Petition — Transportation Union v. Long Island R. Co.

Supreme Court brief1982

Ask Donna

What actually matters in this document.

Text

Office-Supreme Court, U.S.

80-1905 FILED

MAY 15 1961

No. TEVAS,

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

UNITED TRANSPORTATION UNION, Petitioner,

LONG ISLAND RAILROAD COMPANY and METROPOLITAN

TRANSPORTATION AUTHORITY, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

EDWARD D.FRIEDMAN

Counsel of Record

1050 Seventeenth Street, N.W.

Suite 701

Washington, D.C. 20036

(202) 887-0736

ROBERT HART

eg rene "

' nit ransportation Union

Of Counsel: 14600 Detroit Avenue

HaroLp A. Ross Cleveland, Ohic 44107

Counsel for Brotherhood

of Locomotive Engineers

call blineceidimeietacennd anes aeiaditeattcheeendenaataiemaemianendiinaaminel

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTION PRESENTED

Whether the operation of a State-owned railroad,

engaged in the carriage of freight in interstate commerce

and the provision of long-distance commuter service, is a

traditional and integral governmental function, within

the meaning of National League of Cities v. Usery, and

therefore constitutionally shielded from the provisions of

the Railway Labor Act.

TABLE OF AUTHORITIES

CASES: PAGE

Alewine v. City Council of Augusta, Civ. No. 179-113

ee, i a A, Pa oh bbe pecneedscndencaebas 13

Amersbach vy. City of Cleveland, 598 F.2d. 1033 (C.A. 6) 13

Brotherhood of Railroad Trainmen v. Jacksonville Ter-

WeiNaE, SIG U.G.'FGD os osc ccccccccccccccccccces 6, 7, 10

California v. Taylor, 353 U.S. 553 ........60eeeeeees passim.

Helvering v. Powers, 293 U.S. 214 .......0scceeeeeees 9, 19

Joiner v. City af Macon, Civ. No. 79-287-MAC (M.D.

GO, AME. BE, TFET). ccscccccsccccvccccccccscces 13, 14

Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 13

McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579.... 9

a Transportation Awuthority v. National

ediation Board, Civ. No. 81-0721 (E.D.N.Y filed

March seni 66 ecbas vécowade Chen eene-s 9

National Labor Relations Board v. Jones & Laughlin

SE SE MP B-y'b 0 60.60 00b cases sacsceseds 15

National League of Cities v. Usery, 426 U.S. 833 ..... passim.

New York v. United States, 326 U.S. 572 ..........4.: 14, 19

Ohio v. Helvering, 292 U.S. 360 ...... 6. cece cece eeeees 9

Parden v. Terminal R. Co., 377 U.S. 184 ............. 9, 19

Pearce v. Wichita County, 590 F.2d 128 (C.A. 5) ...... 14

Peel vy. Florida Department of Transportation, 600 F.2d

PP A RTRs cacbben tKobedacdecdiasecgence 14, 15

Public Service Company of North Carolina, Inc. v.

Federal Energy Regulatory Commission, 507 F.2d

716 (C.A. $) cert. denied,.._. U.S§. ....... 1

United States v. California, 297 U.S. 175 ........... 9, 11, 19

Virginian Ry. Co. v. System Federation No. 40, 300 U.S.

Table of Authorities Continued

Constitution AND STATUTES: PAGE

United States Constitution:

I b0s oN i iv ne tcc dtd dee eeseuses 3

IIE Sh sis o's in pre's p'e'v 0446606 co dcbcieee 11

Adamson Act, as amended, 45 U.S.C. §64 ef. seg....... 14

Erdman Acts of 1898, ch. 370, 30 stat. 424 ............ 14

Equal Pay Act of 1963, as amended, 29 U.S.C. §206(d) . 15

Fair Labor Standards Act, as amended, 29 U.S.C. §201

LOIN lo ntdiherecenasceneccadueeataeses 16

Rade Abad eet e ioe sks wide vaeher dadevas / 10

Interstate Commerce Act, as amended, 49 U.S.C. §10501 5

Labor-Management Reporting and Disclosure Act of

1959, as amended, 29 U.S.C. §401................

New York 1 ad Law, New sores Civil Service Law,

LEE e este oh tue sped sk ghee wat areeen passim.

Newlands Act of 1913, ch. 6, 38 Stat.103.............. 14

Norris La Guardia Act, as amended, 29 U.S.C. §101... 5, 14

a Boiler Inspection Act, as amended, 45 U.S.C.

Railroad Retirement Act, as amended, 45 U.S.C. §231 .. 5

Railroad Unemployment Insurance Act, as arnended, 45

EEE inn aad cuthat-s iss tied a0 coe yikeus’ aos

Rail oo Improvement Act, as amended, 45 U.S.C. >

Cee ete a SGUe Sh Wale 0's XM ed va odds soeReieene 5,1

Railway Labor Act, as amended, 45 U.S.C. §151..... passim.

Rehabilitation Act of 1973, as amended, 29 U.S.C. §794 5

Transportation Acts of 1920, as amended, 49 U.S.C. §1. 14

Urban Mass Transportation Act of 1964, as amended, 49

SE DUE Seah ib u's Soca veccboccactobneeae’s 21

Veteran’s Reemployment Rights Act, as amended, 38

SEC MUNN Sav bo cccccccoccounseevdss or 15

Table of Authorities Continued

MISCELLANEOUS: PAGE

A Directory of Public Transportation Service, Urban

Mass Transportation Administration, U.S. Depart-

ment of Transportation (July 1979) ............... 21

Moody’s Transportation Manual (1979 ed.) ............ 5

New York Times, Jan. 21, 1966, at p. 16.............. 16

Standard Industrial Classification Manual, U.S. Bureau

of the Budget (G.P.O. 1967) ............0.00000e 21

Transit Fact Book, American Public Transit Association

ih tac iieas 004.00-1 ae eenees sepals

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

No.

UNITED TRANSPORTATION UNION, Petitioner,

Vv.

LonG ISLAND RAILROAD COMPANY and METROPOLITAN

TRANSPORTATION AUTHORITY, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, United Transportation Union,

respectfully prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Circuit entered in this case on September 15,

1980.'

OPINIONS BELOW

The opinion of the Court of Appeals, reported in

634 F.2d 19, and the opinion of the District Court for

the Eastern District of New York, not yet reported, ap-

pear in the Appendix (hereinafter designated ‘‘App.’’) at

la-26a and 29a-46a, respectively.

JURISDICTION

The judgment of the Court of Appeals was entered

on September 1, 1980 (App. la). A timely petition for a

'The Brotherhood of Locomotive Engineers, Railroad Yard-

masters of America, Brotherhood of Railroad Signalmen,

Brotherhood of Railway Carmen, International Association of

Machinists and Aerospace Workers, amici curiae in the Court

below, join in the views expressed in this petition.

rehearing en banc was denied on December 17, 1980

(App. 27a). Upon application by petitioner, this Court

extended the time within which to file this petition to

April 16, 1981, and later, to May 16, 1981. The Court’s

jurisdiction is invoked under Section 28 U.S.C. 1254 (1).

STATUTORY AND CONSTITUTIONAL PROVISIONS

INVOLVED

The pertinent provisions of the Constitution and the

pertinent sections of the Railway Labor Act (‘‘RLA’’),

45 U.S.C. 151 et seqg., and of the New York Civil Serv-

ice Law, Section 200-214 (the Taylor Law), are set forth

in full in the Appendix at pages 83a, 57a, and 49a,

respectively.

STATEMENT

Proceedings Below’

This case arose out of a dispute over proposed

modification of a collective bargaining agreement be-

tween petitioner Long Island Railroad (‘‘LIRR’’) and

petitioner United Transportation Union (‘‘UTU’’). UTU

is the authorized collective bargaining representative of

the LIRR train employees. LIRR is a wholly owned sub-

sidiary of respondent Metropolitan Transportation

Authority (“‘MTA’’), an agency of the State of New

York.

* The proceeding below draws into question the constitutionality

of the application of the Railway Labor Act, supra, to the

respondents. Since neither the United States nor any agency, of-

ficer, or employer thereof is a party, it is noted that 28 U.S.C.

240Xa), may be applicable. So far as is known, no court of the

United States has certified that such constitutionality was drawn in

question herein.

On December 7, 1979, UTU filed this action in the

federal district court for the Eastern District of New

York for a declaratory judgment that the LIRR was sub-

ject to the Railway Labor Act; that the Railway Labor

Act occupied the entire field of labor relations of

railroads engaged in interstate commerce to the exclusion

of state law, in this case the New York Taylor Law; and

that an injunction issue to protect against Taylor Act in-

terference with federally protected rights.

The District Court granted petitioner’s motion for

summary declaratory judgment. It concluded that the

Long Island Railroad is a rail carrier engaged in the

transportation of freight in interstate commerce and is

therefore subject to the Railway Labor Act (App. 36a).

Further, it held (1) that ‘‘employees of the Railroad who

have exhausted the mandatory bargaining and mediation

procedures outlined in the [Railway Labor] Act, have a

federally guaranteed right to strike’? (App. 39a); and (2)

that under California v. Taylor, 353 U.S. 553, the right

to strike was not impaired by the fact that the employer

was a state agency (App. 38a).

The Court of Appeals reversed. It held that reversal

was dictated by ‘“‘the rationale of National League of

Cities v. Usery, 426 U.S. 833’’ (App. 3a). It concluded

that in so far as the application of the RLA to the LIRR

“directly displaces the State’s ability to structure

employee-employer relationships and to make essential

governmental decisions’’, it is not within the authority

granted Congress by Article 1, Section 8, Clause 3 of the

Constitution (App. 14a). In reaching this conclusion, the

Court announced that the scope of essential government

services for purposes of National League ‘‘is gauged not

only in terms of the nature of a public service, but also

its availability in the market place’’ (App. 22a). The

Court recognized that ‘‘the LIRR’s freight service pro-

vides a crucial physical link with other interstate rail car-

riers in the movement of interstate rail freight via New

York’’ (App. 9a), but applying a balancing test, it struck

the balance in favor of the State interest (App. 25a).

Facts

The Long Island Railroad has for more than 150

years served as an interstate freight and passenger

railroad link on Long Island, New York.

The character of this railroad reflects the physical

structure of the island whose industries and people it

serves. Long Island is an elongated insular projection,

paralleling the entire length of the State of Connecticut.

It is bounded on the north by Long Island Sound,

separating it from Connecticut’s south shore. The Atlan-

tic Ocean is on its east and south and the Narrows, New

York Bay and the East River form its west and north-

west boundaries. It is connected by a series of bridges

across the East River with Manhattan and the Bronx in

New York City. It is about 118 miles long and 23 miles

wide at its wides! point, covering a land mass of about

1700 square miles. It is divided into four counties:

Nassau, Suffolk, Queens and Kings, the last two of

which are metropolitan boroughs of New York City.

The Long Island Railroad radiates throughout this

entire land mass with 325 miles of main line track and

101 miles of branch line track. The most remote point of

its service is the town of Montauk, Long Island, the

island’s end point, more than 100 miles or about three

hours distant from Manhattan.

Incorporated on April 24, 1834, LIRR is one of the

oldest railroads in the United States. In 1966 New York

State acquired ownership of LIRR through the respond-

ent Metropolitan Transportation Authority, by stock

purchase from the Pennsylvania Railroad Company. Ac-

cording to the records of the U.S. Department of

Transportation, the Federal Government has poured

millions of dollars into the LIRR since its acquisition by

the State to improve and modernize its service.’

LIRR has at all times prior to this case considered

itself a carrier subject to all federal railroad laws ap-

plicable to railroads in interstate commerce, including

the Railway Labor Act* (J.A. 365).° It was not until

after this action was filed, that respondents on February

8, 1980, ‘‘changed their posture completely by converting

the Railroad from a private stock corporation to a

public benefit corporation whose employees would be

facially subject to the Taylor Law.’’ (Fdg. of District

Court, App. 31a.)

The district court found and the Court of Appeals

confirmed that LIRR ‘‘is a necessary physical link with

other railroads in the movement of a heavy volume of

interstate freight via the New York City gateway between

Long Island and other parts of the United States’’ (J.A.

> The figure compiled by the Department exceeds $450,000,000

for the period 1967 to 1980. See also Moody’s Transportation

Manual, p. 212 (J.A. 410).

* Interstate Commerce Act, 49 U.S.C. 10501; Railway Labor Act,

45 U.S.C. 151; Railroad Retirement Act, 45 U.S.C. 231, Railroad

Unemployment Insurance Act, 45 U.S.C. 351; Railroad Safety Im-

provement Act, 45 U.S.C. 39; Railroad Boiler Inspection Act, 45

U.S.C. 22; Federal Employers Liability Act, 45 U.S.C. 51; Labor-

Management Reporting and Disclosure Act, 29 U.S.C. 401;

Rehabilitation Act of 1973, 29 U.S.C. 794; Norris La Guardia Act,

29 U.S.C. 101.

* Reference to “‘J.A."’ herein is to the Joint Appendix filed in the

Court of Appeals.

364). During 1978, it generated more than $18 million

from its freight operations serving ‘‘numerous Long

Island concerns, such as aircraft manufacturers, super-

market chains, building suppliers, food processors, and

farms’’, interchanging ‘‘freight with more than a dozen

other railroads which are interstate carriers’? (J.A.

362-364).

LIRR has historically provided rail transportation

not only for freight but for passengers throughout the

entire length and breadth of Long Island, a land mass

larger than Rhode Island.* Its commuters number about

**90,000 regular Long Island passenger making two trips

each day’’ (J.A. 269), less than 4% of the population of

Nassau and Suffolk Counties of Long Island, (U.S. Cen-

sus, 1980), a fraction of this percentage if the population

of Queens County (which though a borough of New

York City is served by the LIRR) is included.

The collective bargaining negotiations central to this

dispute adhered to the form prescribed by the Railway

Labor Act, consistent with all prior negotiations on this

and all other interstate railroads since the passage of the

Federal Railroad Labor Act in 1926.

Petitioner UTU served the LIRR with a notice

under Section 6 of the Railway Labor Act. This notice

triggered the time consuming and RLA complex pro-

cedures discussed in Railroad Trainmen v. Jacksonville

Terminal, 394 U.S. 369 at 378 (1969) in which it was ex-

plained that:

That Act provides a detailed framework to facilitate

the voluntary settlement of major disputes. A party

* Freight-commuter railroads are wholly distinguishable from

mass transit systems within the urban transit industry. Their history

and their customs and usages are inseparably identified with the

railroad industry of which they have been and remain, an integral

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 serv-

ices 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 uni

alter the status quo. §§ 2 Seventh, 5 First, 6, 1

[emphasis added].

This action for declaratory relief was filed

December 7, 1979, after 23 months of negotiations. On

the following day, petitioner, having exhausted the RLA

mandatory procedures, began a strike which ended six

days later when the President of the United States, upon

finding that the strike threatened ‘‘ substantially to inter-

rupt interstate commerce to a degree such as to deprive a

section of the country of essential transportation serv-

ices’’ issved Executive Order 12182 under Section 10 of

RLA, establishing a Presidential Emergency Board 192

“to investigate and report respecting’ the dispute. The

action effectively imposed a moratorium on self-help ac-

tions by either party for an additional 60 days, expiring

part. These freight-commuter railroads have always been classified

as part of the railroad industry subject to the unique federal railway

laws. See pp. 20-21, infra.

February 14, 1980. During a litigation interval involving

state and federal court injunctions, reflecting the conflict

between state and federal labor relations systems, and

while the matter was pending before the Court of Ap-

peals, the parties signed an agreement on April 11, 1980

(App. 6a).

On September 22, 1980, the National Mediation

Board (NMB) ordered petitioner, respondent and the

Staten Island Rapid Transit Operating Authority (SIR-

TOA) and all of the rail labor organizations representing

the classes and crafts of employees employed by LIRR

and by SIRTOA to show cause why the NMB should not

cease to exercise jurisdiction over LIRR and SIRTOA, in

light of the decision of the Second Circuit in this case.

On March 9, 1981, the NMB issued an interim order

that unless the decision of the Second Circuit in this case

is modified or reversed, it ‘tis bound by the determina-

tion of that Court that the interests of the State of New

York outweigh those of the Federal government, and

that the RLA does not pre-empt application of the

Taylor Law to the carriers and their employees under the

Supremacy clause and Commerce clause of the U.S.

Constitution’’ (App. 72a-73a.)’

’ The NMB limited its interim order to the withholding of its

mediatory services. In its view, the decision of the Second Circuit

vitiates only that part of RLA which, under the court’s holding,

“impairs the State’s ability to structure employer-employee relation-

ships’ of LIRR, by ‘‘eliminat{ing] a key [no strike] provision in the

State’s legislative effort to provide its citizens with continuous

public transportation’ (App. 3a, 14a). NMB accordingly announc-

ed that it will continue to process LIRR representational cases

under the RLA (App. 7a.). Similarly minor disputes will continue

to be processed under the compulsory arbitration provisions of the

Railway Labor Act.

