2d

102 (9th Cir. 1988), petition for certiorari pend-

SG: TO: DIO sadincdcnianiccidentec eee ee 22, 25

RLEA Vv. Pittsburgh & Lake Evie R.R., 845 F.2d

420 (3d Cir. 1988), petitions for certiorari pend-

ing, Nos. 87-1888 & 88-217 a, 22, TA

Rutland Ry. v. Brotherhood of Loc. Engineers, 307

F.2d 21 (2d Cir. 1962), cert. denied, 372 U.S.

Ore CT assess ss erased dasa 20

Shore Line Vv. Transportation Union, 396 U.S. 142

Slocum v. Delaware L.&@W. R. Co., 339 U.S. 239

t_, RMRS ENN Nya Some NU IS 2, 7, 18, 19

BSE ME Rae A MY BI id Ge. cae By 27

Steelworkers v. Warrior & Gulf Co., 363 U.S. 574

fb , PNR RESIN ENT Mir rrrmwan MMe roo ko eBce os 16

Telegraphers v. Chicago & N.W. R. Co., 362 USS.

ON SID acincctearcapontouice cree ce ee ee 20

Trainmen V. Chicago R. & I. R. Co., 353 U.S. 30

Cf | ORONO PEAR MMR Gear! ok Pal, 5 3, 8,17

Transportation Union v. U.P.R. Co., 385 U.S. 157

| eR ER DRAM inn oe AA eI Wer Oe Dart As 15, 17

Union Pacific R. Co. v. Sheehan, 439 U.S. 89

CID ake siccekanisoossarciciasnacoian cde et ae 11, 13, 15

TABLE OF AUTHORITIES—Continued

Page

United Industrial Workers v. Galveston Wharves,

ABs £ Ft ft S| eee 21

United Transp. Union v. St. Paul Union Depot Co.,

434 F.2d 220 (8th Cir. 1970), cert. denied, 401

UE, GT COED, cccanencecscsassessssesnsaiietenananh 20

Statutes:

Railway Labor Act:

Section 2 Seventh, 45 U.S.C. § 152 Seventh........ 2, 7,14

Boction B, GE Ui itss Wy Oe ccewewncccsttsnstienistinniiitinicasins 2, 8,17

Section 3 First (i), 45 U.S.C. § 153 First (i)... 8,14

Section 5 First, 4 5U.S.C. § 155 First -............... 5, 33

Section 6, 45 U.S.C. § 156 ................0.0......... 2, 7, 14, 18

Section 201, 45 U.S.C. § 181 -..... stitial 16

Section 204, 45 U.S.C. § 184__....... siiiahassanebiamacaaiaa : 16

National Labor Relations Act, 29 U.S.C. §§ 151-

WED cco SpmAN aba Ciopeike ‘iitidatdat ecsiuctiaiammidaiaeae 16

, Bil to 5 | Ae setesaasinanaaandiane 8

40 UG. SB ReeeE cco COCR ARIS are 5

Miscellaneous:

Appendix to the Budget of the United States Gov-

ernment, FY 1987 (1986) ........ siicbaseaaiduieieceaneaineds 17

Appendix to the Budget of the United States Gov-

ernment, FY 1988 (1967) .................-.-...cccseses-s0s02 17

Appendix to the Budget of the United States Gov-

ernment, FY 1989 (1988) ......................-...-...0-.0000 17

United States Dep’t of Commerce, Bureau of the

Census, Statistical Abstract of the United States

SOCG CODEN ccicteciccrmninesasaee 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-464

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, e¢ al.,

Petitioners,

CHICAGO AND NORTH WESTERN

TRANSPORTATION COMPANY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

Respondents Chicago & North Western Transportation

Company (“C&NW”) and FRVR Corporation (“FRVR”)!

respectfully request that the petition for certiorari be

denied.

STATEMENT OF THE CASE

Petitioner Railway Labor Executives’ Association

(“RLEA”) seeks review of the question whether federal

’ Respondents’ Statement under Rule 28.1 appears as Appendix 1

to Respondents’ Opposition to Petitioner’s Emergency Motion for

a Stay of the Strike Injunction or for An Injunction to Prohibit

the Line Sale Pending Petition for A Writ of Certiorari., filed

September 21, 1988.

courts have jurisdiction under the Railway Labor Act

(“RLA”) to determine the merits of a dispute as to

whether a carrier’s actions challenged by rail labor as al-

leged departures from the “status quo” are in fact au-

thorized under existing collective bargaining agreements,

even though $3 of the RLA commits all “minor” dis-

putes over the “interpretation or application” of collec-

tive bargaining agreements to mandatory arbitration.’

(Petition for Certiorari [“Pet.”] at i). RLEA and its

member unions, by a strike threat and an action for a

“status quo” injunction under the RLA, challenge

C&NW’s right to abolish jobs on certain rail lines that it

plans to cease operating and to sell to FRVR. RLEA con-

tends that the abolishments are not authorized by the ex-

isting labor agreements and thus will change the status

quo in working conditions on the C&NW and give rise to

a “major dispute” under §§ 2 Seventh and 6 of the RLA.*

C&NW contends that it does have the right to implement

the abolishments under existing agreements, and that

RLEA’s contrary claim gives rise to a minor dispute as

to the proper “interpretation or application” of the agree-

ments.

The court of appeals, analyzing the particular agree-

ments in this case under a standard unanimously ac-

cepted by all ten courts of appeals that have considered

the question, found that C&NW’s position is at least “ar-

245 U.S.C. § 153 First (i); see Elgin, J. & E. R. Co. v. Burley,

325 U.S. 711, 723-25 (1945).

3“Major” disputes concern intended changes in collective bar-

gaining agreements. Elgin, supra, 325 U.S. at 723. They arise

under § 2 Seventh, 45 U.S.C. § 152 Seventh, when a carrier attempts

a unilatera! change in “the rates of pay, rules, or working condi-

tions of its employees, as a class, as embodied in agreements,” or

under $6, 45 U.S.C. § 156, when either party serves a formal

notice seeking negotiations over “an intended change in agree-

ments.” While a major dispute is pending the “rates of pay, rules,

and working conditions” must be maintained unchanged until the

parties have exhausted the KLA’s negotiation and mediation pro-

cedures. Shore Line v. Transportation Union, 396 U.S. 142 (1969).

guable” and not “obviously insubstantial” and that the

question whether the abolishments will change the status

quo thus depends on the correct “interpretation or ap-

plication” of those agreements. The court therefore held

that the case raised only an arbitrable minor dispute over

which strikes are illegal and enjoinable.* RLEA now

seeks review of that unexceptional application of firmly-

settled law to the particular facts in this case. The deci-

sion below does not present any question of the relation-

ship between the RLA and the Interstate Commerce Act.

The case concerns the effects on C&NW employees of

the proposed sale to FRVR by C&NW of the “Duck

Creek South” lines, 208 miles of track in Wisconsin, out

of nearly 7,000 miles of railroad operated by C&NW.

Consummation of the sale was originally scheduled for

March 1988, and C&NW anticipated that it would abol-

ish approximately 329 C&NW jobs on the line upon con-

summation. Virtually all the affected employees would

continue to be able to hold railroad jobs, however, because

FRVR agreed to give them a right of first hire to the

approximately 200 jobs it will have on the line, and

C&NW had nearly 200 vacant positions elsewhere that

these employees could also fill. (Supp. App. at 120-21,

2; Affidavit of Stephen P. Selby. p. 2; Pet. at 5.)°

C&NW’s existing labor agreements contain force-

reduction provisions and seniority rules that apply to the

proposed job abolishments. Under these agreements,

C&NW is required to give advance notice, the length of

which depends on the craft affected, before abolishing

jobs, and to allow employees displaced by job abolish-

ments to move to other C&NW jobs that their seniority

*Trainmen V. Chicayo R. & I. R. Co., 353 U.S. 30 (1957).

>“Supp. App.” citations refer to C&NW’s Supplemental Ap-

pendix before the Seventh Circuit. The affidavits cited in this

Brief were filed in the Northern District. of Illinois in support of

C&NW’s motion for a preliminary injunction against RLEA’s

threatened strike over the proposed job abolishments.

entitles them to hold. If the C&NW complies with these

requirements, it is free to abolish jobs for any reason

whatever, without restriction. (Supp. App. at 1, 2, 11-

36).

C&NW has exercised its rights under its force-reduction

agreements repeatedly over the past 20 years. During that

period it has nearly halved the number of miles of track

it operates, primarily through line abandonments, and

has abolished all C&NW jobs along the lines it has ceased

to operate. (Pet. at 3). Since 1981, it has reduced its

work force by 41 percent, abolishing nearly 6,000 jobs

in conjunction with the discontinuance of operation of

lines and numerous other measures increasing produc-

tivity.° Most of those were union jobs, and in each such

instance C&NW effected the job abolishments under the

force-reduction provisions of its agreements, without prior

RLA bargaining with its unions. No union ever chal-

lenged C&NW’s right to do so until 1986. (Supp. App.

at 3, 86-87, 103-105, 121).

When C&NW advised its unions of the proposed Duck

Creek South sale in late 1987, the unions responded by

servine notices, ostensibly under $6 of the RLA, seek-

ing to lengthen the notice requirements, modify applica-

tion of the seniority rules, and add to allowances and

other protective arrangements under the parties’ existing

agreements for employees affected by the sale to FRVR.

Although C&NW took the position that under the Inter-

state Commerce Act the union notices were not manda-

torily bargainable,’ it engaged in voluntary negotiations

6 This shrinkage in employment is characteristic of the railroad

industry generally, in which employment has declined by 52 percent

since 1970. United States Dep’t of Commerce, Bureau of the Census,

Statistical Abstract of the United States 1988 at 570, Table No. 978

(1988).

7 The sale was subject to approval by the Interstate Commerce

Commission, which also has jurisdiction to prescribe and impose

with the unions without prejudice to its position as to

the validity of the notices. In January 1988, in an at-

tempt to end the dispute, C&NW offered $30,000 in

separation pay to any employee who is unable to con-

tinue to hold a railroad job, either with FRVR or C&NW,

as a result of the sale. RLEA rejected that offer, how-

ever, and negotiations continue.* (Supp. App. at 7-10,

112, 118-19.)

In December 1987, FRVR and C&NW obtained au-

thority from the Interstate Commerce Commission to con-

summate the Duck Creek South sale under the Interstate

Commerce Act and the 7-day notice provision of Ex

Parte No. 392, Class Exemption for the Acquisition &

Operation of Rail Lines Under 49 U.S.C. 10901, 1

I.C.C.2d 810 (1985), aff'd mem. sub nom. Illinois Com-

merce Comm’n V. ICC, 817 F.2d 145 (D.C. Cir. 1987) .°

RLEA then threatened to strike, claiming that the job

abolishments would constitute a change in the “status

quo,” although the unions have not exhausted major dis-

pute procedures with respect to their proposals to change

protective benefits for employees affected by the sale. 49 U.S.C.

§ 10901. C&NW takes the position that the Interstate Commerce

Act supersedes any obligation that the carrier would otherwise

have under the Railway Labor Act to bargain over the effects

of the sale on employees. That question is not presented in this

case.

8 C&NW recently invoked the services of the National Mediation

Board under § 5 First of the Railway Labor Act, 45 U.S.C. § 155

First, with respect to the dispute over the union notices, again

without prejudice to its position that bargaining over those notices

is not mandatory. See Supplemental Brief of Petitioners at 6-7.

®%See FRVR Corp.—Exemption—Acquisition & Operation—Cer-

tain Lines of Chicago & N.W. Transp. Co., ICC Finance Docket No.

31205 (served Jan. 29, 1988), appeal pending sub nom. RLEA Vv.

ICC, No. 88-1280 (8th Cir.), reproduced as Appendix A to this

Brief.

the existing rules.*° C&NW sought a preliminary injunc-

tion against the strike in the Northern District of Illi-

nois, and RLEA moved to enjoin the job abolishments.”

