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

TABLE OF CONTENTS

Page

APPENDIX A Decision by S Court, Regional Rail

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APPENDIX B Order by Special Court ............... l6a

Appenb!x C Portions of Brief of Plaintiff Railway

—_ Executives’ Association in Special i

MND ec cdcobctebepadebsdec cedecéceece a

APPENDIX D Rail wry ger Service Act, § 508 reeni 20a

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APPENDIX A

SPECIAL COURT

REGIONAL RAIL REORGANIZATION ACT OF 1973

§ 1152 Panel

C.A. No. 82-18

RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

Piaintiff,

\.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Defendant,

and

CONSOLIDATED RAIL CORPORATION, and AMTRAK

COMMUTER SERVICES CORPORATION d/b/a COMMUTER

SERVICES CORPORATION,

Rule 19 Parties.

FILED

SEP 28 1982 p.m.

JAMES F. DAVEY, Clerk

Before GascuH, Presiding Judge, and BRYANT and WEINER,

Judges.

Clinton J. Miller, III, Esq. and John J. Sullivan, Esq. (High-

saw & Mahoney, P.C., Washington, D.C.), for Plaintiff Rail-

way Labor Executives’ Association

Lewis H. Van Dusen, Jr., Esq. and Robert H. Young, Jr.,

Esq. (Drinker Biddle & Reath, Philadelphia, PA), for Defend-

ant Southeastern Pennsylvania Transportation Authority

Harry A. Rissetto, Esq. and John A. Fraser, III, Esq. (Mor-

gan Lewis & Bockius, Washington, D.C.), and Hermon M.

Wells, Esq. (Consolidated Rail Corporation, Philadelphia,

PA), for Rule 19 Party Consolidated Rail Corporation

Seymour Kurland, Esq. and Mark L. Alderman, Esq. (Wolf,

Block, Schou, & Solis-Cohen, Philadelphia, PA), for Rule 19

Party Amtrak Commuter Services Corporation

WEINER, Judge:

I.

This is the fourth in a series of cases involving application of

§§ 508 and 510 of the Rail Passenger Service Act (RPSA)

added by § 1145 of the Northeast Rail Service Act of 1981

(NRSA) to actions taken or proposed to be taken by Southeast-

ern Pennsylvania Transportation Authority (SEPTA) con-

cerning commuter rail service in the southeastern Pennsylva-

nia region. That commuter rail service is currently being sup-

plied to SEPTA by Consolidated Rai! Corporation (Conrail) on

a contractual basis pursuant to § 304 of the Regional Rail

Reorganization Act of 1973 (RRRA). The three previous cases

are Railway Labor Executives’ Association v. Southeastern

Pennsylvania Transportation Authority (SEPTA 1), 534 F.

Supp. 832 (Jan. 27, 1982), cert. denied, __ U.S. —__.,, 102

S.Ct. 2271, 73 L. Ed. 2d 1285 (May 24, 1982), Railway Labor

Executives’ Association v. Southeastern Pennsylvania

Transportation Authority (SEPTA II), 534 F. Supp. 852

(March 11, 1982), and International Brotherhood of Teamsters

v. Southeastern Pennsylvania Transportation Authority

(SEPTA III), 539 F. Supp. 1222 (May 21, 1982). Since we must

apply those precedents to the case now before us, familiarity

with those opinions is necessary and will be assumed.

The identity of plaintiff Railway Labor Executives’ Associa-

tion (RLEA), defendants SEPTA and Conrail and the rela-

tions between them have been fully described in Presiding

Judge Friendly’s opinion in SEPTA I, supra, 534 F. Supp. at

834-35. A new party, Amtrak Commuter Services Corpora-

tion, (Commuter) which does business as Commuter Services

Corporation has been named as a Rule 19 party in the

complaint.' Commuter was established by § 501 of RPSA, as

‘Rule 19 of the Federal Rules of Civil Procedure provides for

“joinder of persons needed for just adjudication.”

3a

added by § 1137 of NRSA, to operate commuter service on

behalf of those commuter authorities which contract with it to

provide such service. Commuter’s involvement in this action

stems from SEPTA’s March 29, 1982, notification to Commu-

ter and Conrail that pursuant to § 506(a) of RPSA, as added by

§ 1137 of NRSA, it intends to contract with Commuter for the

operation of commuter rail service in the southeastern Penn-

sylvania region.’

