Amicus Brief — Transportation Union v. Long Island R. Co.

| Office Supreme Court US

FILE D

Oer 81 98)

No. 80-1925

ER L. STEVAS.,

CLERK

IN THE

Supreme Court of the Anited States

Ooctopze Tun, 1980

Urra Transportation Union, Petitioner,

v.

Lone Istanp RAnOAD Corax AND

Mersopouitan Transportation AUTHORITY,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

BRIEF FOR THE AMERICAN PUBLIC TRANSIT

ASSOCIATION AS AMICUS CURIAE

Wan T. Coreman, Jr.

Cownsel Of Record

O’Metveny & Myers

1800 M Street, N.W., Suite 5008

Washington, D.C. 20036

(202) 457-5300

1800 M Street, N.W., Suite 500S

Washington, D.C. 20036

unsel

American Public Transit Association

1225 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

Panes ov Brnow 8. Anams Partie, Inc., Wasutmeron, D. C.

i

QUESTIONS PRESENTED

Is the freedom to determine whether public employees

of states should have the right to strike an attribute of

state sovereignty protected by the Tenth Amendment with

which federal regulation may not interfere under our

system of constitutional federalism?

If the answer is yes, is the ownership by the State of

New York of the Long Island Rail Road passenger com-

muter transportation service a state activity typical of

services states traditionally have afforded their citizens?

iii

TABLE OF CONTENTS

QUESTIONS PaxsEN T0000.

SAN IE “5 n'a nods dccecevcacedecddvoesene

— (— . „.be delle

Interest or THE AMERICAN Pusiic Transit AssociaTION

The Railway Labor Act Which Allows Covered Em-

— To Strike May Not Be Applied To The Public

mployees Of The Long Island Rail Road Under The

Doctrine Of National League Of Cities v. Usery ......

A. Application Of The Railway Labor Act To The

State a Of The — Island Rail Road

Constitutes Regulation Of The State Qua State

B. The Determination Of Whether Or Under What

Conditions State Public Employees May Strike Is

An Element Of State Employee Relations Of The

Type That This Court Has Held Is An Attribute Of

eee de cvdeds

C. The Provision Of Commuter Transportation Ser-

vices Is A State Activity Typical Of Services States

Traditionally Have Afforded Their Citizens ......

D. The State Interest In Determining Whether Its

Public Employees May Strike Prevails Over The

Federal Interest In Labor Relations Even If A

Balancing Test Is Applieeecdcddd

11

16

iv

TABLE OF AUTHORITIES

Cases: Page

A. B. Kirschbaum Co. v. Walling, 316 U.S. 517 (1942).. 4

Alewine v. City Council of Augusta, Georgia, 505 F.

2 880 (S. D. Ga. 1981), appeal docketed, No.

81-7490 (11th Cir. June 5, 198177777. 2

Amersbach v. City of Cleveland, 598 F.2d 1033 (6th

Deen eee ccces 21

Arritt v. Grisell, 567 F.2d 1267 (4th Cir. 1977) ...... 12

Bennett v. Gravelle, 451 F.2d 1011 (4th Cir. 1971) .... 15

California v. Taylor, 353 U.S. 553 (1957) ̃ 77777 18, 19

City of Lafayette v. Louisiana Power d Light Co., 435

r eee

City 4 New Fork v. De Lury, 23 N. V. 2d 175, 295 N. V. S.

901, 243 N. E. 2d 128 (1968), appeal dismissed,

eee e 15

County of Niagara v. Levitt, 411 N. V. S. 2d 810 (Sup.

Ct. 1978), modified, 428 N. V. S. 2d 675, 406 N. E.

e e ed 20

Francis v. City of Tallahassee, Case No. 79-446 (2d Cir.

A EEE he kG eee eee eee

Friends of the Earth v. Carey, 552 F. 2d 25 (2d Cir.), *

cert. ted, 434 U.S. 902 (1977) ẽ 7777 ce eeee

Fry v. United States, 421 U.S. 542 (1975) .......... 13, 19

Henderson v. Met itan Atlanta Rapid Transit Au-

thority, 225 8.H.2d 424 (Ga. 1976) ..............

Hodel v. Virginia Surface Mining d Reclamation As-

sociation, 101 S. Ct. 2352 (198177777 9, 10, 11

Vv

Table of Authorities Continued

Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60

bee

Inman Park Restoration, Inc. v. Urban Mass Trans-

rtation Administration, 414 F. 8 99 (N. D.

Ga. 1975), aff’d sub nom. Save Our Sycamore v.

Metropolitan Atlanta ng Transit Authority,

576 F.2d 573 (Sth Cir. 197̃8)· «% 20

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

Ga. April 24, 1981), appeal docketed, No. 81-7789

(11th Cir. June 14, 19817777. 2

Kramer v. New Castle Area Transit Authority, Civ. A.

No. 80-1008G (W.D. Pa. June 11, 1981), appeal

docketed, No. 81-2223 (3d Cir. Aug. 10,1981) .... 2

stag v. City of Sheboygan, 577 F.2d 1 (7th Cir.

ccc „ö 13

Marshall v. Owensboro-Daviess County Hospital, 581

.. eee 12

Maryland v. Wirtz, 392 U.S. 183 (1968) 14, 16, 18, 19

Mass Transit Administration v. Baltimore County Rev-

enue Authority, 298 A.2d 413 (Md. Ct. App. 1973). 20

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

%%% bl „ passim

New York v. United States, 326 U.S. 572 (1946) 21

NLRB v. Jones d Laughlin Steel Corp., 301 U.S. 1

obe

Parden v. Terminal R. Co., 377 U.S. 184 (1964) 18, 19

Pearce v. Wichita County, 590 F. 2d 128 (5th Cir. 1979). 13

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

1070 (Sth Cir, 1979) ͥẽ v—UU˙emnen 13, 27

Pennsylvania v. Erie Metropolitan Transit Authority,

1A 882 (Pa. 19%1))J7))J) .

vi

Table of Authorities Continued

Page

Public Service Co. of North Carolina v. Federal Energy

Regulatory Comm’n.,, 587 F.2d 716 (5th Cir.), cert.

denied, 444 U.S. 879 (1979)))))9)9)

Teamsters Local Union No. 676 v. Port Authority

Transit Corp., 261 A.2d 713 (N.J. Sup. 1970) .... 20

United Federation of Postal Clerks v. Blount, 325 F.