Respondents MTA and LIRR, joined by the Staten Island

Rapid Transit Operating Authority, an MTA subsidiary, have filed

REASONS FOR GRANTING THE WRIT

The decision below is in direct conflict with the

decisions of this Court in California v. Taylor, 353 U.S.

553, United States v. California, 295 U.S. 175 and

Parden v. Terminal R. Co., 377 U.S. 184, — confirmed

in National League of Cities v. Usery, 426 U.S. 833,

854, n.18.° It misconceives the doctrine of National

League and extends that doctrine to an area expressly

disclaimed by the Court’s opinion in that case. And its

rationale creates confusion and uncertainty as to the

limits of Congress’ authority under the Commerce

Clause. The issue presented is of major importance, re-

quiring the balancing of the State’s interest in the opera-

tion of a State-owned railroad free of federal regulation

against the federal interest in the protection of interstate

an action for a declaratory judgment in the federal court for the

Eastern District of New York, challenging NMB’s position as to the

limited scope of the Second Circuit’s decision. Metropolitan

Transportation Authority et al. v. National Mediation Board, E.D.

N.Y., Civ. 81-0721, filed March 11, 1981.

* See also Helvering v. Powers, 304 U.S. 171, which held that the

city-operated elevated railway in Boston (and therefore the salary of

its trustees) was not immune from federal taxation as a state

governmental activity: ‘‘We see no reason for putting the operation

of a street railway in a different category from the sale of liquors

[in Ohio v. Helvering, 292 U.S. 360}. In each case, the state with its

own conception of public advantage, is undertaking a business

enterprise of a sort that is normally within the reach of the federal

taxing power and is distinct from the usual governmental functions

that are immune from federal taxation in order to safeguard the

necessary independence of the state."’ Jd. at 227. A fortiori, the

business of operating an interstate freight and long-distance com-

muter railroad is, to paraphrase Helvering, ‘‘within the reach of the

federal [commerce] power and is distinct from the usual govern-

mental functions that are immune from federal [regulation] in order

to safeguard the necessary independence of the state’. The ‘‘power

to tax involves the power to destroy’’. McCulloch v. Maryland, 4

Wheat. 316, 431.

commerce from disruption resulting from industrial

discord. The importance of the issue is magnified by im-

plications extending beyond the statute here in question

to the entire body of the federal legislation in its applica-

tion to state railroads, and beyond the area of railroads

to other areas of State penetration into historically

private business activities. For these reasons, review by

this Court is warranted.

1. California v. Taylor and the related cases,

supra, upheld the application of federal railroad legisla-

tion (the Railway Labor Act, the Rail Safety Act, and

the Federal Employers Liability Act) to the operations of

state-owned common carriers engaged in interstate com-

merce. The decision below cenies the application of these

cases to the LIRR, a state-owned railroad engaged in

both the transportation of interstate freight and the pro-

vision of long-distance commuter service’, on the ground

that LIRR is the principal provider of railroad transpor-

tation service for some 90,000 weekday commuters on

Long Island. It makes this distinction despite the

presence in this case of the very interstate commerce

facts which this Court held to be dispositive in Taylor

(353 U.S. at 566); ie. that the railroad here ‘‘is a

necessary physical link with other railroads in the move-

* Arguably, the decision below limits the RLA only to the extent

that it conflicts with the no-strike provision of the New York

Taylor Act. The NMB, in its order of March 9, 1981, has taken the

position that the Second Circuit’s decision is applicable only to that

part of the RLA which, under Brotherhood of Railroad Trainmen

v. Jacksonville Terminal, 394 U.S. 369, 378-82, guarantees that

railroad employees or employers may resort to self-help once the

RLA procedures designed to induce agreement have been ex-

hausted. (App. 71a-72a). As noted above, p. 9, this ruling has been

challenged by respondents in an action filed in the federal district

court.

ment of a heavy volume of interstate rail freight . . . be-

tween Long Island and other parts of the United States’’

as found by the trial court below (App. 35a) and as

recognized by the Court of Appeals in its characteriza-

tion of the LIRR as ‘‘a crucial physical link with other

interstate rail carriers in the movement of interstate rail

freight via New York”’ (App. 9a). LIRR’s freight opera-

tions are, at the very least, as ‘‘important to the national

flow of commerce’’ as were those of the terminal

railroad facilities held subject to federal labor legislation

in Taylor.

In deviating from Taylor, the court below relies

principally on the decision of this Court in National

League of Cities, supra, misconceiving its holding and

rationale, and seeking to expand the doctrine of that

case in a manner incompatible with its expressly stated

exclusion of railroads. National League repeatedly

declares that the Tenth Amendment restriction on the

federz! power to regulate State activities under the Com-

merce Clause is limited to those activities which the

States have ‘‘traditionally’’ regarded as part of ‘‘integral

governmental functions’’ essential to their ‘‘separate and

independent existence’ as States. (426 U.S. at 845, 851,

852, 854, 855). Further articulating the limits of the

Tenth Amendment immunity, National League explicitly

identifies the operation of a railroad as the example of

an activity which is not traditionally an integral function

of government and is therefore not within the state’s im-

munity under the Tenth Amendment (833 U.S. at 854,

n.18). Accordingly, National League, expressly confirm-

ing Taylor and the cited railroad cases, cautions that:

the holding of the United States v. California .. . is

quite consistent with our holding today. There

California’s activity to which the Congressional

command was directed was not in an area that the

states have regarded as integral parts of their

governmental activities. It was, on the contrary, the

operation of a railroad engaged in ‘‘common car-

riage by rail in interstate commerce ...’’ For the

same reasons, despite Mr. Justice Brennan’s claims

to the contrary, the holding in Parden v. Terminal

R. Co., 377 U.S. 184 (1964), and California v.

Taylor, 353 U.S. 553 (1957), are likewise unim-

paired by our decision today. [/bid.]

In reaching the opposite conclusion as to the LIRR,

the Second Circuit establishes a new and broader basis

for marking out the area of Tenth Amendment immuni-

ty. In lieu of the National League tests of ‘‘traditionali-

ty” and “‘integrality’’, the Second Circuit prescribes a

new ‘‘essentiality’’ test, with ‘‘essentiality [to be] gauged

not only in terms of the nature of the public service, but

also its availability in the market place.’’ (App. 23a) —

as distinguished from the concept of ‘‘functions essential

to separate and independent existence’ of States qua

States. 426 U.S. at 845, 851.

The question whether the services of state-owned

railroads are ‘‘essential to the public’? and are ‘‘of

necessity provide[d] almost exclusively by state and local

governments’ (upon which the decision below turns

App. 17a) were not deemed relevant by this Court in the

railroad cases confirmed by National League. Federal

regulations in those cases were upheld because the opera-

tion of a railroad engaged in interstate commerce was

not a traditional function essential to the sovereign ex-

istence of the States as States.

Thus, in relying on LIRR’s service to some 90,000

Long Island weekday commuters to justify its departure

from the National League caveat, the Second Circuit

substantially broadens the National League concept

beyond the limits expressly stated by this Court. The af-

firmation of that express limitation by the Chief Justice

in Lafayette v. Louisiana Power and Light Co., 435

U.S. 390, 424 (‘‘it should be evident, I would think, that

the running of a [railroad] enterprise is not an integral

operation in the area of traditional governmental func-

tions’), citing the National League caveat (supra, at

854), was cavalierly dismissed by the Second Circuit as

‘limited to its antitrust context’’ (App. 20a).

The ‘‘certain possible implications of this Court’s

opinion” in National League, which Mr. Justice

Blackmun did not ‘tread so despairingly as does my

Brother Brennan’’ (426 U.S. at 856), have now surfaced

in the application of the National League concept to this

case by the Second Circuit. These implications, which

“troubled ’’ Justice Blackmun (ibid.), have also surfaced

in Amersbach v. City of Cleveland, 598 F.2d 1033 (C.A.

6) and in Alewine v. City Council of Augusta, Civ.

179-113 (S.D. Ga., Jan. 13, 1981), as yet unreported, ap-

plying the National League concept to a municipally

owned airport and to a municipally owned and operated

city bus system, respectively. Cf. Joiner v. City of

Macon, Civ. 79-287-MAC (M.D. Ga. Apr. 24, 1981) as

yet unreported, where the court held that the operation

of a municipally owned bus company serving 10% of the

city’s citizens was not ‘‘a traditional function essential to

the sovereign existence of the state’’.

In broadening the scope of National League im-

munity to include a state operated interstate freight/com-

muter railroad, the court below deviates from a line of

decisions which have properly given a narrow construc-

tion to National League.'® The broadened criteria suggest

'* Public Service Company of North Carolina, Inc. v. Federal

Energy Regulatory Commission, 587 F.2d 716 (C.A. 5), cert.

earlier labels for determining State immunity, such as

“sovereign or ‘‘proprietary’’ or ‘‘essential’’, which have

long been discounted as ‘‘rhetorical absolutes’’. See New

York v. United States, 326 U.S. 572, 576. The im-

mediate and potential impact of the new criteria on the

application of federal laws to expanding state services,

particularly in transportation, provide compelling

reasons why the National League concept should be

clarified by this Court at this time.

2. Having concluded that the commuter services

provided by LIRR are within its amplified definition of

the terms ‘‘traditional’’ and ‘‘integral governmental

functions’, as used in National League, the Second Cir-

cuit proceeds to find that the RLA ‘‘operates to displace

‘essential government decisions’’’ because it precludes

the state from applying the Taylor Law to enjoin the ex-

ercise of the federally guaranteed right of railroad

employees to withdraw from service upon full com-

pliance with the provisions of federal railway labor

law.'' (App. 15a).

But the RLA does not displace the State’s power to

make ‘‘essential government decisions’’. Cf. Pearce v.

Wichita County, 590 F.2d 128 (C.A. 5), holding that

denied, 444 U.S. 879 (1980); Pearce v. Wichita County, 590 F.2d

128 (C.A. 5); Peel v. Florida Department of Transportation, 600

F.2d 1070 (C.A. 5); Joiner v. City of Macon, supra.

'' Respondent MTA waited until February 8, 1980, to reorganize

LIRR to bring it within the literal terms of the Taylor Law (App.

31a, 36a). Throughout the preceding seven decades of this century,

LIRR was admittedly subject to the Railway Labor Act, the Norris

La Guardia Act, and other earlier federal laws bearing on railway

labor relations, such as the Transportation Act of 1920, the Adam-

son Act, the Newlands Act of 1913, the Erdman Act of 1898. At no

time, prior to that date, was the LIRR subject to the terms of the

Taylor Law.

Congress may constitutionally impose the provisions of

the Equal Pay Act, 29 U.S.C. 206(d) on state employers.

Under provisions of the EPA, the state would be re-

quired to raise the pay of women employees to that of

men doing equal work (section 206(d)(1)); but the Fifth

Circuit deemed ‘‘[t]he ability to pay female employees

less than those paid to male employees is not among the

‘functions essential to [the] separate and independent ex-

istence’ of the States’’ (590 F.2d at 132). Cf. also Peel v.

Florida Department of Transportation, 600 F.2d 1070

(C.A. 5) applying the Veteran’s Reemployment Act, 32

U.S.C. 2021-6, to State employers, in which the Fifth

Circuit rejected the argument ‘‘that the reemployment

provisions of the Act ‘directly displace the State’s

freedom to structure integral operations in areas of tradi-

tional functions’ ’’ (at 1083).

Like the Equal Pay Act and the Veterans Reemploy-

ment Act, the Railway Labor Act does not impose

federal standards on the decisions the State must make

in regard to the wages, hours or conditions of employ-

ment of its employees. It requires only that the State, in

the determination of those terms, bargain collectively in

good faith with the chosen representatives of employees

engaged in the operation of interstate railroads.

Nothing in the Railway Labor Act ‘‘compel[s]

agreement between the employer and the employees’.

Virginian Ry. Co. v. System Federation No. 40, 300

U.S. 515, 549. It merely requires the parties to confer

and negotiate, in recognition of the fact that ‘‘in the case

of the carriers, experience has shown that ... ‘when

there was a willingness ... to meet [the employees’]

representatives for a discussion of their grievances ...

strikes had been avoided’’’. NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1, 45; Virginian Ry. Co., 300 U.S.

at 549. Federal laws prescribing the channeling of collec-

tive bargaining therefore cannot be classified as

operating ‘‘to force directly upon the States [Congress’s}

choices as to how essential decisions regarding the con-

duct of integral governmental functions are to be

made.”’ See National League, 426 U.S. at 855.

National League was concerned with the 1974

Amendments to the Fair Labor Standards Act (FLSA)

extending the minimum wage and overtime provisions of

the FLSA to state activities. The Amendments were

“directed, not to private citizens, but to States as

States.”’ National League at 845. By that extension,

Congress was deemed by this Court to ‘‘displace state

policies regarding the manner in which [the States] will

structure delivery of those governmental services which

their citizens require’’ (id. at 847).

Unlike the 1974 FLSA Amendments at issue in Na-

tional League, the Railway Labor Act of 1926 and its

Amendments of 1934 were directed, not to the States but

to the operation of interstate railroads. When New York

took over the LIRR in 1965, it chose to enter a field

whose labor relations were long governed by federal law.

Since the incorporation of the LIRR in 1834, the

making of ‘‘choices and decisions in connection with [its]

role as provider of certain public services’? had been the

role of private corporate managers operating with the

same independence and responsibility as that exercised

by railroad management throughout the United States

(App. 13a). As stated by the MTA at the time of its ac-

quisition of this property in 1965, no change took place

in this respect (New York Times, Jan. 21, 1966 at p. 16).

The new managers exercised the same degree of control

in decision making as had their predecessors.

The Railway Labor Act did not, and does not, in-

trude into this process any more today than it did at any

time in its history. Management maintains its freedom of

choice in collective bargaining.

The National League concept of displacement of

State policies can therefore not be squared with the

legislative impact of time tested railroad legislation on

interstate railroads subsequent to their purchase by the

State. The State takes the railroad as it finds it.

3. The Second Circuit, ‘‘after weighing the usurpa-

tion of state policy-making and the invasion of integral

state functions against the reason for the exercise of the

federal commerce power’’ (App. 23a), concluded that

‘the State has a far greater interest in dispute resolution

relating to the LIRR than does the federal government”’

(R. 24a). This conclusion rests upon the premise that

“the freedom to strike [prohibited by Taylor Law] ...

could result. in requiring the state to pay higher wages in

’ order to avert the devastating economic injury that a halt

in the commuter transportation system would cause’’

(App. 14a-15a). This conclusion that the Taylor Law

prohibition of strikes is necessary ‘‘to avert devastating

economic injury’’ is precluded by the indisputable facts.

The records of the New York Public Employment Rela-

tions Board show that during the period September 1967

to December 31, 1980, there were 279 strikes by public

employees subject to the Taylor Law, with an estimated

4,105,000 work days idle (App. 77a), and in the case of

public transit employees subject to that law, nine strikes,

causing 370,500 idle work days. (/d.)

In contrast, there was a single work stoppage by

employees of LIRR (November, 1972) between the fiscal

years 1965 (when LIRR was purchased by the state) and

1980 prior to filing of this action, causing 175,000 work

days idle. The dispute which gave rise to this case

resulted in a six-day strike in December, 1979, by

employees represented by petitioner'? and a two day

strike in April, 1980, by other LIRR employees (App.

8la), together causing 24,000 man days lost.

The court’s misconception of the practical ex-

perience under the RLA and under the Taylor Law, in

its balancing of federal and state interests, is the conse-

quence of the court’s assumption of a hypothesis not

asserted by respondents at any stage of this proceeding,

and therefore not subjected to proof, briefing, or argu-

ment. See infra, pp. 19-21.

It is common knowledge that the automobile has

been the principal reason for the substantial reduction in

passenger train operations throughout the United States.

The conditions on Long Island in this respect are not

different from those in other sections of the United

States. These stoppages do not and cannot have the

‘devastating economic injury’’ which the court below

assumed in weighing the competing federal and state in-

terests. The automobile takes over.

A railroad facility like the Long Island Railroad, no

less than the Belt Railroad in Taylor, ‘‘is a vital link in

the national transportation system.’’ See Taylor, 566.

‘Its continuous operation is important to the national

flow of commerce’’ (id.), as recognized in this case by

the establishment of Presidential Emergency Board 192.

This concern provides the foundation of the federal

policy underlying the RLA and other federal laws affec-

ting rail transportation. That policy has been well served

" This work stoppage was terminated on its sixth day upon the

establishment of Presidential Emergency Board 192 under Section

10 of the RLA.

by the RLA over a great period of time, on Long Island

and throughout the country. Whether the States, by ex-

tending their activities to transportation facilities like the

Long Island Railroad, can withdraw such operations

from the traditional coverage of the Commerce Power

raises serious questions of constitutional law requiring

clarification by this Court. See New York v. United

States, 326 U.S. at 582; Helvering v. Powers, 293 U.S.

214, 225.

4. The Second Circuit seeks to revise the National

League concept of ‘‘integral operations in areas of tradi-

tional governmental functions’’ which, it enlarges to

“very important public service which has come to be

supplied primarily by state and local governments’’

(App. 17a). The broad implications of this expansion are

clearly visible in its application to the facts of this case.