In this case, as in each of the tnree previous cases, the

complaint alleges that SEPTA’s acts or proposed acts violate

§§ 508 and 510 and wili result in irreparable loss of the rights of

Conrail employees under NRSA. The particular act which

plaintiff complains of is SEPTA’s announced intention to

assume performing through a contractor the ticket selling

functions currently being provided by Conrail and Conrail

employees represented by the Brotherhood of Railway, Air-

line and Steamship Clerks, a constituent member of RLEA.*

* By letter of David F. Girard-diCarlo, Chairman of The Board of

SEPTA, to David W. Marston, President and Chairman of the Board

of Amtrak Commuter Services Corporation, dated March 29, 1982,

SEPTA served notice on Commuter that SEPTA intends to contract

with Commuter for the operation of commuter rail services in accord-

ance with § 506(a) of RPSA.

*In his letter of April 12, 1982, David L. Gunn, Chief Operations

Officer/General Manager of SEPTA advised Conrail that effective

August 1, 1982, SEPTA intended to begin performing by contractor

ticket sales functions currently provided by Conrai! and Conrail

employees. Exhibit B to the complaint. The August 1, 1982, date ‘or

takeover of the ticket selling function was subsequently changed. A

letter from David L. Gunn to R. P. Huffman, Conrail’s Regional

Manager Passenger Services for the SEPTA Region, dated July 19,

1982, requested that Conrail continue its ticket selling activities until

September 1, 1982. In a letter of August 24, 1982, John A. Fraser,

counsel for Conrail, informed the Court that takeover of the ticket

selling function by SEPTA had been further delayed to October 1,

1982.

4a

The complaint further alleges that the selling of tickets

constitutes “commuter service” as defined in § 1135(a)(4) of

NRSA. The relief prayed for is a declaration that SEPTA or

Commuter pursuant to § 508 must negotiate and arbitrate, if

necessary, an implementing agreement with Conrail and the

labor organizations representing the employees performing

the ticket selling function prior to SEPTA’s or Commuter’s

operation of “commuter service” and a similar declaration with

respect to the § 510 collective bargaining negotiations along

with injunctive relief prohibiting SEPTA from contracting out

the ticket selling function without first complying with §§ 508

and 510.‘

*The full text of $§ 508 and 510 is as follows:

SEC. 508. TRANSFER OF EMPLOYEES.

(a) Not later than May 1, 1982, Conrail, commuter author-

ities that intend to operate commuter service, and representa-

tives of the various crafts or classes of of Conrail to be

(b) Wet later than Bay 2. 1982, Conrail, Amtrak Co:amuter,

and of the various crafts or classes of _—

of Conrail to be transferred to Amtrak Commuter

into for an ae ny ++

with (c) of this section.

(ec) Such negotiations shall—

(1) determine the number of employees to be transferred to

Amtrak Commuter or a commuter authority;

(2) iden the specific employees of Conrail to whom

y Bey Bad Re Th

ment;

(3) determine the procedure by such employees may elect to

employment

accept with Amtrak Commuter or a commuter

authority;

(4) determine the for acceptance of such employ-

ces into employment wit Amtrak Commuter oF commuter

(5) determine the mete tee ee be

such employees in

y no later than January 1,

are transferred to Amtrak

(6) ensure that all such

A at pa ney

SEPTA’s answer asserts that its assumption of the ticket

selling function falls within the exceptions outlined in SEPTA

II and SEPTA III, and further, that it is not governed by

HIRT) FM JHE THE

A fH int

TEC

Le

i At

Bite Wal: uit anit es #8

6a

$§ 508 and 510 because it has served notice that it intends to

contract with Commuter for the operation of its commuter rail

lines and it is not a commuter authority that intends to operate

ies to a commuter authority under section 506 of this

title, Amtrak Commuter, the commuter authority, and

es of the various crafts or classes of employees to

ee under section 701 of the i Rail i

lye pyr y py

remained in the employ of

representatives of the various classes or crafts of employees to

be transferred to such commuter authorities under agreements

(2) Not later than September 1, 1982, Amtrak Commuter

and the representatives of the various classes or crafts of em-

|

(b) Ifthe bares) petaSenagpemment ty Godse

specified in (a) of this section, any party to

or the Governor of any State through which the service that is

7a

commuter service within the meaning of that term in §§ 508(a)

and 510(a)(1).