Supp. 879 (D.D.C.), af d, 404 U.S. 802 (1971) .... 15

United States v. Best, 573 F.2d 1095 (9th Cir. 1978) .. 27

United States v. California, 297 U.S. 175 (1936) . 6, 17, 18, 19

United States v. Darby, 312 U.S. 100 (1941) .......... 4

Usery v. Allegheny County Institution District, 544

.2d 148 (3d Cir. 1976), cert. denied, 430 U.S. 946

%%% ¼ . ͤͤ 12

an v. Charleston County School District, 558 F.2d

ere eee ee 12

Wickard v. Filburn, 317 U.S. 111 (1942) ............. +

ConstTITUTION AND STATUTES:

United States Constitution

Tenth Amendment passim

Fair Labor Standards Act

29 U.S.C. $§ 206, 207 (1976))) passim

Railway Labor Act

45 U.S.C. §§ 151 et seg. (1976)ꝶ cece ees passim

Urban Mass Transportation Act

49 U.S.C. $1601 (1976))))) ) 21

49 U.S.C. $1601b (1976) ........ 3 23

N.Y. Civ. Serv. Law §§ 200 et seg. (McKinney 1973 &

Supp. 1980) (Taylor Law))

5 U.S.C. § 7311(3) (1970)))))):ꝛ 15

18 U.S.C, $1918 (1976) ..... „4„60%%,%0ö̃4 2 2262 64% 15

vii

Table of Authorities Continued

ConGressionaL MATERIALS:

109 Cong. Rec. S 207 (daily ed. Jan. 14, 1963) ........ 19

Transit Assistance Act of 1981: Hearings on 8.1160

Before the Subcomm. on Housing and Urban Af-

fairs of the Sencte Comm. on Banking, Housing and

Urban Affairs, 97th Cong., Ist Sess. (1981)... 19-20, 24

MiscelLangous:

American Public Transit Association, Transit Fact

eee eee 3, 19, 22, 23,24

46 Fed. Reg. 44980 (Sept. 9, 19817777. 25

em. % ® © 9 eee 24

Office of the Press Secretary. The White House, Presi-

dent’s Budget Reform Plan (1981) ...........+.

Urban Mass Transportation Administration, U.S. De-

— of Transportation, Public Transportation

e . 19

17 Weekly Comp. of Pres. Doc. 845 (Aug. 10,1981) ... 15

17 Weekly Comp. of Pres. Doc. 904 (Aug. 31,1981) ... 15

W. Owen, The Metropolitan Transportation Problem

SED A, MEE dubia stenccccorecrcccedkecéuness 19, 22

No, 80-1925

IN THE

Supreme Court of the United States

Octoser Term, 1980

Unirep Transportation Union, Petitioner,

v

Lone Istanp RAU nOAD CoMPANY AND

Mrnorolrrax TRansporTATION AUTHORITY,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

BRIEF FOR THE AMERICAN PUBLIC TRANSIT

ASSOCIATION AS AMICUS CURIAE

INTEREST OF THE AMERICAN PUBLIC TRANSIT

ASSOCIATION

The American Public Transit Association (APTA) has

received the written consent of petitioner and respondents

to file a brief amicus curiae in support of respondents in

this action. APTA is the national representative of most

local publicly owned mass transit systems and the nation-

wide repository of information about local public transit.

Local publicly owned mass transit systems today provide

more than ninety percent of all mass transit rides in the

United States. APTA has a significant interest in this case

because it may affect the states’ ability to structure rela-

tionships with their public transportation employees and be-

cause it presents legal issues closely related to issues being

litigated in several federal courts in which APTA or its

members are parties.

This Court decided in National League of Cities v. Usery,

426 U.S. 833 (1976), that, under the Tenth Amendment to

the Constitution of the United States and our system of

federalism, a federal statute cannot be applied to certain

functions of state and local governments where that statute

would displace a state’s ability to structure relationships

with its employees. Therefore this Court held that the

minimum wage and overtime compensation provisions of

the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 206,

207 (1976), cannot constitutionally be applied to such inte-

gral operations of certain state and local governmental

functions. The resolution of the lower court cases in which

APTA or its members are parties turns on whether local

publicly owned mass transit systems fulfill such govern-

mental functions, typical of services states traditionally

have provided their citizens. All the lower courts that have

ruled on the issue, except for a single federal district court,

have found that local public transit systems are traditional

and integral governmental functions, typical of the essen-

tial public services provided by state and local govern-

ments around the country. These courts therefore have held

that the minimum wage and maximum hour provisions of

the FLSA cannot be applied to public transit employees.’

In disposing of the case at bar, this Court must consider

whether the Railway Labor Act, 45 U.S.C. §§ 151 et seq.

(1976), if applied to state employees, would ‘‘operate to

F. g., Dove v. Chattanooga Area Regional Transportation Au-

thority, Civ. A. No. 1-80-249 (B.D. Tenn. July 21, 1981), appeal

docketed, No. 81-5686 (6th Cir. Sept. 2, 1981); Kramer v. New

Castle Area Transit Authority, Civ. A. No. 80-1008G (W.D. Pa.

June 11, 1981), appeal docketed, No. 81-2223 (3d Cir, Aug. 10,

1981) ; Alewine v. City Council of Augusta, Georgia, 505 F. Supp.

880 (8.D. Ga. 1981), appeal docketed, No. 81-7490 (11th Cir. June

5, 1981) ; Francis v. City of Tallahassee, Case No. 79-446 (2d Cir.

Fla. Dec. 8, 1980); contra Joiner v. City of Macon, Civ. A. No.

79-287-MAC (M.D. Ga. April 24, 1981), appeal docksted, No. 81-

7789 (11th Cir. June 14, 1981).

directly displace the States’ freedom to structure integral

operations in areas of traditional governmental functions,’

National League of Cities, 426 U.S. at 852. If this Court

concludes that the federal strike procedures required by

the Railway Labor Act do displace New York State’s abil-

ity to structure certain elements of its employee relations,

an essential attribute of state sovereignty, this Court then

must examine the nature of the Long Island Rail Road

(LIRR). It must determine whether the publicly owned

LIRR, an integral part of the Metropolitan Transit Au-

thority’s (MTA) system of intrastate commuter passenger

service, fulfills a public service function integral to and

typical of state government, as do local public mass transit

systems throughout the nation.

Like respondents, APTA’s members provide local public

transportation. Many local public transit systems consist

of a mix of various forms of transportation suited to the

local needs, including buses, subways, trolleys and com-

muter rail. American Public Transit Association, Transit

Fact Book at 14 (1979) (Transit Fact Book).“ Thus APTA

is uniquely suited to provide the Court with an understand-

ing of the nature of local public mass transit and of the

possible implications of this decision for the ability of

state and local governments throughout the country to

structure their relationships with public transit employees

and to finance and maintain these essential public services

during a period of fiscal stringency.

* The Transit Fact Book is based on surveys by APTA of transit

systems throughout the country and information made publie by

agencies such as the United States Bureau of the Census, the De-

partment of Transportation and the Department of Labor. The

Transit Fact Book is the primary source of information about the

transit industry in the United States and is generally used and

relied upon by persons employed in any field relating to mass

transit. Petitioner, respondents and the government all have cited

the Transit Fact Book in their briefs as a source of information

about the industry.

4

SUMMARY OF ARGUMENT

The questions presented by this case arise at the inter-

section of two diverse trends in constitutional doctrine. In

recent years, this Court has recognized an expanding reach

of Congress’ Commerce Clause power. This Court also has

developed our understanding of our system of federalism

as reflected in the Tenth Amendment and has extended the

protection afforded state and local governments from the

exercise of federal power. Compare Wickard v. Filburn,

317 U.S. 111, 118-129 (1942), A. B. Kirschbaum Co. v. Wal-

ling, 316 U.S. 517 (1942), United States v. Darby, 312

U.S. 100, 112-124 (1941), and NLRB v. Jones d Laughlin

Steel Corp., 301 U.S. 1, 34-41 (1937), with National League

of Cities v. Usery, 426 U.S. 833 (1976). When these consti-

tutional interests conflict, this Court has held that the

Tenth Amendment may limit the reach of Congress’ Com-

merce Clause powers when applied to the activities of state

and local government.