The LIRR has been subject to federal laws governing the

operations of interstate railroads as long as any other

railroad in the United States (See supra, pp. 4, 16).

Respondent MTA, by its purchase of the stock of LIRR

in 1966 and by thereafter ‘‘engaging in interstate com-

merce by rail subject[ed] itself to the commerce power’’

and to the continuous application of all of the federal

laws governing railroads. Taylor, 353 U.S. at 568; U.S.

v. California, 297 U.S. at 184; Helvering v. Powers, 293

U.S. at 225. By ‘‘venturing into the Congressional

realm’’ it assumed the conditions that Congress, under

the Commerce Clause, attached. Parden 377 U.S. at 196.

5. The assumption of the court below that ‘‘the

LIRR . . . as a provider of passenger transportation, fur-

nishes a very important public service which has come to

be supplied primarily by state and local governments’’

(App. 17a) has no support in the record or elsewhere. It

is not based on evidence, was not briefed, and was not

mentioned in ora! argument. Cf. Taylor, 353 U.S. at

557, n.2. The indisputable fact is that commuter railroad

services outside the New York metropolitan area are

predominantly supplied by twelve privately owned or

operated interstate railroads, carrying commuters in nine

major metropolitan areas.'’ In the five-state northeastern

sector, the passenger trains of Consolidated Rail Corp-

oration carry 231,000 commuters to work each day (New

York Times, April 19, 1981, Business Section, p. 1). The

only state-owned and operated railroads in the United

States are to be sound in the New York metropolitan

area.

Since the state and local governments are not the

primary providers of commuter railroad services, the

court’s key premise for its conclusion that the operators

of the LIRR are within the area of Tenth Amendment

protection must fail.

Perhaps, the Second Circuit mistakenly considered

interstate freight/commuter railroads, such as those

described above, as part of the urban mass transporta-

tion industry consisting of buses, subways, cable cars,

ferries and other mass transit modes engaged in local

and suburban mass transportation over regular routes

and on regular schedules. In comparing LIRR with sub-

ways and other modes of urban mass transit (see App.

17a, n. 20), the court failed to recognize the distinction

between railroads carrying both interstate freight and

'' Transit Fact Book, American Public Transit Association,

1978-1979 ed., at pp. 74-75; J.A. 403-404. The twelve carriers are

the Baltimore & Ohio, the Burlington Northern, the Chicago &

North Western, the Milwaukee, the Chicago Rock Island, the

South Shore, the Illinois Central, the Boston & Maine,

Grand Trunk Western, Norfolk & Western, Pittsburgh & Lake

Erie, and the Southern Pacific.

long distance commuters and urban systems carrying

local and suburban passengers.'* The history and prac-

tices of the former have always been identified with the

railroad industry. ‘“‘The railroad world for which the

[Railway Labor] Act was designed has been described as

a state within a state’ for which Congress has provided

‘techniques peculiar to [itself]’ ’’. California v. Taylor

353 U.S. at 565-566. Commuter railroads have accor-

dingly never been included within the standard urban

transit industry classification of ‘‘companies and systems

primarily engaged in local and suburban mass passenger

transportation over regular routes and on regular

schedules.’’ U.S. Bureau of the Budget, Standard In-

dustrial Classification Manual (Washington, G.P.O.,

1967), pp. 203-205. If the court below indeed included

the interstate freight/commuter railroads in the urban

mass transportation industry, then the questions raised

herein are of even greater importance and significance.

‘*Commuter railroads traditionally provide railroad passenger

service to the far distant suburbs and exurbs in the outer reaches of

the central cities (op. cit. at 74); e.g., the service provided by LIRR

to Montauk in Suffolk County, some 128 miles and three hours dis-

tant from New York; the service provided by the Chicago North

Western between Highland Park, Illinois and downtown Chicago.

Municipal ownership of city bus and subway systems is the direct

and immediate result of federal legislation enacted in 1964 to pro-

vide federal assistance ‘‘to State and Local Governments in financ-

ing . . . [mass transit] systems, to be operated by public or private

transportation companies ..."’ 49 U.S.C. 1601(b\3). Prior to

enactment of the Urban Mass Transportation Act, 95% of the na-

tion’s transit companies were privately owned. Urban Mass

Transportation Administration, U.S. Department of Transporta-

tion, A Directory of Public Transportation Service, July 1979, p.

17.

CONCLUSION

The decision below is in direct conflict with deci-

sions of this Court and distorts the holding and the ra-

tionale of National League. \t raises fundamental ques-

tions concerning the balance of federal and state power

as affected by the implications of National League. For

these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Second Circuit.

Respectfully submitted,

EpwarpD D.FRIEDMAN

Counsel of Record

1050 Seventeenth Street, N.W.

Suite 701

. United Transportation Union

Of Counsel: 14600 Detroit Avenue

Haroitp A. Ross Cleveland, Ohio 44107

APPENDIX

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

APPENDIX H

APPENDIX I

APPENDIX J

APPENDIX

TABLE OF CONTENTS

PAGE

Decision By The United States Court Of

Appeals For The Second Circuit ......... la

Order By The U.S. Court of Appeals... .. 27a

Memorandum Of Decision And Order By

U.S. District Court, E.D.N.Y............ 29a

New York Taylor Law, §§210 & 211 ..... 49a

Rail Way Labor Act........ yecececcoees 57a

Interstate Commerce Act ..........5005: 6la

National Mediation Board Decision ...... 63a

Pes PRUNE cctcdtnisocdiaceeeeds Tla

Nationa’ Mediation Board Letter And

DE Coa teALa bee se beposteavannees 79a

Constitutional Provisions .........:..... 83a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1120—September Term, 1979

(Argued April 18, 1980 Decided September 15, 1980)

Docket No. 80-7199

> --

UNITED TRANSPORTATION UNION,

Appellee,

Vv.

LONG ISLAND RAIL ROAD COMPANY and. METROPOLITAN

TRANSPORTATION AUTHORITY OF NEW YORK,

Appellants.

Before:

MULLIGAN, Circuit Judge, and

SPEARS* and SWEET,** District Judges.

—

sitting by designation.

‘** United States District Judge for the Southern District of New

York, sitting by designation.

Appeal from an order of the United States District

Court for the Eastern District of New York, Hon. Jacob

Mishler, Judge, granting a declaratory judgment that

appellee’s members have the right to engage in self help

under the Railway Labor Act and permanently

enjoining appellants from further prosecuting any state

court action based on the Taylor Law.

Reversed.

—

EDWARD D. FRIEDMAN, Washington, D.C.

(Harold A. Ross, Sidney Fox, Highsaw,

Mahoney & Friedman,’ P.C.,

Washington, D.C.; Shapiro, Shiff,

Beilly, Rosenberg & Fox, New York

City; Ross & Kraushaar, Cleveland;

Sanchez & McKay, Congers, N.Y., of

counsel), for Appellee.

EUGENE P. SOUTHER, New York City (An-

thony R. Mansfield, Todd M. Brinberg,

Michael W. Kelly, Sheri A. Van

Greenby, Seward & Kissel, New York

City; Thomas M. Taranto, Jamaica,

N.Y., of counsel), for Appellants.

RONALD M. EtrTeR, Acting General Counsel,

National Mediation Board, Washington,

D.C., brief for the United States as

Amicus Curiae.

Sweet, D.J.

This appeal presents the question of whether

employes of the Long Island Rail Road Company (the

“LIRR”) are subject to the provision in New York’s

Taylor Law, N.Y. Civ. Serv. Law §§ 200-214 (the

“Taylor Law”), prohibiting strikes by public employees,’

or the provision in the Railway Labor Act, 45 U.S.C.

§§ 151 et seq. (the “RLA”), allowing for such self help.’

Resolution of this question presents the difficult and

vexing task of determining the line which separates

state and federal power in the penumbra where both

state and federal legislation have been enacted. Since in

this case we conclude that the RLA impairs the State’s

ability to structure employer-employee relationships in

its role as sole provider of an essential public service,

the rationale of National League of Cities v. Usery, 426

U.S. 833 (1976) requires that we reverse the decision of

the district court.

The LIRR is a rail common carrier serving five

counties within the metropolitan New York City area.

It was acquired by New York State in 1966 through the

agency now known as the Metropolitan Transportation

1 N.Y. Civ. Serv. Law § 210 (1) provides:

No public employee or empioyee organization shall engage in a

strike, and no public employee or employee organization shall

cause, instigate, encourage or condone a strike.

2 Although not explicitly set forth in the RLA, the parties may

Jacksonville Terminal Co., 394 U.S. 369, 380 (1969).

Authority (the “MTA”), which continues to have day-to-

day responsibility for the operation of the LIRR.

The LIRR carries approximately 250,000 passengers

each week day and is the only common carrier by rail

serving the public and industries in Nassau and Suffolk

Counties. While its physical operations are solely

within New York State, it interchanges freight with

more than a dozen interstate vail carriers and handles

from 800-1000 freight cars per week. Its revenue from

freight operations in 1979 was in excess of $12.1

million. These freight revenues have decreased steadily

over the years and now provide a fraction of its total

income, which is estimated at more than $300 million.

The appellee United Transportation Union (the

“UTU”) is one of seven collective bargaining representa-

tives for the LIRR operating and train employees. On

December 7, 1979, as the parties were on the verge of

exhausting the collective bargaining procedures pro-

vided by the Railway Labor Act, the UTU filed this suit

in the Eastern District of New York seeking (1) a

declaratory judgment that the relationship between the

parties was governed by the RLA and that the

employees could thus not be subjected to the sanctions

of the Taylor Law in the event they engaged in self

help; and (2) injunctive relief to protect those rights of

the employees guaranteed by the Act, including an

injunction against the commencement or prosecution of

a state court action seeking to invoke the Taylor Law.

The next day, the unions, including the UTU, went on

strike. On December 14, 1979, a Presidential Emer-

gency Board was established pursuant to § 10 of the

RLA, 45 U.S.C. § 160, and the employees returned to

work.*

3 “cooling off" period triggered by the President's action was to

The

expire 60 days later, on February 14, 1980.

Appellants moved to dismiss this action but before

the motion was heard, on February 8, 1980, converted

the LIRR from a private stock corporation to a public

benefit corporation whose employees would be at least

facially subject to the Taylor Law. On February 12, the

UTU responded by moving for a temporary restraining

order and preliminary injunctive relief restraining the

defendants from commencing a state court action

pursuant to the Taylor Law to enjoin a strike by UTU

members.

Following additional litigation‘ the UTU moved for

summary judgment. In his opinion granting the motion,

then Chief Judge Jacob Mishler found that the LIRR is

a “carrier” engaged in interstate transportation and

therefore subject to the Railway Labor Act. After

further analysis, he concluded that the federal scheme

preempts the State from regulating the labor relations

of the railroad’s employees, rejecting the invitation to

find that such regulation improperly displaces the

State’s freedom to structure integral operations in areas

of traditional governmental functions.

4 On February 13, the LIRR commenced a suit the UTU and

The district judge then issued a permanent injunction

restraining the LIRR and the MTA from taking any

action in state court based on an alleged violation of the

Taylor Law. The UTU was also enjoined from engaging

in any “self help” pending this Court’s review of the

case.*

Appellants argue, at the outset, that the State

Attorney General is an indispensable party to this

action because he is independently obligated to take the

action that the UTU has sought to enjoin. Specifically,

they refer to N.Y. Civ. Serv. Law § 211, which provides

that the chief legal officer of the government involved

shall apply to the supreme court for an injunction

against a threatened violation of the Taylor Law.’

risk of incurring inconsistent obligations. Fed. R. Civ.

6 The labor dispute that precipitated this action was ultimately

settled on April 11, 1980.

P. 19a).* To begin with, there is no authority for the

proposition that the Attorney General must proceed as

a plaintiff in his own name in addition to bringing the

action of the aggrieved state parties. Instead, the

Attorney General or other “chief legal officer” must

simply act as legal representative of such agencies in

Taylor Act proceedings. See Yorktown Central School

Dist. No. 2 v. Yorktown Congress of Teachers, 42

A.D.2d 422, 348 N.Y.S.2d 367, 371 (2d Dept. 1973).

Since in this case the Attorney General did not

represent appellants, it could be argued that he should

have been joined as a separate, indispensable party.

However, the record indicates that the Attorney

General was involved in a related action in state court,

see note 4 supra, and that he undoubtedly had

knowledge of the instant action and could have

participated therein had he chosen to do so. Moreover,

in light of the fact that the MTA and LIRR, in opposing

the injunction, took the same position as the Attorney

General would have taken, he cannot be heard to claim

that the disposition of the action in his absence impairs

his ability to protect the State’s interests. Fed. R. Civ.

P, 19(aX2\Xi).

Finally, disposition of this action without the

presence of the Attorney General would not subject any

obligations. As the district judge noted, the Attorney

General would be bound by any injunction in this action

of which he had actual notice under Fed. R. Civ. P.

65(d).* Consequently, this action need not be dismissed

for failure to join as an indispensable party.

We agree with finding of the district court that

the Long Island Rail Road is a “carrier” subject to the

Railway Labor Act. A “carrier” includes a “carrier by

railroad, subject to the Interstate Commerce Act” (the

“ICA”). 45 U.S.C. § 151." Such carriers must be

involved in transportation outside a single state, 49

U.S.C, § 10501(2),"" and do not include a street,

® Fed. R. Civ. P. 65(d) provides in pertinent part that an order

10 —- Section 151 of Title 45 provides in pertinent part:

lai

-itit

Tah

interurban or suburban electric railway, unless such

railway is operating as part of a general steam-railroad

system of transportation. 45 U.S.C. § 151.

Appellants do not seriously dispute that the LIRR is

subject to the literal terms of the Railway Labor Act.

As the district court noted, the LIRR’s freight service

provides a crucial physical link with other interstate

rail carriers in the movement of interstate rail freight

via New York. Moreover, the LIRR historically has

considered itself a “carrier” within the meaning of the

RLA, as demonstrated by the facts that it has

consistently filed reports required by the ICA and that

is employees have received the benefits of the Railroad

Retirement Act, the Railroad Unemployment Insurance

Act and the Federal Employees Liability Act.”

Appellants argue instead that Congress did not

intend that the RLA apply to an essentially local

(1) by rail carrier, express carrier, sleeping car carrier, water

common carrier, and pipeline carrier that is—

(A) only by railroad... .

(2) to the extent the transportation is in the United States

and is between a place in—

(A) a State and a place in another State... .

10a

commuter transportation system such as the LIRR

simply because it does a limited amount of freight

business. They note in thie regard that Congress

specifically excluded from RLA coverage certain types

of local transportation systems that existed at the time

of its enactment such as “suburban electric railways”

and “street electric railways.” 45 U.S.C. § 151.

While it is argued that Congress also would have

created an exclusion for the LIRR if it could have

foreseen how the railroad would evolve, we decline to

legislate such an exception. Apart from a general

reluctance to undertake such a task, we note that it is

not clear what Congress would have done in this

instance. The LIRR’s freight business, while declining

and less significant than its passenger business, still

generates over $12 million in revenues derived from

business in interstate commerce. Although this consti-

tutes but a fraction of the revenues of the LIRR, its

impact on interstate commerce is of some significance

and consequently, any change in the regulation of this

type of rail carrier must be left to Congress.

If the LIRR were a privately owned carrier, the

commerce clause regulation would prevail, and no

further analysis would be required. The LIRR is a

wholly owned subsidiary of a state agency, however,

and appellants urge that even if the LIRR is subject to

the literal terms of the RLA, that Act may not be

enforced so as to allow a strike because it interferes

with an integral state function, namely, the State’s

ability to structure employer-employee relationships in

public commuter transportation.

Appellants have relied on National League of Cities v.

Usery, 426 U.S. 833 (1976), in which the Supreme

Court struck down the application of the Fair Labor

Standards Act’s minimum wage and maximum hour

provisions to state employees. In National League of

Cities, the Supreme Court broke with precedent in

finding that Congress may not exercise its power

interstate commerce “to force directly upon the States

its choices as to how essential decisions regarding the

conduct of integral governmental functions are to be

made.” 426 U.S.C. at 855. Although it did not fully

define the meaning of “integral” or “traditional” state

governmental functions, the plurality opinion indicated

that they would include typically, fire prevention,

police protection, sanitation, public health and parks.

id. at 851.

In a short but “pivotal” concurring opinion,” Mr.

Justice Blackmun stated that he joined the plurality

with the understanding that the Court had adopted a

balancing approach under which federal regulation will

be upheld if the federal interest is “demonstrably

greater” than the State’s. 426 U.S. at 856. While some

commentators argue that the plurality actually rejected

any weighing of federal and state concerns," many

lower courts have found a balancing approach to be

implicit in that opinion. See, e.g., Virginia Surface

13 State Dep't of Transp. v. United States, 430 F. Supp. 823, 825

(N.D. Ga. 1976).

14 ~=See Matsumoto, National League of Cities—From Footnote to

ye oy ee 'y from Commerce Clause Regulation 1977

Analyses in the Law of Federal Jurisdiction, 256 U.C.L.A. L. Rev.