10 Those procedures have been summarized by this Court as

follows:

“The Act provides a detailed framework to facilitate the volun-

tary settlement of major disputes. A party desiring to effect

a change of rates of pay, rules, or working conditions must

give advance written notice. §6. The parties must confer,

§ 2 Second, and if conference fails to resolve the dispute, either

or both may invoke the services of the National Mediation

Board, which may also proffer its services sua sponte if it finds

a labor emergency to exist. §5 First. If mediation fails, the

Board must endeavor to induce the parties to submit the con-

troversy to binding arbitration, which can take place, however,

only if both consent. §§$5 First, 7. If arbitration is rejected

and the dispute threatens ‘substantially to interrupt interstate

commerce to a degree such as to deprive any section of the

country of essential transportation service, the Mediation Board

shall notify the President,’ who may create an emergency

board to investigate and report on the dispute. § 10. While the

dispute is working its way through these stages, neither party

may unilaterally alter the status quo. §§ 2 Seventh, 5 First,

6. 10.” Railroad Trainmen v. Terminal Co., 394 U.S. 369, 378

(1969).

11 The cross-motions were filed in an action already on file in

which C&NW sought declaratory relief with respect to the parties’

controversy, and in which RLEA had counterclaimed with respect

to its status quo contentions.

RLEA’s motion sought “an order directing the North Western

to maintain the status quo * * *.” (Defendants-Counterplaintiffs’

Cross-Motion for Preliminary Injunctive Relief at 1). It explained

in its moving papers that the alleged departure from the status quo

it sought to enjoin was C&NW’s plan to “eliminate work”, 7.e.

abolish jobs, on the Duck Creek South lines. (Defendants’ Reply to

Plaintiffs’ Opposition to its Motion for Preliminary Injunctive

Relief, at 9). C&NW’s decision to sell the lines, as RLEA conceded,

is a matter of managerial prerogative under the Court’s decision

in First National Maintenance Corp. Vv. NLRB, 452 U.S. 666 (1981),

but RLEA contended that C&NW was obliged to bargain with the

unions before taking any action that would affect employees. (De-

fendants’ Memorandum of Points and Authorities In Support of

their Cross-Motion for Preliminary Injunctive Relief, at 10). The

In support of its motion, and as a defense to CQNW’s

motion to enjoin the strike, RLEA claimed that the pro-

posed abolishments under the force-reduction agreements

would be a unilateral change by C&NW in the status

quo in violation of RLA major dispute provisions, §§ 2

Seventh and 6.'° Under those provisions, carriers cannot

make changes in working conditions, except as authorized

under existing agreements, without first exhausting the

“long and drawn out,” “almost interminable’ RLA major

dispute procedures.’* As RLEA conceded below, however,

carriers remain free to exercise existing contractual

rights pending exhaustion of major dispute procedures."

C&NW responded that it has the right under its exist-

ing agreements and past practices to abolish the jobs,

that its established right to do so is part of the “status

quo,” and that a carrier does not lose its contract rights

simply because a union serves a notice proposing to

change the contracts. Therefore, C&NW _ contended,

RLEA’s claim that the proposed job abolishments would

change the “status quo” challenges the carrier’s right to

abolish the jobs under its existing agreements, and any

such challenge necessarily raises a dispute over the “in-

“effects” RLEA identified—elimination of work opportunities on

Duck Creek South lines and the resulting contraction of employees’

seniority options—all derive from the proposed job abolishments.

12 45 U.S.C. §§ 152 Seventh and 156.

18 Railway Clerks v. Florida E.C.R. Co., 384 U.S. 238, 246 (1966) ;

Shore Line, supra, 396 U.S. at 149, 153-54.

14 Pet. at 13a. RLEA conceded that under existing agreements

C&NW has “the right * * * to abolish jobs when the work to be

performed by those positions is no longer there” and that “unless

appellee C&NW and rail labor reach an agreement to modify

existing seniority provisions in the current agreements, those pro-

visions will govern the continued employment rights of the affected

employees” in the Duck Creek South sale. (Brief for Appellants

Railway Labor Executives’ Association, et al., before the Seventh

Circuit, at 32-33).

terpretation or application’ of the agreements, 1.€., a

“minor dispute” subject to § 3 of the RLA.” Under $ 3,

RLA arbitration boards, not courts, have exclusive juris-

diction to determine disputes over the ‘interpretation

or application” of agreements, 45 U.S.C. § 153 First

(i), and strikes over such disputes are unlawful and en-

joinable.” The district court agreed with C&NW; it

granted a preliminary injunction against the threatened

strike and denied the injunction sought by RLEA against

the proposed job abolishments."* (Pet. at 26a-28a).

The Seventh Circuit affirmed, relying solely on the

RLA, and found it unnecessary to “resolve the additional

issues, raised by the district court’s opinion and addressed

in the arguments of the parties, with regard to the effect

of the Interstate Commerce Act’ on the parties’ rights.

(Pet. at 21a). The court of appeals acknowledged that

the unions had served so-called § 6 notices seeking to ne-

gotiate new labor agreements governing job abolishments

in connection with the Duck Creek South sale, and that

under $6 the court “may enjoin both tke rail carrier

and the union(s) from altering the status quo during

the course of the negotiations and other impasse resolu-

15 See Elgin, supra, 325 U.S. at 723-28.

16 See Trainmen Vv. Chicago R. & I. R. Co., supra, holding that

strikes over minor disputes are unlawful because they are incom-

patible with the dispute resolution procedure prescribed by Congress

and are enjoinable notwithstanding the Norris-LaGuardia Act.

353 U.S. at 42.

On March 4, 1988, C&NW submitted the dispute to the National

Railroad Adjustment Board under $3 of the RLA, seeking arbi-

tration of, inter alia, the question whether the carrier has the right

under its existing agreements and its past practices thereunder to

abolish the Duck Creek South jobs. (Supp. App. at 84).

17 The district court also accepted C&NW’s alternative argu-

ment that the injunction RLEA sought would violate the Hobbs

Administrative Orders Review Act, 28 U.S.C. § 2342, since the

1CC’s order, reviewable only in the courts of appeals, had authorized

the sale without additional labor protection.

tion procedures * * *.” (Jd. at 4a, 12a, 19a). The court

noted, however, that, as RLEA had conceded, C&NW’s

existing agreements, “unless changed, will continue to

govern the employment-related rights of the current

C&NW employees who will be affected by the Duck Creek

South line sale.” (Jd. at 13a). Therefore, the court had

only to decide whether the proposed abolishments would

be a “departure” from existing agreements. (Jd. at 9a).

Under well-established principles, a dispute over pro-

posed action by a rail carrier is deemed to be minor so

long as the challenged action is “arguably comprehended”

by the agreements, express or implied; i.e., “the dispute

is minor unless the [railroad’s] claims of contractual

justification are ‘frivolous’ or ‘obviously insubstantial.’ ”

(Id. at 9a, 10a-1la, 16a) (citations omitted).

Applying that firmly-settled standard to CQNW’s agree-

ments and its particular history of job abolishments un-

der those agreements, which the court had “carefully

evaluated,” the court of appeals concluded:

“There can be no doubt that the agreements and past

practice arising thereunder embrace matters of job

abolishment, layoff, and reassignment resulting from

a layoff with regard to the individuals affected by

the Duck Creek South line sale who are able to

retain their employment with C&NW. In addition,

C&NW’s claim that the agreements and attendant

past practices extend to the related matters of its

obligation to employees who are laid off after their

positions are abolished appears to have at least some

factual support.” (Jd. at 14a).

Thus, the court of appeals held on the particular facts

of this case that RLEA’s challenge to the carrier’s right

to implement job abolishments presented an arbitrable

minor dispute. (Jd. at 14a-16a). The court accordingly

held that a strike to prevent those abolishments was un-

lawful, and that since minor disputes fall within the

exclusive jurisdiction of the adjustment boards the dis-

trict court was without jurisdiction to grant the broad

“status quo” injunction sought by RLEA under the major

dispute provisions of the RLA. (Jd. at 17a-19a, 20a).

The court further stated that under this Court’s decision

in Locomotive Engineers Vv. M.-K.-T. R. Co., 363 U.S. 528

(1960), the district court could have conditioned the

strike injunction on “C&NW’s abstention from consum-

mating the Duck Creek South Line sale” if RLEA had

demonstrated that employees would otherwise suffer ir-

reparable harm pending proceedings before the adjust-

ment board. The court of appeals held, however, that

there was no basis for a claim of irreparable injury to

_ employees here because the adjustment board can “make

those employees whole” if it ultimately rules in the un-

ions’ favor. (Jd. at 20a-21la).

On September 2, 1988, RLEA moved the court of ap-

peals for either a stay of the strike injunction or an in-

junction against the sale pending certiorari, claiming

that the case is “related” to other line sale cases before

this Court which present questions as to the effect of the

Interstate Commerce Act on the application of the RLA.

The court of appeals denied the motion, noting that none

of the other line sale cases before this Court “involve a

claim by the carrier, that its actions in abolishing jobs

were permitted under existing labor agreements.” The

court further determined that C@NW and FRVR “would

suffer substantial hardship” if the line sale was delayed

because that ‘could jeopardize” the sale, whereas em-

ployees will not be irreparably harmed by the sale."*

RLEA then filed a petition for certiorari. On Septem-

ber 21, Justice Stevens stayed the preliminary injunction

against the threatened strike. In the face of the renewed

strike threat, C&@NW and FRVR have postponed consum-

mation of the sale, although each additional day of post-

18 The decision of the Seventh Circuit denying the stay is re-

produced as Appendix B to this Brief at pages 21a-23a.

ponement threatens the ultimate survival of the Duck

Creek South lines.”

SUMMARY OF ARGUMENT

When considered on its own merits, this case plainly

does not warrant review by this Court. The standard

that the court of appeals used to determine that RLEA’s

challenge to C&@NW’s right to abolish jobs in connection

with the Duck Creek South sale is an arbitrable minor

dispute over which strikes are unlawful—i.e., whether

C&NW’s claim of contractual authorization under its ex-

isting labor agreements is at least “arguable”’—is ac-

cepted by every court of appeals that has ever addressed

the question, as RLEA concedes (Pet. at 19). RLEA did

not challenge that standard below, which is sufficient

basis for denying review. In any case, the standard is

clearly correct and neither the Act nor applicable de-

cisions of this Court can support any other rule. The

standard urged by RLEA would empower the federal

courts to determine the merits of disputes over the in-

terpretation or application of labor agreements. Such

a result would give unions the option of transferring the

forum for resolving such disputes, which number in the

thousands each year, from the various adjustment boards

to the courts—contrary to what this Court has recognized

as the manifest intent of Congress to keep these disputes

“out of the courts.” *° This Court should not grant re-

view to decide whether the lower federal courts have

repeatedly and unanimously erred for years in identify-

ing minor disputes by a test that is mandated by the

RLA and applicable Supreme Court precedent, and has

19The ICC found that “FRVR stands a far better chance of

developing a self-sustaining rail operation [on the Duck Creek

South lines] than does C&NW,” and that unless the lines are sold

there is a significant “potential of future abandonment.” FRVR

Corp., (App. A at 16a).

20 Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 94 (1978).

proven workable and acceptable to management and, un-

til now, to labor as well.

RLEA contends, however, that certiorari should be

granted in this case primarily because, according to

RLEA, it is “inextricably entwined” with three other

railroad line sale cases now pending before this Court

that present the question whether the Interstate Com-

merce Act supersedes any obligation that a selling carrier

might otherwise have under the RLA to bargain over the

effects of a sale on employees. (Pet. at 11). That con-

tention is baseless. The court of appeals in this case ex-

pressly declined to reach any Interstate Commerce Act

questions, holding instead that, even if the RLA’s bar-

gaining procedures were applicable, as RLEA contends

in the other pending line sale cases, on the particular

facts of this case RLEA would still not be entitled to en-

join the Duck Creek South job abolishments or to block

them by striking. (Pet. at 20a n.4, 21a). Thus, the is-

sues here are entirely unrelated to and independent of

the Interstate Commerce Act question in the other pend-

ing cases; the ultimate disposition of the other cases

cannot affect the ground upon which this case was de-

cided, and vice-versa. This Court can and should, there-

fore, dispose of the petition in this case without awaiting

decisions on the petitions or on the merits of the other

eases. That is particularly urgent in view of Justice

Stevens’s stay of the strike injunction pending considera-

tion of the petition here, which if continued will effec-

tively prevent consummation of the sale and threaten to

jeopardize it and the ultimate survival of the Duck Creek

South lines.