National League of Cities held that Congress may not

regulate the states in such a fashion as to displace their

ability to structure integral operations of functions typical

of those traditionally performed by state and local gov-

ernments. This Court concluded, as a matter of law, that

the minimum wage and overtime compensation provisions

of the Fair Labor Standards Act (FLSA) would ‘‘imper-

missibly interfere’’ with the fundamental right of states

to regulate employee relations. 426 U.S. at 851. It there-

fore held that under the Tenth Amendment and the system

of federalism inherent in our Constitution, the FLSA

could not be applied to ‘‘almost all public employees em-

ployed by the States and by their various political sub-

divisions.“ Id. at 836. To allow otherwise would im-

pair the States’ ‘ability to function effectively in a federal

system.“ Id, at 852 (citation omitted). Lower federal

courts have almost uniformly held that the FLSA minimum

wage and overtime provisions cannot be applied to state

transit employees because local public mass transit is an

integral and traditional state function within the protec-

tion of the Tenth Amendment.

Likewise, the Railway Labor Act cannot constitutionally

be applied to the state employees of the LIRR, an integral

part of the public transit system owned by the MTA, an

agency of the State of New York. The freedom to prohibit

state employees from striking, as codified in New York’s

Taylor Law, N.Y. Civ. Serv. Law §§ 200 et seq. (McKinney

1973 & Supp. 1980), is a power essential to state sovereign-

ty. The federal Railway Labor Act, in direct conflict with

the New York Taylor Law, creates for covered employees

a right to strike and establishes federal strike mediation

procedures. This Court held in National League of Cities

that a fundamental determination relating to the structur-

ing of employer-employee relationships is an essential

„attribute of state sovereignty,’’ National League of Cities,

426 U.S. at 845, with which the federal government may not

interfere. The determination of whether state employees

should have a right to strike and how potential strikes

should be mediated is a critical element of state labor rela-

tions, and as such is fundamental to the state’s ability to

structure employer-employee relationships. Thus, consistent

with National League of Cities, the Railway Labor Act may

not be applied to a state function that is typical of those

traditionally performed by state governments.

In his opinion concurring in the plurality decision in

National League of Cities, Justice Blackmun stated that

it seems to me that [the Court] adopts a balancing ap-

proach.“ 426 U.S. at 856. If a balancing test was applied

in National League of Cities, it is apparent that the Court

found that the state interest in structuring employee rela-

tions outweighed the federal interest in labor relations. Id.

at 851-852. Indeed, by this holding the Court in National

League of Cities essentially has already struck the balance

in favor of the state interest regarding the issues at hand.

The state interest in determining whether public employees

performing an integral state function should have the right

to strike in the event of labor disputes, and the ensuing

impact on the community from disruption of important

public services that such a strike might cause, clearly out-

weighs the federal interest expressed in the Railway Labor

Act to establish uniform labor relations, rights and proce-

dures for the interstate railroads.

The primary and almost exclusive activity of the LIRR

is provision of local public commuter mass transit service, a

service that today is an activity typical of the services state

and local governments have provided their citizens. It is as

essential and integral to the government’s public responsi-

bility in the community it serves as are ‘‘fire prevention,

police protection, sanitation, public health, and parks and

recreation,“ 426 U.S. at 851, and schools and hospitals, id.

at 855, which this Court has held are ‘‘typical’’ examples

of those ‘‘activities which are well within the area of tradi-

tional operations of state and local governments.“ Id. at

851, 851 n.16. Today states are called upon to provide local

mass transit commuter services because of community need.

Local public mass transit, including commuter rail service,

should be afforded the protection of the Tenth Amendment

because it provides a service to the community at-large that

cannot be provided profitably by private parties and that

state and local governments typically regard as necessary

to the health and welfare of their citizens. In this case, the

state has elected to provide these services by railroad. The

service performed is what is of constitutional significance,

not the means selected by the state to perform that servive.

For these reasons, analogies drawn by petitioner and

the government to United States v. California, 297 U.S. 175

(1936), and other decisions involving a state-owned freight

railroad would have this Court place form over substance.

Nevertheless, should this Court determine that the LIRR is

subject to the Railway Labor Act because of its de minimis

connection with interstate freight railroads, this Court

should avoid sweeping within its decision local public mass

transit. The latter service does not share any of the char-

7

acteristics of commercial railroads such as freight carriage

or federal regulation as a common carrier; local public

mass transit is clearly the type of function performed by

state and local government today as an essential public

service.

ARGUMENT

THE RAILWAY LABOR ACT WHICH ALLOWS COVERED

EMPLOYEES TO STRIKE MAY NOT BE APPLIED TO THE

PUBLIC EMPLOYEES OF THE LONG ISLAND RAIL ROAD

UNDER THE DOCTRINE OF NATIONAL LEAGUE OF

CITIES v. USERY

In National League of Cities, 426 U.S. at 840, this Court

restated the commonly accepted rule of law that ‘‘the Com-

merce Clause of Art. I of the Constitution is a grant of

plenary authority to Congress.’’ The Court recognized,

however, that the Commerce Clause, like other clauses in

the Constitution, may be restricted by other constitutional

provisions. Thus the issue in National League of Cities, and

the issue in this case, is whether Congress’ attempt under

the Commerce Clause ‘‘to regulate directly the activities of

States as public employers,’’ id. at 841, violates the Tenth

Amendment and our system of federalism because it dis-

places an ‘‘attribute[] of sovereignty attaching to every

state government which may not be impaired by Congress,

not because Congress may lack an affirmative grant of

legislative authority to reach the matter, but because the

Constitu on prohibits it from exercising the authority in

that manner.“ Id. at 845.

As correctly stated by the United States in its brief

amicus curiae, this Court in National League of Cities held

that the 1974 amendments to the Fair Labor Standards

Act (FLSA) applying the minimum wage, overtime pay

and maximum hour provisions of that Act to ‘almost all

public employees employed by the States and by their

various political subdivisions’ (id. at 836) were unconstitu-

tional.’’ Brief for the United States as Amicus Curiae at 13.

aa

The Court expressly found that ‘‘the wages which shall

be paid to those whom [the States] employ in order to

carry out their governmental functions, what hours those

persons will work, and what compensation will be provided

where these employees may be called upon to work over-

time,’’ 426 U.S. at 845, are ‘‘undoubted attributes of state

sovereignty,’’ id., which could not be displaced by Congress.

Application of these FLSA requirements ‘‘displaces state

policies regarding the manner in which [the States] will

structure delivery of those governmental services which

their citizens require.’’ Id. at 847.

[Llike the minimum wage provisions, the vice of the

{overtime provisions of the] Act as sought to be ap-

—＋ here is that [they] directly penalizef] the States

or choosing to hire governmental employees on terms

different from those which Congress has sought to

impose.

This Congressionally imposed displacement of state

decisions may substantially restructure traditional

ways in which the local governments have arranged

their affairs.

Id. at 849. Indeed, the rationale underlying the decision in

National League of Cities applies with equal force to the

issue before the Court today. This Court stated:

If Congress may withdraw from the States the author-

ity to make those fundamental employment decisions

upon which their systems for performance of these

functions must rest, we think there would be little left

of the States“ separate and independent existence.“

Id. at 851, quoting Coyle v. Oklahoma, 221 U.S. 559, 580

(1911). The Court thus concluded that ‘‘the challenged

amendments operate to directly displace the States’ free-

dom to structure integral operations in areas of traditional

governmental functions,’’ id. at 852, and therefore cannot

be applied in keeping with the Tenth Amendment and our

system of federalism.