1301. 13 1338, 1340 (1978). But see Horowitz, The Autonomy of the

Univ. of California under the State Constitution, 25 U.C.L.A. L. Rev.

23, 33 (1977) (balancing approach in plurality opinion).

12a

Mining & Reclamation Ass’n v. Andrus, 483 F. Supp.

425, 435 (W.D. Va. 1980); Remmick v. Barnes County,

435 F. Supp. 914, 915 (D.N.D. 1977); State of Colo. v.

Veterans’ Adm., 430 F. Supp. 551, 559 (D. Colo. 1977),

aff'd on other grounds, 602 F.2d 926 (10th Cir. 1979)

cert. denied, 444 U.S. 1014 (1980); Usery v. Edward J.

Meyer Memorial Hosp., 428 F. Supp. 1368, 1370

(W.D.N.Y. 1977). See also State of Tenn. v. Louisville &

N.R. Co., 478 F. Supp. 199, 206 (M.D. Tenn. 1979).

Even if the plurality did not adopt such a balancing

approach, Justice Blackmun’s test remains of crucial

importance, for without his concurrence the federal

regulation in National League of Cities would have been

upheld. Accordingly, in cases since National League of

Cities several circuits, including this one, have ex-

amined the federal interest in regulating the area in

addition to determining whether the activity qualifies

as an integral governmental function. See Halderman v.

Pennhurst State School & Hospital, 612 F.2d 84, 99

n.21 (3rd Cir. 1979) (en banc), cert. granted in part,

__.. U.S. ___., 100 S.Ct. 2984 (1980); Peel v. Florida

Dept. of Transp., 600 F.2d 1070, 1083 (5th Cir. 1979);

In re Special April 1977 Grand Jury, 581 F.2d 589, 592

(7th Cir.) (per curiam), cert. denied sub nom. Scott v.

United States, 439 U.S. 1046 (1978); United States v.

Best, 573 F.2d 1095, 1102 (9th Cir. 1978); Friends of

the Earth v. Carey, 552 F.2d 25, 37-38 (2d Cir.), cert.

denied 434 U.S. 902 (1977).

The inquiry is therefore essentially two-tiered. To

determine whether MTA’s operation of the LIRR falls

within the sphere of protected state activity, we must

first consider whether the operation of the railroad

qualifies as an integral or traditional government

function. It it does, the federal interest in regulating

13a

the collective bargaining relations of LIRR employees

under the Railway Labor Act must be weighed against

the State’s interest in applying the Taylor Law.

A. Integral Government Function

In National League of Cities v. Usery, the plurality

attached various labels to the activities it sought to

protect, referring to “functions essential to separate

and independent existence,” 426 U.S. at 845, “integral

governmental functions,” id. at 851, and “traditional

governmental functions.” Jd. at 852. The tenor of the

opinion, however, is that the States must retain the

power to make certain choices and decisions in

connection with their role as provider of certain public

services."* The making of these choices and structuring

of operations will be termed “essential governmental

decisions.” 426 U.S. at 850. The types of public services

that are singled out for protection will be called

“integral governmental functions.” Jd. at 855."*

15 In this regard, the term “sovereignty” as used in the opinion has

been defined to mean “the state’s role of providing for the interests

of its citizens in receiving important social services.” cme ag

States’ Rights and States’ Roles: Permutations of Sovereignty

National League of Cities v. Usery, 86 Yale L.J. 1165, 1172 (1977).

See Tribe, Unraveling National League of Cities: The New

Federalism and Affirmative Rights to Essential Government

Services, 90 Harv. L. Rev. 1065, 1074, 1076-77 n.42 (1977).

16 The plurality used the term “integral” in at least five places in

National League of Cities, 426 U.S. at 851, 852, 854 n.18, 855

(twice). At one point the plurality states that the “challenged

amendments operate to directly displace the State's freedom to

structure ‘integral operations’ in areas of traditional government

functions.” Id. at 852. At other places, the phrase “integral” appears

to have roughly the same meaning as “traditional.” Michelman,

supra, at 1172. While the phrase “integral government services”

rather than “integral governmental function” might better indicate

the focus on the public service i for the sake of consistency

we chose to use the Supreme ‘s phrase.

Ida

There is no question but that, as in National League

of Cities, the operation of the federal statute directly

displaces the State’s ability to structure its employee-

employer relationships and to make essential govern-

mental decisions. See 426 U.S. at 851. In enacting the

Taylor Law, New York State made a determination that

in order to protect the public it must assure the orderly

and uninterrupted operations and functions of govern-

ment by prohibiting strikes by public employees. N.Y.

Civ. Serv. Law § 200."" Enactment of the Taylor Act

was prompted in large part by the transit strike which

crippled New York City in 1966."* By precluding the

State from enforcing this legislation, including its no-

strike provision, the Railway Labor Act eliminates a

17 ~—NLY. Civ. Serv. Law § 200 provides:

The legislature of the state of New York declares that it is the

public policy of the state and the purpose of this act to promote

harmonious and cooperative relationships between

}

18 ~=New York Times, January 16, 1966, at 1, col. 1.

15a

of the recent strike by New York City bus and subway

workers. Moreover, the freedom to strike affects the

collective bargaining process and could result in

requiring the State to pay higher wages in order to

avert the devastating economic injury that a halt in the

commuter transportation system would cause.” Thus

the inability to prohibit public employee strikes and its

possible economic effect deprives the States of the right

to make the “fundamental employment decisions” that

are essential to their “separate and independent

existence.” Id. at 851.

Having found that the RLA operates to displace

“essential governmental decisions,” it is next necessary

to determine whether those decisions affect the

operations of “integral governmental functions.” In this

regard, it seems beyond question that the LIRR is an

important public service. That the State’s operation of

the LIRR therefore qualifies as a protected state

activity, however, is not as readily resolved.

In United States v. California, 297 U.S. 175 (1936),

the Supreme Court found that provisions of the Federal

Safety Act were applicable to the State Belt Railroad,

notwithstanding the fact that the railroad was owned

by the State of California. Forty years later, in National

League of Cities v. Usery, supra, the Court again

addressed the subject of a state-owned railroad, stating

in dictum:

The holding of United States v. California . . . is

quite consistent with our holding today. There

California’s activity to which the congressional

16a

command was directed was not in an area that the

States have regarded as integral parts of their

governmental activities. It was, on the contrary,

the operation of a railroad engaged in “common

carriage by rail in interstate commerce. . . .” 297

US., at 182.

National League of Cities v. Usery, 426 U.S. at 854

n.18. Mr. Justice Brennan noted in his National League

of Cities dissent that, although the plurality distin-

guished United States v. California, its logic would

overrule the earlier decision. 426 U.S. at 871.

Commentators also have questioned the rationality of

excluding railroads from the protected core of govern-

mental functions, particularly the closer these railroads

come to resembling commuter lines. See, e.g., Mi-

chelman, States’ Rights and States’ Roles: Permutations

of “Sovereignty” in National League of Cities v. Usery,

86 Yale L. J. 1165, 1172 n.28 (1977).

We find that United States v. California does not

dictate the result here. The plurality’s definition of

state sovereignty in National League of Cities suggests

that “the terms ‘traditional’ or ‘integral’ are to be given

a meaning permitting expansion to meet changing

times.” Amersbach v. City of Cleveland, 598 F.2d 1033,

1037 (6th Cir. 1979). Obviously, the catalog of essential

state-provided services is not and cannot be static. As

Mr. Justice Douglas observed in New York v. United

States, 326 U.S. 572, 591 (1946) (Douglas J., dissent-

ing), “{(wJhat might have been viewed in an earlier day

as an improvident or even dangerous extension of state

activities may today be deemed indispensable.”

In view of the foregoing, United States v. California

is distinguishable from the case at bar. The State Belt

17a

Railroad, although operated intrastate as a “public

function and without profit,” was solely a freight

service, the proceeds from which were used for harbor

improvements. 297 U.S. at 183. The LIRR, on the other

hand, as a provider of passenger transportation in a

metropolitan area, furnishes a very important public

service which has come to be supplied primarily by

state and local governments.”

Aside from the fact that local passenger transporta-

tion is now of necessity provided almost exclusively by

state and local governments, the service is essential to

the public and inures to its benefit much more directly

than did that provided by the California Belt Railroad.

Without the LIRR, commuters would find it difficult or

impossible to get to their jobs, and the reduced influx

of people into New York City would have a significant

impact upon the economy of the city and the State.”

The absence of passenger rail service to and from Long

Island would have a severe environmental impact.”

20 Consider, for example, the Chicago Transit Authority, Massachu-

setts Transit Authority, San Francisco's Bay Area Rapid Transit. In

addition, Miami is constructing a system that will connect the city

with the suburbs, New York Times, Mar. 9, 1978, at 18, col. 1, and

Atlanta has portions of its new rapid transit system. New

York Times, July 1, 1979, at 16, col. 1.

21 ~=See note 18, supra.

op “Hearings”).

blocks in the center of New York City would have to be

solely for parking. Jd.

18a

Moreover, we cannot be blind to the sweep of world

wide events which by all indications is forcing

substantial alteration of our former profligate transpor-

tation practices and undeniably will create reliance on

public mass transit.

In sum, there are two grounds for finding the State’s

operation of a passenger rail service, as distinguished

from a freight service, to be an “integral governmental

function.” First, it is a service that the state and local

governments are particularly suited to provide because

of the community-wide need—and it is a service they

have come to provide by a process of economic

elimination of private suppliers. See Amersbach v. City

of Cleveland, 598 F.2d at 1037. Although this is a

relatively new development, there now is no reasoned

basis for finding that the operation of an intrastate

passenger service which transports tens of thousands to

and from their jobs every day is any less a

governmental function than are sanitation or public

parks and recreation. See National League of Cities v.

Usery, 426 U.S. at 851.

Second, there is little doubt that the LIRR’s

passenger service is of much more importance to the

public, in several respects, than was the state-operated

freight line in United States v. California, supra.

There is some question, however, as to the current

validity of focusing on the importance of a public

service when defining what constitutes an “integral

governmental function.” Historically, the Supreme

Court has recognized that the range of arguably

essential public services that could be provided by local

government is potentially limitless, and has thus shied

away from “public function” analysis. See, e.g., Jackson

v. Metropolitan Edison Co., 419 U.S. 345, 352-53

19a

(1974) (rejecting “essential public service” test for

determining what constitutes state action).” See

generally Amalgamated Ass'n of Street, Elec. Railway

& Motor Coach Employees v. Wisconsin Employment

Relations Bd., 340 U.S. 383, 397-98 (1951) (public

importance of gas and transit service to community

irrelevant in light of congressional intent to permit

strikes under NLRA).

More recently, in Lafayette v. Louisiana Power &

Light Co., 435 U.S. 389 (1978), the Court again

declined the opportunity to engage in “public service”

analysis. In holding that municipalities are not

automatically exempt from federal antitrust laws, the

plurality avoided an “integral function” test altogether.

Instead of focusing on the type of service involved—a

municipally owned electric utility—the plurality stated

that the city’s anticompetitive practices would be

immune from antitrust regulation only if authorized or

contemplated by a legislative mandate from the State.

Id. at 415.

In a concurring opinion, Chief Justice Burger relied

on the fact that the utility was a proprietary enterprise,

noting that the operation of a business enterprise is not

“an integral operation in the area of traditional

23 ~—In Jackson v. Metropolitan Edison Co., supra, the Court also

rejected an “affected with the public interest” analysis, quoting from

Nebbia v. New York, 291 U.S. 502, 536 (1934):

that an industry, for te reason, is su to control for the

public good. In several of the decisions of court wherein the

“affected with a public interest,” and “clothed with a

use,” have been brought forward as the criteria. . . it has

admitted that they are not susceptible of definition and form

20a

government functions.” 435 U.S. at 423-24. He stressed

that National League of Cities’ definition of sovereignty

is whether the State’s interest involved “functions

essential to separate and independent existence,” id. at

423, and indicated that the state-owned railroad in

United States v. California did not meet that definition

even though it was operated “without profit, and as a

‘public function.’” Jd. at 422 n.4.

The im-act of Lafayette on National League of Cities

must be cw sidered.” We believe that Lafayette may be

limited to its antitrust context; indeed, the plurality

noted a “presumption against implied exclusions from

coverage of the antitrust laws.” 435 U.S. at 399."

Moreover, while Lafayette involved an enterprise which

is undoubtedly as important a public service as the

operation of a local passenger railroad line, both the

plurality and Chief Justice Burger’s concurring opin-

ions noted that the City of Lafayette competed with

private utilities for customers in the area. See 435 U.S.

at 391 n.3, 403-08, 422 n.3. Indeed, Chief Justice

Burger stated that he used “the term ‘proprietary’ only

to focus attention on the fact that all of the parties are

2 See Lafayette v. Louisiana Power & Light Co., 435 US. at 430

2la

in a competitive relationship such that each should be

constrained, when necessary, by the federal antitrust

laws.” 435 U.S. at 422 n.3. The existence of

competition demonstrates that the public was not

completely dependent on the municipality for the

service and that it was economically feasible for private

entities to provide it.

In contrast, had the MTA not taken over the

operations of the LIRR in 1966, there probably would

be no LIRR today. The substantial state and local funds

used to subsidize the railroad attest to the fact that no

private businessman would dare undertake the ven-

ture. In short, not only is that particular activity

essential to the public, but it is also essential that the

government step in to furnish iv.*” See Amersbach v.

City of Cleveland, 598 F.2d at 1037-38 (“{e}xperience

has demonstrated that airports must be maintained by

municipal corporations or other units of government”).

Finally, the consistency of the result in Lafayette

with the one conclusion we reach herein is further

buttressed by the historical/empirical concept of state

sovereignty implied in National League of Cities and

alluded to above. In the words of one commentator, “As

the problems faced by urban governments evolve, so

will the citizenry’s expectations of what are appropriate

governmental services. Just as hospitals went from

26 The federal government has also poured large amounts of money

into the improvement of the LIRR (app. at 8 and 410). This fact does

not affect the state immunity determination, however, as demon-

strated by the fact that schools, hospitals and law enforcement all

receive federal aid, but are considered integral state governmental

functions. See 426 U.S. at 878.

State’s purchase of the LIRR was premised on its

finding that private en would be unable to continue to own

and operate the facility. , supra, at 134.

22a

being accountable under federal regulations to a status

of immunity, electric utilities may someday, in certain

regions, provide an integral governmental function.”

Comment, National League of Cities and the Parker

Doctrine: The Status of State Sovereignty Under the

Commerce Clause, 8 Fordham Urb.L.J. 301, 332 (1980).

(footnotes omitted) Stated differently, we conclude that

essentiality is gauged not only in terms of the nature of

a public service, but also its availability in the

marketplace.

B. Federal vs. State Interests

This fluid concept of sovereignty contains the

potential for devastating impact, and accordingly, has

engendered some criticism. E.g., Michelman, supra, 86

Yale L.J. at 1193; Schwartz, National League of Cities

v. Usery—The Commerce Power and State Sovereignty

Redivivus, 46 Fordham L. Rev. 1115, 1134 (1977-78).

However, fears that National League of Cities will spur

a new era of separatism are dispelled somewhat by

adherence to Justice Blackmun’s balancing approach,

which suggests that a “demonstrably greater” federal

interest should override a state's claim to immunity

even in an area found to involve an_ integral

government function. 426 U.S. at 856.

This court has stated that:

{im determining whether an otherwise valid

exercise of the federal commerce power would

impermissibly impair state sovereignty we [are]

required to balance the reason for the exercise

against the extent of usurpation of state policy-

making or invasion of integral state functions that

would result, giving “appropriate recognition to the

23a

legitimate concerns of each government.” (citation

omitted)

Friends of the Earth v. Carey, 552 F.2d at 37. In this

case, it is not possible to say that after weighing the

usurpation of state policy-making and the invasion of

integral state functions against the reason for the

exercise of the federal commerce power, that the

federal interest is “demonstrably greater.”

First, the objectives of the RLA are consistent with

those of the Taylor Law: to provide an orderly method

of dispute resolution and to ensure continuous service.”

Congress stated the purpose of the RLA under section 2

as follows:

(1) To avoid any interruption to commerce or to the

operation of any carrier engaged therein; (2) to

forbid any limitation upon freedom of association

among employees or any denial, as a condition of

employment or otherwise, of the right of employ-

ees to join a labor organization; (3) to provide for

the complete independence of carriers and of

employees in the matter of self-organization to

carry out the purposes of this [Act]; (4) to provide

for the prompt and orderly settlement of all

disputes concerning rates of pay, rules, or working

conditions; (5) to provide for the prompt and

orderly settlement of all disputes growing out of

grievances or out of the interpretation or applica-

tion of agreements covering rates of pay, rules, or

28 = See note 17, supra.

24a

45 U.S.C. § 151a. Avoiding interruption of commerce

was deemed a “primary purpose” of the RLA by the

Court in California v. Taylor, 353 U.S. 553, 566 (1957).