ARGUMENT

I. THIS CASE DOES NOT WARRANT REVIEW ON

ITS OWN MERITS

The decision below rests on an unremarkable applica-

tion of a fundamental principle of RLA law, and indeed,

of federal labor law generally: arbitrators, not courts,

have jurisdiction to resolve disputes over the proper in-

terpretation or application of collective bargaining

agreements. Such disputes “arise daily,” as this Court

has recognized,*' in a variety of ways. Indeed, they com-

monly arise just as the dispute in this case did: a car-

rier proposes to take an action affecting employees that

it believes is authorized under its existing labor agree-

ments. Rail labor, resisting the change, claims that it

is an unauthorized departure from the status quo in

working conditions and gives rise to a major dispute, or

serves a § 6 nectice seeking to change the agreements on

which the carrier relies, and either sues for a status quo

injunction or threatens to strike to prevent the alleged

status quo violation—or both, as RLEA did here. The

question presented to the Court in this case is how the

lower courts are to treat disputes over the interpretation

of collective bargaining agreements when they arise in

such status quo cases.

Just last summer, RLEA advised the Court in another

ease that the “legal standards to be followed’”’ in distin-

guishing minor disputes from justiciable status quo

claims “are well known and the Third Circuit * * * cor-

rectly discusse[d] such legal standards” when it said

that “[i]f the disputed action of one of the parties can

‘arguably’ be justified by the existing agreement or, in

somewhat different statement, if the contention that the

labor contract sanctions the disputed action is not ‘ob-

viously insubstantial,’ the controversy is [a minor dis-

21 Union Pacific R. Co. v. Sheehan, supra, 439 U.S. at 94.

pute] within the exclusive province of the National Rail-

road Adjustment Board.” ** The court of appeals in this

case followed precisely that standard, but having lost

below, RLEA now seeks to have the standard itself re-

viewed by this Court. RLEA never challenged that stand-

ard below, and therefore is barred from doing so here.”

In any case, review of the decision below is unwarranted,

because it is clearly correct. Indeed, neither the RLA

nor relevant decisions of this Court would permit any

other result, and therefore, not surprisingly, there is no

conflict among the circuits on the question presented.

A. The Standard Challenged by RLEA Is Plainly

Correct

The court of appeals rejected RLEA’s claim that

C&NW’s proposed job abolishments would violate the

“status quo” and give rise to a major dispute under

either § 2 Seventh or $6 of the RLA because it found

that C&NW had an “arguable” claim that the existing

agreements authorize the abolishments, applying the rule

that in status quo cases “the federal courts must deline-

ate a matter a minor dispute unless the carrier’s claims

of contractual justification” are “frivolous or obviously

insubstantial * * *.” (Pet. at 16a) (citations omitted).

That holding was clearly correct.

Section 3 of the RLA gives adjustment boards juris-

diction to resolve disputes “growing out of grievances or

out of the interpretation or application of agreements

concerning rates of pay, rules, or working conditions

***" 45 U.S.C. § 153 First (i). This Court has held

22 Brief for the Respondents in Opposition at 6, A-9 in Consoli-

dated Rail Corp. Vv. RLEA, No. 88-1 (certiorari granted, Oct. 3,

1988).

23 See, ¢.g., Adickes Vv. Kress & Co., 398 U.S. 144, 147 n.2 (1970).

repeatedly that the adjustment boards’ jurisdiction is

“exclusive.” ** As the Court has said,

“Congress endeavored to promote stability in labor-

management relations in this important national in-

dustry by providing effective and efficient remedies

for the resolution of railroad-employee disputes aris-

ing out of the interpretation of collective-bargaining

agreements. The Adjustment Board was created as

a tribunal consisting of workers and management to

secure the prompt, orderly and final settlement of

grievances that arise daily between employees and

carriers regarding rates of pay, rules and working

conditions. Congress considered it essential to keep

these so-called ‘minor’ disputes within the Adjust-

ment Board and out of the courts.” Union Pacific

R. Co. v. Sheehan, supra, 439 U.S. at 94 (citations

omitted; emphasis added).

The statutory exclusivity of the adjustment boards’

jurisdiction compels the standard applied by the court

below in determining whether a dispute is minor. Where

a carrier’s claim that a challenged unilateral action is

justified by its labor agreements is at least “arguable,”

the case plainly turns on a genuine issue as to the proper

“interpretation or application” of the agreements. Re-

solving such questions is the province of the adjustment

boards, not the courts. Hence, a court must end its

inquiry when it determines that a carrier’s claim of con-

tractual justification is arguably correct. To look into

the merits of the issue further—to “examine the merits

of a rail carrier’s reliance on collective bargaining agree-

ments and past practices,” as RLEA urges (Pet. at i) —

would usurp the boards’ jurisdiction.”

4B .a., Andrews V. Louisville &@ N. R. Co., 406 U.S. 320. 325

(1972); Transportation Union v. U.P.R. Co., 385 U.S. 157. 160,

164 (1966); Locomotive Engineers vy. Louisville & N. R. Co.. 273

U.S. 33, 38 (1963); Slocum v. Delaware, L. @ W. R. Co.. 339 US.

239, 244 (1950).

*> The “court’s role is limited to determining whether [the car-

rier’s] assertion is ‘even “arguable.”’ * * * [I]t is not for it to

Nonetheless, RLEA claims that courts can do just that

in status quo cases. That is nothing less than a claim

that the courts have concurrent jurisdiction over minor

disputes. Any carrier action that a union believes is a

violation of existing agreements can be challenged as a

violation of the status quo under § 2 Seventh, or under

$6 if the union simply serves a § 6 notice proposing to

restrict the carrier’s rights. That happens in dozens of

cases each year now, but under current law the courts

are obliged to dismiss any that they deem to present

minor disputes. Under RLEA’s proposed rule any of the

thousands of minor disputes that arise each year in the

railroad and airline industries *°“—more than 5,000 each

weigh, and decide who has the better of the argument. If the court

[does] this, it overstep[s] its bounds and usurp[s] the arbitrator’s

function.” Maine Central R.R. v. United Transp. Union, 787 F.2d

780, 782 (1st Cir. 1986) (citations omitted).

That rule is consistent with this Court’s view of the domain of

labor arbitrators under the National Labor Relations Act. That

Act does not require arbitration, it merely encourages private

arb‘tration agreements for labor disputes. See Gateway Coal Co.

v. Mine Workers, 414 U.S. 368, 377 (1974). Nonetheless, because

arbitration under the National Labor Relations Act serves, as under

the RLA, as a means for preventing strikes by providing peaceful

resolution procedures for labor disputes, the Court has recognized a

“presumption of arbitrability”: doubts as to whether a particular

dispute falls within a private arbitration agreement must be “re-

solved in favor of coverage.” AT&T Technologies v. Communica-

tions Workers, 475 U.S. 643, 650 (1986); Steelworkers v. Warrior

& Gulf Co., 363 U.S. 574, 582-83 (1960). The exclusive jurisdiction

of labor arbitrators under the NLRA extends to all matters “even

arguably” within the scope of collective bargaining agreements

Paperworkers Vv. Misco, 108 S. Ct. 364, 371 (1987). Hence, “as long

as the arbitrator is even arguably construing or applying the con-

tract and acting within the scope of his authority, that a court is

convinced he committed serious error does not suffice to overturn

his decision.” Jd. Statutory arbitration under the RLA should be

entitled to no less judicial deference than voluntary arbitration

under the National Labor Relations Act.

26 Airlines are subject to the RLA and to minor dispute pro-

cedures under 45 U.S.C. §§ 181 and 184.

year in the railroad industry alone *“—could be brought

to the federal courts, which would be bound to rule on

the merits of these disputes. There would be no prin-

cipled way to screen out any such disputes from the

courts. Labor would thus have an unrestricted option to

sidestep arbitration, simply by suing a carrier for an

alleged status quo violation, or threatening to strike and

raising a status quo defense when the carrier comes to

court for a strike injunction, as RLEA did in this case.

That result would be insupportable. It is irreconcil-

able both with the plain terms of §3, and with all

relevant decisions of this Court, including those cited by

RLEA. In addition to numerous holdings that the ad-

justment boards have “exclusive” jurisdiction over minor

disputes,** this Court has explicitly held that the Act can-

not be read “to mean only that an Adjustment Board has

been organized and that the parties are free to make

use of its procedures if they wish to; but that there is

no compulsion on either side to allow the Board to settle

a dispute if an alternative remedy, such as resort to

economic duress, seems more desirable.” Chicago R. & 1.,

supra, 353 U.S. at 34, 39. Rather, arbitration is “com-

pulsory.” Jd. at 39. That holding is squarely in point,

and squarely contrary to RLEA’s contentions.

So is this Court’s decision in Order of Conductors

Vv. Pitney, 326 U.S. 561 (1946), which RLEA says

*7 Appendix to the Budget of the United States Government,

FY 1989, at I-Z66 (1988) (6,610 new railroad arbitrations com-

menced in 1987); Appendix to the Budget of the United States

Government, FY 1988, at I-Z64-65 (1987) (5,359 new railroad

arbitrations commenced in 1986); Appendix to the Budget of the

United States Government, FY 1987, at I-Z80 (1986) (8,414 new

railroad arbitrations commenced in 1985).

*8 Andrews V. Louisville & N. R. Co., supra, 406 U.S. at 325:

Transportation Union v. U.P.R. Co., supra, 385 U.S. at 160, 164:

Locomotive Engineers v. Louisville & N. R. Co., supra, 373 U.S. at

38; Slocum v. Delaware, L. & W. R. Co., supra, 339 U.S. at 244.

merely “touched on” but did not “address the question of

the scope of federal court jurisdiction.” (Pet. at 22).

Pitney not only “addressed” that question, it dictates pre-

cisely the approach to status quo claims that the Seventh

Circuit employed in this case. In Pitney a union claimed

that a carrier’s proposal to displace certain employees

from their jobs would be a unilateral change in the status

quo in violation of § 6 of the RLA. The carrier’s defense

‘nut in issue the meaning of the contracts that allegedly

embodied the working conditions which the [carrier was]

about to change.” 326 U.S. at 565. Thus, the lower court

“had to interpret these contracts before it could find

that £6 had been violated.” Jd. But, the Court noted,

Congress established the adjustment boards to interpret

labor contracts, and “it also intended to leave a minimum

responsibility to the courts.” Jd. at 566. This Court thus

held that only “after the Adjustment Board acts, but not

until then,” could the lower court proceed to consider the

union’s status quo claim. Jd. at 565-67.

This Court’s decision in Shore Line, supra, on which

RLEA relies, supports the same conclusion. To be sure,

as RLEA points out, Shore Line held that the status quo

that must be maintained while a § 6 notice is pending is

not limited to existing agreements, but rather encom-

passes “the actual, objective working conditions out of

which the dispute arose, irrespective of whether these

conditions are covered in an existing |[written| agree-

ment.” 396 U.S. at 148. But Shore Line did not hold, as

RLEA now asserts, despite its own concessions below

(Pet. at 13a), that the status quo does not include the

earrier’s rights under existing agreements, and that a

union can defeat a carrier’s established contractual rights

simply by proposing to change them. On the contrary,

Shore Line explicitly recognized that if the carrier had

an established right to make the changes that the union

challenged, that right would be “in reality a part of the

actual working conditions’ and the carrier would have

been free to make the changes during the § 6 status quo

period. 396 U.S. at 153-54. The carrier claimed no such

right under its written or implied agreements with the

union in that case, and so the Court had no occasion to

employ the “major-minor” classification—but it hardly

rejected it, as RLEA claims. Instead, the Court explicitly

reaffirmed the holding of Pitney that, where such a right

is claimed, “the proper forum for interpreting the agree-

ments [is] the Adjustment Board provided by Congress

in the Railway Labor Act,” not a federal court. Jd. at

156-57.