This Court set forth concisely in Hodel v. Virginia Sur-

face Mining d Reclamation Association, 101 S. Ct. 2352,

2366 (1981), the considerations that determine whether a

federal statute may be applied to a state activity:

[I]n order to succeed, a claim that congressional com-

merce power legislation is invalid under the reasoning

of National League of Cities must satisfy each of three

requirements. First, there must be a showing that the

challenged statute regulates the States as States.“

[426 U.S.] at 854, 96 S. Ct., at 2475. Second, the federal

regulation must address matters that are indisputably

attributes of state sovereignty.“ Id., ut 845, 96 S. Ct.,

at 2471. And third, it must be apparent that the States“

compliance with the federal law would directly impair

their ability ‘‘to structure integral operations in areas

of traditional functions.“ Id., at 852, 96 S. Ct., at 2472.

The statute involved here must thus be scrutinized under

each of these criteria. The Railway Labor Act, by permit-

ting strikes and establishing strike mediation procedures,

attempts to impose a structure in a most critical area of

employer-employee relationships. As applied to a state

agency, such as the LIRR, the Act directly conflicts with

the no-strike policy for such state employees contained in

the New York Taylor Law, and it directly displaces the

state policies governing employee relations—an essential

attribute of state sovereignty. Compliance by the LIRR with

the Railway Labor Act would impair the state’s ability to

structure employee relations within the area of traditional

operations of state and local governments.’’ National

League of Cities, 426 U.S. at 851 n.i6.

A. Application Of The Railway Labor Act To The State

Employees Of The Long Island Rail Road Constitutes

Regulation Of The State Qua State

Respondent LIRR is a wholly owned subsidiary of re-

spondent MTA, an agency of the State of New York. It is

beyond dispute that application of the Railway Labor Act

10

to respondents would constitute an ‘‘exercise of congres-

sional authority directed, not to private citizens, but to the

States as States.“ National League of Cities, 426 U.S. at

845. It is the state agency’s ability to structure employer-

employee relationships, in particular to prohibit strikes,

that is regulated by the federal statute involved.

This is in sharp contrast to the statute that withstood

Tenth Amendment attack in Hodel. In that case, this Court

upheld a challenge to the constitutionality of the Surface

Mining Control and Reclamation Act of 1977, which estab-

lished a regulatory program for private surface coal min-

ing operations through joint federal and state regulation.

In so doing, the Court emphasized that ‘‘the steep-slope

provisions of the Surface Mining Act govern only the

activities of coal mine operators who are private individuals

and businesses. Moreover, the States are not compelled to

enforce the steep-slope standards, to expend any state

funds, or to participate in the federal regulatory program

in any manner whatsoever.’’ 101 S. Ct. at 2366. On the

contrary, the application of the Railway Labor Act here

is comparable to the application of the FLSA provisions

at issue in National League of Cities. In Hodel, the Court

clearly distinguished National League of Cities on the

grounds that there the FLSA provisions ‘‘ pre-empt express

state-law determinations’’ regarding ‘‘the wages and work

hours of state employees,’’ id. at 2365, quoting National

League of Cities, 426 U.S. at 840. Similarly, the Railway

Labor Act pre-empts the New York State law determination

that state employees, including employees of the LIRR,

may not strike.

Petitioner’s argument, Brief for the Petitioner at 19,

that [the Railway Labor Act does not regulate the States

‘as States’; it regulates interstate railroads, however

owned, does not alter the conclusion that the Act, if ap-

plied to the employees of the LIRR, is regulation of the

state qua state. It can be applied to LIRR employees only

if this Court concludes that Congress intended to cover

11

state employees. It is irrelevant that the state agency is

included in the regulatory ambit as part of a larger class

that includes private parties as well. The same can be said

of the FLSA, since most covered employees under that Act

work for private persons and businesses. This Court never-

theless concluded in National League of Cities, 426 U.S. at

854, that the FLSA as applied to state employees was a

regulation of states as states. See also Hodel, 101 S. Ct. at

2365 2366.

B. The Determination Of Whether Or Under What Conditions

State Public Employees May Strike Is An Element Of State

Employee Relations Oi The Type That This Court Has Held

Is An Attribute Of State Sovereignty

1. National League of Cities established that the determi-

nation of wages, hours and overtime compensation for pub-

lie employees is an ‘‘undoubted attribute of state sover-

eignty.’’ 426 U.S. at 845. This Court reasoned that there

would be little left of state sovereignty if ‘‘application [of

the federal law] will . . . significantly alter or displace the

States’ abilities to structure employer-employee relation-

ships,“ id. at 851.

The Court cited numerous examples of the ways in which

federal regulation of wages and hours for state employees

would ‘‘displace[] state policies regarding the manner in

which they will structure delivery of those governmental

services which their citizens require.“ Jd. at 847. Federal

wage and hour requirements, for example, would increase

costs, would eliminate state flexibility to hire those with

little training at a lower salary or to use volunteer labor,

_ and would require the states ‘‘to structure work periods

in some employment areas, such as police and fire protec-

tion, in a manner substantially different from practices

which have long been commonly accepted among local gov-

ernments of this Nation.“ Id. at 846-851.

In National League of Cities, the ‘‘undoubted attribute

of state sovereignty,’’ id. at 845, to which this Court re-

12

ferred was the state’s power over wages, hours and over-

time—essential elements in structuring employee relations.

The United States and petitioner are therefore flatly wrong

in positing that the issue before this Court is whether the

**[o)peration of a railroad’’ is an essential attribute of

state sovereignty with which the federal government may

not interfere. Brief for the United States as Amicus Curiae

at 15. See also Brief for the Petitioner at 37-38. Rather, the

threshold question before this Court is whether the state’s

power to determine whether its employees have the right

to strike—a crucial element of state employee relations—

is an attribute of state sovereignty. The effect of strikes

and the power to strike on employee relations is so signifi-

cant that this Court must conclude that such a determina-

tion is as essential an attribute of state sovereignty as is

setting the wages, hours and overtime compensation for

its employees.“

A holding for the respondents would not affect the numerous

lower court decisions finding National League of Cities inapplicable

to federal statutes other than the Railway Labor Act or the Fair

Labor Standards Act.

Some of these decisions have upheld federal statutes on consti-

tutional grounds other than the Commerce Clause ; National League

of Cities did not resolve whether the Tenth Amendment limits other

constitutional provisions, 426 U.S. at 852 n.17. Relying in part on

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), lower courts have found

that the Tenth Amendment and federalism limitations articulated

in National League of Cities are not applicable to statutes grounded

in certain other constitutional powers. For example, some courts

have found that the Equal Pay Act is authorized by Section 5 of

the Fourteenth Amendment. F.., Marshall v. Owensboro-Daviess

County Hospital, 581 F.2d 116 (6th Cir. 1978) ; Usery v. Charles-

ton County School District, 558 F.2d 1169 (4th Cir. 1977) ; Usery

v. Allegheny County Institution District, 544 F.2d 148 (3d Cir.

1976), cert. denied, 430 U.S. 946 (1977). Similarly, in Arritt v.

