Opposition Brief — Interstate Commerce Commission v. United Transportation Union

Nos. 87-1589, 87-1888, 88-217 and uf?

THE PITTSBURGH AND LAKE ERIE RAILROAD Comp TBEEPRE Beane: ae,

v. CLERK

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, RESPONDENTS

THE PITTSBURGH AND LAKE ERIE RAILROAD COMPANY, PETITIONER

v.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, AND THE

INTERSTATE COMMERCE COMMISSION, RESPONDENTS

INTERSTATE COMMERCE COMMISSION, PETITIONER

v.

THE PITTSBURGH AND LAKE ERIE RAILROAD COMPANY AND THE

RaiLWAYy LABOR EXECUTIVES’ ASSOCIATION, RESPONDENTS

INTERSTATE COMMERCE COMMISSION, PETITIONER

v.

THE UNITED TRANSPORTATION UNION,

THE BURLINGTON NORTHERN RAILROAD COMPANY, AND

THE RAILWAY LABOR EXECUTIVES’ ASSOCIATION, RESPONDENTS

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD AND EIGHTH CIRCUITS

MEMORANDUM OF THE INTERSTATE COMMERCE COMMISSION

ROBERT S. BURK

General Counsel

HENRI F. RUSH

Deputy General Counsel .

JOHN J. MCCARTHY, JR.

Deputy Associate General Counsel

CLYDE J. HART, JR.

Attorney

Interstate Commerce Commission

12th & Constitution Ave., N.W.

Washington, D.C. 20423

202/275-7009

NOVEMBER 1988

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TABLE OF AUTHORITIES

Cases: Page

Burlington Northern R.R. Company v. United Trans-

portation Union, 848 F.2d 856 (8th Cir. 1988); Pet.

for cert. pending, ICC v. UTU, No. 88-711 (October

ARS err rer er Pre rrr Oe rer 2, 3, 4, 5

Pittsburgh & Lake Erie Railroad Company v. Railway

Labor Executives’ Association, 831 F.2d 1231 (3d Cir.

1987); Pet. for cert. pending, No. 87-1589 (March 24,

ai od pause wha ae bees dae coke kee ek oes 1, 2, 4, 5

Pittsburgh & Lake Erie Railroad Company v. Railway

Labor Executives’ Association, 845 F.2d 420 (3d Cir.

1988); Pets. for cert. pending, No. 87-1888 (May 17,

1988); ICC v. Pittsburgh & Lake Erie Railroad Com-

pany, No. 88-217 (August 5, 1988) ............. 224,53

Sosna v. Iowa, 419 U.S. 393 (1975) ................. 4

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

(RARE HA Aaa 39, SoA Ping ee a 4

Weinstein v. Bradford, 423 U.S. 147 (1975) ......... 4

Statutes:

Interstate Commerce Act, 49 U.S.C. 10101 et seg. .... 2, 4

Norris-LaGuardia Act, 29 U.S.C. 101 et seg. ......... 4

Railway Labor Act, 45 U.S.C. 151 et seg. ............ 2,4

Pn EE ican dees me ate Ge ae eee nese baa 2,4

(I)

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

Nos. 87-1589, 87-1888, 88-217 and 88-711

THE PITTSBURGH AND LAKE ERIE RAILROAD COMPANY, PETITIONER

v.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, RESPONDENTS

THE PITTSBURGH AND LAKE ERIE RAILROAD COMPANY, PETITIONER

v.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, AND THE

INTERSTATE COMMERCE COMMISSION, RESPONDENTS

INTERSTATE COMMERCE COMMISSION, PETITIONER

v.

THE PITTSBURGH AND LAKE ERIE RAILROAD COMPANY AND THE

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, RESPONDENTS

INTERSTATE COMMERCE COMMISSION, PETITIONER

v.

THE UNITED TRANSPORTATION UNION,

THE BURLINGTON NORTHERN RAILROAD COMPANY, AND

THE RAILWAY LABOR EXECUTIVES’ ASSOCIATION, RESPONDENTS

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD AND EIGHTH CIRCUITS

MEMORANDUM OF THE INTERSTATE COMMERCE COMMISSION

This memorandum responds to the amicus brief on the

merits filed by the Solicitor General on November 7,

1988, in Nos. 87-1589 and 87-1888. It also responds to

(1)

2

the suggestion filed by Railway Labor Executives’ Asso-

ciation (RLEA) (letter to the Court dated November 2,

1988) that the controversy out of which the Commis-

sion’s petition in No. 88-711 arises may become moot, by

virtue of Burlington Northern Railroad’s (BN) manage-

ment having capitulated to the demands of its em-

ployees for conditions upon its proposed sale of a rail

line to Montana Rail Link (MRL) as the only means re-

maining which would permit carrying into effect the

Commission authorized transaction.

