Petition — Railway Labor Executives' Ass'n v. Southeastern Pennsylvania Transportation Authority

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82-71. [iT

IN THE cue zx |

Supreme Court of the Anited States

OCTOBER TERM, 1982

RAILWAY Lapor EXECUTIVES’ ASSOCIATION, Petitioner,

Vv.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SPECIAL COURT,

REGIONAL RAIL REORGANIZATION

ACT OF 1973

WILLIAM G. MAHONEY

CLINTON J. MILLER, III

(Counsel of Record)

HicHsaw & MAnHoney, P.C.

Suite 210

1050 — 17th Street, NW

Washington, DC 20036

(202) 296-8500

Attorneys for Railway Labor

Executives’ Association

Date: October 18, 1982

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

<>:

QUESTION PRESENTED

Whether a commuter authority covered by the North-

east Rail Service Act of 1981 is subject to the labor

transfer provisions of said Act when it contracts for the

sale of commutation tickets which are specifically men-

tioned in the statutory definition of “commuter service” in

said Act.

TABLE OF CONTENTS

Page

ee a. cea che oboe cuneendas 1

a i a oo ok te cae a bbb oWete l

STATUTORY PROVISIONS INVOLVED ................4+: 2

I il Le i i caduecneens 2

SER ne 4d cbachddodbebdecccdccesenes 2

a a a Ie i oe ke a eae eere 4

REASONS FOR GRANTING THE WRIT ................4-- 6

PE cen ddé piembeaeb ne sedbaetdceasdeGus 12

TABLE OF AUTHORITIES

CASES: Page

American Tobacco Co. v. Patterson, ___. U.S. —_, 71

Se CEE cond bn cdecuedbbesdcescccucce 7

Consumer Product S: ety Commission vy. G.T.E. Sylva-

nia, Inc., 447 U. i02 SET Adéshbcwrcesosiuave

Griswold v. Connections, 381 U.S. 479 (1965) ........ 7

International Brotherhood of Teamsters v. SEPTA, 539

me 1222 (Sp. Ct. RRRA 1982) (SEPTA

NSU Oe SaenSs a bebasedebatbabecbeceocics 4, 6, 11

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ....... 7

Richards v. United States, 369 U.S. 1 (1962) ......... 7

RLEA v. SEPTA, 534 F .. Supp. 832 (Sp. Ct. RRRA 1982)

PNR es ccduusanpebvencesciesésiacns passim

RLEA v. SEPTA, 534 F .. Supp. 852 (Sp. Ct. RRRA 1982)

PNRM chs dc tdstecssWeasucocdnesvcesin passim

ahaa yg Retirement Board v. Fritz, 449 U.S. 166

STATUTES:

Northeast Rail Service Act of 1981, Subtitle E of Title XI

of the Omnibus Budget Reconciliation Act of 1981,

Pub. L. No. 97-35, 95 Stat. 643-87 ........... passim

Pennsylvania Urban Mass Transportation Law, Act of

ae SE rere

Railway Labor Act, 45 U.S.C. § 151, et seg. ......... 3

Rail Passenger Service Act, 45 U.S.C. § 581, et seg. .. 2,3

! Rail Reorganization Act sal 1973, 45 U.S.C.

EE: Sa dodcWialedevessicdeescedceshe 2, 3,5

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1982

RaILway LABOR EXECUTIVES’ ASSOCIATION, Petitioner,

Vv.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SPECIAL COURT,

REGIONAL RAIL REORGANIZATION

ACT OF 1973

The petitioner, Railway Labor Executives’ Association

(“RLEA”), respectfully prays that a writ of certiorari

issue to review the judgment of the Special Court, Re-

gional Rail Reorganization Act of 1973 entered in this

case on September 28, 1982.

OPINION BELOW

The opinion of the Special Court, not yet reported,

appears in the Appendix (hereinafter designated “App.”)

at la-lia.

JURISDICTION

The judgment of the Special Ccurt was entered on

September 28, 1982, (App. 16a). This petition is governed

by § 1152(b) of the Northeast Rail Service Act of 1981,

which provides that judgment of the Special Court shall

be reviewable only upon petition for a writ of certiorari to

this Court to be filed not more than twenty (20) days after

the entry of an order of the Special Court (App. 24a).