Grisell, 567 F.2d 1267 (4th Cir. 1977), the court relied on the

Fourteenth Amendment to uphold the applicability to state and

local governments of the Age Discrimination in Employment Act

13

As the court below found, ‘‘the freedom to strike affects

the collective bargaining process and could result in re-

of 1976. Like reasoning has wen used in upholding application of

the Veterans’ Reemployment Rights Act to state and local govern-

ments as an exercise of the war power. Peel v. Florida Department

of Transportation, 600 F.2d 1070 (5th Cir. 1979). Cf. National

League of Cities, 426 U.S. at 854 n. 18.

Other lower courts have upheld the application of certain fed-

eral statutes to state and local governments as valid exercises of

the Commerce Clause despite Tenth Amendment challenges based

on National League of Cities. E.g., Pearce v. Wichita County, 590

F.2d 128 (5th Cir. 1979) (Equal Pay Act); Marshall v. City of

Sheboygan, 577 F.2d 1 (7th Cir. 1978) (Equal Pay Act); Friends

of the Earth v. Carey, 552 F.2d 25 (2nd Cir.), cert. denied, 434

U.S. 902 (1977) (Clean Air Act Amendments of 1970). These

decisions involve fundamentally different federal statutes and state

policies. Thus, the nature of the federal interference urder, for

example, the Equal Pay and Clean Air Acts with the state or local

government's ability to structure the delivery of governmental

services is wholly different from the displacement of the state's

ability to structure employee relations resulting from application

of the Railway Labor Act or the wage and hour provisions of the

FLSA, This court reaffirmed in National League of Cities the hold-

ing in Fry v. United States, 421 U.S. 542 (1975), that the Eeo-

nomie Stabilization Act was constitutional as applied to tem-

porarily freeze the wages of state and local employees.“ 426 U.S.

at 852. It distinguished the statute in Fry from the wage and

hour provisions of the FLSA because the former ‘‘ merely required

that the wage scales and employmert relationships which the

States themselves had chosen be maintained during the period of

the emergency. Id. at 853 (emphasis added). Similar reasoning

was applied in Friends of the Earth, where the court specifically

found that ‘‘the State’s freedom to choose and formulate its own

policy concerning crucial local issues was preserved by and written

directly into the Clean Air Act Amendments of 1970.“ 552 F.2d

at 38 (emphasis added). Courts examining the Equal Pay Act as

authorized by the Commerce Clause have made comparable findings.

For example, in Pearce, it was found that the Equal Pay Act

leaves the states free to set all substantive terms of employment

14

quiring the State to pay higher wages in order to avert the

devestating economic injury that a halt in the commuter

transportation system would cause.“ 634 F.2d at 25.“ In-

deed, in ruling in Maryland v. Wirtz, 392 U.S. 183, 195

(1968), on the application of the wage and hour provisions

of the FLSA to state hospitals and schools, this Court

recognized that strikes are an element of ‘‘labor condi-

tions’’ very much related to the determination of wages

and hours. The holding of Wirtz was reversed in National

League of Cities, but this characterization of strikes and

work stoppages as an element of the category in which this

Court has placed wages and overtime—viz., labor condi-

tions—survives. Therefore, determination of whether the

public employees of a state agency have the right to strike

is an ‘‘undoubted attribute of state sovereignty.“ 426 U.S.

at 845.

2. Petitioner argues that the Railway Labor Act estab-

lishes a procedure for negotiation by a state with its em-

ployees but does not impose substantive requirements on

the state such as mandating any particular terms of em-

ployee compensation. Brief for the Petitioner at 43. The

effect of a strike by public employees providing an im-

portant service to the community at-large is so significant

that the existence of a right to strike has a substantive

effect on the freedom of the state as employer to negotiate

the terms of employment necessary to ensure continued

operation of state governmental services. Furthermore,

petitioner speaks of the state employees“ ultimate right

and requires only that the substantive terms of employment not be

determined arbitrarily or in a discriminatory fashion. 590 F.2d at

132, The statute at issue here, however, does not leave the state

free to determine whether its public employees should have the

right to strike.

* The opinion of the court of appeals is reprinted as Appendix A

to the Petition for Certiorari.

15

to strike,“ see, e. g., id. at 45;“ a right is by its very defini-

tion a matter of substance.

President Reagan recently demonstrated that the deter-

mination of whether public employees should be allowed

to strike is a fundamental aspect of governmental sover-

eignty. In his response to an allegedly illegai strike by

members of the Professional Air Traffic Controllers Or-

ganization union—employees of the federal government—

the President articulated the importance of the govern-

ment-employer’s retaining control over whether its em-

ployees may strike:

[W]e cannot compare labor-management relations in

the private sector with government. Government can-

not close down the assembly line. It has to provide

without interruption the protective services which are

government’s reason for being.

Statement to the Press, 17 Weekly Comp. of Pres. Doc. 845

(Aug. 10, 1981). President Reagan shortly thereafter re-

affirmed that ‘‘[p]ublic employees cannot strike against the

public.’’ Remarks at a Target 82 Republican Fundraising

Reception, 17 Weekly Comp. of Pres. Doc. 904 (Aug. 31,

1981).

* Federal employees are prohibited by law from asserting a right

to strike against the federal government. 5 U.S.C. 6 7311(3)

(1976); 18 U.S.C. § 1918 (1976). It is clear that both state and

federal governments have the power to prevent their employees

from striking. See, ¢.g., Bennett v. Gravelle, 451 F.2d 1011, 1012

(4th Cir. 1971) ; Olshock v. Village of Skokie, 401 F. Supp. 1219,

1220 (N.D. Ill. 1975); United Federation of Postal Clerks v.

Blount, 325 F. Supp. 879 (D.D.C.), af d, 404 U.S. 802 (1971);

City of New York v. DeLury, 23 N.Y.2d 175, 295 N. V. S. 2d 901,

243 N.E.2d 128 (1968), appeal dismissed, 394 U.S. 455 (1969).

16

C. The Provision Of Commuter Transportation Services Is A

State Activity Typical Of Services States Traditionally

Have Afforded Their Citizens

National League of Cities held that federal law which

displaces an attribute of state sovereignty may not be ap-

plied to state ‘‘activities [that] are typical of those per-

formed by state and local governments in discharging their

dual functions of administering the public law and furnish-

ing public services.“ 426 U.S. at 851. ‘‘Indeed, it is fune-

sions such as these which governments are created to

provide, services such as these which the States have tra-

ditionally afforded their citizens.’’ Id. This Court also

referred interchangeably to these functions as ‘‘integral

governmental functions,“ id. at 855, ‘‘important govern-

mental activities,“ id. at 847, ‘‘ governmental services which

their citizens require,’’ id., ‘‘an area that the States have

regarded as integral parts of their governmental activi-

ties,“ id. at 854 n.18, and integral operations of state

governments, id. at 852 n.17.

Provision of commuter rail service as a part of an in-

tegrated local public transit system is the type of activity

typically performed today by state and local governments

around the country in providing important public services

to the community at-large. State and local governments

exist to provide services that aid the public health and

welfare and that should be available to all sectors of the

community regardless of their profitability. Indeed, local

public commuter mass transportation services are so simi-

lar to the functions this Court has found worthy of pro-

tection that the doctrine of National League of Cities en-

compasses such services.