In sum, the decision below is clearly correct. The

result sought by RLEA would impose an intolerable bur-

den on the federal courts, by substituting concurrent

federal court jurisdiction for the adjustment boards’ ex-

clusive jurisdiction over thousands of minor disputes that

arise each year. Reversal of the rule applied below

would be irreconcilable with every relevant decision of

this Court and the plain language of the Act.

B. There Is No Conflict Among The Circuits

Given the alternatives just outlined, it is not surprising

that there is no conflict among the circuits on the stand-

ard for determining whether a claim that a carrier has

violated the status quo gives rise to a major or minor

dispute. The standard employed by the court below for

assessing status quo claims, which turns on whether the

carrier has an “arguable” contractual justification for

its actions, is accepted by every court of appeals that has

considered the question, in at least 50 cases, besides this

one, in ten different circuits.”

29 Appendix C to this Opposition (at 24a-28a) sets forth the cita-

tions to these cases. There are no contrary decisions, although the

courts occasionally employ different phrases in formulating the

standard. As the Eighth Circuit recently remarked:

“This Court has said that a dispute is minor if the agreement

is ‘reasonably susceptible’ of the interpretations sought by both

To be sure, other courts have held, on different facts,

that job abolishments on other carriers gave rise to major

disputes. But contrary to RLEA’s claims (Pet. at 25-

26), that does not create any conflict among the circuits

on the law. Whether a dispute is major or minor depends

on the particular facts and the nature of the agreements

between the parties in each case. Different facts yield

different results in different cases.” In cases presenting

the employer and the employees. Other courts have said that a

dispute is minor if the employer’s action can be arguably justi-

fied under the terms of the existing agreement * * *, or that

the dispute is minor unless the employer’s argument that its

actions are within the contract is ‘obviously insubstantial.’

These locutions are essentially the same in their result.”

Brotherhood of Maintenance of Way Employees v. Burlington

Northern R.R., 802 F.2d 1016, 1022 (8th Cir. 1986) (citations

omitted).

The courts of appeals also agree that under Shore Line, the

status quo includes the carrier’s established rights under existing

agreements. Baker v. United Transp. Union, 455 F.2d 149, 157 (3d

Cir. 1971) (To “freeze physical conditions in existence on the day

fa] Section 6 notice was filed,” depriving a carrier of a contractual

right to make changes, would not be the “status quo”; it “would be

the creation of a new condition.”). Accord, RLEA v. Boston &

Maine Corp., 808 F.2d 150, 156 (1st Cir. 1986); United Transp.

Union v. St. Paul Union Depot, 434 F.2d 220, 223 (8th Cir. 1970).

See also Rutland Ry. v. Brotherhood of Loc. Engineers, 307 F.2d

21, 33-36 (2d Cir. 1962): REA Express v. Brotherhood of Ry.,

Airline & S.S. Clerks, 459 F.2d 226, 230-32 (5th Cir. 1972).

30 All of the cases that RLEA claims are in direct conflict with

the decision below are factually quite different from this one. In

Telegraphers Vv. Chicago & N.W. R. Co., 362 U.S. 330 (1960), as

RLEA concedes, the carrier “did not argue * * * that the reduction

in force provisions of its collective bargaining agreements with

the Telegraphers authorized it to abolish jobs.” (Pet. at 24). This

Court, in fact, found it “impossible” to say that the case turned on

conflicting “interpretations of the provisions of” an “existing col-

lective bargaining agreement.” 362 U.S. at 341. The same is true of

RLEA Vv. Pittsburgh & Lake Erie R.R., 845 F.2d 420 (3d Cir. 1988),

petitions for certiorari pending, Nos. 87-1888 & 88-217. The car-

rier there did not contend that its agreements authorized the

facts similar to this one, the disputes have been deemed

minor. For example, a recent District of Columbia Cir-

cuit opinion held that broad force-reduction provisions

similar to those in C&NW’s agreements and a past prac-

tice of unilateral job abolishments similar to C&NW’s

arguably justified a carrier’s plan to abolish the jobs of

over 3,000 employees in connection with its discontinu-

ance of service on certain routes, and thus that a union

challenge to those abolishments was a minor dispute.

Air Line Pilots Ass’n v. Eastern Air Lines, Nos. 88-

7201-7204 (D.C. Cir. Sept. 30, 1988). Similarly, in an-

other rail line sale case where the selling carrier had

force-reduction agreements virtually identical to CQ@NW’s,

the court held that the unions’ challenge was a minor

dispute and thus enjoined a threatened strike and refused

to enjoin the sale. Decker v. CSX Transp. Inc., 688 F.

Supp. 98 (W.D.N.Y. 1988), appeal pending sub nom.

abolishments. In United Industrial Workers v. Galveston Wharves,

351 F.2d 183 (5th Cir. 1965), the carrier did raise such a claim

and the Fifth Circuit said, like the Seventh Circuit did in this case,

that “if by its terms o[r] reasonable implication therefrom, the

collective agreement apparently affords some arguable basis” for

the carrier’s action, the dispute “is not a § 6 situation and remains

a minor dispute.” Jd. at 188. On the particular facts of that case,

however, the court concluded that the carrier’s actions there could

not “even remotely be justified” under the agreement. Jd. at 189.

The Seventh Circuit held otherwise on the basis of the quite differ-

ent facts here, employing the same legal standard as the Fifth

Circuit.

Contrary to RLEA’s assertion (Pet. at 27), the Eighth Circuit’s

decision in Burlington Northern R.R. v. United Transp. Union,

848 F.2d 856 (8th Cir. 1988), did not hold that the carrier’s de-

cision to dispose of a part of its line and abolish jobs gave rise to

a major dispute. Quite the opposite: The Eighth Circuit held that

the Interstate Commerce Act “supersedes the authority of the man-

datory bargaining provisions of the RLA * * *.” Jd. at 862. The

carrier’s force-reduction agreements were not before the court.

CSX Transp., Inc. v. United Transp. Union, No. 88-

7461 (2d Cir.) *

The point is that there is no conflict or dispute about

the governing legal standard. All the decided court of

appeals cases agree with the Seventh Circuit that a

status quo claim gives rise only to a minor dispute if

the carrier’s contractual justification is at least “argu-

able,’ or not “frivolous” or “obviously insubstantial.”

(Pet. at lla, 16a). As RLEA concedes, that has been

settled law for at least “the past four decades.” (Pet.

at 19).

II. THIS CASE DOES NOT MERIT REVIEW SIMPLY

BECAUSE OTHER LINE SALE CASES ARE PEND-

ING BEFORE THE COURT

A. This Case Is Legally and Factually Unrelated To

the Other Pending Cases

As we have just shown, this case, standing alone, could

not possibly be deemed to merit review by this Court.

Indeed, RLEA’s primary proffered “reason for granting

the writ” has nothing to do with the merits of this case.

Rather, RLEA contends that certiorari should be granted

because this case is supposedly “inextricably entwined”

with three other railroad line sale cases now pending

before the Court on petitions for certiorari, Nos. 88-217

and 87-1888, seeking review of RLEA v. Pittsburgh &

Lake Erie R.R., 845 F.2d 420 (3d Cir. 1988), and No.

87-2049, seeking review of RLEA v. Chicago & N.W.

Transp. Co., 848 F.2d 102 (8th Cir. 1988). (Pet. at 11).

The petitions for certiorari in those cases present, as

RLEA has said, the question of “‘the relationship of the

Railway Labor Act to the transportation statute.” (Stay

31In Decker, the Second Circuit initially granted a stay similar

to Justice Stevens’s stay here, pending appeal of the district court’s

judgment, but when it heard oral arguments on the merits on

July 18, 1988 it vacated the stay that same day.

Application at 10). Specifically, they present a conflict

among the circuits over the question whether RLEA is

free to seek additional labor protection in line sales

through RLA collective bargaining, or whether the RLA

is superseded in that regard by the Interstate Commerce

Act’s provision for the ICC to resolve labor protection

disputes in line sales. (See Pet. at 13, 15).

In this case, by contrast, the court of appeals expressly

declined to reach the Interstate Commerce Act “super-

session” question, because the “Railway Labor Act and

the attendant relevant case law provide[d] a full and

proper basis for affirming the district court.” (Pet. at

2la & n.6, 20a n.4). Indeed, RLEA itself is bound to

concede that this case “differs” from the other cases

because it was decided on an “alternative argument.”

(Pet. at 14; Stay Application at 11). The legal issues

in this case are thus wholly independent of those pre-

sented in the other pending line sale cases.** The ulti-

mate decision in this case will have no bearing on the

merits of those cases, and the decisions in those cases

will not affect the merits or outcome of this case.

RLEA contends, however, that the concededly “different”

issues in this case must “for logical and practical reasons,

be determined before this Court considers whether the

Interstate Commerce Act supersedes the Railway Labor

Act,” because “the controversy over rail labor’s bargain-

ing rights” in line sales will not be put to rest “so

long as some courts are holding that those rights are not

implicated in such sales” even if the RLA is not super-

seded. (Pet. at 11, 14-15). That contention is specious.

The court of appeals in this case did not hold that RLEA

had no RLA “bargaining rights” with respect to labor

protection in the Duck Creek South sale. Indeed, while

the court of appeals noted that the unions had served

32 Neither the “Questions Presented” nor the “Statutes Involved”

sections of RLEA’s petition so much as mentions the Interstate

Commerce Act.

§ 6 notices seeking to negotiate for labor protection, it

had no occasion to address the validity of those notices

and did not do so.* (Pet. at 4a, 12a). In any case, the

scope of an employer’s bargaining obligation in connec-

tion with sales of parts of its business is settled by this

Court’s decision in First National Maintenance Corp. V.

NLRB, 452 U.S. 666 (1981), which held that the effects

of such sales on employees are bargainable, while the

sales themselves are not. RLEA never argued that

C&NW’s obligation under the RLA would be any broader,

and C&NW never contended that it would be any nar-

rower, if the RLA’s major dispute procedures were not

superseded by the Interstate Commerce Act. No question

as to the scope of either RLEA’s bargaining rights or

C&NW’s bargaining obligations under the RLA was be-

fore, or decided by, the court of appeals.

The only question that the court of appeals addressed

was the scope of the “status quo” pending bargaining,

given C&NW’s claim that the force-reduction provisions

in existing agreements authorize the abolishments, and

RLEA’s concession that those “contractual provisions, un-

less changed, will continue to govern” the sale’s effects

on employees. (Pet. at 18a). The court’s holding on that

question has no relevance to the other pending line sale

cases before the Court. As the Seventh Circuit pointed

out, neither the Third nor the Eighth Circuits addressud

the minor dispute question that RLEA seeks to have this

Court review in this case.“* (App. B at 22a). Thus, this

33 Moreover, as RLEA concedes, C&NW was bargaining over

labor protection, even though it did not believe it was obliged to

do so, before the court of appeals ruled, and has continued to

bargain since the court ruled; indeed, it was C&NW that asked the

National Mediation Board last month to mediate the parties’ labor

protection dispute under § 5 of the RLA. See n.8 supra.

34 The carrier in the Pittsburgh & Lake Erie case did not contend

that its labor agreements authorized it to abolish jobs in connection

with the sale there. C&NW did raise such a claim as an alternative

defense to RLEA’s attempt to procure a status quo injunction in

Court’s disposition of those cases will not have any “prac-

tical’ effect on the result in this case, and the result in

this case will not affect this Court’s disposition of those

eases. Whether or not rail labor is entitled to bargain for

new labor protection agreements in line sales, some car-

riers, like the C&NW, may already have a right under

existing agreements to abolish jobs in connection with

sales, and others may not. But that fact has no bearing

at all on the legal question whether the Interstate Com-

merce Act relieves all carriers of any obligation to bar-

gain over future labor protection agreements for such

sales, and carriers whose labor agreements differ from

C&NW’s will still be confronted with that question even

though C&NW’s particular agreements allowed the Sev-

enth Circuit to avoid it in this case. There is, thus, no

relationship, legal or practical, between this case and the

other pending line sale cases.”