Procedurally this matter is before us on RLEA’s motion fora

preliminary injunction which was filed on June 15, 1982. That

motion requested that the Court establish a schedule for filing

of a stipulation of facts and briefs and for hearing oral argu-

ment. We did so in an order dated June 17, 1982. The parties

filed their stipulation of fact« on June 28, 1982.° All pertinent

an eg tp tye pe

on the at which each provide

ny ny within 30 ce thetenedinceation,

on the dispute.

oy If no settlement in the dispute is reached within 10 days

Seen he patie to he Ee Oem such board shall re-

to submit, within 5 days, final

ed mynd faa of the dispute. “a

— Within 15 days after the submission of final offers, the

Re See OAS ae CURE CaS

forth its selection of the most reasonable offer

(f) yam ape ene pee pte aeneneny api

carrier and the se ve AY

(h) The provisions set forth in this section shall be the ex-

So Ee En ay Cape Nas eae >

Commuter or a commuter y, as the case may be, and

or of employees to

be transferred to Amtrak Commuter or such commuter au-

‘The stipulation of facts prepared for this case has been sup-

plemented by incorporation of the Stipulation of Facts, Appendix to

Stipulation of Facts and Supplemental Stipulation filed in SEPTA I,

and the Stipulation of Facts filed in SEPTA III.

8a

facts were not agreed to, however, and Conrail requested that

the Court schedule an evidentiary hearing before the writer.

That hearing was held on July 1, 1982. SEPTA and Conrail

have also filed certain affidavits to complete the evidentiary

record. At oral argument on July 16, 1982, the Court informed

the parties that in accordance with Rule 65(a)(1) F.R.Civ.P.,

trial on the merits would be advanced and consolidated with

the hearing on the motion for preliminary injunction.

The background of Conrail’s operation of commuter service

for SEPTA has been set forth in the Court’s opinions in SEP-

TA I, 534 F. Supp. 834-35, and SEPTA II, 534 F. Supp. at

853-54. The factual background giving rise to this action began

when SEPTA identified certain areas it wished to remove from

subsidy operation by Conrail; among those areas was the

elimination of ticket selling by Conrail. At the evidentiary

hearing David L. Gunn, Chief Operations Officer and General

Manager of SEPTA, testified that in November, 1980 he met

with Richard Sullivan, Conrail’s Vice-President of Passenger

Service, and discussed ways for SEPTA to cut costs and there-

by reduce its subsidy to Conrail. Included in those discussions

was a general reference to SEPTA’s assuming responsibility

or subcontracting for the performance of various functions. On

January 30, 1981, another meeting was held between

representatives of Conrail and SEPTA to discuss means by

which SEPTA could reduce costs. Mr. Gunn’s notes of that

meeting list five functions which he mentioned to Conrail that

SEPTA could take over. These functions were: station clean-

ing, car cleaning, ticket selling, security, and operation of the

Newtown-Fox Chase line. A Conrail witness at the hearing,

Donald A. Brinkworth, did not dispute that these functions

were discussed, but he maintained that the discussions were

very general and Conrail had not agreed at those meetings toa

takeover of the ticket selling function by SEPTA. On June 3,

1981, another meeting was held to find ways to reduce costs. At

that meeting Conrail proposed that $1.5 million could be saved

by a major elimination of ticket selling.

9a

Sometime during June, George W. Miller, Treasurer of

SEPTA, directed a member of his staff, Barbara Titus, to

begin developing plans for the contracting out of the ticket

selling functions. A draft request for proposal for the services

of a consultant was prepared on June 15, 1981. Subsequently

Mrs. Titus spoke to Conrail representatives and requested

information regarding ticket selling in the Reading Division.°

At about the same time SEPTA began plans to assume operat-

ing responsibility for the Reading Vivision. That opertion was

scheduled to commence on January 1, 1982.’ Conrail in-

terpreted Mrs. Titus’ requests for information as relating to

the larger takeover of rail operations on the Reading Division

rather than relating to a more limited takeover of ticket sales.