National League of Cities noted as examples of protected

activities ‘‘fire prevention, police protection, sanitation,

public health, and parks and recreation.’’ Id. at 851. In

overruling Wirte, schools and hospitals were included as

17

well. Id. at 855. These examples were merely a listing of

a few of the most obvious of the activities that state and

local governments typically consider their responsibility to

provide. This Court expressly emphasized the breadth of

its decision:

These examples are obviously not an exhaustive cata-

logue of the numerous line and support activities which

are well within the area of traditional operations of

state and local governments.

Id. at 851 n.16 (emphasis added).

National League of Cities also preserved this Court’s

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

that the federal Safety Appliance Act requirements for

coupling devices on interstate railroad cars may be applied

to the State Belt Railroad. 426 U.S. at 854 n.18. United

States v. California, however, is in no way controlling here.“

There the railroad served only industrial plants on San

Francisco Harbor and“ It jhe larger part of this traffic has

its origin or destination in states other than California.“

297 U.S. at 181. This Court in National League of Cities

distinguished state-operated freight railroads from activi-

ties ‘‘typical of those performed by state and local govern-

ments,“ 426 U.S. at 851, because ‘‘[t]here California’s

activity to which the congressional command was directed

was not in an area that the States have regarded as inte-

gral parts of their governmental activities.“ Id. at 854 n.18

(emphasis added). It was, on the contrary, the operation of

a railroad engaged in ‘‘ ‘common carriage by rail in inter-

state commerce. Id., quoting United States v. Cali-

fornia, 297 U.S. at 182. Moreover, in narrowing this hold-

*Clearly whether a state-owned railroad must use a coupling

device on freight cars engaged in interstate commerce is not a

determination that is an essential attribute of state sovereignty,

unlike a determination as to whether state public employees should

have the right to strike.

18

ing, this Court expressly rejected the following ‘‘dicta from

United States v. California, 426 U.S. at 854-855:

Wie look to the activities in which the states have

traditionally engaged as marking the boundary of the

restriction upon the federal taxing power. But there is

no such limitation upon the plenary power to regulate

commerce. The state can no more deny the power if its

exercise has been authorized by Congress than can an

individual.“

Id. at 854, quoting Maryland v. Wirtz, 392 U.S. at 198,

quoting United States v. California, 297 U.S. at 185.

Petitioner’s emphasis on facts concerning past regulation

of the LIRR as a railroad common carrier begs the ques-

tion presented. The LIRR is the means selected by the

State of New York to provide commuter transportation

services to its citizens. It is this provision of commuter

transportation that is an activity ‘‘typical of those per-

formed by state and local governments in discharging their

dual functions of administering the public law and furnish-

ing public services.’’ 426 U.S. at 851. In United States v.

California, the activity in which the state was engaged was

the hauling of freight in interstate commerce and the means

selected was by railroad. Neither respondents nor APTA

argues that the hauling of freight is an activity typical of

the kinds of activities the states have traditionally provided

their citizens.

It is for this reason that Parden v. Terminal R. Co., 377

U.S. 184 (1964), and California v. Taylor, 353 U.S. 553

(1957), also are clearly distinguishable from the case at

bar. Parden held that a state may not assert sovereign im-

munity in a personal injury action brought by an employee

of a state-operated freight railroad, Taylor again involved

the State Belt Railroad and held that the Railway Labor

Act may be applied to its activities. In both these cases,

as in United States v. California, it cannot be said that

engaging in the hauling of freight by rail is ‘‘an area that

19

the States have regarded as integral parts of their govern-

mental activities.“ 426 U.S. at 854 n.18. The provision of

commuter mass transportation services, on the other hand,

is an activity in which state and local governments have

typically engaged ‘‘in discharging their dual functions of

administering the public law and furnishing public serv-

ices.’’ 426 U.S. at 851.

Furthermore, Parden, Taylor and United States v. Cali-

fornia should be read narrowly because they were decided

before Wirte was overruled and at a time when this Court

believed that Congress’ exercise of Commerce Clause power

was no more limited in its application to state activities

than it was when used to reach private activities. Cf. Fry v.

United States, 421 U.S. 542, 551 (1975) (Rehnquist, J., dis-

senting). After National League of Cities, this is no longer

the law.

In determining whether commuter mass transportation

services are functions typically provided by the states, this

Court should follow the dictate of National League of Cities

and give substantial weight to the judgment of state and

local governments. 426 U.S. at 854 n.18. In calendar year

1978, there were 463 transit systems owned by state or local

governmental agencies. Transit Fact Book at 38, These

included 102 of the 106 metropolitan areas in the country

with a population over 200,000. Urban Mass Transportation

Administration, U.S. Department of Transportation, Public

Transportation Service (1979). These public systems are

used primarily for home-to-work commuter transportation.’

Usage of local mass transit increases dramatically during com-

muting hours, while the automobile is preferred for discretionary

social and recreational travel on evenings and weekends. 109 Cong.

Ree, S 207 (daily ed. Jan. 14, 1963) (remarks of Sen. H. Williams);

W. Owen, The Metropolitan Transportation Problem at 211 (rev.

ed. 1966). At least one-half of the downtown workforce in several

major urban centers depends upon transit to reach the workplace.

Transit Assistance Act of 1981: Hearings on 8. 1160 Before the

20

If such a substantial number of state and local governments

have determined that they must provide publicly owned

commuter transportation services, particularly in urban

areas, this function must be considered an activity typical

of those states have traditionally afforded their citizens

and therefore entitled to protection under the doctrine of

National League of Cities.“

The State of New York should not be penalized for de-

termining that the most efficient means of providing com-

muter transportation services to its citizens is via railroad.

The patterns of living and working in the New York City

metropolitan area require that many commuters travel a

long distance to their place of work. The infrastructure for

Subcomm. on Housing and Urban Affairs of the Senate Comm. on

Banking, Housing and Urban Affairs, 97th Cong., Ist Sess. 87

(1981) (statement of K. Slapin on behalf of the National League

of Cities); id. at 97 (statement of L. Ronis, President of the

American Public Transit Association).

Examples of state laws decreeing public mass transit to be an

important function of government are considered in Inman Park

Restoration, Inc. v. Urban Mass Transportation Administration,

414 F. Supp. 99, 104 (N.D. Ga. 1975), aff’d sub nom. Save Our

Sycamore v. Metropolitan Atlanta Rapid Transit Authority, 576

F.2d 573 (5th Cir. 1978) (quoting an amendment to the state

constitution providing that public transportation is an ‘‘essential

governmental function’’); Henderson v. Metropolitan Atlanta

Rapid Transit Authority, 225 S. E. 2d 424, 427 (Ga. 1976) (same);

Mass Transit Administration v. Baltimore County Revenue Au-

thority, 298 A.2d 413, 415 (Md. Ct. App. 1973) (quoting a Mary-

land statute that the Metropolitan Transit Authority is perform-

ing ‘‘an essential governmental function’’) ; Teamsters Local Union

No. 676 v. Port Authority Transit Corp., 26) A. 2d 713, 716 (NJ.

Sup. 1970) (same—New Jersey statute); County of Niagara v.