B. The Petition Should Be Disposed of Promptly, Not

Held In Abeyance Pending Decisions In the Other

Unrelated Line Sale Cases

Because this case is unrelated to the other pending cases,

there is no reason for the Court to postpone disposition

of the petition for certiorari pending disposition of the

other cases. Doing so would threaten irreparable harm

the Eighth Circuit case, but neither the district court nor the

Eighth Circuit reached the minor dispute argument because both

disposed of the case on Interstate Commerce Act grounds.

35 The Seventh Circuit’s reliance on RLA minor dispute procedures

would not be affected if this Court should hold that the major

dispute procedures are superseded by the Interstate Commerce Act.

The major dispute procedures conflict with the Interstate Commerce

Act because they would authorize coercive bargaining and strikes

over claims for future labor protection, while Congress has com-

mitted labor protection disputes in lines sales to peaceable resolu-

tion by the ICC. The minor dispute procedures, which provide

peaceable means for resolving disputes over contract rights estab-

lished prior to a line sale, raise no such conflict.

to C&NW and FRVR. So long as the stay of the strike

injunction remains in effect, CQONW and FRVR cannot

risk consummation of the sale. As the court of appeals

found, “further delay could jeopardize the proposed sale.”

(App. B at 23a). That would threaten harm not only to

C&NW and FRVR, but also to the long term viability of

the Duck Creek South lines.

The ICC found last January that “FRVR stands a far

better chance of developing a self-sustaining rail opera-

tion [on the Duck Creek South lines] than does C&NW,”’

and that unless the lines are sold there is a significant

“potential of future abandonment.” (App. A at 16a).

That conclusion was based in part on FRVR’s ability to

attract shippers for whose business C&NW has been un-

able to compete successfully. (Jd. at 6a-7a). In late

1987, however, another regional railroad, the Wisconsin

Central, commenced operations on former lines of the

Soo Line Railroad parallel to the Duck Creek South lines.

(Id.; see Affidavit of Dick Neu and his attached Verified

Statement before the ICC at p. 5). While the Duck

Creek South sale has been deferred pending this litiga-

tion, Wisconsin Central has had a substantial head start

in seeking to enter into transportation contracts with

shippers that FRVR hoped to serve. Each additional day

of delay of the sale thus threatens erosion of FRVR’s

projected customer base, and ultimately threatens pros-

pects for a viable railroad operation on the Duck Creek

South route. The Court should therefore rule on the pe-

tition now, without awaiting results in the other, wholly

independent and wholly different, cases.

CONCLUSION

The petition for a writ of certiorari should be denied.

CARL V. LYON

FRVR Corporation

1101 30th Street, N.W.

Washington, D.C. 20007

(202) 338-9022

STEPHEN M. OLSON

KIRKPATRICK & LOCKHART

1500 Oliver Building

Pittsburgh, Pennsylvania 15222

(412) 355-6500

JOHN M. NANNES

SKADDEN, ARPS, SLATE, MEAGHER

& FLOM

1440 New York Avenue

Washington, D.C. 20005

(202) 371-7000

Attorneys for FRVR Corporation

October 17, 1988

Respectfully submitted,

RALPH J. MOORE, JR.*

RICHARD M. WYNER

D. EUGENIA LANGAN

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

JAMES P. DALEY

STUART F. GASSNER

Chicago & North Western

Transportation Company

One North Western Center

Chicago, Illinois 60606

(312) 559-6100

Attorneys for Chicago & North

Western Transportation

Company

* Counsel of Record

APPENDICES

APPENDIX A

INTERSTATE COMMERCE COMMISSION

DECISION

Finance Docket No. 31205

FRVR CoRPORATION—EXEMPTION ACQUISITION AND

OPERATION—CERTAIN LINES OF CHICAGO AND NORTH

WESTERN TRANSPORTATION COMPANY—PETITION FOR

CLARIFICATION

Decided: January 28, 1988

This decision is issued in response to a petition filed

by the Chicago and North Western Transportation Com-

pany (CNW) and FRVR Corporation. FRVR is a new

corporation formed for the purpose of acquiring and

operating certain rail lines of the CNW. Petitioners seek

a statement of this agency’s views as to our jurisdiction

over labor issues arising out of the formation of short-

line railroads. The matter has become controversial in

the past several years, due to the acceleration in the

creation of regional and short-line railroads.

Since partial deregulation under the Staggers Rail Act

of 1980 ' nearly 200 short-line and regional railroads have

come into existence—partially reversing the industry’s

long trend of exit and contraction. These new roads now

operate approximately 13 thousand miles of rail lines

with 4 thousand workers handling more than 1.3 million

carloads yearly.

Up until the Staggers Act, the principal means of exit

for large “Class I” railroads from unprofitable markets

had been through abandonment. Substantial deregulation

! Pub. L. No. 96-448, 94 Stat. 1941-45.

of motor freight under the 1980 Motor Carrier Act?

threatened to accelerate this trend through new and

increasingly efficient truck competition. Abandonment,

by its nature, is most often a painful, disappointing

process. It normally entails the permanent loss of jobs

and railroad service, even though it has not always oc-

curred in markets that are inherently unserviceable by

rail. Markets that produce losses when operated by Class

I railroads can produce profits for smaller, more effi-

cient local carriers. These new carriers are potentially

beneficial to nearly all concerned. They preserve rail

service for the local economies and provide traffic food

for the larger carriers, enhancing employment prospects

for rail labor—both on the smaller lines and throughout

a reinvigorated Class I system—and they foster optimal

recognition of the energy efficiencies and environmental

benefits of rail service.’

The trend away from abandonment and towards the

formation of short-line and regional carriers developed

in response to the new business environment created by

the Staggers Act. This development was given impetus

by a change in 1982 in Commission labor protection

policy which was in part based upon a provision of the

Staggers Act which establishes a branch line sale process

in which labor protection was foreclosed by the statute.‘

In the past, the typical sale of a short-line carrier might

have been conditioned upon comprehensive (and _ poten-

* Pub. L .No. 96-296, 94 Stat. 793.

3 The National Rail Transportation Policy charges the Commis-

sion with the responsibility of ensuring the development of a sound

rail transportation system, while encouraging fair wages and safe

and suitable working conditions for labor. The Commission is also

to encourage and promote energy conservation. See 49 U.S.C.

10101a.

449 U.S.C. 10905. See Simmons v. ICC, 760 F.2d 126 (7th Cir.

1985).

tially quite expensive) labor protection.” By 1982 the

Commission had determined that the expense of labor

protection foreclosed short-line development, forcing the

less attractive abandonment alternative or an abandon-

ment and sale under the provisions of 49 U.S.C. 10905.

As labor protection in short-line sales to new entrants

is within the Commission’s discretion, the Commission

began to withhold protection in individual applications °

on the three-part theory that (1) in doing so rail service

would be preserved, (2) the new railroads provided the

best prospect for protecting the employment prospects of

the affected labor and (3) it made no sense to force rail-

roads to go through the more cumbersome process of

abandonment under 49 U.S.C. 10903 and sale under 49

U.S.C. 10905 to achieve the same result. After consid-

eration of scores of individual applications, the Com-

mission decided in a 1986 notice and comment rulemak-

ing that the development of new small railroads was

overwhelmingly beneficial and should be encouraged and

allowed to proceed with a minimum of regulatory cost

and delay.?. The Commission issued rules exempting cer-

tain classes of line sales from drawn out Commission reg-

ulation, retaining for itself the unqualified right to re-

5 See e.g., Durango and Silverton Narrow Gauge Railroad Co.—

Acquisition and Operation, 363 I.C.C. 292 (1979), aff'd sub nom.

Railway Labor Executives’ Association v. United States, 697 F.2d

285 (10th Cir. 1983) (Review Board decision noting that imposition

of labor protection was discretionary ).

6 See Knox and Kane Railroad Co.—Gettysburg Railroad Co.—

Petition for Exemption, 366 I.C.C. 439 (1982).

TEx Parte No. 392 (Sub No. 1), Class Exemption for the Acqui-

sition and Operation of Rail Lines Under 49 U.S.C. 10901, aff’d sub

nom, Illinois Commerce Commission V. 1.C.C., 817 F.2d 145 (DC Cir.

1987). This decision is in keeping with the National Transporta-

tion Policy of minimizing the need for Federal regulation (49

U.S.C. 10101a(2)), as well as the policies noted in footnote 3

above.

view and correct any unique problems that might arise

out of exceptional circumstances.*®

The Commission’s policy has been validated by prac-

tical results. New railroad formation quickened,’ aban-

donments fell,’® service was maintained and typically im-

proved, and rail jobs that might otherwise have been lost

were preserved.'! Most observers supported and welcomed

8 The Staggers Act expanded the Commission’s exemption au-

thority. Further, as is stated in the Conference Report, the Com-

mission is actively to pursue exemptions for transportation and

is to have a policy of reviewing carrier actions after the fact to

correct abuses. See H.R. Rep. No. 96-1430, 96th Cong., 2d Sess.

104-105.

New Railroad Formation

Year Est. Number

1982 25

1983 20

1984 31

1985 28

1986 45

1987* 70

* Preliminary figure based on notices filed.

Miles of Lines Abandoned

Year Miles

1982 5151

‘ 1983 2454

1984 3083

1985 2343

1986 2087

1987 1932

11 The Commission’s Office of Transportation Analysis is engaged

in continuing study and research on the effect of the Commission’s

policy and the short-line/regional phenomenon. This study has

included on-site interviews with labor and management, as well as

data collection and analysis. This analysis demonstrates that em-

ployment on the new lines, particularly the larger regional carriers,

the Commission’s policy initiative, but it has been consist-

ently opposed by organized rail labor. Under the rules

adopted in 1986, opposition to individual transactions

is presented in petitions to revoke the grant of exemp-

tion. Such petitions have been filed in approximately

20 of the 120 transactions processed under the 1986

rules. Where petitions to revoke are filed, the Commis-

sion evaluates the basis for the revocation request, and

has well-defined authority to correct any abuses that are

shown.’ The Commission’s authority includes the power

to impose labor protective conditions through partial

revocation,’* although under the rules this step will be

taken only where exceptional circumstances are shown.

The Commission would consider as exceptional, situations

in which there was misuse of the Commission’s rules or

precedent,'* or where existing contracts specified that

line sales were subject to procedural or substantive pro-

tection.”* Further, the exemption will be modified where

labor can demonstrate injury that was unique, dispro-

portionate to the gains achieved for the local transport

is typically drawn from the work force of the selling carrier. Fur-

ther, while initial employment levels are below those of the depart-

ing carrier, employment on some lines has grown over time as im-

proved service attracts new business to the lines.

12 See Consolidated Rail Corporation—Declaratory Order—Ex-

emption, 1 I.C.C.2d 895 (1986), cited approvingly, G&T Terminal

Packaging Co., Inc. Vv. Consolidated Rail Corp., CA 84-1173 Slip

op. (D.N.J. October 23, 1986). See also legislative history of the

Staggers Act in footnote 8 above.

13 See Maryland Midland Railway, Inc—Exemption from 49

U.S.C. 11343 and 11201 (not printed), served January 6, 1987.

14 Cf. Order of Investigation, served May 18, 1987, in F.D. No.

30965, Delaware and Hudson Railway Company—Lease and Track-

age Rights Exemption—Springfield Terminal Railway Company.

15 Jt is the Commission’s standard labor protection policy in re-

structuring proceedings to preserve existing employment contracts

insofar as possible, consistent with the merger, consolidation or

abandonment authorized. See section 2 of the standard New York

Dock conditions, 360 I.C.C. 84 (1979).

system, and which can be compensated without causing

termination of the transaction or substantially undoing

the prospective benefits of the Commission’s existing

policy for other communities and locales.*®

The exemption proposal filed by CNW and FRVR cor-

responds quite well to our expectations and experience

with the use of the Ex Parte 392 (Sub-No. 1) rules. At

issue are 208 miles of light density lines in Eastern Wis-

consin in the area between Green Bay and Milwaukee.