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of the Northeast Rail Service

Act of 1981 (“NERSA”), including pertinent amendments

to the Rail Passenger Service Act (“RPSA”) and the

Regional Rail Reorganization Act of 1973 (“3R Act”) are

set forth in the Appendix at pp. 20a-23a.

STATEMENT

Proceedings Below

This case arose out of the announced intention of the

Southeastern Pennsylvania Transportation Authority

(“SEPTA”) to take over the ticket selling function from

the Consolidated Rail Corporation (“Conrail”) in provid-

ing rail commuter service in the Philadelphia area with-

out complying with the labor transfer provisions of NER-

SA. SEPTA is a “commuter authority” as defined in

§ 1135 of NERSA, amending § 102 of the 3R Act, 95 Stat.

646. SEPTA is a corporation organized under the Penn-

sylvania Urban Mass Transportation Law, Act of Janu-

ary 22, 1968, P.L. 42, No. 8, as amended by the Act of

July 10, 1980, P.L. 427, No. 101, 55 P.S. § 600.101, et seq.

SEPTA is one of the “commuter authorities” expressly

mentioned in the definition section of NERSA, § 1135.

RLEAv. SEPTA, 534 F. Supp. 832, 834 (Sp. Ct. RRRA),

cert. denied, U.S. —_, 78 L.Ed.2d 1285, 102 S. Ct.

2271 (1982) (“SEPTA I”).

The RLEA is an unincorporated association comprised

of the chief executive officers of virtually all the standard

national and internacional railway labor unions in the

United States, including those having collective-

bargaining agreements with Conrail, which were negoti-

ated in accordance with the Railway Labor Act, 45

U.S.C. § 151, et seg., and the 3R Act, 45 U.S.C. § 771, et

seq. SEPTA I, 534 F. Supp. at 834.

The RLEA filed this action in the Special Court for a

declaratory judgment and preliminary and permanent

injunctive relief that would prevent SEPTA from taking

over from Conrail the ticket selling function for rail com-

muter service provided in the Philadelphia area without

with the labor transfer provisions of NERSA

($§ 508 and 510 of the RPSA), which require implement-

ing agreements and collective-bargaining agreements

with representatives of Conrail employees prior to opera-

tion of commuter service (App. 4a-7a). The particular act

which RLEA complained of was SEPTA’s announced

intention to assume performing through a contractor the

ticket selling functions being provided by Conrail and

Conrail employees represented by the Brotherhood of

Railway, Airline and Steamship Clerks, Freight Hand-

lers, Express and Station Employes (“BRAC”), a con-

stituent member of the RLEA (App. at 3a).

The complaint alleged that the selling of tickets con-

stituted “commuter service” as defined in § 1135 of NER-

SA, and prayed for a declaration that SEPTA must

negotiate and arbitrate, if necessary, an implementing

agreement with Conrail and BRAC and negotiate a

collective-bargaining agreement with BRAC prior to

that function pursuant to §§ 508 and 510 of the

Rail Passenger Service Act (“RPSA”), as amended by

§ 1145 of NERSA (App. at 4a). RLEA also sought an

injunction prohibiting SEPTA from contracting out the

ticket selling function without first complying with the

labor transfer provisions of NERSA contained in § 1145

of that Act.

The Special Court heard this matter on RLEA’s Motion

for a Preliminary Injunction filed on June 15, 1982 (App.

7a) based upon the stipulated facts filed June 28, 1982,

and an evidentiary hearing held July 1, 1982 (App. 7a-8a).

At oral argument on July 16, 1982, the Special Court

informed the parties that in accordance with Rule 65(a)(1)

Fed. R. Civ. P., the trial on the merits would be advanced

and consolidated with the hearing on the Motion for Pre-

liminary Injunction (App. 8a). The Special Court in a

judgment dated September 28, 1982, denied RLEA’s

Motion for Preliminary Injunction and dismissed the com-

plaint on its merits (App. 16a), holding that the transfer of

the ticket selling function from Conrail to SEPTA was

routine and minor, and although involving a larger num-

ber of positions, was not substantially dissimilar to the

assumption by SEPTA of janitorial, grass cutting, and

police functions assumed by SEPTA and held not to be

subject to the labor transfer provisions of NERSA ir

RLEA v. SEPTA, 534 F. Supp. 852 (Sp. Ct. RRRA 19€

(“SEPTA II”) and International Brotherhood of Team-

sters v. SEPTA, 539 F. Supp. 1222 (Sp. Ct. RRRA 1982)

(“SEPTA III”). The Special Court did not specifically

deal with RLEA’s lead argument that the sale of tickets

was specifically mentioned in NERSA’s statutory defini-

tion of “commuter service” making earlier precedent in-

applicable (App. 23a).