Levitt, 411 N.Y.8.2d 810, 812 (Sup. Ct. 1978), modified, 428

N. V. S. 2d 675, 406 N.B.2d 490 (Ct. App. 1980) (same—New York

statute); Pennsylvania v. Erie Metropolitan Transit Authority,

281 A.2d 882, 885 (Pa. 1971) (same—Pennsylvania statute).

21

the LIRR was in place. Certainly this Court would not

require a state desiring to maintain flexibility in its opera-

tion of commuter transportation services to forego pur-

chasing a commuter railroad that the private sector could

no longer afford to operate profitably, such as the LIRR,

and instead require the state to purchase buses or install

trolley cars so as to provide a service necessary to the

health and well-being of its citizens.

Thus this Court should not evaluate commuter trains in

isolation, but rather it should consider them as an integral

part of local urban mass transportation systems through-

out the United States. As urban areas have become more

congested, the need for public mass transit systems has

evolved.” The responsibilities of state and local govern-

ments as well as the federal government have had to evolve

and expand in order to continue to provide the kinds of

services citizens have typically expected from government—

those services generally available to the community at-large

which promote a civilized and healthy life. It was recog-

nized in New York v. United States, 326 U.S. 572, 579

(1946) (Opinion of Frankfurter, J.), that“ a static concept

of government denies its essential nature.““ “ As the needs

In enacting the Urban Mass Transportation Act of 1964, Con-

gress found that the predominant part of the Nation’s popula-

tion is located in its rapidly expanding metropolitan and other

urban areas’’ and that ‘‘the satisfactory movement of people and

goods within such areas . are being jeopardized by the deteriora-

tion or inadequate provision of urban transportation facilities and

services. 49 U.S.C. § 1601 (1976).

% See also Amersbach v. City of Cleveland, 598 F.2d 1033 (6th

Cir. 1979), where the court interpreted the definition in National

League of Cities to ‘‘suggest[] that the terms ‘traditional’ or

‘integral’ are to be given a meaning permitting expansion to meet

changing times.’’ Jd. at 1037. In holding that the operation of a

municipally-owned airport is an integral governmental function

22

of state citizens have evolved, state and local governments

have had to alter the activities in which they engage in

performing their traditional functions of providing for the

public health and welfare.“ Cf. Holt Civic Club v. City of

Tuscaloosa, 439 U.S. 60, 75 (1978). At the same time, as

Chief Justice Burger noted in City of Lafayette v. Louisi-

ana Power and Light Co., 435 U.S. 389, 421 n.2 (1978)

o lur conceptions of the limits imposed by federalism are

bound to evolve, just as our understanding of Congress’

power under the Commerce Clause has evolved.’’ “

In 1966, through acquisition of the LIRR, the State of

New York entered into the activity of providing commuter

transportation services. While public ownership of local

transit began around the turn of the century, it became

pervasive over the past twenty years as private companies

increasingly found it impossible to provide service without

incurring significant losses. Transit Fact Book at 55. By

acquiring the LIRR, the State of New York did not elect

within the meaning of National League of Cities, the court in

Amersbach stated :

We would have difficulty in concluding that, in the economy of

the present day, the maintenance of a municipal airport is not

an integral function of government.

Id. at 1038. See also opinion of the court below. 634 F.2d 19, 26

(2d Cir, 1981).

„ According to W. Owen, The Metropolitan Transportation

Problem 4-5 (rev. ed. 1966), ‘‘[t]oday nine-tenths of the mounting

expenses of city governments are for services that did not exist

at the turn of the century—traffic engineering, airports, parking

facilities, health clinics and a long list of others.’’

The Tenth Amendment and our system of federalism do not

require that all state activities be protected from federal intrusion.

This Court need not consider whether competition by states in

profitable business activities or provision of services to a discrete

group of commercial users is protected.

23

to enter ‘‘an industry that has been comprehensively regu-

lated by the United States for nearly a century.“ Brief for

the United States as Amicus Curiae at 22. Instead, it as-

sumed a service necessary to the community at-large that

could not be provided by the private sector without sub-

stantial economic losses and which was destined to be

abandoned. The court below found that if the state had not

taken over this function, it would have gone unprovided.

„The substantia! state and local funds used to subsidize

the [LIRR] attest to the fact that no private businessman

would dare undertake the venture.“ 634 F.2d at 28 (foot-

note omitted). This was similar to the nationwide situation

at that time in history. Changing demographic patterns,

rising costs of labor and equipment, the deterioration of

inner city areas, increasing demand for low fare service to

the elderly, the handicapped and students, and emerging

problems of air pollution, energy dependency and traffic

congestion all converged to increase significantly the public

demands made on local transit systems while, at the same

time, making it economically impossible for private entities

to continue to respond to this demand. See, e.g., Transit

Fact Book at 46-48. Public ownership became inevitable as

state and local governments throughout the country deter-

mined that they could not allow their citizens to be without

such services.“

States and their political subdivisions are the principal

providers of mass transit services. Transit Fact Book at 55.

About ninety percent of transit revenues, total transit

Congress has found that for many years the mass transporta-

tion industry satisfied the transportation needs of the urban areas

of the country capably and profitably ... [but that] in recent

years the maintenance of even minimal mass transportation service

in urban areas has become so financially burdensome as to threaten

the continuation of this essential public service.“ 49 U.S.C, § 1601b

(1976).

24

miles, and linked passenger trips“ are attributable to pub-

licly owned mass transit systems. Id. at 38-39, Heavily sub-

sidized by general and special tax revenues, local public

transit systems maintain low fares to serve the transpor-

tation needs of the entire community. 7d. at 19, 46-48, 56.

Organizationally, local public transit systems are often

managed by departments of city government and are inte-

grated or closely coordinated with other essential govern-

mental services and departments. Id. at 55-56. In addition,

public transit serves the overall interest of the community,

inter alia, by reducing traffic congestion, promoting rational

land use, revitalizing inner-city areas, facilitating employ-

ment, conserving energy, and preventing pollution. Id. at

50-54; 59-62.

Meeting this changing public demand has required sub-

stantial financial support from general tax revenues. Fed-

eral assistance contributes only fifteen percent of the oper-

ating costs of local public transit systems. State and local

governments provide about a third of operating costs. Id.

at 19. Moreover, current federal policy favors phasing out

federal operating assistance and requiring state and local

governments to assume the total responsibility for operat-

ing costs. Office of the Press Secretary, The White House,

President’s Budget Reform Plan at 4-28 (1981); Transit

Assistance Act of 1981: Hearings on 8.1160 Before the

Subcomm. on Housing and Urban Affairs of the Senate

Comm. on Banking, Housing and Urban Affairs, 97th Cong.,

Ist Sess, 3 (1981) (Statement of D. Lewis, Secretary,

U.S. Department of Transportation); N.Y. Times, May 10,

1981, at E5."

Linked passenger trips includes trips taken by initial-board

(originating) transit patrons and excludes all transfer and charter

rides. It includes patrons paying full fare, reduced fare, or no fare.

Transit Fact Book at 8.

Furthermore, the federal government has recently recognized

the preeminence of the state interest in determining the terms on

25

Thus, local public transit systems are—and will continue

to be—an important local public service for which state

and local governments have, of necessity, assumed the

responsibility.