The paper industry is the principal source of traffic and

holds the greatest potential for traffic wrowth on the

FRVR line. But to achieve growth means reversing the

paper industry’s increasing reliance on truck service. A

verified statement filed by Petitioners indicates that rail

market share of the outbound paper market was 54

percent of the total in 1977, but had fallen to under 20

percent by 1986. The number of motor carriers operat-

ing in the region has doubled and price competition is

strenuous. The lines of the CNW may now be under

additional pressure since its rail competition (which had

been the Soo Line operating at relatively standard Class

I costs) is a new regional operator, the Wisconsin Cen-

tral. Wisconsin Central, as organized, has distinct cost

advantages that will make long-term competition by CNW

almost certainly impossible, absent a substantial improve-

ment in efficiency and productivity.”

To work its way out of this predicament, CNW seeks

to sell its line to the newly formed FRVR. FRVR has a

management team drawn from the Wisconsin area and

from within the rail industry, with experience in run-

ning a small railroad and marketing rail transportation

16 Cf. Northern Pacific Acquiring Corp. and Eureka Southern

Railroad Co—Ezxemption F.D. 30555 (Decision served January 8,

1988).

17 Two petitions to revoke the Wisconsin Coastal exemption (F.D.

No. 31102) are now before the Commission.

to the paper industry. It intends to draw its work force

from existing CNW employees where possible, and an-

ticipates that it will operate as a union-represented com-

pany.'* Its wages will be approximately 85 percent of

the Class I standard, and its work rules will give it sub-

stantial productivity improvement over the CNW opera-

tions. The company also anticipates use of an incentive

bonus plan to further productivity. It will own its own

engines, operate its own facilities, and rely principally

on the CNW for car supply. It has trackage rights over

CNW to connect into Milwaukee, and it has connections

with other roads at points on the system. The company

has already contacted shippers along the lines, and it

filed 25 shipper letters acknowledging anticipated sup-

port and cooperation with its petition.

CNW estimates that the impact of the sale on its em-

ployees will be minimized by FRVR’s commitment to the

use of former CNW employees. For its part, CNW states

that it has employment shortages elsewhere on its sys-

tem, and that it will make these jobs available to work-

ers affected by the FRVR sale. It anticipates that ap-

proximately 20 employees might still be left without em-

ployment either on FRVR or the CNW. It has offered a

commitment of $30,000 per employee as a separation

allowance for any employee unable to secure continued

employment with either CNW, by exercising seniority,

or with FRVR, under the right of first hire."*’ CNW has

offered to meet with its unions to discuss this offer and

related issues. According to Petitioner, the unions be-

lieve that such discussions must proceed under the aus-

18 Verified Statement of S. P. Selby. Selby states that CNW

employees currently working on the affected lines are granted right

of first hire selected in accordance with qualifications, work records,

fitness and ability, and physical and medical standards. Selby states

further that he has met with an officer of the Railway Labor Execu-

tive’s Association to work out a suitable arrangement for union

representation of future employees. V.S., at 3-4.

19 Verified statement of Robert Schmiege.

pices of the Railway Labor Act (RLA).*” Bargaining

under the RLA requires maintenance of the status quo,

and permits resort to strikes, lockouts or other form of

self-help if an impasse cannot be mediated. CNW takes

the position that such bargaining gives labor the power

to defeat the FRVR transaction, and is not required.

However, informal discussions have taken place, but no

agreements have been reached.

CNW has petitioned for a declaration as to the Com-

mission’s view of its role in resolving any labor disputes

which may arise in connection with the implementation

of this Commission authorized transaction.2? CNW as-

serts such an action is required to ensure a smooth im-

plementation of the authorized transaction.

The Railway Labor Executives’ Association (RLEA)

has filed in opposition to the Petition of FRVR and CNW.

RLEA believes that the Commission is without jurisdic-

tion to issue the clarifying decision requested by Peti-

tioners, and that Petitioners’ argument on the merits is

based on erroneous legal interpretations.

DISCUSSION AND CONCLUSIONS

The first of RLEA’s propositions appears to be based

on a misapprehension of the nature of a declaratory or-

der. It seems beyond question that the Commission has

the authority to issue declaratory opinions.2? RLEA does

20 45 U.S.C. 151.

“1 Pursuant to our class exemption rules, 49 CFR 1150.31 et

seq., the CNW/FRVR exemption became effective December 30,

seven days after filing. Petitioners indicated that thev intend to

defer consummation until the Commission responds to their petition

for clarification. A related petition for exemption of a control

relationship between FRVR and its parent corporation has also

been filed.

*2 Pursuant to 5 U.S.C. 554(e), an administrative agency is

empowered in its discretion to issue declaratory orders to terminate

controversy or remove uncertainty.

not directly address this authority, arguing instead that

the Interstate Commerce Act (ICA) does not vest this

agency with the power “to decide the applicability and

scope of other statutes”—that the “Commission is clearly

not the tribunal to determine how to resolve conflicting

mandates of the ICA and other statutes.” That is true

enough, if understood to mean that the Commission’s

opinions on statutory interpretation are, when challenged,

subject to judicial review and possible override. There is

no dispute over the fact of judicial primacy, but it does

not follow that the Commission is foreclosed from ex-

pressing its viewpoint, or that such expression may not

issue in declaratory form, when related to the discharge

of explicit statutory power, such as the power to approve

or exempt the sale of a line of railroad. There is no need

to deprive private parties and reviewing courts of the

benefit of a clear statement of the Commission’s view-

point. The reason for declaratory opinions is to aid in

clarifying and resolving controversies.

A part of the present controversy that requires clari-

fication is whether the Railway Labor Act must be ac-

commodated (in RLEA’s words, subordinated) to the

Interstate Commerce Act in the circumstances of an

approved or exempted line sale arising under section

10901 of the ICA. A related issue is the immunity from

injunction under the Norris-LaGuardia Act of a strike

that threatens to prevent the consummation of a trans-

action so approved or exempted.

Until quite recently, it had been an established rule

that the orders of the Commission approving the merger,

sale, or abandonment of a line of railroad were not sub-

ject to collateral attack in the courts, and could not be

frustrated by employee actions taken under the aegis of

the Railway Labor Act or otherwise.** “Congress did

23 Brotherhood of Locomotive Engineers v. C&NW, 314 F.2d

424 (8th Cir.), cert. denied, 375 U.S. 819 (1963).

10a

not intend employees have such power to block consolida-

tions which are in the public interest.” ** However, in a

recent Third Circuit proceeding, Pittsburgh & Lake Erie

R.R. v. Railway Labor Executives’ Association,” (Lake

Erie), it has been held that a district court has no ju-

risdiction to enjoin a strike taken to block an ICC-ap-

proved sale. The Court based this holding on a finding

that the Norris-LaGuardia Act need not be accommo-

dated to the Interstate Commerce Act. This decision has

had an immediate impact on the formation of small rail-

roads,** threatening to halt the revitalization of the mar-

ginal railroad sectors—a restructuring that the Commis-

sion has found to be in the interest of carriers, labor, and

the shipping public.

In its opposition response, RLEA takes the position

that the Third Circuit Lake Erie decision is correct,”

and that the Commission should conclude that the Inter-

state Commerce Act does not supersede the Railway

Labor Act or Norris-LaGuardia. RLEA argues that

Brotherhood of R.R. Trainmen v. Chicago River and In-

diana R.R.** (Chicago River) and Boys Markets Inc. v.

*4 Missouri Pacific Railroad Company vy. UTU, 782 F.2d 107 (8th

Cir. 1986), cert. denied, 107 S. Ct. 3209 (1987).

25 No. 87-3664, Slip op., October 26, 1987.

°6 The Lake Erie decision has been followed by a Missouri fed-

eral district court, Burlington Northern Railroad v. U.T.U., No. 86-

50138, Slip op., October 26, 1987. (Missouri, Western District).

*7 The Lake Hrie decision left open the issue of whether bargain-

ing under the Railway Labor Act was necessary. The case was

remanded to the district court on the RLA issue. The district

court held the RLA applicable to the proposed sale and enjoined

consummation of the transaction pending compliance with that

act, finding that the Interstate Commerce Act does not operate to

relieve the parties from their RLA obligations. Railwoy Labor

Executives’ Assoc. V. Pittsburgh & Lake Erie Railroad, No. 87-1745

Memorandum Opinion (Wes Dis. PA., No. 24, 1987). The case

is back in the Third Circuit on appeal.

2° 353 U.S. 30 (1957).

lla

Retail Clerks Union™® (Boys Market)—Supreme Court

“accommodatien” cases relied on by Petitioners—are not

controlling since they do not address the Interstate Com-

merce Act, but are limited to situations where aspects

of national labor statutes were in conflict.” Hence, RLEA

is in agreement with the Lake Erie court that statutory

preemption of the Norris-LaGuardia no-injunction prin-

ciple is limited to the need to accommodate other labor

statutes. Without conceding its legitimacy, RLEA rec-

ognizes certain precedent to the effect that ICC authoriza-

tion of a transaction under the merger provisions (49

U.S.C. 11343) will automatically relieve a carrier from

the necessity of compliance with the Railway Labor Act

to the extent necessary to go forward with the approved

transaction. However, RLEA argues that this precedent

has no relevance to 49 U.S.C. 10901 line sales. Unlike

line sales, merger-orders are provided explicit preemption

authority in 49 U.S.C. 11341*' and, as income protec-

tion and dispute resolution mechanisms are mandatory in

merger proceedings,” labor is not “left out in the cold.” *

According to RLEA these are critical distinctions.

29 398 U.S. 235 (1970).

30'Thus, in Chicago River an injunction against a strike was

sustained where necessary to protect the Railway Labor Act’s re-

quirement that “minor” grievances be submitted to arbitration. In

Boys Markets the court reached a similar conclusion under the

Labor Management Relations Act.

31 A carrier or corporation participating in a transaction approved

or exempted by the Commission under subchapter III of Chapter

113 “is exempt from the antitrust laws and from all other laws...

as necessary to let that person carry out the transaction .. .” By

its terms, this section does not apply to line sales under Chapter

109.

32 49 U.S.C. 11347.

33 RLEA cites to language in Missouri Pacific R. Co. v. United

Transportation Union 782 F.2d 109 (8th Cir. 1986). This case held

that a railroad is exempted under ICA Section 11341(a) from the

Railway Labor Act in connection with a transaction approved under

12a

The broad issue presented by the CNW-FRVA Peti-

tion and the RLEA Opposition reply is whether the

Interstate Commerce Act preempts the Railway Labor

Act to the extent necessary to allow the parties to con-

summate a transaction previously authorized by the Com-

mission. Every court that had ruled on this precise issue

prior to the Lake Erie decision had answered yes.* By so

doing, courts have recognized the importance of this

agency’s role in reconciling the conflicts between public

need for an efficient transportation system, (including

the need for fair and equitable labor relations) and the

private disputes that arise invariably from consolidations

and restructurings within the rail system. The ICC has

inherent powers to impose labor protection where neces-

sary to ensure labor equity,*® including the power to im-

pose income guarantees and comprehensive schemes for

alternative dispute resolution—mechanisms which may

include notice, negotiation, a status quo requirement and

arbitration. From the 1930’s, when the ICC actively be-

came involved in the administration of labor protection,

Congress has routinely affirmed and expanded the im-

portance of the Interstate Commerce Act as a part of the

complex of laws governing labor relations in the rail

49 U.S.C. 11343. Labor emphasizes that the court there reasoned

that inferring preemption of the RLA was reasonable because

mandatory labor protection is applied 782 F.2d, at 112. There are

chronological problems with placing such reliance on the reasoning.

The preemption provision was first enacted in 1920, mandatory

labor protection in 1940.

34 See Missouri Pacific R. Co. v. United Transportation Union,

supra; Brotherhood of Locomotive Engineers v. C@NW, 214 F.2d

424 (8th Cir.), cert. denied, 375 U.S. 819 (1963). Cf. ICC v. Loco-

motive Engineers, 55 USLW 4771 (June 9, 1987) (Concurring

Opinion of Justice Stevens, joined by Justices Brennan, Marshall

and Blackmun).

35 United States v. Lowden, 308 U.S. 225 (1939); ICC v. Railway

Labor Assn., 315 U.S. 373 (1942).