In any event, SEPTA continued its efforts to prepare for the

contracting out of ticket sales. In December, 1981 SEITTA

advertised a notice for a request for proposal by contractors.

Since February, 1982 SEPTA has engaged in negotiations

with one contractor, Blue Ribbon Services, Inc., which has

submitted a proposal. This preparation led to SEPTA’s April

12, 1982 notification to Conrail that it intended to perform the

ticket sales function on the Reading Division on August 1,

1982, and to assume responsibility for the balance of the ticket

sales at a later date.

If SEPTA proceeds with this plan, Conrail will abolish 56

positions on the Reading Division and 76 positions on the

former Penn Central lines. In all 139 Conrail employees will be

effected and 132 positions will be eliminated.

* Conrail’s commuter operations in Philadelphia were divided into

the Reading Division for lines running out of Reading Terminal which

were formerly operated by the Reading Railroad and the Philadel-

phia Division for lines formerly operated by Penn Central.

7 Letter of David L. Gunn to Richard C. Sullivan dated August 11,

1981. Conrail Exhibit 4 attached to the transcript of the July 1, 1982

evidentiary hearing.

10a

We must now decide whether this case should be governed

by the holding in SEPTA I or whether it fits within the excep-

tions outlined in the decisions in SEPTA II and SEPTA III.

After an exhaustive examination of the RPSA amendments

and their legislative history, Judge Friendly held in SEPTA I

that SEPTA could not lawfully assume operation of commuter

service on a line previously operated by Conrail without

complying with the procedures of §§ 508 and 510.

When presented with SEPTA’s attempt to subcontract for

the station cleaning function in SEPTA //, the Court framed

the issue as

whether §§ 508 and 510 of RPSA are applicable in a situa-

tion where a commuter authority seeks to complete the

lage or ptm ape ae justment in the manner

which commuter service is provided when substantial

steps towards ing this adjustment had been taken

prior to the effective date of NRSA. 534 F. Supp. at 855.

In deciding that issue the Court looked to the purposes

underlying NRSA’s labor transfer amendments to RPSA.

Judge Friendly found “(tJhe labor transfer provisions were an

attempt to deal with the disruptions thought likely to accom-

pany the large scale transfer of commuter services from Con-

rail to other entities”. 534 F. Supp. at 856. The disruptive

effect on Conrail of SEPTA’s contracting out of the perform-

ance of janitorial and grass-cutting services was considered

minimal.*

The Court considered at some iength and gave weight to

steps taken prior to the passage of NRSA by SEPTA and

Conrail. These pre-NRSA preparations indicated that SEP-

TA’s decision to subcontract for the performance of janitorial

’ Thirty-two full time Conrail employees were affected by SEPTA

actions in SEPTA I]. Affidavit of Richard Sullivan { 5, filed in

SEPTA II.

lla

and grass cutting services “was merely one of the routine

changes in the manner in which commuter service is provided

to Philadelphia of the type those entities frequently had

made.” 534 F. Supp. at 857. The pre-NRSA discussions and

preparations were important for two reasons. “First, they

bear on whether SEPTA’s conduct is within the range of ac-

tions by commuter authorities that § 508 was intended to reg-

ulate.” Jd. Second, the pre-NRSA actions of SEPTA and Con-

rail bear on the question of whether SEPTA intends to operate

commuter service, either itself or through a subcontractor.

Application of the $§ 508 and 510 provisions is predicated on

such an intent to operate commuter service. In SEPTA I// the

Court found the pre-NRSA preparations suggested that SEP-

TA was not seeking to circumvent the statute by accomplish-

ing by degrees what the decisions in SEPTA I prohibited it

from doing all at once. The Court did not decide what factual

showing by a commuter authority would satisfy the SEPTA I]

exception. It did, however, state “[w]Je will decide subcontract

cases lacking evidence of pre-N RSA preparations and consent

by Conrail or involving more substantial portions of Conrail’s

commuter operations . . . when and if they arise”. Jd. Such

questions have come before the Court in SEPTA II] and nowin

this action.