Provision of intrastate commuter passenger service by

the LIRR, which involves ninety-five percent of its work-

force, is not only a service typically and necessarily pro-

vided by local public transit systems throughout the coun-

try but it is an integral part of the MTA’s comprehensive

public urban transit system for the New York City metro-

politan area. To classify one component of the MTA sys-

tem as an interstate railroad for the purpose of overrid-

ing state laws applicable to public employees would be to

exalt form over substance. Nonetheless, should this Court

decide that the LIRR must be considered for this purpose

an interstate railroad—rather than an integral part of the

system of local public mass transit in this country—this

Court should make clear that it is not concluding that local

public mass transit is not an integral or traditional function

of state and local government. Unlike interstate railroas,

local public mass transit has never been subject to federal

common carrier regulation. While it is APTA’s position

that the LIRR is simply an alternative to buses, subways or

other mass transit vehicles for which it substitutes, both

petitioner and the United States assert there is a consti-

tutionally significant distinction. Petitioner contends that

which it provides mass transit. In reversing an earlier Environ-

mental Protection Agency (EPA) proposal to disapprove the New

York City metropolitan area’s public transit plan because it did

not adequately meet federal Clean Air Act standards, th: Admin-

istrator of the EPA stated:

EPA agrees that the State should have ultimate responsi-

bility for identifying its transit needs and deciding how to

meet them... . Also, this approach appears in the proposed

EPA/USDOT [Department of Transportation] national policy

on basic transportation needs,

46 Fed. Reg. 44980 (Sept. 9, 1981).

26

the ‘‘LIRR is unique in that it is the only state owned and

operated Class I railroad in the United States carrying

both interstate freight and the travelling public.“““ Brief

for the Petitioner at 13 (emphasis added). The United

States argues that the LIRR is ‘‘plainly distinguishable

from conventional intraurban transit systems.’’ Brief for

the United States as Amicus Curiae at 12. It expounds at

length on the separate regulatory environment, histories

and usages of the terms commuter rail and local public

mass transit. Id. at 25-27, nn. 19-20. APTA urges the Court

to find that the LIRR is an integral governmental function

but, in any event, not to fashion a decision that would affect

local public mass transit adversely without having a com-

plete picture of those services before it.“

D. The State Interest In Determining Whether Its Public

Employees May Strike Prevails Over The Federal Interesi

In Labor Relations Even If A Balancing Test Is Applied

Justice Blackmun, in his concurring opinion in the plur-

ality decision in National League of Cities, stated that it

was his understanding that the Court ‘‘adopts a balancing

approach, and does not outlaw federal power in areas such

as environmental protection, where the federal interest is

demonstrably greater and where state facility compliance

with imposed federal standards would be essential.’’ 426

% Petitioner's elevation of interstate freight service to equal

status with commuter service is disingenuous. In 1979, only 4%

of LIRR’s gross revenue was derived from freight operations.

Respondents’ Brief in Opposition to the Petition for Certiorari

at 4. In that same year, less than 5% of the LIRR’s workforce was

engaged in the handling of freight. Id. Thus the overwhelming

function served by the LIRR is its function other than freight

transport—that of transporting commuter passengers.

* Those lower courts that have examined local public mass transit

systems have all, except one federal district court, found these

systems to fulfill traditional and integral governmental functions.

See cases cited in note 1 supra.

27

U.S. at 856. The court below invoked this balancing ap-

proach to determine whether ‘‘the federal interest in regu-

lating the collective bargaining relations of LIRR em-

ployees under the Railway Labor Act [outweighs] the

State’s interest in applying the Taylor Law.’’ 634 F.2d

at 24,"*

The federal interest under the Railway Labor Act is to

provide procedures for collective bargaining for the general

purposes of avoiding any interruption to commeree,“ to

„provide for the prompt and orderly settlement of all dis-

putes, and to forbid limitation of the freedom of asso-

ciation among employees or any denial, as a condition of

employment or otherwise, of the right of employees to join

a labor organization.“ 45 U.S.C. § 151a (1976).

The first part of Justice Blackmun’s balancing test re-

quires an examination of the strength of this federal in-

terest in comparison to the interest of the state. The state

interest in determining whether its public employees should

have an unsanctionable right to strike is so great that the

federal interest cannot be said to outweigh it. Employee

relations, including the determination of wages and hours,

overtime compensation and whether public employees have

a right to strike, is a matter of internal management of a

state’s affairs. A strike or threat of strike has severe im-

plications for state budgets and cost planning, personnel

administration, employee relationships, the continuity of

important public services and the maintenance of public

order. Indeed, the state’s very ability to perform necessary

Other circuits have also found helpful the balancing approach

suggested by Justice Blackmun, Public Service Co. of North

Carolina v. Federal Energy Regulatory Comm’n., 587 F.2d 716,

721 (5th Cir.), cert. denied, 444 U.S. 879 (1979), and have com-

pared the strength of the asserted federal interest with the state

interest. See, e.g., Peel v. Florida Dept. of Transportation, 600

F.2d 1070, 1083-1085 (5th Cir. 1979); United States v. Best, 573

F.2d 1095 (9th Cir. 1978).

28

public services is significantly affected by potential strikes.

Moreover, it is incongruous to impose federal rights to

strike and strike procedures on some state employees in-

volved in important public services but not on others. Such

federal intervention is divisive and undermines the efficacy

of state laws prohibiting strikes by other state employees

who perform functions where the federal government has

no interest or where its intervention is precluded by the

Tenth Amendment.

In striking the balance in this case, the state interest in

determining whether its own public employees performing

an integral state function should have the right to strike

is clearly paramount to the federal interest in uniform pro-

cedures for employee bargaining. Assuming arguendo that

the fundamental purpose of both the federal and state

statutes is to prevent strikes, a federal goal in so doing

is to prevent disruption to the interstate rail system and

a state goal is to prevent disruption to transit in the New

York metropolitan area. In the event a strike shuts down

the LIRR, it cannot be said that the disruption to the rail-

road industry at-large or to the interstate freight system

from loss of the de minimis LIRR freight operations would

be more harmful than the injury to the State of New York,

and the New York metropolitan area in particular, from

disruption of commuter transportation. Logic compels that

New York State’s need to determine the means of prevent-

ing disruption of LIRR service to the millions of city

commuters far exceeds the interest of the federal govern-

ment.“

% National League of Cities has struck the balance between the

federal interest under the Fair Labor Standards Act in regulating

state employee relations and the state interest. It ruled in favor

of the states. If this Court chooses to strike a different balance

under the Railway Labor Act, it should make clear that it is not

overruling National League of Cities and the judgment in that

case regarding the Fair Labor Standards Act.

29

The second part of the balancing test requires consider-

ation of whether state compliance is essential to accom-

plishment of the federal objective. Exemption of the LIRR

from the federal statutory scheme would have an insignifi-

cant impact on the federal government’s efforts to regulate

labor relations since so little of the LIRR’s activity is in

interstate freight transportation. The United States cannot

seriously claim that this result would frustrate achievement

of the federal purpose.

Thus it must be concluded that the state interest in de-

termining whether state employees should have the right to

strike may not be displaced by the federal government.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

Wii T. Cotemay, In.

Counsel Of Record

O’Metveny & Myers

1800 M Street, N.W., Suite 500S

Washington, D.C. 20036

(202) 457-5300

Dora T. Brass

Zot E. Barrp

O’Metveny & Myers

1800 M Street, N.W., Suite 500S

Washington, D.C. 20036

Rosert W. BatcHeLper

General Counsel

American Public Transit Association

1225 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

Dated: October 30, 1981