—=——e

13a

industry. The Transportation Act of 1940 * was a legis-

lative affirmation of the Commission’s authority to impose

labor protection, mandating the use of labor protection

in mergers and consolidations." The Railroad Revitaliza-

tion and Regulatory Reform Act of 1976“ mandated

labor protection in trackage rights, lease transactions,

and abandonments. The Staggers Rail Act of 1980 made

labor protection mandatory in connection with the aboli-

tion of rate bureaus (Section 219 (g) and feeder line

sales—section 401), as well as giving the Commission

explicit discretion to impose protective conditions on re

ciprocal switching and on the construction of new rail

lines. For more than fifty years the Commission has

exercised its authority in this field, frequently at the re-

quest and with the support of labor, and our decisions

have had enormous impact on the shape of rail labor re-

lations throughout this period.

It is primarily due to the policy decision to withhold

such protections taken in Ex Parte 392 (Sub-No. 1) (and

in earlier individual proceedings) that the Commission’s

authority is under challenge. However, the Commission’s

policy determinations have been repeatedly sustained, and

the existence of our jurisdiction may not hinge on the

policy choice made.

In the first place, labor has not been left out in the

cold. Affected parties were free to participate in the Ex

Parte rulemaking, and are free to petition for its re-

36 54 Stat. 899.

37 The Lowden court, while noting the pendency of the legis-

lation which was to become the 1940 Act, concluded that the legis-

lative initiatives did not militate against the conclusion that the

Commission had implied power over labor protection in consolida-

tions, but rather that Congress merely sought to make mandatory

what was at the time discretionary. United States v. Lowden, supra,

at 239.

35 90 Stat. 31.

l4a

opening. Indeed, aspects of the rulemaking are now

under reconsideration in a reopened proceeding.*® Fur-

ther, in individual cases through the revocation process

parties are given the opportunity to show that the policy

norms of the Ex Parte rulemaking ought not apply. Full

participation before the Commission is an important end

in itself as it helps to inform the Commission of the

range of problems and circumstances confronting trans-

portation. If current policy does not provide routine pro-

tection, it is because experience has demonstrated that the

formation of new lines would be thwarted, to the overall

public detriment. Where exceptions are needed, the Com-

mission has the authority to fashion a full remedy.

Jurisdiction is not determined by outcome. The Com-

mission has exclusive and plenary jurisdiction over the

sale, merger, or abandonment of rail lines.*° This author-

ity was granted by Congress as a part of a regulatory

framework, to ensure a rail transportation system in

the public interest. As a necessary component of this

regulatory framework, the Commission has had to pre-

empt on occasion the operation of other laws to the lim-

ited extent necessary to remove obstacles to Commission

approved transactions. Such preemption of labor legisla-

tion has been upheld even in circumstances where the

Commission did not provide labor protection under its

auspices.*' We believe this is the correct interpretation

of the matter at issue.

The fact that a particular “labor outcome” does not

dictate the extent or effect of ICC jurisdiction is a neces-

39 Class Exemption for the Acquisition and Operation of Rail

Lines Under 49 U.S.C. 10901, Notice of Proposed Rulemaking served

October 2, 1987.

49 Brotherhood of Locomotive Engineers v. C&NW, supra;

Chicago and North Western Transportation Co. v. Kalo Brick and

Tile Co., 450 U.S. 311 (1981).

41RLEA vy. Staten Island Railroad Corp., 792 F.2d 7 (2d Cir.

1986), cert. denied, 107 S. Ct. 927 (1987).

15a

sary correlative to the Commission’s discharge of its re-

sponsibilities. That the concern for labor equity is only

one of many conflicting aspects of National Transporta-

tion Policy should not be seen as a derogation of the

agency’s authority—rather it is precisely the reason why

the Interstate Commerce Act must be recognized to have

preeminence. It is the public policy of this Nation to

regulate and supervise transportation at the national

level so as to ensure the essential benefits of a critical

aspect of commerce. While the means of regulation have

changed markedly over the decades, the exclusive and

plenary nature of the Commission’s jurisdiction over con-

solidations, sales and abandonment has been consistently

upheld. In the discharge of our responsibilities, we are

charged with the expert resolution of many-sided con-

flicts between disputants, public and private. The reci-

tation above of the factors leading to our small-railroad

policy illustrates the complexity of the process and in-

formation that led to our present policy.

As with all adversarial proceedings those which come

before the Commission generate winners and losers, but

it must also be clear that participants ought to, after

exhausting lawful appeals aimed at our authority ana

reasonableness, be reconciled to the process. Allowing a

dispersion of authority will compound the problems to the

detriment of the public and the transportation system.

In the matter at hand, it cannot be doubted that a strike

to prevent ICC-approved abandonment is susceptible to

injunction. But it is now contended that such a strike

can be used to prevent the development of an advan-

tageous alternative to abandonment, despite the fact that

Commission jurisdiction over these types of restructuring

is, in all relevant aspects, identical. Our expertise and

experience, combined with our system-wide responsibili-

ties, lead us to the conclusion that neither the public nor

labor is adequately protected by encouraging a system

that prefers abandonment to rejuvenation. We do not

believe the law is so structured as to compel that outcome.

l6a

Organized as it is, FRVR stands a far better chance

of developing a self-sustaining rail operation than does

CNW. Over the past quarter century the miles of road

operated by CNW has decreased by a third.*? Its man-

agement goals include further reduction in size, either

through line sales or abandonment. Whether the lines at

issue here could be abandoned immediately under existing

law has not been demonstrated. However, fierce trucking

competition combined with CNW’s comparative disad-

vantage in rail costs significantly increase the potential

of future abandonment. Clearly, the National Transpor-

tation Policy will be advanced by permitting the sale of

these lines to a willing, experienced and optimistic group

of managers, who will in turn rely on experienced labor

and a commitment to the local customer base in an at-

tempt to revive and preserve competitive rail transpor-

tation for this region of Wisconsin.

This action will not significantly affect either the

human environment or energy conservation.

It is ordered:

The Petition of CNW and FRVR for an order clarify-

ing jurisdiction and other matters is granted.

By the Commission, Chairman Gradison, Vice Chair-

man Andre, Commissioners Sterrett, Lamboley and Sim-

mons. Commissioners Lamboley and Simmons dissented

with separate expressions.

NORETA R. MCGEE

Secretary

(SEAL)

42 Moody's Transportation Manual (1963 and 1987 issues indi-

cates that CNW operated over 15 thousand miles of road in 1962

(including miles operated under contract and trackage rights) but

that total had declined to slightly over 10 thousand miles by 1986.

17a

COMMISSIONER SIMMONS, dissenting:

I would have denied the petition for clarification. I

have supported the policy expressed by the majority be-

cause I believe it has contributed, to some extent, to the

preservation of rail lines that otherwise would have been

abandoned. However, I do not agree with the majority’s

use of such glowing terms to describe the efficacy of the

Commission’s denial of labor protection in so-called

“short” line sales under 49 U.S.C. 10901. The language

of the decision strongly implies that there can be vir-

tually no valid justification for departure from this

policy. Indeed, the decision to grant the petition for clar-

ification and enter this declaratory order to enunciate a

policy that has long been settled and affirmed in the

courts indicates a certain lack of objectivity and fairness

in the application of that policy.

We must not lose sight of our responsibility to weigh

the interests of labor as a part of the public interest

considerations associated with section 10901 sales.

Neither this responsibility, nor the policy of which it is

a part is enhanced by the gratuitous declaratory order

entered here by the majority.

COMMISSIONER LAMBOLEY, dissenting:

While no one disputes the authority of the Commission

to issue declaratory orders,' I believe to do so in this

instance is an inappropriate use of process. In my view,

there is insufficient evidence of controversy or uncertainty

to warrant the issuance of this “clarifying” decision.

In invoking the class exemption process under Ex Parte

No. 392 (Sub-No. 1)? petitioners have also requested

15 U.S.C. 554(e).

2 Ex Parte No. 392 (Sub-No. 1), Class Exemption for Acquisition

and Operation of Rail Lines Under 49 U.S.C. 10901, 1 1.C.C.2d 810

(1985).

18a

that the agency declare that its authority under 49 U.S.C.

10901 supersedes the provisions of the Railway Labor Act

(RLA* and the Norris-LaGuardia Act.‘ They do so be-

cause of an alleged “climate of uncertainty” which it is

claimed impedes consummation of the proposed trans-

action. Upon closer examination it becomes evident that

the alleged controversy or uncertainty results from judi-

cial decisions as well as petitioner’s own conduct, neither

of which the declaratory order requested from this agency

will necessarily resolve. Indeed, this order may well

exacerbate matters not only for this case but for con-

structive activities in this forum on such issues in the

future.

Petitioners argue such action is necessary because sev-

eral recent court decisions * “reflects a misapplication of

the accommodation doctrine and a misunderstanding of

thi: Commission’s role in addressing labor issues pertain-

‘nz to transactions within its jurisdiction.” The petition-

ers co not agree with the outcome of judicial action in

which they did not participate, although the Commission

did. Without more, the petitioners simply request that

the Commission here render a “proper” interpretation of

applicable law by declaratory order. Petitioners offer

neither substantial reason nor purpose for their request

as it may relate to judicial activity.

Additionally, the petitioners claim the Commission’s

declaratory order is necessary because, while the CNW

has met with the rail unions and informal discussions

345 U.S.C. 151, et seq.

#29 U.S.C. 101, et seq.

5 Railway Labor Executives’ Association v. Pittsburgh & Lake

Erie R. Co., —— F.2d ——- (No. 87-3664, 3rd Cir. October 26, 1987)

(P&LE 1) and Raiiway Labor Executives’ Association v. Pittsburgh

and Lake Erie R. Co., Civil Action No. 87-1745 (W. D. Pa. Nov.

1987), appeal pending sub nom. Railway Labor Executives’ Ass'n v.

Lake Erie Co., No. 87-3797 (3rd Cir. filed Nov. 25, 1987) (P&LE 11).

19a

have taken place, no agreements have been reached since

the unions believe (apparently contrary to petitioners)

that RLA procedures apply to such discussions. The peti-

tioners do not explain why they simply do not file a

request with the Commission to fashion and impose ap-

propriate protective conditions, with post consummation

negotiation and arbitraiton procedures, if need be. Such

request for relief would squarely address alleged contro-

versy or uncertainty concerns relating to the process and

substance of negotiation.

In sum, neither judicial action nor voluntary conduct

is sufficient premise upon which to establish controversy

or uncertainty as cause for declaratory relief in this case.

Further, quite apart from the lack of any legitimate,

demonstrable need for declaratory relief, I fail to see

that this order makes any significant contribution toward

resolution of statutory “accommodation” issues. There is

little doubt that the Commission does not have the requi-

site jurisdiction to interpret the applicability and scope of

statutes other than the ICA. Certainly the agency may

“express its viewpoint”. Such as it is. It is a position

which has been expressed repeatedly in court briefs ®

submitted by the Commission, and is well known. This

decision appears to be little more than an attempt to

supplement arguments in briefs previously filed and bol-

ster prior discussion in Ex Parte No. 392 (Sub-No. 1).’

It is self-serving and offers no new instruction.

Moreover, of particular concern here, is the eagerness

to justify a well known position, the effect of which places

the Commission in the position of apparent bias. This is

especially true here because, in addition to the extended

® See for example the Commission’s brief in P&LE II, also a

letter to District Judge dated October 8, 1987.

7™Ex Parte No. 392 (Sub-No. 1), Class Exemption for Acquisi-

tion and Operation of Rail Lines Under 49 U.S.C. 10901, 1 1.C.C.2d

810 (1985).

20a

discussion of the Ex Parte No. 392 (Sub-No. 1) and pre-

emption matters, this decision addresses specific employ-

ment security and displacement issues in this transaction,

and consequently, in anticipatory fashion, effectively

prejudices and precludes meaningful consideration of

any subsequent petition for revocation raising protective

condition issues. The lack of agency constraint here has

unfortunate ramifications.