The Court found SEPTA III “exceedingly close to SEPTA

II“, 589 F. Supp. 1224. Although SEPTA’s pre-NRSA

preparations for performing security service with its own em-

ployees were not as substantial as those demonstrated in SE P-

TA Il, the Court found that they did satisfy the standards

articulated in the prior case. Taken together with the small

number of employees involved*® the pre-NRSA preparations

indicated to the Court that SEPTA’s proposed “change was

merely part of the ‘historic pattern of making minor adjust-

*The positions of fourteen Conrail policemen were at stake in

SEPTA III. SEPTA III, Stipulation of facts, 44 15-16.

12a

ments in the way commuter service is provided in Philadel-

phia’, 534 F. Supp. at 857, which we do not think Congress

meant to prohibit when it enacted NRSA.” 537 F. Supp. at

1225.

From the brief factual recital in part II of this opinion, it is

apparent that the facts of this case are not as close to SEPTA II

as Judge Friendly found the facts of SEPTA III to be. Both

sides ask us to evaluate the pre-NRSA discussions and

preparations in the light of the standards developed in SEPTA

II. Conrail asserts, and RLEA agrees, that those standards

have not been met because the pre-N RSA discussions were too

general and tentative to demonstrate that Conrail did approve

an assumption by SEPTA of the ticket selling function prior to

the effective date of NRSA. SEPTA asserts that such approval

should be inferred from the varius meetings where the sub-

ject of reduction of costs through the elimination of Conrail’s

performance of various functions was discussed. From the

evidence presented and testimony heard it does not appear to

us that the evidence supports a finding that Conrail approved

SEPTA’s takeover of the ticket selling function. What is clear

to us is that SEPTA formed an intent in January, 1981 to

assume the ticket selling function at some future date, and it

appears that Conrail first fully appreciated SEPTA’s intention

to take over the ticket selling function in the summer of 1981,

when the disucssions were being held regarding SEPTA’s

takeover of the operation of the entire Reading Division.

Weare not convinced, however, that approval by Conrail is a

prerequisite for application of the SEPTA II standards. The

consent of Conrail to SEPTA’s takeover of the station cleaning

and security service in SEPTA II and SEPTA III, merely

buttressed the otherwise available evidence that such changes

in service were those contemplated and permitted by para-

graph 2(f) of the May 23, 1981 agreement between SEPTA and

13a

Conrail." SEPTA’s making any change permitted by 4 2(f) is

not contingent on approval by Conrail. Prior to August 13,

1981, the effective date of NRSA, the relations between SEP-

TA and Conrail were governed solely by § 304 of RRRA and

the various agreements between them.

We must now face the question of whether the pre-NRSA

discussions and preparations are sufficient to meet the test

articulated in SEPTA II. We find that they are. The evidence

presented to us indicates that the pre-NRSA discussions be-

tween SEPTA and Conrail were no more or no less concrete

with regard to the ticket selling function than those same

discussions were with regard to the janitorial and grass-

cutting and security functions. The uncontroverted evidence

shows that these three functions along with car cleaning and

operation of the Newtown-Fox Chase Line were generally

” Paragraph 2(f) provides as follows:

(f) Conrail grants SEPTA the right to approve all cost and

budgetary assumptions, including manpower levels, used in the

budgeting process, except labor costs governed by safety con-

siderations, statutes, agency rules or regulations, work rules

and labor contracts. The ing sentence is intended to in-

crease and not to reduce SEPTA’s control over the costs of the

Service, and shall not be construed as a limitation upon any

trol such costs. In the event that, the negotia-

tion Focal ete vary + ob wafer pee Panny pene

sang. men Net vi olved viding the

ora i type of activity involved in providi

Survien, or to the event tat is unable to provide any

such work activity at a level to SEPTA with respect

to cost and/or staffing , SEPTA shall be entitled to ex-

levels

ercise, without limitation, the rights which it has under the

ties, and shall a ee he

claims arising out of any agreements executed by SEPTA.

l4a

discussed in both January and June of 1981. These discussions

along with the pre-NRSA preparations by SEPTA were held

sufficient in SEPTA II and SEPTA III and we think they are

sufficient here as well. SEPTA’s pre-NRSA preparations,

while not very extensive, do demonstrate that the ground

work had begun to contract out the ticket selling function in

June and July of 1981. They also demonstrate that SEPTA’s

intent was to change its relationship with Conrail in a manner

which it thought consistent with the May 28, 1981 Agreement

between it and Conrail. We find no evidence to suggest that

SEPTA’s takeover of responsibility for ticket selling through a

subcontractor would have been contrary to { 2(f) of the agree-

ment.