The Taylor Law’s prohibition against strikes seeks to

further that purpose, thereby helping the LIRR to

maintain its status as a “vital link” in the flow of

interstate commerce. Moreover, while the state law

preempted in California v. Taylor was the “antithesis”

of the federal scheme, since it placed an absolute

prohibition on the railroad employees’ right to bargain

collectively, id. at 559-60, the state law involved here

preserves the right of independent collective bargaining

in several respects. See SIRTOA v. International Bhd.

of Electrical Workers, 57 A.D.2d 614, 393 N.Y.S.2d

773, 775-76 (2d Dept.), cert. denied, 434 U.S. 934

(1977).

Second, from a purely practical viewpoint, the State

has a far greater interest in dispute resolution relating

to the LIRR than does the federal government. While

the federal government has the prevailing interest in

the operation of the LIRR’s freight service, the State

and its municipalities have a vital, predominant

interest in the continuous operation of its commanter-

passenger service. In this case, the revenue from the

purely intrastate passenger service was over 80% of the

total revenue, and the number of trains allocated to

that service was significantly greater than the number

of cars on the freight line.

In sum, we recognize that the LIRR would come

under the literal terms of the RLA, see California v.

Taylor, supra, and that the right to strike, free from

state interference, has been held essential to that

federal scheme, Bhd. of R.R. Trainmen v. Jacksonville

Terminal Co., 394 U.S. 369, 378-82 (1969). In the

25a

present context, however, the federal interest in

preserving the right of LIRR employees is not

“demonstrably greater” than New York State’s interest

in preventing LIRR strikes in order to ensure

continuous passenger service for so many daily

commuters. We reach this result with the realization

that the determination of whether state or federal

interests are paramount may be difficult to resolve in

future cases. However, that difficulty cannot preclude a

conclusion required by the present circumstances and

authorities.

Again, we are, as we must be, guided by National

League of Cities’ ground-breaking holding that:

States as States stand on a quite different footing

from an individual or a corporation when challeng-

ing the exercise of Congress’ power to regulate

commerce. . . . Congress may not exercise that

power so as to force directly upon the States its

choices as to how essential decisions regarding the

conduct of integral governmental functions are to

be made. 426 U.S. at 854-55.

Since the rationale of National League of Cities

requiree reversal here, it is not necessary to determine

whether the district court improperly enjoined the

LIRR and MTA from prosecuting the state court action.

27a

APPENDIX B

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States Court

House, in the City of New York, on the 17th day of

December, one thousand nine hundred and eighty.

No. 80-7199

UNITED TRANSPORTATION UNION, Plaintiff-Appellee,

Lono IsLanD Ram Roap Company and

METROPOLITAN TRANSPORTATION AUTHORITY

Or New York, Defendants-Appellants.

(Filed December 17, 1980)

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by counsel

for the plaintiff-appellee, United Transportation Union,

Upon consideration by the panel that heard the appeal, it

is Ordered that said petition for rehearing is DENTED.

It is further noted that the suggestion for rehearing in

banc has been transmitted to the judges of the court in

regular active service and to any other judge on the panel that

heard the appeal and that no such judge has requested that a

vote be taken thereon.

/s/ A. DanteL Fusaro

A. Daniel Fusaro

Clerk

79 C 3118

UNITED TRANSPORTATION UNION, Plaintiff,

~against-

Lonc IsLAND Rat Roap and METROPOLITAN

TRANSPORTATION ASSOCIATION, Defendants.

Memorandum Of Decision

(March 5, 1980)

Appearances:

For the Plaintiff United Transportation Union, and

amicus curiae Brotherhood of Locomotive Engineers,

Railroad Yard Masters of America, Brotherhood of Railway

Signalmen, Brotherhood of Railway Carmen, International

Association of Machinists, and Brotherhood of Railroad and

Airline Clerks:

HicHsaw, MAHONEY & FRIEDMAN, P.C.

Suite 210

1050 17th Street, N.W.

Washington, D. C. 20036

Edward D. Friedman, Esq.,

Of Counsel

SHapmro, SHIFF, BEILLY, ROSENBERG & Fox, Esqs.

225 Broadway

New York, New York 10007

Sidney Fox, Esq.,

Of Counsel

30a

For the Defendant Long Island Railroad:

Tuomas M. TARANTO, Esq.

Jamaica Station

Jamaica, New York 11435

Seward & Kissel,

Of Counsel

For the Defendant Metropolitan Transportation Authority:

SewarD & KisseE1, Esq.

63 Wall Street

New York, New York 10005

Eugene P. Souther, Esq.,

Anthony R. Mansfield, Esq.,

Of Counsel

MisHLER, CH. J.

This action arises within the context of a labor controver-

sy between those employees of the Long Island Rail Road (the

‘*Railroad’’) whose exclusive bargaining representative is the

United Transportation Union (the ‘“‘UTU”’), and the Railroad

and its parent agency, the Metropolitan Transportation

Authority (the ‘‘MTA’’). On December 6, 1979, as the parties

were on the verge of exhausting the collective bargaining pro-

cedures mandated by the Railway Labor Act, 45 U.S.C. §§151

et seq., (the ‘‘Act’’), the UTU filed this suit seeking: (a) a

declaratory judgment that the relationship between the parties

was governed by the Act and that the employees could thus

not be subjected to the sanctions of Sections 200 to 214 of the

New York Civil Service Law (the ‘Taylor Law’’) in the event

they engaged in the ‘‘self-help’’ authorized by the Act; and

(b) injunctive relief to protect those rights of the employees

guaranteed by the Act, including an injunction against the

commencement or prosecution of a state court action seeking

to invoke the Taylor Law. On December 8, 1979 the UTU

employees went on strike. On December 14, 1979, President

Carter established an Emergency Board pursuant to section 10

of the Act, 45 U.S.C. §160, and the employees returned to

3la

work. The ‘‘cooling off’’ period triggered by the Presidential

action was to expire on February 14, 1980.

On January 17, 1980 the defendants took their first ac-

tion in this suit, filing a motion to dismiss in which they

claimed that no justiciable case or controversy existed since

they did not believe that the Taylor Law could be invoked

against the UTU’s members and thus had no intent of invok-

ing its sanctions. According to the defendants, while the

Railroad was a subsidiary corporation of the MTA, it was not

a “public benefit subsidiary corporation,’’ and thus, as a mat-

ter of state law, its employees were not ‘‘public employees’’

subject to the Taylor Law. See N. Y. Public Authorities Law

§1265(9)(a); N. Y. Civil Service Law §201(7)(A).

On February 8th, however, before the motion to dismiss

could be heard, the defendants changed their posture com-

pletely by converting the Railroad from a private stock cor-

poration to a public benefit corporation whose employees

would be facially subject to the Taylor Law. On February

12th, the UTU responded by moving for a temporary restrain-

ing order and injunctive relief preliminarily restraining the

defendants from commencing a state court action grounded

on the Taylor Law to enjoin a strike by the UTU’s members.

The undersigned denied the motion on the record. At that

time, because the parties appeared to agree that all pertinent

facts were a matter of record, the court suggested that they

expeditiously attempt to arrive at an agreed statement of facts

so that the case might be speedily decided. The suggestion,

however, was not followed.

Instead, on February 13th — two days before the expira-

tion of the ‘‘cooling-off’’ period — the Railroad, by order to

show cause, commenced suit against the UTU and other

unions in Supreme Court, New York County, seeking an in-

junction under the Taylor Law against the impending strike.

The Long Island Rail Road Co. v. United Transportation

Union, et al., No. 40327/80 (Sup. Ct. N.Y. Co.). Justice

Peggy Bernheim issued a temporary restraining order and set

down a hearing on the Railroad’s motion for a preliminary in-

32a

junction for February 15th. On February 14th, the unions

removed that action to the United States District Court for

the Southern District of New York, and moved to have the

action transferred to this court and consolidated with the ins-

tant action. The Long Island Rail Road Co. v. United

Transportation Union, et al., No. 80 Civ 0914 (S.D.N.Y.).

The Railroad moved to remand the state action. With the

consent of the parties, the temporary injunction against the

strike was continued while Chief Judge MacMahon considered

the motions.

On February 21st, the defendants filed their answer in the

instant action. As is pertinent here, paragraph fovr of the

answer admits the allegation in paragraph four of tie com-

plaint that the Railroad ‘“‘interchanges freight with railroads

engaged in interstate commerce.’’' However, it denies the re-

maining allegations of that paragraph, including the

averments that the Railroad ‘‘is a Class I railroad engaged in

business as a common carrier for hire in the transportation of

passengers and property in interstate and foreign commerce

... and is a ‘carrier’ within the meaning of that term as

defined in the Railway Labor Act.’’ The answer further affir-

matively alleges that the Railroad is a public benefit corpora-

tion engaged ‘“‘essentially [in] intrastate commuter service’’

({ 18) and that its employees are governed by the Taylor Law

rather than the Act.

On February 25th, Chief Judge MacMahon, in a written

opinion, granted the Railroad’s motion to remand the action

before him to the state court. On February 27th, the unions

moved before Justice Sidney Leviss in Supreme Court, Queens

County, to transfer the state action from New York County

to Queens. Justice Leviss continued the temporary restraining

order against the union’s threatened strike and directed that

' Defendants sought to file an amended answer on March 4,

1980, the day that the parties appeared to argue plaintiff's motion

for summary judgment. As is pertinent here, the proposed amended

answer is substantially identical to the one orginally filed.

33a

the Railroad refrain from seeking a preliminary injunction in

New York County pending his decision on the venue motion.’

Finally, on February 28th, the plaintiff in the instant ac-

tion sought and obtained from the undersigned an order to

show cause bringing on the summary judgment motion which

is the subject of this opinion. Argument was heard on March

4th.’ At the conclusion of the argument the court granted the

relief which we will outline below and advised the parties that

this written opinion would be issued shortly. A copy of the

judgment which was entered on March 4th pursuant to the

court’s oral opinion is appended hereto.

The Issues

There are three major issues confronting us:

(1) Is the Railroad a ‘‘carrier’’ subject to the Act;

(2) If so, does the Act preempt the application of the

Taylor Law to the Railroad’s employees;

(3) If the Taylor Law may not be applied to bar a strike

by the plaintiff’s members, what is the appropriate

relief.

Discussion

A. As the defendants conceded both at the February 12th

oral argument on plaintiff’s motion for a preliminary injunc-

tion and at argument on the instant motion, the only major

issue which requires a factual finding is the first of those we

itemized, i.e., whether the Railroad is a ‘‘carrier’’ within the

meaning of the Act, 45 U.S.C. §1. More specifically, the

defendants contend that a factual issue exists as to whether

the Railroad is engaged in or has a sufficient impact on in-

? Justice Leviss denied the motion on March 3, 1980.

’ At that time, the defendants moved to dismiss the action on the

ground that the plaintiff had failed to join as an indispensable

party the New York State Attorney General. Fed.R.Civ.P. 19. They

also moved to stay the instant action pending the outcome of the

State proceedings. The court denied both motions from the bench.

34a

terstate transportation to fall within the Act’s regulatory

scheme. The existence of this question of fact they assert,

precludes the grant of summary judgment. We disagree.

The court’s function on a motion for summary judgment

is to determine whether any material factual issues are in

dispute. Adices v. S. H. Kress & Co., 398 U.S. 144, 159, 90

S. Ct. 1598, 1609 (1970). The burden is on the moving party

to establish that the material facts are either conceded, un-

disputed, or beyond dispute. See Heyman v. Commerce & In-

dustry Ins. Co., 524 F.2d 1317, 1319 (2d Cir. 1975). And,

“the mere possibility that a factual dispute may exist, without

more, is not sufficient to overcome a convincing presentation

by the moving party.’”’ Quinn v. Syracuse Model

Neighborhood Corp., No. 79-7561, slip op. at 835 (2d Cir.

January 8, 1980) (emphasis in original). The plaintiff has

made such a convincing demonstration here.

The plaintiff has submitted documentation clearly

establishing that the Railroad is the only common carrier by

rail serving the numerous industries and traveling public in the

Counties of Nassau and Suffolk. It has submitted reports fil-

ed by the Railroad with the ICC indicating that the Railroad’s

revenues from its freight operations exceeded $18 million in

the year ending December 31, 1978. These revenues were ob-

tained as a result of providing freight service to numerous

Long Island concerns, such as aircraft manufacturers, super-

market chains, building suppliers, food processors, and farms.

Furthermore, while the Railroad’s own physicai operations are

located solely within New York State, its freight service sup-

plies a critical link in the transportation of goods both to and

from points throughout the continental United States and

Canada. This is clearly evidenced by the fact that the Railroad

interchanges freight with more than a dozen other railroads

which are interstate carriers. According to the plaintiff, the

Railroad presently handles approximately 1,000 freight cars

per week to consignors and consignees Over its tracks.

The defendants, in response, do not seriously dispute

most of these factual allegations. Indeed, they admit that the

35a

Railroad does interchange freight with other carriers going in

and out of New York State. They argue, however, that the

Railroad’s freight revenues and operations are miniscule when

compared to the scale of its intrastate commuter operations,

and that as such, it should not be considered an interstate car-

rier. We reject this contention.

According to the defendants’ own affidavits, the

Railroad’s revenues from freight operations in 1979 were, at a

minimum, in excess of $12.1 million. Affidavit of James B.

Huff, Controller of Metropolitan Transportation Authority,

4 9. These affidavits also contain claims that in 1978 the

Railroad operated over 4,400 freight train trips, involving ap-

proximately 41,000 freight cars, or 800 cars per week. While

these figures are slightly lower than those submitted by the

plaintiff, the differences are not material for our present pur-

poses. Nor, in the face of these figures do we find material

the fact that the Railroad’s freight revenues have decreased

steadily over the years and that they now provide a small frac-

tion of the Railroad’s total income. Indeed, these figures,

rather than undermining the plaintiff’s characterization of the

Railroad as an entity affecting interstate commerce, provide

substantial support for the conclusion that the Railroad ‘‘is a

necessary physical link with other railroads in the movement

of a heavy volume of interstate rail freight via the New York

City gateway between Long Island and other parts of the

United States.’’ Long Island R.R. Co. v. Brotherhood of

R.R. Trainmen, 185 F. Supp. 356, 357 (E.D.N.Y. 1960). In

short, were we to consider nothing more than the defendants’

own papers we would be compelled to conclude that the

Railroad is engaged in ‘‘interstate transportation,’’ and thus

subject to the Act. Siaie v. Taylor, 353 U.S. 553, 561, 77 S.

Ct. 1037, 1042 (1957). See United States v. Union Stock Yard

& Transportation Co., 226 U.S. 286, 304, 33 S. Ct. 83, 88

(1912) (‘That the service is performed wholly in one state can

make no difference if it is a part of interstate carriage.’’).

We note, however, that in addition, the Railroad has

historically considered itself as a ‘‘carrier’’ within the meaning

36a

of the Act, the Interstate Commerce Act, 49 U.S.C. §§1 ef

seq., and related statutes. Thus, it has consistently filed

reports required by the Interstate Commerce Act with the

ICC. In addition, its employees have consistently received the

benefits of the Railroad Retirement Act, the Railroad

Unemployment Insurance Act, and the Federal Employees

Liability Act. Moreover, in the dispute which lies at the heart

of this action, the Railroad has affirmatively sought to invoke

the collective bargaining and mediation procedures set out in

the Act, including the establishment of a Presidential

Emergency Board. We do not believe that the Railroad can

now unilaterally change its essential character within this con-

text by the simple expedient of reorganizing its corporate

structure under state law.

Finally, we think it relevant to point out that both the

Emergency Board convened in this dispute, and the ICC in a

recent decision dealing with another subsidiary of the MTA,

Brotherhood of Locomotive Engeneers v. Staten Island Rapid

Transit Operating Auth., Finance Docket No. 29011 (Nov. 8,

1979), stated that the Railroad is a carrier subject to the Act.

Against this background we are convinced that no fact

question exists as to the interstate character of the Railroad’s

operations. We find that the Railroad is a carrier within the

meaning of the Act.

B. Having found that the Railroad is a carrier within the

meaning of the Act we must next determine whether its

employees are free to resort to the self-help permitted by the

Act or are subject to the prohibition and penalties of the

Taylor Law. Resolution of this issue turns upon whether the

federal scheme established by the Act preempts the state from

regulating the strike activities of the Railroad’s employees. We

believe that it does.

While the issue is of extreme importance, we do not think

that it would serve any useful purpose to embark on a lengthy

discussion of the relationship between the pertinent federal

and state legislation. We have only recently dealt with the

37a

identical issue in a remarkably analogous context. In

Brotherhood of Locomotive Engineers v. Staten Island Rapid

Transit Operating Authority, No. 78 C 2083 (E.D.N.Y.

February 9, 1979), we were asked to decide whether the

Taylor Law could be applied to employees of another MTA

subsidiary, the Staten Island Rapid Transit Operating

Authority (“‘SIRTOA’’). We held that if SIRTOA was subject

to the Act its employees were free to engage in strike activities

notwithstanding the fact that SIRTOA was a public benefit

corporation whose employees were therefore subject to the

Taylor Law’s proscription of such conduct.