Finally, after all things are considered, it is fair to

say that any instability or uncertainty over employment

security and displacement issues is largely a consequence of

our own doing by decisions such as this, as well as those

in Ex Parte No. 392 (Sub-No. 1) and its progeny. Legi-

timate transportation transactions under the ICA have

been authorized in a manner which encourages and per-

mits unilateral abrogation of legitimate, collective bar-

gaining agreements and statutory requirements of the

RLA, without procedural or substantive accommodation

of respective interests. Mutuality and reciprocity in col-

lective bargaining contemplated by the RLA and result-

ant market-based arrangements have been nullified by

our approach. It is small wonder than that the incentives

for problem solving and dispute resolution through the

negotiation process have been diminished and relations

have become unstable.

It has become abundantly clear in these cases that the

essence of the dispute is labor relations: issues, not trans-

portation.* Assuming jurisdiction, the Commission’s cur-

rent fixed position prevents adjustment and resolution in

this forum.

8 See, also letter dated December 2, 1987 in Finance Docket No.

31163, Winoma Bridge Railroad Company Trackage Rights—Bur-

lington Northern Railroad Company.

21a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

September 8, 1988

Before

HON. HARLINGTON WOOD, JR., Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

HON. JESSE E. ESCHBACH, Senior Circuit Judge

No. 88-1504

CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY,

Plaintiffs-A ppellees,

VS.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Defendants-A ppellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division

Paul E. Plunkett, Judge—No. 88 C 444

ORDER

This matter comes before the Court on the following

documents:

22a

“EMERGENCY MOTION BY APPELLANTS FOR

A STAY OF THE STRIKE INJUNCTION OR,

ALTERNATIVELY, FOR AN INJUNCTION TO

PROHIBIT THE SALE PENDING PETITION

FOR A WRIT OF CERTIORARI” filed by defend-

ants-appellants on September 2, 1988.

“OPPOSITION OF APPELLEES C&NW AND

FRVR TO APPELLANTS’ EMERGENCY MOTION

OR A STAY OF THE STRIKE INJUNCTION OR

FOR AN INJUNCTION TO PROHIBIT THE

LINE SALE PENDING PETITION FOR A WRIT

OF CERTIORARI” filed by plaintiffs-appellees on

September 7, 1988.

Rule 44.2 of the Supreme Court’s Rules allows a party

to file a motion to stay the enforcement of the judgment

for which review is being sought in the Supreme Court.

The factors regulating issuance of a stay pending appeal

are: 1. whether the stay applicant has made a strong

showing of likelihood of success on the merits; 2. whether

the applicant will suffer irreparable harm in the absence

of the stay; 3. whether a stay will substantially harm

other parties to the proceedings; and 4. where the public

interest lies. Hilton v. Braunskill, U.S. , 107

S. Ct. 2133 (1987). In this case, appellants must also

make a substantial showing that their petition for cer-

tiorari will raise an important question meriting review

by the Supreme Court and likely to garner the votes of

four justices in favor of granting certiorari.

Appellants argue that the Supreme Court is likely to

grant their petition for certiorari because it has done so

in other railroad line cases currently pending before the

Supreme Court. Those cases, however, do not involve a

claim by the carrier, that its actions in abolishing jobs

were permitted under existing labor agreements. See

Chicago and Northwestern Transportation Co. v. Rail-

way Labor Executives Assoc., No. 88-1504, slip op. at

iii

23a

13-14, and 16-17 n.3 (7th Cir., Aug. 23, 1988). Accord-

ingly, we find that appellants’ arguments, which have

already been rejected by the district court and this court,

are unlikely to win Supreme Court review, and thus are

not likely to succeed on the merits. In addition, appellees

would suffer substantial hardship if a stay were imposed,

as further delay could jeopardize the proposed sale. In

contrast, we have already held that the sale will not

irreparably harm appellants as it involves the sale by

C.&N.W. “of a small portion of its track while main-

taining the remainder of its rail operations and continu-

ing to honor its collective bargaining agreements.” Slip

op. at 17, n.3. Finally, the public interest lays, in this

case, in promoting the finality of judgments.

Accordingly, upon careful review of the pleadings filed

in support of this motion, as well as the briefs and argu-

ments already considered by the court, and in light of

this court’s opinion of August 23, 1988,

IT IS ORDERED that the EMERGENCY MOTION

BY APPELLANTS FOR A STAY OF THE STRIKE

INJUNCTION OR, ALTERNATIVELY, FOR AN IN-

JUNCTION TO PROHIBIT THE SALE PENDING

PETITION FOR A WRIT OF CERTIORARI is

DENIED.

24a

APPENDIX C

United States Court of Appeals Decisions Applying

“Arguable” Standard for Identifying Minor Disputes

in Status Quo and Strike Cases

D.C. Circuit:

Air Line Pilots Ass’n v. Eastern Air Lines, Nos. 88-

7201—-88-7204 (D.C. Cir. Sept. 30, 1988)

International Bhd. of Elec. Wkrs. v. Washington

Terminal Co., 473 F.2d 1156, 1172 (D.C. Cir. 1972),

cert. denied, 411 U.S. 906 (1973)

Southern Ry. v. Brotherhood of Loc. Firemen & En-

ginemen, 384 F.2d 323, 327 (D.C. Cir. 1967)

Foust C’rewt:

RLEA vy. Boston & Maine Corp., 808 F.2d 150, 159

(1st Cir. 1986), cert. denied, 108 S. Ct. 102 (1987)

Maine Central R.R. v. United Transp. Union, 787

F.2d 780, 783 (1st Cir.), cert. denied, 479 U.S. 848

(1986)

Brotherhood of Loc. Engineers v. Boston & Maine

Corp., 788 F.2d 794, 798 (1st Cir.), cert. denied, 479

U.S. 829 (1986)

Carbone Vv. Meserve, 645 F.2d 96, 98-99 (1st Cir.),

cert. denied, 454 U.S. 859 (1981)

Airlines Stewards and Stewardesses Ass’n Vv. Carib-

bean Atlantic Airlines, 412 F.2d 289, 291 (1st Cir.

1969)

Second Circuit:

Baylis v. Marriott Corp., 843 F.2d 658, 663 (2d Cir.

1988)

25a

Air Line Pilots Ass’n v. Trans World Airlines, 713

F.2d 940, 948 (2d Cir. 1983), rev’d on other grounds,

469 U.S. 111 (1985)

Local 553, Transport Workers v. Eastern Air Lines,

695 F.2d 668, 673 (2d Cir. 1982)

Rutland Ry. v. Brotherhood of Loc. Engineers, 307

F.2d 21, 36 (2d Cir. 1962), cert. denied, 372 US.

954 (1963)

Third Circuit:

RLEA v. Consolidated Rail Corp., 845 F.2d 1187,

1190-91 (3d Cir.), cert. granted, No. 88-1 (Oct. 3,

1988)

Goclowski v. Penn Central Transp. Co., 571 F.2d

747, 755 n.11 (3d Cir. 1977)

United Transp. Union v. Penn Central Transp. Co.,

505 F.2d 542, 544 (3d Cir. 1974)

Fourth Cireutt:

Dement v. Richmond, F. & P. R.R., 845 F.2d 451,

463 (4th Cir. 1988)

Kushto v. Brotherhood of Ry., Airline & S.S. Clerks,

818 F.2d 290, 293 (4th Cir. 1987)

Norfolk & P.B.L. R.R. v. Brotherhood of R.R. Train-

men, 248 F.2d 34, 43 n.4 (4th Cir.), cert. denied,

355 U.S. 914 (1958)

Fifth Circuit:

International Bhd. of Teamsters v. Southwest Air-

lines, $42 F.2d 794, 803 (5th Cir. 1988), rehearing

en bane pending

St. L. S.W. Ry. v. United Transp. Union, 646 F.2d

230, 233 (5th Cir. 1981)

26a

Ruby v. TACA Int'l Airlines, 439 F.2d 1359, 1363

(5th Cir. 1971)

Railway Express Agency, Inc. Vv. Brotherhood of Ry.,

Airline & S.S. Clerks, 487 F.2d 388, 392 (5th Cir.),

cert. denied, 403 U.S. 919 (1972)

International Bhd. of Teamsters v. Braniff Int'l Air-

ways, 437 F.2d 1272, 1274 (5th Cir. 1971)

United Indus. Workers v. Galveston Wharves, 351

F.2d 183, 188 (5th Cir. 1965)

St. L., S.F. & T. Ry. v. Railroad Yardmasters of

America, 328 F.2d 749, 753 (5th Cir.), cert. denied,

377 U.S. 980 (1964)

Stath Cirewt:

Brotherhood of Loc. Engineers v. Consolidated Rail

Corp., 844 F.2d 1218, 1221 (6th Cir. 1984)

Brotherhood Ry. Carmen v. Norfolk & W. Ry., 745

F.2d 370, 375 (6th Cir. 1984)

United Transp. Union v. Baker, 482 F.2d 228, 230

(6th Cir. 1973)

Seventh Circuit:

Brotherhood of Ry., Atrline & S.S. Clerks v. Atchi-

son, Topeka & Santa Fe Ry., 847 F.2d 403, 406 (7th

Cir. 1988)

RLEA Vv. Norfolk & W. Ry., 833 F.2d 700, 704 (7th

Cir. 1987)

National Ry. Labor Conference v. International Ass’n

of Machinists, 830 F.2d 741, 746 (7th Cir. 1987)

Chicago & N.W. Transp. Co. v. International Bhd. of

Flee, Wkrs., 829 F.2d 1424, 1429 (7th Cir. 1987)

27a

Brotherhood of R.R. Signalmen v. Burlington North-

ern R.R., 829 F.2d 617, 619 (7th Cir. 1987)

Atchison, T. & S.F. Ry. v. United Transp. Union,

734 F.2d 317, 321 (7th Cir. 1984)

Chicago & N.W. Transp. Co. v. United Transp.

Union, 656 F.2d 274, 278-79 (7th Cir. 1981)

United Transp. Union v. Baker, 499 F.2d 727, 730

(7th Cir.), cert. denied, 419 U.S. 839 (1974)

Eighth Circuit:

International Ass’n of Machinists v. Soo Line R.R.,

850 F.2d 368, 376 (8th Cir. 1988) (en banc)

Brotherhood Ry. Carmen v. Alton & S. Ry., 849 F.2d

1111, 1114 (8th Cir. 1988)

International Ass’n of Machinists v. Northwest Air-

lines, 843 F.2d 1119, 1122-23 (8th Cir.), vacated as

moot, (August 4, 1988)

Brotherhood of Maintenance of Way Employees v.

Chicago & N.W. Transp. Co., 827 F.2d 330, 333 (&th

Cir. 1987), cert. denied, 108 S. Ct. 1291 (1988)

Brotherhood of Maintenance of Way Employees v.

Burlington Northern R.R., 802 F.2d 1016, 1022 (8th

Cir. 1986)

Independent Fed’n of Flight Attendants v. Trans

World Airlines, 655 F.2d 155, 158-59 (8th Cir.

1981)

United Transp. Union Vv. Burlington Northern, Inc.,

458 F.2d 354, 357 (8th Cir. 1972)

Northwest Airlines, Inc. v. Air Line Pilots Ass’n,

442 F.2d 246, 248-49 (8th Cir. 1970)

28a

Ninth Circuit:

Brotherhood of Loc. Engineers v. Burlington North-

ern R.R., 838 F.2d 1102, 1105 (9th Cir. 1988)

Brotherhood of Loc. Engineers v. Burlington North-

ern R.R., 838 F.2d 1087, 1091 (9th Cir. 1988), neti-

tion for certiorari pending, No. 87-1631

IBTCWHA, Local Union No. 2707 v. Western Air

Lines, 813 F.2d 1359, 1362 (9th Cir.), vacated and

remanded for consideration of mootness, 108 S. Ct.

53 (1987)

Brotherhood of Ry. Carmen Vv. Pacific Fruit Express

Co., 651 F.2d 651, 652 (9th Cir. 1981)

Southern Pacific Transp. Co. v. United Transp.

Union, 491 F.2d 830, 833 (9th Cir.), cert. denied,

416 U.S. 985 (1974)

Switchmen’s Union of North America v. Southern

Pacific Co., 398 F.2d 448, 447 (9th Cir. 1968)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.