# Appendix — Railway Labor Executives' Ass'n v. Southeastern Pennsylvania Transportation Authority > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1054%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1087 ## Text TABLE OF CONTENTS Page APPENDIX A Decision by S Court, Regional Rail neon = anon la 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 la 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 2la 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1054%3A2. Public record. Not legal advice.