Facts

Before April 1, 1976, SEPTA subsidized rail commuter

service on thirteen (13) lines radiating from center city,

Philadelphia operated by the Reading and Penn Central

Railroads, and later by their reorganization trustees,

serving the five (5) southeastern Pennsylvania Counties

of Bucks, Chester, Delaware, Montgomery, and Philadel-

phia. After the transfer of those rail properties to Conrail

on April 1, 1976, Conrail continued to operate the commu-

ter service formerly furnished by those transferor rail-

roads and their trustees and received subsidy payments

from SEPTA pursuant to § 304(e) of the 3R Act. SEPTA

I, 534 F. Supp. at 834.

After the passage of NERSA, SEPTA announced its

intention to operate virtually all the commuter services

then operated by Conrail out of the Reading Terminal in

Philadelphia on its own without complying with the labor

transfer provisions of NERSA, commencing with a rail

diesel car line known as the Fox Chase-Newtown Branch.

SEP7TAI, 534 F. Supp. at 835. RLEA brought SEPTA I

to the Special Court to enjoin SEPTA from accomplishing

this proposed takeover. On January 27, 1982, the Special

Court issued its opinion in SEPTA /, holding that any rail

commuter service operated by Conrail on the effective

date of NERSA (August 13, 1981) was subject to the

labor transfer provisions of NERSA if a commuter au-

thority intended to operate the service on its own behalf.

SEPTA petitioned this Court for a writ of certiorari to

review the decision of the Special Court in SEPTA I,

which was denied May 24, 1982 _. U.S. —__., 73

L.Ed.2d 1285, 102 S. Ct. 2271 (1982).

SEPTA then announced its intention to assume janito-

rial and grass cutting functions performed by Conrail

without complying with the labor transfer

provisions of NERSA. SEPTA II, 534 F. Supp. at 853. In

an opinion dated March 11, 1982, the Special Court per-

mitted SEPTA to go forward with its plan since in the

Court’s view, janitorial and grass cutting services were

not intended to be covered by the labor transfer provi-

sions of NERSA, but holding in essence that SEPTA

could not contract out “commuter service” being per-

formed by Conrail on the effective date of NERSA with.

out first complying with the labor transfer provisions of

NERSA. SEPTA II, 534 F. Supp. at 857.

SEPTA next announced its intention to itself assume

police functions previously performed by employees of

Conrail without complying with the labor transfer provi-

sions of NERSA. The Special Court in an opinion dated

May 21, 1982, permitted SEPTA’s action on essentially

the same ground as SEPTA I]. SEPTA III, 539 F. Supp.

1222.

SEPTA then announced its intention to contract out

the ticket selling function, first on the side of the former

Reading Railroad without complying with the labor

transfer provisions of NERSA. The Special Court, apply-

ing the standard set forth in SEPTA II and SEPTA III,

determined that the sale of tickets was not intended to be

covered by the labor transfer provisions of NERSA (App.

at 23a), even though the Court found that all of the

criteria set forth in SEPTA II had not been met by

SEPTA in the case at bar, specifically, that Conrail had

never consented prior to NERSA to the transfer of such

function (App. 12a) ana that the ticket selling involved a

substantially larger number of employees (132) than

janitorial, grass cutting (32), or police functions (14)

(App. 14a). The Court did not address the issue raised by

RLEA that the specific mention of the sale of commuta-

tion tickets and NERSA’s definition of “commuter serv-

ice” precluded any application of the SEPTA II criteria.