That does not, however, end our inquiry. In both SEPTA II

and SEPTA III the Court characterized the change sought by

SEPTA as fitting into the “historic pattern of making minor

adjustments in the way commuter service is provided in Phila-_ .

delphia.” 534 F. Supp. at 857. We must address the question of

the magnitude of the change sought by SEPTA. If SEPTA

completes its proposal to take over the ticket selling function,

132 positions will be abolished by Conrail. These 132 positions

are approximately eight percent of a total work force of 1709

employed by Conrail for its SEPTA operations, as contrasted

with the comparatively small number of Conrail positions elim-

inated after SEPTA’s changes permitted by the decisions in

SEPTA II (32), and SEPTA III (14). While the number of

employees adversely affected alone should not be determina-

tive, the disruptive effect on Conrail’s operatrions in some

ways is proportional to the number of employees displaced.

The impact on Conrail’s remaining workforce and its labor

protection obligations imposed by Title VII of RRRA are

dependent on the number o employees displaced. We never-

theless find that SEPTA’s proposed takeover is merely one of

the small scale adjustments made in the way commuter service

is historically provided for Philadelphia. The transfer of the

ticket selling functions from Conrail to SEPTA may be charac-

terized as routine and minor, and although involving a larger

l5a

number of positions, is not substantially dissimilar to the

changes approved in SEPTA II and SEPTA III. The magni-

tude of this proposed action by SEPTA is not so great that it

stretches SEPTA II beyond its permissable limits and invokes

the prohibition of SEPTA J."

As in SEPTA III we need not decide the question whether

SEPTA retains any obligation to negotiate under § 508(a) or to

bargain under § 510(a)(1) in view of its March 29, 1982, notice

to Commuter since we consider SEPTA II to be dispositive of

this case.

Judgment will be entered denying the motion for a prelimi-

nary — and dismissing the complaint on the merits.

/s/ Oliver Gasch

Presiding Judge

OLIVER GASCH

/s/ William B. Bryant

Judge

WILLiAM B. BRYANT

/s/ Charles R. Weiner

Judge

CHARLES R. WEINER

DATED: September 23, 1982

"With regard to the particular ai. distinct aspect of its opera-

tions, SEPTA seeks to do no more than was attempted in the actions

which precipitated SEPTA I] and SEPTA III. The common element

in each instance is the relative insignificance of the proposed change

when viewed against the background of SEPTA’s overall commuter

service operation. When seen in that context it becomes evident that

the way in which commuter service is provided in Philadelphia will

not be altered to any appreciable degree by this change in the ticket

selling functions.

l6a

APPENDIX B

SPECIAL COURT

REGIONAL RAIL REORGANIZATION ACT OF 1973

§ 1152 Panel

C.A. No. 82-18

RaILway LAaBor EXECUTIVES’ ASSOCIATION,

Plaintiff,

Vv.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Defendant,

and

CONSOLIDATED RAIL CORPORATION, and AMTRAK

COMMUTER SERVICES CORPORATION d/b/a COMMUTER

SERVICES CORPORATION,

Rule 19 Parties.

FILED

SEP 28 1982 p.m.

JAMES F. DAVY, Clerk

JUDGMENT

This action having come on for hearing before the § 1152

Panel of the Court, and the issues having been duly heard, and

the Court’s opinion having been filed on September 23, 1982.

It Is ORDERED, ADJUDGED AND DECREED that plaintiff's

motion for a preliminary injunction is denied and that the

complaint is dismissed on its merits.

/s/ James F. Davey

JAMES F. Davey

Clerk

September 28, 1982

17a

APPENDIX C

Portions Of Brief Of Plaintiff Railway Labor Executives’

82-18 (SEPTA IV).

SPECIAL COURT

REGIONAL RAIL REORGANIZATION ACT OF 1973

Civil Action No. 82-18

RaILway LABorR EXECUTIVES’ ASSOCIATION,

Plaintiff,

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

Defendant,

and

CONSOLIDATED RAIL CORPORATION,

and

AMTRAK COMMUTER SERVICES CORPORATION

d/b/a COMMUTER SERVICES CORPORATION,

Rule 19 Parties.