In reaching this result we held first that as a general mat-

ter, under the Supreme Court’s holding in Brotherhood of

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

369, 89 S. Ct. 1109 (1969), employees covered by the Act

could not be prevented by the state from exercising their

federally protected right to strike upon exhaustion of the

Act’s mandatory bargaining and mediation procedures not-

withstanding the fact that a strike might result in substantial

inconvenience or hardship to the public:

{T]he exercise of plenary state authority to curtail or en-

tirely prohibit self-help would frustrate effective im-

plementation of the Act’s processes. The disputants’ posi-

tions in the course of negotiation and mediation, and

their willingness to submit to binding arbitration or abide

by the recommendations of a presidential commission

would be seriously affected by the knowledge that after

the procedures were exhausted a State would, say, pro-

hibit the employees from striking or prevent the railroad

from taking measures necessary to continue operating in

the face of a strike.

Whether the source of this right be found in a particular

provision of the Railway Labor Act or in the scheme as a

whole, it is integral to the Act. State courts may not en-

join a peaceful strike by covered railway employees, no

38a

matter how economically harmful the consequences may

be.

Id. at 380-85, 89 S. Ct. at 1116-19.

We then held that under State of California v. Taylor,

supra, 353 U.S. at 563-65, 77 S. Ct. at 1043-44, the right to

strike was not impaired by the fact that the employer was a

state agency:

Congress apparently did not discuss the applicability of

the Railway Labor Act to a state-owned railroad.

[However,] [t]he fact that Congress chose to phrase the

coverage of the Act in all-embracing terms indicates that

state railroads were included within it... .When Con-

gress wished to exclude state employees [from coverage

under federal labor legislation] it expressly so provided.

Its failure to do likewise in the Railway Labor Act in-

dicates a purpose not to exclude state employees.

See also Parden v. Terminal Railway, 377 U.S. 184, 84 S. Ct.

1207 (1964); International Longshoremen’s Assoc. v. North

Carolina State Ports Auth., 463 F.2d 1 (4th Cir.), cert

denied, 409 U.S. 982, 93 S. Ct. 318 (1972).*

*SIRTOA also contended, as the defendants do here, that to

subject it to the Act’s regulatory scheme would be inconsistent with ‘

the Supreme Court’s holding in National League of Cities v. Usery,

426 U.S. 833, 96 S. Ct. 2465 (1976), that the Tenth Amendment

prohibits Congress from legislating in a manner which operates to

directly displace the States’ freedom to structure integral operations

in areas of traditional governmental function. ...”’ Jd. at 852, 96

S. Ct. at 2474. We rejected this contention as

inconsistent with the Court’s own language in Usery which

specifically held that the tion of a railroad in interstate

commerce is not an in part of governmental activity and

further eld that its evlier decisions in ‘United States.

fornia, U.S. 175, 56 S. Ct. 421 (1936)], and California

v. Taylor, (353 U.S. 553 77 S. Ct. 1037 (1957)}, were not

undermined by Usery. Id. at 854-55 n. 18, 96 S. Ct. at 2475 n.

39a

Next, we held in SIRTOA that the tangential relationship

between the carrier’s activities and interstate commerce did

not justify application of the Taylor Law. We noted that

there was no legal basis for balancing the local interest against

the federal interest in determining whether the Act of the

state’s legislation applied. ‘‘Not a single authority has been

cited to this court which even suggests that we should engage

in a quantitative analysis, debilitating the Act in some propor-

tionate measure as the connection with interstate commerce

decreases.’’ Slip op. at 25.

Finally, we concluded that ‘‘New York State may not

validly apply its Taylor Law to the employees of SIRTOA.

Such abridgement of the right to strike, even when the af-

fected employees are public servents, is a direct assault upon

the heart of the federal scheme of labor relations in the

railway industry. Under the Supremacy Clause of our Con-

stitution, it is unquestionable that the federal scheme

predominates.’’ Slip op. at 26.

What this court said in SIRTOA applies with equal force

in the present case. We find that employees of the Railroad,

who have exhausted the mandatory bargaining and mediation

procedures outlined in the Act, have a federally guaranteed

right to strike.

C. From the foregoing, we think it clear that the plaintiff

is entitled to a declaratory judgment that its members have

the right to engage in self-help under the provisions of the Act

and that the Taylor Law may not be invoked in derogation of

this right. Moreover, we believe that the plaintiff is also entitl-

ed to a permanent injunction restraining the defendants from

further prosecuting the state court action based on the Taylor

performed by state and local governments in discharging their

dual functions of administering public law and furnishing

public services.’’ Jd at 851, 96 S. Ct. at 2474.

Slip op. at 24-25.

We see no reason why a different conclusion should be reached in

the instant case.

40a

Law. While we reach this latter conclusion with some hesita-

tion we believe that the particular circumstances before us

warrant the grant of such relief.

It is of course well-established that a federal court may

enjoin a pending state court proceeding only where such an

injunction is specifically permitted under one of the express

exceptions to the Anti-Injunction Act, 28 U.S.C. §2283.’ See

e.g., Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630, 97

S. Ct. 2881, 2887 (1977). It is clear, however, from the very

language of §2283 that a federal court has the authority to

issue an injunction ‘‘to protect or effectuate its judgments.”’

Thus, the courts have held that an injunction may

properly issue for the purpose of preventing relitigation in the

state court of a matter which has been finally determined by a

judgment in the federal forum. See, e.g., Mitchum v. Foster,

407 U.S. 225, 235-36, 92 S. Ct. 2151, 2158-59 (1972); Samuel

C. Ennis & Co., Inc. vy. Woodmar, 542 F.2d 45, 49 (7th Cir.

1976), cert. denied, 429 U.S. 1096, 97 S. Ct. 1112 (1977); In-

ternational Assoc. of Machinists v. Nix, 512 F.2d 125, 130

(Sth Cir. 1975); Donelon v. New Orleans Terminal Co., 474

F.2d 1108 (Sth Cir.), cert. denied, 414 U.S. 855, 94S. Ct. 157

(1973); Complaint of Cosmopolitan Shipping Co., S.A., 453

F.Supp. 268 (S.D.N.Y. 1978); Walter E. Heller & Co., Inc.

v. Cox, 379 F.Supp. 299 (S.D.N.Y. 1974). The rationale for

permitting injunctions in such instances was stated by the

* We note that there is at least some question as to whether §2283

is at all applicable to the issue before us since the complaint in this

action was filed prior to the commencement of the state court

proceedings and prayed for an injunction against their institution.

See Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S. Ct. 1116,

1119 n. 2 (1965). However, because state proceedings are presently

pending, we assume that §2283 does apply. In any event, since we

believe that an injunction is authorized under one of the express

exceptions to the statute, our analysis of the propriety of issuing

such an injunction is identical to that we would engage in if the

statute did not come into play.

4la

Fifth Circuit in Woods Exploration & Producing Co. v.

Aluminum Co. of America, 438 F.2d 1286, 1312 (Sth Cir.

1971), cert. denied 404 U.S. 1047, 92 S. Ct. 701 (1972): “*This

{exception to §2283] is a sensible solution to the problem of

relitigation of federal decisions. It prevents multiple litigation

of the same cause of action and it assures the winner in a

federal court that he will not be deprived of the fruits of his

victory by a later contrary state judgment which the Supreme

Court may or may not decide to review.”’

Other cases have sustained the propriety of issuing an in-

junction against state court proceedings under the ‘‘protect or

effectuate’ exception to §2283 where the state court action,

while not involving matters identical to those litigated in the

federal court, nonetheless threaten to nullify the vitality of the

federal judgment. See e.g., United Industrial Workers of the

Seafarers Int’l. Union v. Board of Trustees of Galveston

Wharves, 400 F.2d 320 (Sth Cir. 1968), cert. denied, 395 U.S.

905, 89 S. Ct. 1747 (1969); N.L.R.B. v. Schertzer, 360 F.2d

152 (2d Cir. 1966); Sperry Rand Corp. v. Bothlein, 288 F.2d

245 (2d Cir. 1961). Thus, we think it clear that §2283 does not

present an absolute bar to our issuing an injunction that is

necessary to assure that our declaratory relief will be effective.

However, the fact that a federal court has the power to

enjoin state proceedings in order to protect its own judgment

does not mean that it is appropriate to exercise that authority

in every instance. Whether such an injunction should issue

hinges upon consideration of a number of factors including

“the principles of equity, comity, and federalism that must

restrain a federal court when asked to enjoin a state court

proceeding.’’ Mitchum v. Foster, supra, 407 U.S. at 243, 92

S. Ct. 2162. While we have found no case which directly ad-

dresses the precise issue before us, there are several cases

which point to the propriety of injunctive relief in cir-

cumstances such as these. Thus, in Donelon v. New Orleans

Terminal Co., supra, the Fifth Circuit Court of Appeals af-

firmed the district court’s grant of an injunction against local

officials prosecuting a state court action in which they sought

42a

SRN UBL AHIEINHE EGET

RE ea

i His giz inal 5 SHIH ul

taei ples sp Meg eaghi rs

gulge slyly eacat dictate

F nal af | Tieeribe ee

TTT i

a +S HL TLE Sate E

FLERE

43a

render impotent the duty to bargain imposed by [the] Court.”

400 F.2d at 331. The court concluded that

[t}he right to strike is adjunct to the Union’s statutory

rights and implicit in our [bargaining] order. This na-

tional labor policy cannot be frustrated by a state court

injunction. To effectuate the judgment of the federal

court, the district court properly enjoined the Carrier

from availing itself of the state court injunction.

Id. at 334 (emphasis added).

Of course, these cases do not stand for the proposition

that a federal district court may ‘“‘enjoin state court pro-

ceedings merely because those proceedings interfere with a

protected federal right or invade an area preempted by federal

law, even where the interference is unmistakably clear.’’

Atlantic Coast Line Railroad Co. v. Brotherhood of

Locomotive Engineers, 398 U.S. 281, 294, 90 S. Ct. 1739,

1747 (1970). However, these decisions do indicate that where

a federal court has finally declared that a party does enjoy a

protected right and the pending state judicial proceeding

threatens to nullify the effect of the federal court’s determina-

tion, an injunction may issue to prevent such a result.

Moreover, we find support for this conclusion in the Supreme

Court’s decision in Aflantic Coast Line Railroad Co. v.

Brotherhood of Locomotive Engineers, supra. There, in 1967,

a railroad applied to a federal district court for an injunction

which would restrain a union from picketing. The district

court denied the requested relief. The railroad then sought

and obtained the identical relief in a state court. Sometime

thereafter the Supreme Court decided in Brotherhood of

Railroad Trainmen v. Jacksonville Terminal Co., supra, as we

noted above, that railway employees covered by the Railway

Labor Act had a federally guaranteed right to engage in self-

help activity such as picketing. Apparently in response to this

decision, the union returned to federal district court and ob-

tained an injunction against the enforcement of the state

court’s restraining order.

44a

The Supreme Court found that the district court’s action

was barred by §2283, rejecting inter alia, the union’s conten-

tion that the injunction was necessary to “‘protect or effec-

tuate’’ the district court’s 1967 judgment which had denied

the railroad’s application for injunctive relief against the

picketing. Significantly, however, the Court went to great

lengths to find that the rationale of the 1967 detision was not

the same as that subsequently announced in Jacksonville Ter-

minal. Rather, it construed that earlier decision as having

been based soley on the district court’s belief that under the

Norris-LaGuardia Act, 29 U.S.C. §101, it was without

jurisdiction to grant the relief sought by the railroad. We

think that a fair reading of both the majority and dissenting

opinion in Atlantic Coast Lines leads to the conclusion that

had the district court’s earlier decision adjudicated the union’s

rights under the Railway Labor Act — as we have here — an

injunction to protect that adjudication would have been found

by the Court to have been appropriate.

Turning to the facts of the instant case, we think that

they present compelling reasons why an injunction against the

state court action is appropriate. First, by the defendants’

own admission, the state court action presents the identical

issues which we have fully adjudicated herein. Thus, because

in this court’s view our determination here would certainly

preclude relitigation in the state forum under the doctrine of

res judicata, we can see no purpose which the state court ac-

tion would serve apart froin casting doubt on the finality and

force of this court’s judgment. We also believe that this con-

cern is particularly compelling where, as here, important

federal rights implicating national labor policy are at stake.

Moreover, in view of the fact that the Attorney General of

New York has a statutory obligation to pursue the remedies

set forth in the Taylor Law, see N.Y. Civil Service Law §211,

Another consideration is the fact that the entire history

of this litigation leads to the conclusion that the defendants

Authority v. International Brotherhood of Electrical Workers,

57 A.D. 2d 614 (2d Dep’t.), leave to appeal denied, 42

N.Y.2d 804, cert. denied, 434 U.S. 934, 98 S. Ct. 421 (1977).

where the federal plaintiffs have sought to preclude the order-

ly consideration and determination of an issue already pend-

ing before the state court. Rather, it has been the defendants

who have sought to forum shop for a more sympathetic ear

and who have endeavored to avoid determination of this

federal issue in a federal court. Lastly, this court believes that

the integrity of the collective bargaining scheme established by

the Railway Labor Act requires a prompt and final determina-

tion that plaintiff's members have a guaranteed right to

engage in self-help. The longer that this issue remains

unresolved or that doubts continue to linger, the longer that

the federal scheme for resolving railway labor disputes re-

mains nugatory. It is for these reasons and out of no

disrespect for the state court’s integrity or ability that we take

the drastic step of enjoining further state court action affect-

ing the rights of this plaintiff.

Finally, however, because we believe that the issues in-

volved are difficult ones whose resolution are clearly not free

from doubt, we think that it would be appropriate to enjoin

the plaintiff from engaging in any ‘‘self-help’’ pending the

Second Circuit’s review of our decision. Such an injunction is

clearly necessary to preserve the status quo pending appeal.

See Chicago and North Western Railway Co. v. United

Transportation Union, 471 F.2d 366, 368 (7th Cir. 1972), cert.

denied, 410 U.S. 917, 93 S. Ct. 965 (1973). Of course, if the

46a

defendants do not prosecute their appeal expeditiously, we

would consider vacating this injunction.

/s/ Jacos MISHLER

Jacob Mishler

U.S.D.J.

47a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

79 C 3118

UNITED TRANSPORTATION UNION,

(Epwarp YULE, Jr., Its General Chairman), Plaintiff,

-against-

Lono IsLAND Ram Roap ComMPANY and METROPOLITAN

TRANSPORTATION AUTHORITY OF NEw York, Defendants.

JUDGMENT

March 4, 1980

The Court having this day granted plaintiff’s motion for

summary judgment; it is

OrpDERED, ApsuDGED, DecREED and DECLARED that the

Long Island Railroad Company is a carrier within the mean-

ing of the Interstate Commerce Act and the Railway Labor

Act; that members of the United Transportation Union are

subject to the limitations imposed upon them by the Railway

Labor Act and entitled to the rights granted thereunder in-

cluding the right of self-help upon the exhaustion of the man-

datory provisions thereof; that New York Civil Service Law

Sections 200 ef seq (Taylor Law) infringe the rights granted

under the Railway Labor Act and therefore are unenforceable

as to members of United Transportation Union who are

‘employed by the Long Island Railroad Company, and it is

further

ORDERED, ADsuDGED and Decreep that defendants, their

officers, agents, servants, employees and attorneys, and per-

sons in active concert or participation with them shall not

prosecute any proceeding or take any affirmative steps in any

action now pending in any state court against United

48a

Transportation Union based on an alleged violation of New

York Civil Service Law Sections 200 ef seg (Taylor Law) or

institute any action against United Transportation Union in

any state court based on alleged violation of said statute.

Pending determination of the appeal from the order and

judgment entered herein, United Transportation Union, its of-

ficers, agents, servants, employees, and attorneys and persons

acting in active concert or participation with them are enjoin-

ed and restrained from exercising the right of self-help and/or

aiding, counselling or participating in any strike or strike ac-

tion by any other labor organization against the Long Island

Railroad Company.

Judgment entered accordingly this 4th day of March,

1980 at Brooklyn, New York.

/s/ RIcHARD H. WEARE

Richard H. Weare,

Clerk of Court

Approved:

/s/ JacoB MISHLER

Jacob Mishler

U.S.D.J.

49a

APPENDIX D

New York Taylor Law, New York Civil Service Law, §§210 And

211:

§210. Prohibition of strikes

1. No public employee or employee organization shall

engage in a strike, and no public employee or employee

organization shall cause, instigate, encourage, or condone a

strike.

2. Violations and penalties; presumption; prohibition

against consent to strike; determination; notice; probation;

payroll deductions; objections; and restoration.

(a) Violations and penalties. A public employee shall

violate this subdivision by engaging in a strike or violating

paragraph (c) of this subdivision and shall be liable as

provided in this subdivision pursuant to the procedures

contained herein. In addition, any public employee who

violates subdivision one of this section may be subject to

removal or other disciplinary action provided by law for

misconduct.

(b) Presumption. For purposes of this subdivision an

employee who is absent from work without permission, or

who abstains wholly or in part from the full performance of

his duties in his normal manner without permission, on the

date or dates when a strike occurs, shall be presumed to have

engaged in such strike on such date or dates.

exercising on behalf of any public employer any authority,

supervision or direction over any public employee shall have

the power to authorize, approve, condone or consent to a

strike, or the «gaging in a strike, by one or more public

employees, and such person shall not authorize, approve,

condone or consent to such strike or engagement.