1. Weare pleased that the Solicitor General has add-

ed his voice to those of all others associated with this

country’s rail industry in urging this Court to decide the

issues of the relationship of the Interstate Commerce

Act, 49 U.S.C. 10101 et seq., (ICA) and Commission

orders authorizing transactions thereunder to (1) the

duty to negotiate under the Railway Labor Act, 45

U.S.C. 151 et seq. (RLA), and (2) the ability of courts to

enjoin strikes which threaten to negate or unilaterally

modify the terms of Commission authorized transac-

tions. Since the PELE I and P&LE II decisions of the

Third Circuit below, the Commission’s program to

foster the formation of shortline and regional railroads,

which the court below itself recognized was consistent

with the will of Congress and in the public interest has

come to a virtual standstill.!

Concomitantly, during the same period, abandonment

applications have increased for the first year since the

program has been in effect. Plainly such a result serves

! As the Commission has noted in prior submissions to the Court

in these proceedings the number of new railroad formations since

the Third Circuit’s decisions has fallen by 50%. Moreover, the rail

track mileage encompassed in 49 U.S.C. 10901 Class Exemption fil-

ings has fallen by 85%.

3

no one’s interest. The sooner this Court can act to

straighten out the morass created by the decisions

below the better for all concerned.

2. We are somewhat surprised that the Solicitor

General continues to insist, however, in deciding these

issues of seminal importance to the industry and to the

Commission’s performance of its approval and oversight

functions, that the Commission’s petition should not be

heard by the Court. The court below granted the Com-

mission amicus and subsequently full intervenor status

in recognition of the importance of ascertaining the

Commission’s views. Moreover, the quotation from the

court below chosen by the Solicitor General to support

his position (with which we agree) that the P&LE cases

are not moot (Brief of the United States, pp. 9-10, fn.8)

presupposes that the Commission is a proper party to

these proceedings whose views, among others, ought to

be taken into account.

3. It is the Commission’s position that 88-711 is not

made moot by virtue of the settlement between BN and

UTU. That settlement, far from mooting the Commis-

sion’s petition in No. 88-711, underscores the urgency of

this Court resolving the issues presented. By holding

itself unable to enjoin a strike, the majority of the panel

below has given to rail labor the power to dictate the

terms upon which transactions authorized by the Com-

mission as in the public interest will go forward—if at

all. See, e.g., PELE v. RLEA, No. 87-1888, where the

transaction authorized by the Commission has been ef-

fectively negated. This situation represents a continu-

ing affront to, and usurpation of, the exclusive authority

vested in the Commission by Congress to approve trans-

actions relating to consolidations, sales and other dis-

positions of rail assets in the rail industry. This in and of

4

itself would permit the Court to conclude that the con-

troversy is a continuing one and not mooted by settle-

ment.

Furthermore, as the Commission stated in its reply to

the opposition in No. 88-217, the controversy arising out

of the Commission’s claim that the ICA must preempt

other laws which act as obstacles to transfers under 49

U.S.C. 10901 is “capable of repetition yet evading

review” Southern Pacific Terminal Co. v. ICC, 219 U.S.

498 (1911). Clearly, until this Court resolves these

issues the orders of the Commission will continue to be

subject to this challenge. Weinstein v. Bradford, 423

U.S. 147, 149 (1975), quoting Sosna v. Jowa, 419 U.S.

393 (1975).

4. However, because of the possibility of settlement

in BN v. UTU, 848 F.2d 856 (8th Cir. 1988) in which

RLEA represents that all parties other than the Com-

mission will agree not to file for review by this Court,

and because of the urgency of the situation in the in-

dustry, and because all relevant parties appear to be

ready to move forward on the P&LE petitions, the Com-

mission now agrees that the P&LE petitions represent

the best vehicle for the resolution of the critical issues of

the relationship of the ICA, RLA and the Norris-

LaGuardia Act, 29 U.S.C. 101 et seq. (NLGA) presented

in the Commission’s petitions in Nos. 88-217 and 88-711.

+)

CONCLUSION

For the reasons set forth herein, petitions for writs of

certiorari to the United States Court of Appeals for the

Third Circuit filed by the Pittsburgh and Lake Erie Rail-

road Company in Nos. 87-1589 and 87-1888 and by the

Commission in No. 88-217 should be granted, and the

cases should be consolidated and set for briefing and

argument as expeditiously as possible.

ROBERT S. BURK

General Counsel

HENRI F. RUSH

Deputy General Counsel

JOHN J. MCCARTHY, JR.

Deputy Associate General Counsel

CLYDE J. HART, JR.

Attorney

Interstate Commerce Commission

12th & Constitution Ave., N.W.

Washington, D.C. 20423

202/275-7009

NOVEMBER 1988

ts US GOVERNMENT PRINTING OFFICE 1988— 162045