BRIEF OF PLAINTIFF

RAILWAY LABOR EXECUTIVES’ ASSOCIATION

WILuiiaM G. MaHoney, Esquire

Cuinton J. Mitier, III, Esquire

JouHN J. SULLIVAN, ESQUIRE

Hicusaw & Manoney, P.C.

Suite 210

1050 - 17th Street, NW

Washington, DC 20036

(202) 296-8500

Attorneys for Rail..ay Labor

Executives’ Assoc ..cion

Date: July 12, 1982

18a

ARGUMENT

1. The Selling Of Commutation Tickets Constitutes “Com-

muter Service” As Defined In Section 1135(b)(1) Of NER-

SA, And Therefore Said Ticket Selling May Not Be

Assumed By Either Commuter Or SEPTA Without Com-

pliance With The Labor Transfer Provisions Contained In

Section 1145 Of NERSA.

Section 1135(b)(1) of NERSA defines “commuter service”

and states in pertinent part:

‘Commuter service’ means short-haul rail passenger serv-

ice operated in metropolitan and suburban areas .. .

characterized by reduced fare, multiple-ride and

commutation tickets, and by ma fy evening peak

ees for SEPTA on the effective date of NERSA (August 13,

1981).* Because ticket selling was being performed by Conrail

‘This Court in SEPTA / left no doubt that if an authority operated

19a

employees under an operating agreement existing pursuant to

Section 304 of the 3R Act on the effective date of NERSA, and

because ticket selling clearly is within the plain meaning of the

statutory definition of commuter service, it necessarily follows

that prior to the performance of any such service by Commuter

or SEPTA, an implementing agreement must be reached or

arbitrated within the statutorily defined period in the manner

described in Section 508 of the RPSA Amendments (contained

in Section 1145 of NERSA) and the parties must negotiate

toward a collective-bargaining agreement in accordance with

Section 510 of the RPSA.

20a

APPENDIX D

Rail Passenger Service Act § 508, As Added By the Northeast

Rail Service Act Of 1981, Subtitle E Of The Omnibus Budget

Reconciliation Act Of 1981, Pub. L. 97-35, § 1145, 95 Stat. 669

“(a) Not later than May 1, 1982, Conrail, commuter

authorities intend to operate

to Commuter or a commuter authority;

“(2) identify the specific employees of Conrail to whom

Amtrak Commuter or a commuter em-

“(3) determine the by which such -

ees may elect to accept with Amtrak

muter or a commuter ;

“(4) determine the procedure for of such

employees employment with Commuter or

a commuter authority;

“(5) Sitecmine the peccoiane for

clases in Amtrak Commuter oF with 4 con ter a

‘ e

their prior seniority rights;

ensure the retention of seniority on Conrail

Jutta

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commuter authority and determine the extent and man-

ner in which such employees shall be permitted to ex-

epcien euch contentey te ender to (A) peovide emalayess

transferred to Amtrak Commuter or a commuter au-

thority at least one y every six-month period

to exercise previous t seniority rights, (B) maxi-

opport

lough, (C) maintain the ability to recall experienced

— ae (D) ensure that under

seniority rights exercised in any manner which results

in any ption of service or a position being filled

which would otherwise not be under the terms of

any crew consist, fireman manning, or other similar

agreement, and (E) ensure that Conrail has the right to

furlough one employee in the same craft or class for each

who returns from Amtrak Commuter or a

commuter authority by exercising seniority.

“(d)1) If ts with respect to the matters

being t to this section are not reached

within'an additi 1982, the partes to the negotiations shal,

fix and pay the compensation of such referees.

ain ‘Mickninnanattilileamiion

ferred, the shall be resolved by a neutral referee in

accordance subsection (d) of section.