(d) Determination. In the event that it appears that a

violation of this subdivision may have occurred, the chief

executive officer of the government involved shall, on the

50a

basis of such investigation and affidavits as he may deem

appropriate, determine whether or not such violation has

occurred and the date or dates of such violation. If the chief

executive officer determines that such violation has occurred,

he shall further determine, on the basis of such further

investigation and affidavits as he may deem appropriate, the

names of employees who committed such violation and the

date or dates thereof. Such determination shall not be deemed

to be final until the completion of the procedures provided

for in this subdivision.

(ce) Notice. The chief executive officer shall forthwith

notify each employee that he has been found to have

committed such violation and the date or dates thereof and of

his right to object to such determination pursuant to

paragraph (h) of this subdivision; he shall also notify the chief

fiscal officer of the names of all such employees and of the

total number of days, or part thereof, on which it has been

determined that such violation occurred. Notice to each

employee shall be by personal service or by certified mail to

his last address filed by him with his employer.

[Paragraph (f) has been repealed.)

(g) Payroll deductions. Not earlier than thirty nor later

than ninety days following the date of such determination, the

chief fiscal officer of the government involved shall deduct

from the compensation of each such public employee an

amount equal to twice his daily rate of pay for each day or

part thereof that it was determined that he had violated this

subdivision; such rate of pay to be computed as of the time of

such violation. In computing such deduction, credit shall be

allowed for amounts already withheld from such employee’s

compensation on account of his absence from work or other

withholding of services on such day or days. In computing the

aforesaid thirty to ninety day period of time following the

determination of a violation pursuant to subdivision (d) of

paragraph two of this section and where the employee’s

annual compensation is paid over a period of time which is

less than fifty-two weeks, that period of time between the last

Sla

day of the last payroll period of the employment term in

which the violation occurred and the first day of the first

payroll period of the next succeeding employment term shall

be disregarded and not counted.

(h) Objections and restoration. Any employee determined

to have violated this subdivision may object to such

determination by filing with the chief executive officer (within

twenty days of the date on which notice was served or mailed

to him pursuant to paragraph (c) of this subdivision) his

sworn affidavit, supported by available documentary proof,

containing a short and plain statement of the facts upon

which he relies to show that such determination was incorrect.

Such affidavit shall be subject to the penalties of perjury. If

the chief executive officer shall determine that the affidavit

and supporting proof establishes that the employee did not

violate this subdivision, he shall sustain the objection. If the

chief executive officer shall determine that the affidavit and

supporting proof fails to establish that the employee did not

violate this subdivision, he shall dismiss the objection and so

notify the employee. If the chief executive officer shall

determine that the affidavit and supporting proof raises a

question of fact which, if resolved in favor of the employee,

would establish that the employee did not violate this

subdivision, he shall appoint a hearing officer to determine

whether in fact the employee did violate this subdivision after

a hearing at which such employee shall bear the burden of

proof. If the hearing officer shall determine that the employee

failed to establish that he did not violate this subdivision, the

chief executive officer shall so notify the employee. If the

chief executive officer sustains an objection or the hearing

officer determines on a preponderance of the evidence that

such employee did not violate this subdivision, the chief

executive officer shall forthwith restore to the employee the

tenure suspended pursuant to paragraph (f) of this

subdivision, and notify the chief fiscal officer who shall

thereupon cease all further deductions and refund any

deductions previously made pursuant to this subdivision. The

52a “

determinations provided in this paragraph shall be reviewable

pursuant to article seventy-eight of the civil practice law arid

rules.

3. (a) An employee organization which is determined by

the board to have violated the provisions of subdivision one

of this section shall, in accordance with the provisions of this

section, lose the rights granted pursuant to the provisions of

paragraph (b) of subdivision one of section two hundred eight

of this chapter.

(b) In the event that it appears that a violation of

subdivision one of this section may have occurred, it shall be

the duty of the chief executive officer the public employer

involved (i) forthwith to so notify the board and the chief

legal officer of the government involved, and (ii) to provide

the board and such chief legal officer with such facilities,

assistance and data as will enable the board and such chief

legal officer to carry out their duties under this section.

subdivision one of this section may have occurred, the chief

legal officer of the government involved, or the board on its

own motion, shall forthwith institute proceedings before the

board to determine whether such employee organization has

violated the provisions of subdivision one of this section.

(d) Proceedings against an employee organization under

this section shall be commenced by service upon it of a

written notice, together with a copy of the charges. A copy of

such notice and charges shall also be served, for their

information, upon the appropriate govenment officials who

recognize such employee organization and grant to it the

rights accompanying such recognition. The employee

organization shall have eight days within which to serve its

written answer to such charges. The board’s hearing shall be

held promptly thereafter and at such hearing, the parties shall

be permitted to be represented by counsel and to summon

witnesses in their behalf. Compliance with the technical rules

of evidence shall not be required.

53a

violated subdivision one of this section, the board shall

consider (i) whether the employee organization called the

strike or tried to prevent it, and (ii) whether the employee

organization made or was making good faith efforts to

terminate the strike.

(f) If the board determines that an employee organization

has violated the provisions of subdivision one of this section,

the board shall order forfeiture of the rights granted pursuant

to the provisions of paragraph (b) of subdivision one, and

subdivision three of section two hundred eight of this chapter,

for such specified period of time as the board shall determine,

or, in the discretion of the board, for an indefinite period of

time subject to restoration upon application, with notice to all

interested parties, supported by proof of good faith

compliance with the requirements of subdivision one of this

section since the date of such violation, such proof to include,

for example, the successful negotiation, without a violation of

subdivision one of this section, of a contract covering the

employees in the unit affected by such violation; provided,

however, that where a fine imposed on an employee

organization pursuant to subdivision two of section seven

hundred fifty-one of the judiciary law remains wholly or

partly unpaid, after the exhaustion of the cash and securities

of the employee organization, the board shall direct that,

notwithstanding such forfeiture, such membership dues

deduction shall be continued to the extent necessary to pay

such fine and such public employer shall transmit such

moneys to the court. In fixing the duration of the forfeiture,

the board shall consider all the relevant facts and

circumstances, including but not limited to: (i) the extent of

any wilful defiance of subdivision one of this section (ii) the

impact of the strike on the public health, safety, and welfare

of the community and (iii) the financial resources of the

employee organization; and the board may consider (i) the

refusal of the employee organization or the appropriate public

employer or the representative thereof, to submit to the

S4a

mediation and fact-finding procedures provided in section two

hundred nine and (ii) whether, if so alleged by the employee

organization, the appropriate public employer or its

representatives engaged in such acts of extreme provocation as

to detract from the responsibility of the employee

organization for the strike. In determining the financial

resources of the employee organization, the board shall

consider both the income and the assets of such employee

organization. In the event membership dues are collected by

the public employer as provided in paragraph (b) of

subdivision one of section two hundred eight of this chapter,

the books and records of such public employer shall be prima

facie evidence of the amount so collected.

(g) An employee organization whose rights granted

pursuant to the provisions of paragraph (b) of subdivision

one, and subdivision three of section two hundred eight of

this article have been ordered forfeited pursuant to this

section may be granted such rights after the termination of

such forfeiture only after complying with the provisions of

clause (b) of subdivision three of section two hundred seven

of this article.

(h) No compensation shall be paid by the public employer

to a public employee with respect to any day or part thereof

when such employee is engaged in a strike against such

employer. The chief fiscal officer of the government involved

shall withhold such compensation upon receipt of the notice

provided by paragraph (e) of subdivision two of section two

hundred ten; notwithstanding the failure to have received such

notice, no public employee or officer having knowledge that

such employee has so engaged in such a strike shall deliver or

cause to be delivered to such employee any cash, check or

payment which, in whole or in part, represents such

compensation.

4. Within sixty days of the termination of a strike, the

chief executive officer of the government involved shall

55a

prepare and make public a report in writing, which shall

contain the following information: (a) the circumstances

surrounding the commencement of the strike, (b) the efforts

used to terminate the strike, (c) the names of those public

employees whom the public officer or body had reason to

believe were responsible for causing, instigating or

encouraging the strike and (d) related to the varying degrees

of individual responsibility, the sanctions imposed or

proceedings pending against each such individual public

employee.

§211. Application for injunctive relief

Notwithstanding the provisions of section eight hundred

seven of the labor law, where it appears that public employees

or an employee organization threaten or are about to do, or

are doing, an act in violation of section two hundred ten of

this article, the chief executive officer of the government

involved shall (a) forthwith notify the chief legal officer of the

government involved, and (b) provide such chief legal officer

with such facilities, assistance and data as will enable the chief

legal officer to carry out his duties under this section, and,

notwithstanding the failure or refusal of the chief executive

officer to act as aforesaid, the chief legal officer of the

government involved shall forthwith apply to the supreme

court for an injunction against such violation. If an order of

the court enjoining or restraining such violation does not

receive compliance, such chief legal officer shall forthwith

apply to the supreme court to punish such violation under

section seven hundred fifty of the judiciary law.

57a

APPENDIX E

Railway Labor Act, 45 U.S.C, §151 and §151a:

§151. Definitions

When used in this chapter and section 225 of Title 28 and

for the purposes of said chapter and section—

First. The term ‘‘carrier’’ includes any express company,

sleeping-ce. company, carrier by railroad, subject to the In-

terstate Commerce Act, and any company which is directly or

indirectly owned or controlled by or under common control

with any carrier by railroad and which operates any equip-

ment or facilities or performs any service (other than trucking

service) in connection with the transportation, receipt,

delivery, elevation, transfer in transit, refrigeration or icing,

storage, and handling of property transported by railroad,

and any receiver, trustee, or other individual or body, judicial

or otherwise, when in the possession of the business of any

such ‘“‘carrier’’: Provided, however, That the term ‘‘carrier’’

shall not include any street, interurban, or suburban electric

railway, unless such railway is operating as a part of a general

steam-railroad system of transportation, but shall not exclude

any part of the general steam-railroad system of transporta-

tion now or hereafter operated by any other motive power.

The Interstate Commerce Commission is authorized and

directed upon request of the Mediation Board or upon com-

plaint of any party interested to determine after hearing

whether any line operated by electric power falls within the

terms of this proviso. The term ‘‘carrier’’ shall not include

any company by reason of its being engaged in the mining of

coal, the supplying of coal to a carrier where delivery is not

beyond the mine tipple, and the operation of equipment or

facilities therefor, or in any of such activities.

Second. The term ‘‘Adjustment Board’’ means the Na-

tional Railroad Adjustment Board created by this chapter.

Third. The term ‘‘Mediation Board’’ means the National

Mediation Board created by this chapter.

among

between any State, Territory, or the

District of Columbia and any foreign nation, or between any

Territory or the District of Columbia and any State, or

between any Territory and any other Territory, or between

any Territory and the District of Columbia, or within any

Territory or the District of Columbia, or between points in

the same State but through any other State or any Territory

or the District of Columbia or any foreign nation.

fth. The term ‘‘employee’’ as used herein includes every

in the service of a carrier (subject to its continuing

authority to supervise and direct the manner of rendition of

his service) who performs any work defined as that of an

employee or subordinate official in the orders of the Interstate

Commerce Commission now in effect, and as the same may

be amended or interpreted by orders hereafter entered by the

Commission pursuant to the authority which is conferred

upon it to enter orders amending or interpreting such existing

orders: Provided, however, That no occupational classifica-

tion made by order of the Interstate Commerce Commission

shall be construed to define the crafts according to which

railway employees may be organized by their voluntary ac-

tion, nor shall the jurisdiction or powers of such employee

organizations be regarded as in any way limited or defined by

the provisions of this chapter or by the orders of the

The term ‘‘employee’’ shall not include any individual

while such individual is engaged in the physical operations

consisting of the mining of coal, the preparation of coal, the

handling (other than movement by rail with standard railroad

locomotives) of coal not beyond the mine tipple, or the

loading of coal at the tipple.

Sixth. The term ‘“‘representative’’ means any person or

persons, labor union, organization, or corporation designated

either by a carrier or group of carriers or by its or their

employees, to act for it or them.

59a

Seventh. The term ‘“‘district court’’ includes the United

States District Court for the District of Columbia; and the

term ‘‘court of appeals’’ includes the United States Court of

Appeals for the District of Columbia.

This chapter may be cited as the ‘‘Railway Labor Act.”’

§15la. General purposes

The purposes of the chapter are: (1) To avoid any inter-

ruption to commerce or to the operation of any carrier engag-

ed therein; (2) to forbid any limitation upon freedom of

association dmong employees or any denial, as a condition of

employment or otherwise, of the right of employees to join a

labor organization; (3) to provide for the complete in-

dependence of carriers and of employees in the matter of self-

organization to carry out the purposes of this chapter; (4) to

provide for the prompt and orderly settlement of all disputes

concerning rates of pay, rules, or working conditions; (5) to

provide for the prompt and orderly settlement of all disputes

growing out of grievances or out of the interpretation or ap-

plication of agreements covering rates of pay, rules, or work-

ing conditions.

6la

APPENDIX F

Interstate Commerce Act, 49 U.S.C. §10501:

SUBCHAPTER I — RAIL, RAIL — WATER, EXPRESS, AND

PIPELINE CARRIER TRANSPORTATION

§10501. General jurisdiction

(a) Subject to this chapter and other law, the Interstate

Commerce Commission has jurisdiction over transportation—

(1) by rail carrier, express carrier, sleeping car carrier,

water common carrier, and pipeline carrier that is—

(A) only by railroad;

(B) by railroad and water, when the transportation

is under common control, management, or arrange-

ment for a continuous carriage or shipment; or

water when transporting a commodity other than

water, gas, or oil; and

(2) to the extent the transportation is in the United

States and is between a place in—

(A) a State and a place in another State;

(B) the District of Columbia and another place in

the District of Columbia;

of the United States;

(D) a territory or possession of the United States

and a place in another such territory or possession;

(E) a territory or possession of the United States

and another place in the same territory or

possession;

(F) the United States and another place in the

United States through a foreign country; or

(G) the United States and a place in a foreign

country.

62a

(b) The Commission does not have jurisdiction under

subsection (a) of this section over—

(1) the transportation of passengers or property, or the

receipt, delivery, storage, or handling of property, entire-

ly in a State (other than the District of Columbia) and

not transported between a place in the United States and

a place in a foreign country except as otherwise provided

in this subtitle; or

(2) transportation by a water common carrier when

that transportation would be subject to this subchapter

only because the water common carrier absorbs, out of

its port-to-port water rates or out of its proportional

through rates, a switching, terminal, lighterage, car ren-

tal, trackage, handling, or other charge by a rail carrier

for services in the switching, drayage, lighterage, or cor-

porate limits of a port terminal or district.

exercising its police power, to require reasonable in-

trastate transportation by carriers providing transporta-

tion subject to the jurisdiction of the Commission under

this subchapter unless the State requirement is inconsis-

tent with an order of the Commission issued under this

subtitle or is prohibited under this subtitle.

63a

APPENDIX G

NATIONAL MEDIATION BOARD

WASHINGTON, D.C. 20572

8 NMB No. 89

File No. C-5045

IN THE MATTER OF

LoncG ISLAND RAILROAD COMPANY

and

STATEN ISLAND RAPID TRANSIT OPERATING AUTHORITY

Interim Order

(March 9, 1981)

On September 22, 1980, the National Mediation Board

ordered the Metropolitan Transportation Authority (MTA);

and Long Island Rail Road (LIRR); and the Staten Island

Rapid Transit Operating Authority (SIRTOA), constituent

agencies of the MTA; American Train Dispatchers Associa-

tion; Brotherhood of Locomotive Engineers; Brotherhood of

Railway, Airline and Steamship Clerks, Freight Handlers, Ex-

press and Station Employes; Brotherhood of Railroad

Signalmen; Brotherhood Railway Carmen of the United States

and Canada; international Association of Machinists and

Aerospace Workers; International Brotherhood of Electrical

Workers; International Brotherhood of Boilermakers and

Blacksmiths; International Brotherhood of Firemen and

Oilers; International Brotherhood of Teamsters; Police

Benevolent Association; Railroad Yardmasters of America;

Sheet Metal Workers International Association and United

Transportation Union, to show cause on or before November

17, 1980, why the National Mediation Board should not cease

64a

to excercise jurisdiction over the LIRR and SIRTOA, as con-

stituent agencies of MTA, in conformance with the September

15, 1980, decision of the United States Court of Appeals for

the Second Circuit in United Transportation Union v. Long

Island Rail Road Company and Metropolitan Transportation

Authority of New York, 105 LRRM 2465 (2nd Cir. 1980).

NMB File No. C-5045 was assigned to this matter for

purposes of identification.

BACKGROUND

On December 6, 1979, the United Transportation Union

(UTC) filed suit in the United States District Court for the

Eastern District of New York seeking, inter alia, a declaratory

judgment that the relationship between the UTU and MTA

was governed by the Railway Labor Act and that the

employees could not be subjected to the sanctions contained

in the Taylor Law, N.Y. Civ. Serv. Law §§200-214, in the

event they engaged in ‘‘self-help’’ as allowed under the

Railway Labor Act. On December 8, 1979, the mediatory pro-

visions of the Railway Labor Act having been exhausted, the

UTU employees went on strike. On December 14, 1979, Presi-

dent Carter established Emergency Board No. 192 and the

employees returned to work. The cooling off provisions of

section 10 expired on February 14, 1980.