REASONS FOR GRANTING THE WRIT

The decision below is in direct conflict with a long line of

decisions of this Court which hold that in all cases involv-

ing statutory construction, the starting point must be the

language employed by the Congress. See, American

Tobacco Co. v. Patterson, ___ U.S. —_, 71 L.Ed.2d

748, 755 (1982); Reiter v. Sonotone Corp., 442 U.S. 330,

337 (1979). It also conflicts with this Court’s view that

legislative purpose is expressed by the ordinary meaning

of words used in a statute, and that the language used is

ordinarily conclusive. Consumer Products Safety Com-

mission v. G.T.E. Sylvania, Inc., 447 U.S. 102, 108

(1980); Richards v. United States, 369 U.S. 1, 9 (1962).

What the Court below did in the case at bar was to sit as a

super-legislature and create statutory distinctions where

none were obviously intended by the explicit language of

the definitional portion of the stature, which is clearly

contrary to past holdings of this Court. American Tobac-

co Co. v. Patterson, supra, 71 L.Ed.2d at 757, n.6; Gris-

wold v. Connecticut, 381 U.S. 479, 482 (1965).

The issue presented is of major importance since the

smooth transition from Conrail to the commuter author-

ities explicitly envisioned by the Congress in NERSA

hangs in the balance. The importance of the issue in the

case at bar extends far beyond the Special Court’s viola-

tion of the cardinal rule of statutory construction that

statutes plain on their face mean exactly what they say, to

the ability of the Congress to be free within the bounds of

the Constitution to legislate toward such ends as it

chooses without interference from the Judiciary, particu-

larly given the intensive federal concern with railroads in

general. See, U.S. Railroad Retirement Board v. Fritz,

449 U.S. 166, 179 (1980). These considerations warrant

review by this Court.

1. The general panel of the Specia! Court inSEPTA I,

made it erystal clear that if a commuter authority in-

tended to operate “commuter service,” it was bound by

the labor transfer provisions of NERSA, holding that any

other result based upon the language of the statute would

substantially thwart the expressed Congressional will

and the Government’s interest in minimizing future costs

for Conrail and itself and in seeking to preserve labor

peace and employee morale. SEPTA I, supra, 534 F.

Supp. at 851. When the General Panel' was faced with the

argument from SEPTA in SEPTA II that the limitations

of SEPTA I were not applicable if a commuter authority

intended to contract out a function rather than operate

itself, it found no difference in the two situations, stating:

From this perspective, we accept, at least a -

do, that as a general proposition, § 508(a)’s siase

“commuter authorities that intend to operate com-

muter service” must be read to include commuter

authorities that pro to transfer the operation of

such service to a subcontractor. We say this because

this disorder and adverse effects on Conrail would be

of precisely the same character and magnitude

whether a commuter authority operates its own

service or makes use of an independent contractor to

do so. Since Congress inten¢ ed to prevent the harm

in one situation we see no reason why it would not

have done so in the other. Moreover § 508(a)’s

requirement regarding the direct operation of com-

muter service by a commuter authority would serve

little if it could be put at naught by use of an

independent contractor.

534 F. Supp. at 856.

‘On May 20, 1982, after the decisions in SEPTA I, SEPTA II, and

SEPTA III, the Special Court, pursuant to Section 1152 of NERSA,

asked the Judicial Panel on Multi-district Litigation to convene an

1152 Panel, which decided the case at bar. See, Rule 4, Rules of

Special Court, 3R Act (App. 26a).

But the general panel in SEPTA II found that the

statutory definition of “commuter service” did not pro-

vide much guidance with regard to the functions there

involved, grass cutting and janitorial service. 534 F.

Supp. at 856. Therefore, the Court found it necessary to

construe and judicially gloss the statute with discernable

standards that would provide some guidance for the fu-

ture stating:

Even assuming the foregoing, SEPTA’s actions in

the present case do not fall within the statute’s

terms. As noted above, NRSA’s labor transfer provi-

sions were desi to deal with a particular event—

the transfer of Conrail’s commuter operations to

other entities. The perceived r that this en-

tailed was the massive dislocation of Conrail a a

ees and the consequent disruption of Conrail’s work-

force. In the present case SEPTA is contracting for

only a small of the commuter service operations

in the Philadelphia area, and the effect on Conrail

will be minimal. Far more important, there are over-

whelmingly reliable ee that poe Fd not

attempting to accomplish by which we

think it may not do all at once. ‘These indications are

Pere tat rear de aca ya

anuary 0 i e desirability of con-

tracting out for janitorial and grass-cutting services

and the preparation of bid specifications and so forth

by SEPTA in the spring of 1981—all well before

RSA was enacted. These events are important to

our conclusion in two separate respects.