“(f) Any yee of Conrail who is not offered em-

—- with Amtrak Commuter or a commuter author-

yn epennenamens into under this section shall

be provided employee protection under section 701 of the

Regional Rail ization Act of 1973 to the same

extent as if such employee had remained in the employ of

23a

APPENDIX E

Regional Rail Reorganization Act Of 1973 § 102(4), As Added

By Subtitle E Of the Omnibus Budget Reconciliation Act Of

1981, Pub. L. 97-35, § 1135, 95 Stat. 646

“(4) ‘Commuter service’ means short-haul rail passen-

ger service operated in metropolitan and suburban areas,

whether within or across the boundaries of a

State, usually characterized by reduced fare, multiple-

ride, and commutation tickets, and by morning and even-

ing peak period operations”;

24a

APPENDIX F

Northeast Rail Service Act Of 1981 § 1152, Subtitle E Of The

Omnibus Budget Reconciliation Act Of 1981, Pub. L. 97-35, 95

Stat. 676

Sec. 1152. (a) Notwithstanding any other provision of |

law, the special court shall have oviginal and exclusive

jurisdiction over 2ny civil action—

(1} for injunctive, declaratory, or other relief relating

to the enforcement, operation, execution, or interpreta-

tion of any provision of or amendment made by this

subtitle, or administrative action taken thereunder to

the extent such action is subject to judicial review;

(2) challenging the constitutionality of any provision

of or amendment made by this subtitle;

(3) toobtain, inspect, copy, or review any document in

the possession or control of the Secretary, Conrail, the

United States Railway Association, or Amtrak that

would be discoverable in litigation under any prc ~ ‘on

of or amendment made by this substitle; or

(4) seeking judgment upon any claim against the

United States founded 0 n the Constitution and

resulting from the operation of any provision of or

amendment made by this subtitle.

(b) A judgment of the special court in any action refer-

red to in this section shall be reviewable only upon petition

for a writ of certiorari to the Supreme Court of the United

States, except that any order or judgment enjoining the

enforcement, or declaring or determining the unconstitu-

tionality or invalidity, of any provision of this subtitle shall

be reviewable by direct appeal to the Supreme Court of

the United States. Such review is exclusive and any peti-

tion or appeal shall be filed not more than 20 days after

entry of such order or judgment.

(ec) Administrative action under the provisions of or

amendments made by this subtitle which is subject to

review shall be upheld unless such action is found to be

unlawful under standards established for review of in-

formal agency action under hs (2)(A), (B), (C),

and (D) of section 706, title 5, United States Code. The

requirements of this subtitle shall constitute the exclusive

25a

eee required by law for such administrative ac-

(d) Ifthe volume of civil actions under subsection (a) of

this section so requires, the United States Railwa

Association shall y to the judicial 1 on multi-

district litigation authorized by section 1407 of title 28,

United States Code, for the oompynent of additional

ae gt et ty court. Within 30 days after the date of

such application, the panel shall assign to the special court

such additional judges as may be to exercise the

jurisdiction described in subsection (a) of this section.

26a

APPENDIX G

Rule 4, Revised Rules Of The Special Court Under § 209 Of

The Regional Rail Reorganization Act Of 1973, As Amended

May 20, 1982

Rule 4

PANELS OF THE COURT

A. Two Panels. The Court shall consist of two panels

of three judges to be known as the General Panel and the

§ 1152 Panel. The General Panel consists of tne judges

cpoceees from time to time by the Judicial Panel on

ultidistrict Litigation under § 209%b) of the Regional

Rail Reorganization Act of 1973 (the Act). The § 1152

Panel consists of the judges inted from time to time

by the Judicial Panel on Multidistrict Litigation under

ae of the Northeast Rail Service Act of 1981

B. Presiding Judges. ag shall appoint one of

its members as its iding Judge. The Presiding J

of the General Panel shall be the Presiding Judge of

C. The General Panel. The General Panel shall have

exclusive jurisdiction over all actions described in

§ 20%(e), over proceedings under §§ 303 and 306(c)(4), and

oy semanas transactions proposed under § 305 of

ct.

D. The § 1152 Panel. The § 1152 Panel shall have

grok! ae for all actions arising under

1152(a) of NRSA. If the Presiding Judge of the § 1152

Panel so requests, one or more of the judges of the General

Panel sep tht cial net bo seantved talGiin & aastionter

action under § 1152(a) of NRSA in the place and stead of

the same number of judges of the §°1152 Panel. Any such

shall be made to the Presiding Judge of the Gener-

al 1 or, in the event of his unavailability, to on of the

other judges of the General Panel in order of precedence.