On February 8, 1980, MTA voted to convert the Long

Island Railroad from a private stock corporation to a public

benefit corporation whose employees would be facially subject

to the Taylor Law.

The District Court in its decision on March 5, 1980, 103

LRRM 3069, found that:

There are three major issues confronting us:

(1) Is the railroad a ‘carrier’ subject to the Act;

(2) If so, does the Act preempt the application of the

Taylor Law to the railroad’s employees;

(3) If the Taylor Law may not be applied to bar a strike

by the plaintiff’s members, what is the appropriate relief.

65a

The Court first found that the Long Island Rail Road

was a carrier within the meaning of the Railway Labor Act. It

then went on the discuss whether employees of the LIRR are

free to resort to self-help permitted by the Railway Labor Act

or the subject to the prohibition and penalties of the Taylor

Law.

While the issue is of extreme importance, we do not think

that it would serve any useful purpose to embark on a

lengthy discussion of the relationship between the perti-

nent federal and state legislation. We have only recently

dealt with the identical issue in a remarkably analogous

context. In Brotherhood of Locomotive Engineers v.

Staten Island Rapid Tranist Operating Authority 100

LRRM 3154 (E.D.N.Y. 1979) we were asked to decide

whether the Taylor Law could be applied to employees of

another MTA subsidiary, the Staten Island Rapid Transit

Operating Authority (“‘SIRTOA’’). We held that if SIR-

TOA was subject to the [Railway Labor] Act its

employees were free to engage in strike activities not-

withstanding the fact that SIRTOA was a public benefit

corporation whose employees were therefore subject to

the Taylor Law’s proscription of such conduct.

On September 15, 1980, the District Court decision was

reversed by the Second Circuit. While agreeing with the

District Court that the LIRR is a carrier subject to the

Railway Labor Act, the Circuit Court found that this was

only the beginning of its inquiry.

If the LIRR was a privately owned carrier, the commerce

clause regulation would prevail, and no further analysis

would be required. The LIRR is a wholly owned sub-

sidiary of a state agency, however, and appellants urge

that even if the LIRR is subject to the literal terms of the

RLA, that Act may not be enforced so as to allow a

strike because it interferes with an integral state function,

namely, the State’s ability to structure employer-employee

relationships in public commuter transportation.

* + *

66a

The inquiry is therefore essentially two-tiered. To deter-

mine whether MTA’s operation of the LIRR falls within

the sphere of protected state activity, we must first con-

sider whether the operation of the railroad qualifies as a

integral or traditional government function. If it does,

the federal interest in regulating the collective bargaining

relations of LIRR employees under the Railway Labor

Act must be weighed against the State’s interest in apply-

ing the Taylor Law.

The Court went on to weigh those interests as it saw

them and concluded:

In sum, we recognize that the LIRR would come under

the literal terms of the RLA, see California v. Taylor,

supra, and that the right to strike, free from state in-

terference, has been held essential to that federal scheme,

Bhd. of R.R. Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369, 378-82 (1969). In the present context,

however, the federal interest in preserving the right of

LIRR employees if not ‘‘demonstrably greater’? than New

York State’s interest in preventing LIRR strikes in order

to ensure continuous passenger service for so many daily

commuters. We reach this result with the realization that

the determination of whether state or federal interests are

paramount may be difficult to resolve in future cases.

However, that diffioulty cannot preclude a conclusion re-

quired by the present circumstances and authorities.

Following the Second Circuit’s decision, the UTU and

various amici curiae requested that the court grant a rehearing

67a

decision undisturyed. In view of these events, the Board finds

as follows:

ISSUE

The issue is whether the NMB should refrain from exer-

cising any or all of its statutory jurisdiction over the LIRR

and SIRTOA, as constituent agencies of the MTA, in light of

the decision of the Court of Appeals. That decision held, in

essence, that the Railway Labor Act, 45 U.S.C. §151 et seq.,

and the New York State Taylor Lew, N.Y. Civ. Serv. Law

§§200-214, both applied to collective bargaining on LIRR,

and by implication to SIRTOA. The effect of that decision is

that certain provisions of that Taylor Law either apply con-

currently with or supercede provisions of the RLA.

CONTENTIONS

The MTA filed a response to the Board’s Order to Show

Cause on behalf of itself and LIRR and SIRTOA. It is the

MTA’s position that the Taylor Law, not the RLA, governs

labor relations on LIRR and SIRTOA, and that the Second

Circuit’s decision ‘‘requires the end of the NMB’s jurisdic-

tion’’ over those carriers. MTA asserts that no part of the

RLA applies to those carriers, and that the Taylor Law ap-

plies in its entirety.

The United Transportation Union (UTU) and Interna-

tional Association of Machinists and Aerospace Workers

(IAM&AW) filed a joint response. These organizations assert

that the Board should continue to exercise jurisdiction, at

least until the litigation is terminated, because of the disrup-

tive effects which would follow. UTU and IAM&AW further

assert that the court found that LIRR was a carrier subject to

the RLA, and that its decision is ambiguous.

The American Train Dispatchers Association (ATDA),

International Brotherhood of Electrical Workers (IBEW), In-

ternational Brotherhood of Firemen and Oilers (IBFO),

Brotherhood Railway Carmen of the United States and

Canaca (BRC), Sheet Metal Workers International Associa-

68a

tion (SMWIA) and International Brotherhood of Boiler-

makers and Blacksmiths (IBBB), filed a joint response. These

organizations contend that the court’s decision is inconsistent

with established Supreme Court precedent and is based upon

improper and incorrect interpretation of the mejor precedent.

relied upon. The organizations urge the Board not to cease ex-

ercising jurisdiction under the RLA.

The LIRR Patrolmen’s Benevolent Association (PBA)

urges the Board to maintain jurisdiction based upon the car-

riers’ undisputed connection to interstate commerce, and the.

District Court decision overruled by the Second Circuit. In

addition, it points to various other Federal laws applicable to

the LIRR, and to litigation confirming SIRTOA’s status as a

carrier under the RLA.

The Brotherhood of Railway, Airline and Steamship

Clerks, Freight Handlers, Express and Station Employees

(BRAC) filed a response asserting that the Second Circuit's

decision cannot be a basis for withdrawal of the NMB’s

jurisdiction because it constitutes an unwarranted application

of precedent and is susceptible of contradictory

interpretations.

The Brotherhood of Locomotive Engineers (BLE),

Brotherhood of Railroad Signalmen (BRS), and Railroad

Yardmasters of America (RYA) filed a joint response asser-

ting that the Board does not have the power to cease exercis-

ing its jurisdiction over LIRR and SIRTOA. These organiza-

tions also state that the court ruling only holds that LIRR and

SIRTOA employees may not strike.

BRC filed an additional individual response contending

that only the right to strike was superceded by the Taylor

Law, and that the rest. of the RLA is still applicable. ‘

DISCUSSION

It is clear that the Court of Appeals did not divest the

NMB of jurisdiction over the LIRR in its decision, but rather

69a

sought to balance Federal and state interests in the labor-

management relations of the LIRR. Indeed, the court’s opi-

nion begins with the statement ‘‘The LIRR is a rail common

carrier. . . ."’ The Board does not, therefore, view this case as

one involving its jurisdiction over a carrier subject to the

RLA. Rather, the Board finds that the only issue for its con-

sideration is whether it should continue to exercise its jurisdic-

tion in light of the court’s holding that there is concurrent

RLA-Taylor Law jurisdiction.

The Board cannot, as urged by several of the organiza-

tions, ignore the decision of the Court of Appeals. Unless or

until that decision is modified or overruled by the United

States Supreme Court, this Board is bound by its holding.

The Court of Appeals has determined that, because the

state interest as the employer of LIRR employees outweighs

the Federal interest in the flow of interstate commerce, the

Taylor Law antistrike provisions apply. Given this fact the

NMB must determine what its mediatory responsibilities are

under the Second Circuit’s decision.

Mediation under the Railway Labor Act has a long

history. It is founded on a theory of intensive and lengthy

mediation with a termination stated in Section 5, First as

follows:

If such efforts to bring about an amicable settlement

through mediation shall be unsuccessful, the said Board

shall at once endeavor as its final required action (except

as provided in paragraph third of this section and in Sec-

tion 10 of this Act) to induce the parties to submit their

controversy to arbitration in accordance with the provi-

sions of this Act.

If arbitration at the request of the Board shall be refused

by one or both parties, the Board shall at once notify

both parties in writing that its mediatory efforts have

70a

for thirty days thereafter, unless in the in-

tervening period the parties agree to arbftration, or an

ye pia board shall be created under Section 10 of this

Act, no change ehall be made in rates of pay, rules, or

working conditions or established practices in effect prior

to the time the dispute arose.

The statutory scheme is a comprehensive plan.' It’s com-

ponents cannot be segregated and still have meaning. The

possibility of the Board’s terminating its mediatory services,

with the consequences which flow from such action, is as

much a part of its mediatory process as anything else. Yet by

superimposing the Taylor Law anti-strike prowfsions upon the

Board’s mediatory services, the Court destroys the only real

power that this Board has to induce compromise and ultimate

agreement by the parties. Without the uncertainty in collective

bargaining created by the Railway Labor Act, mediation can

just as easily be undertaken by State mediators. And, in fact,

considering local conditions, perhaps local mediators may be

' This machinery was succinctly described by Justice Harlan in

Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co.,

394 U.S. 369, 378, (1969):

“The Act provides a detailed framework to facilitate yes

voluntary settlement of major — A party

effect a change of rates of = bay, Tulse or working conditio

must give advance written notice. [Section] 6 6. The parties must

confer, [Section] 2 Second, and i poe faile to resolve

the or both may invoke the services of the

National Mediation Board; which may also proffer its perviers

sua sponte if it finds a labor emergency to exist [Section] 5

If mediation fails, the Board must endeavor to induce

the the partis 109 to — at the ww to binding artibration,

however, only if both consent.

[Section]55 Fist” if or arbitration is rejected and the dispute

threatens ‘su to interrupt interstate commerce to a

degree such as to ive any section of the country of

essential transportion service, the Mediation Board shall notify

the President’, who may create an board to

investigate and report on the dispute. [S [Section] 10. While the

ee 2 ae ae through these stages, bg aod ag |

may unilaterally alter the status quo. [Section] 2 Seventh, 5

control of the negotiations.

It therefore seems that in this era of fiscal restraint and

transfer of state functions back to the states that the NMB

should allow the state of New York the opportunity to solve

what the Court finds to be primarily a state problem.

IV.

In its brief, MTA has taken the position that the Taylor

Law, not the Railway Labor Act, governs labor relations on

the LIRR and SIRTOA. We are unable to read such a broad

conclusion into the Court’s decision. While such a reading is

possible, this contention was not raised before both courts

that heard the cases. Furthermore, the courts gave no indica-

tion that there has been any consideration of the other func-

tions mandated by the Railway Labor Act; i.ec., the choosing

of collective bargaining representatives and the settlement

minor disputes (grievances).’

What is clear is that in its decision, the Second Circuit

was examining the mediatory functions of the Railway Labor

Act and its possible interplay with the Taylor Law. There is

no indication that the Court intended to change representation

rights or grievance and arbitration procedures for these MTA

employees. Accordingly, we find no reason to cede our un-

doubted jurisdiction in the representation area or the area of

the settlement of minor disputes.

* The Board is requried, under Section 2, Ninth, to investigate

representation disputes and certify who are the representatives of

employees in a craft or class, utilizing a secret ballot or other

appropriate means of ascertaining the choice of the majority of the

employees in the craft or class. Section 3 of the Act establishes

procedures for the arbitration of grievances or disputes over the

interpretation or application of collective bargaining agreements in

the railroad industry.

72a

Finally, we should note that deferral to the exercise of

state jurisdiction in labor relations matters where concurrent

jurisdiction exists would also further the Congressional policy.

A recent report of the General Accounting Office, ‘‘The

Federal Mediation and Conciliation Service Should Strive to

Avoid Mediating Minor Disputes’’, (HRD-81-14, October 3n,

1980), criticized FMCS for mediating labor disputes in states

having adequate state mediation services, and for failing to

assess the impact of the dispute on interstate commerce prior

to asserting jurisdiction. In addition, the report questioned the

’ legality of FMCS’s mediation of state and local government

employee disputes.

New York State has adequate mediatory services

available. Statutory differences between NMB jurisdiction and

FMCS jurisdiction make it clear that the RLA covers LIRR

and SIRTOA whether their employees are state government

employees or not. However, with respect to the assessment of

a dispute’s impact on interstate commerce, the Court of Ap-

peals has ruled that,the state’s interests as an employer

outweigh any Federal interest in interstate commerce.

Under these circumstances, we are confident that GAO

would find that the use of Federal resources is not warranted

in a state which provides comparable labor relations

machinery.

CONCLUSION

LIRR and SIRTOA are ‘“‘carriers’’ within the meaning of

Section 1, First, of the Railway Labor Act. The right of the

NMB to exercise jurisdiction over these carriers has not been

altered by the Court of Appeals decision in UTU v. LIRR.

However, unless and until the U.S. Supreme Court modifies

or reverses the Court of Appeals, this Board is bound by the

determination of that Court that the interests of the State of

New York outweigh those of the Federal government, and

that the RLA does not pre-empt application of the Taylor

73a

Law to the carriers and their employees under the Supremacy

clause and Commerce clause of the U.S. Constitution.

Accordingly, the National Mediation Board has determin-

ed that it is not in the Federal interest to expend Federal

funds where the same services are provided by a state. The

Board will immediately cease processing applications for

mediation services on any carriers owned by the MTA. Cases

presently docketed are hereby suspended. This determination

may be reviewed following any action by the Supreme Court

with respect to the Court of Appeals decision.

By direction of the National Mediation Board.

/s/ ROWLAND K. QUINN

Rowland K. Quinn, Jr.

Executive Secretary

Copies to:

Mr. Richard Ravitch, Chairman

Metropolitan Transportation Authority

Mr. John D. Simpson, Executive Director

Metropolitan Transportation Authority

Mr. Daniel Scannell, Acting President

& General Manager

Long Island Rail Road Company

Mr. James J. Miller

Chief Personnel Officer

Long Island Rail Road Company

Anthony R. Mansfield, Esq.

Counsel for MTA, LIRR and SIRTOA

Mr. E. A. Duszak, General Superintendent

Staten Island Rapid Transit Operation Authority

Mr. B. C. Hilbert, President

American Train Dispatchers Association

Mr. John F. Sytsma, President

Brotherhood of Locomotive Engineers

74a

Mr. Fred J. Kroll, Int'l President

Brotherhood of Railway, Airline and

Steamship Clerks

Mr. Frank Ferlin, President

American Railway Supervisors Association

Division-BRAC

Mr. R. T. Bates, President

Brotherhood of Railroad Signalmen

Mr. O. W. Jacobson, General President

Brotherhood Railway Carmen of the U.S.

and Canada

Mr. W. W. Winpisinger, Int’] President

International Association of Machinists and

Aerospace Workers, AFL-CIO

Mr. A. M. Ripp, Int’l Vice President

International Brotherhood of Electrical Workers

Mr. Harold J. Buoy, President

International Brotherhood of Boilermakers and

Blacksmiths

Mr. J. J. McNamara, President

International Brotherhood of Firemen and Oilers

Mr. Norman Greene, Director

National Airline Divisi

International Bnotherhood of Teamsters

Mr. Michel Matthaei, President

Police Benevolent Association

Mr. R. E. Martin, General Vice President

Sheet Metal Workers International Association

Mr. A. T. Otto, Jr., Grand President

Railroad Yardmasters of America

Mr. Fred A. Hardin, Int’l President

United Transportation Union

Clinton J. Miller, Esq.

Counsel for BRAC

75a

Edward D. Friedman, Esq.

Counsel for UTU & IAM&AW

O’Hagan, Reilly & Gorman

Counsel for BRC

Michael C. Axelrod, Esq.

Counsel for LIRRPBA

Edward J. Hickey, Jr., Esq.

Michael S. Wolly, Esq.

Counsel for ATDA, IBEW, IBFO, BRC,

SMWIA and IBBB

Harold Ross, Esq.

Counsel for BLE, BRS and RYA

Honorable Harold Newman, Chairman

Honorable Ida Klaus, Member

Honorable David Randles, Member

New York State Public Employment Relations Board

RKQ/dca

77a

APPENDIX H

NEW YORK STATE

PUBLIC EMPLOYMENT RELATIONS BOARD

$0 WOLF ROAD

ALBANY, NEW YORK 12205

February 26, 1981

Robert McCullough, Esq.

1050 17th Street NW

Suite 701

Washington, D.C. 20036

Dear Mr. McCullough:

In response to your recent request for certain information

regarding PERB’s mediation and strike experience from

September 1967 to December

This text is long and has been trimmed here. Open the source document for the complete record.

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.