First, they bear on whether SEPTA’s conduct is

within the of actions by commuter authorities

that § 508 was intended to regulate. As noted above

NRSA’s labor transfer provisions were meant to deal

with an unusual event, namely, the large-scale trans-

fer of commuter operations from Conrail to other

entities. tra that is not the situation in this case.

The pre-NRSA conduct of SEPTA and Conrail in-

dicates that contracting out for janitorial and grass-

cutting services was merely one of the routine

changes in the manner in which commuter service is

rovided to Philadelphia of the type those entities

Scomenthy had made. Moreover, it does not pose the

danger to Conrail that inheres in the transfer of

entire commuter service operations. If Conrail was

satisfied that SEPTA’s contracting out for janitorial

and grass-cutting services would not adversely

affect it, we do not think Congress would have per-

ceived that such changes posed a threat to Conrail.

In short, the character of the change in service

sought by SEPTA and the pre-NRSA recommenda-

tions, discussions, and preparatory work indicate

that the situation we face is not what concerned

Congress when it enacted § 508.

The pre-NRSA actions of SEPTA and Conrail are

important for another reason, namely, their bearin

on SEPTA’s intent, an issue that § 508(a), whic

predicates the labor transfer negotiating process on

a commuter authority’s “inten[t}” to operate commu-

ter service, requires us to consider. Here, the pre-

NRSA actions of SEPTA and Conrail clearly indicate

that SEPTA is not attempting to circumvent the

provisions of NRSA; rather, it is merely carrying out

plans, approved by Conrail, that have been under-

way since before NRSA’s enactment. To repeat the

point made earlier, what SEPTA intends by the

arrangement with Fernandez is not to “operate com-

muter service” but to continue its historic pattern of

making minor adjustments in the way commuter

service is provided in Philadelphia.

We need not decide precisely what factual showing

by a commuter authority will satisfy the foregoing

interpretation of § 508. This case involves very clear

evidence of SEPTA’s intent merely to make small-

scale adjustments, consistent with historic practices,

in the way commuter service is provided in Philadel-

phia, er than to engage in the type of transfer

envisioned by § 508. We will decide subcontract

cases ing evidence of pre-NRSA preparations

and consent by Conrail or inve'ving more substantial

portions of Conrail’s commuter operations, when and

they arise . . . 534 F. Supp. 7.

Both the General Panel in SEPTA III and the § 1152

Panel in the case at bar used the criteria set forth in

SEPTA II to determine if the functions therein to be

contracted out by SEPTA or assumed by it directly were

subject to the labor transfer provisions of NERSA. And

even though RLEA feels that the standards were in-

correctly applied in the case at bar, the gravamen of its

petition herein is that the only reason the considerations

and criteria set forth above in the extensive quotation

from SEPTA II were at all necessary was because the

statutory definition of “commuter service” was of no aid

with regard to any of the functions contained SEPTA II

or SEPTA III, since none of them were referred to

directly or indirectly in said definition. RLEA’s point

here is that the sale of commutation tickets was explicitly

referred to in the statutory definition of “commuter serv-

ice.” And it is clear beyond peradventure of doubt in the

explicit language of § 508(a) and in the General Panel’s

opinion in SEPTA I that a “commuter authority” that

intends to operate “commuter service” is fully subject to

the labor transfer provisions of NERSA, whether it in-

tends to accomplish such commuter service itself (SE P-

TA I) or by means of a contractor (SEPTA II ). The

failure of the Special Court to have addressed this issue at

all even though raised, effectively renders the statutory

definition of “commuter service” nugatory. That cannot

be permitted if the Congress is to legislate toward the

ends it selects free from unwarranted judicial interpreta-

tion of statutory language.

CONCLUSION

The decision below is in direct conflict with decisions of

this Court regarding the cardinal principle of statutory

construction that plain and unambiguous statutory lan-

guage must be given effect. It concerns the fundamental

question of the freedom of the Congress to state what it

means free from judicial interference. For these reasons,

a writ of certiorari should issue to review the judgment

and opinion of the Special Court.

Date: October 18, 1982

Respectfully submitted,