Petition — United Transportation Union v. Southeastern Pennsylvania Transportation Authority

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82-1189 itca Ss

No. ___ JANIO 1993

IN THE be LER

Supreme Court of the United States

JANUARY TERM, 1983

UNITED TRANSPORTATION UNION,

Petitioner,

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

New JERSEY RAIL OPERATIONS, INC.,

Respondents

and

CONSOLIDATED RAIL CORPORATION

Rule 19 Party

PETITION FOR A WRIT OF CERTIORARI

TO THE SPECIAL COURT, REGIONAL RAIL

REORGANIZATION ACT OF 1973

JOSEPH P, ALTIER

(Counsel of Record)

ALTER, WAYNE & KLEIN, Esqas.

450 Seventh Avenue

New York, N.Y. 10123

(212) 564-9090

Attorneys for the

United Transportation Union

Dated: January 10, 1983

PRESS OF BYRON 8S, ADAMS PRINTING, INC,, WASHINGTON, D.C,

mage 9

QUESTION PRESENTED

Whether a state (New Jersey) commuter authority, the

Federal Court below and a Presidential Emergency

Board are bound by the clear prior right seniority

preservation language of Congress contained in the

Northeast Rail Service Act of 1981, or whether the feder-

al and state agencies are free to establish a new railroad

seniority system the effect of which is to deprive, uncon-

stitutionally, all affirmative action women and minority

hirees of their jobs?

TABLE OF CONTENTS

Page

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STATUTORY PROVISION INVOLVED .......-ececeececees 2

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REASONS FOR GRANTING THE WRIT .........-eeeeeeees 7

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TABLE OF AUTHORITIES

CASES: Page

American Tobacco Co. v. Patterson, __. U.S. —__., 71

mee GE ge rr ee 7

Consumer Products Safety Commission v. G.T.E. Syl- |

vania, Inc., 447 U.S. 108 (1980) .....ccccccccccs 7

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

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

U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166

ied Vad bu hagas canmcds leak cceiia weeeeswees 8

STATUTES:

Civil Rights Act of 1964, 42 U.S.C. §§ 1981 and 1983 . 9

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

Rail Passenger Service Act, 45 U.S.C. § 501, et seq... 2

Regional Rail Reorganization Act of 1973, 45 U.S.C.

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OTHER MATERIALS:

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IN THE

Supreme Court of the United States

JANUARY TERM, 1983

UNITED TRANSPORTATION UNION,

Petitioner,

Vv.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,

NEw JERSEY Rait OpeRATions, INC.,

Respondents

and

CONSOLIDATED RAIL CORPORATION

Rule 19 Party

PETITION FOR A WRIT OF CERTIORARI

TO THE SPECIAL COURT, REGIONAL RAIL

REORGANIZATION ACT OF 1973

The petitioner, United Transportation Union (UTU),

respectfully prays that a writ of certiorari issue to review

the order of the Special Court, Regional Rail Reorganiza-

tion Act of 1973 entered in this case on December 21,

1982. The judgment and opinion have not yet been ren-

dered.

OPINION BELOW

The opinion of the Special Court, has not yet been

rendered. It will be supplied in a supplemental appendix

as App. A. The order below is App. B.

JURISDICTION

The judgment of the Special Court has not yet been

rendered but will be supplied in a supplemental appendix

as (App. C). This petition is governed by § 1152(b) of the

Northeast Rail Service Act of 1981 (hereinafter NER-

SA), which provides that judgment of the Special Court

shall be reviewable only upon petition for a writ of cer-

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

days after the entry of an order of the Special Court (App.

D).

STATUTORY PROVISIONS INVOLVED

The pertinent provisions of NERSA, including perti-

nent amendments to the Rail Passenger Service Act

(RPSA) and the Regional Rail Reorganization Act of 1973

(hereinafter 3R Act), are set forth in the Appendix at pp.

Ya-lla. (App. E).

STATEMENT

Proceedings Below

In the past, Consolidated Rail Corporation (hereinafter

Conrail), has provided commuter service to the New

Jersey area under a subsidiary arrangement with the

State of New Jersey as provided by Section 304 of the 3R

Act. Pursuant to Section 1136 of NERSA, Conrail was

legislated out of the commuter rail business. The commu-

ter lines of Conrail throughout the United States will be

taken over by Amtrak Commuter or local commuter au-

thorities at the options of the states involved.

Petitioner, UTU, is a labor union which represents

many of the operating crews of the trains presently oper-

ated by Conrail which trains are being taken over by New

Jersey Rail Operations, Inc., (hereinafter NJT), pur-

suant to NERSA.

Respondent in this case is a subsidiary of the NJT

which is a public corporation chartered pursuant to the

laws of the State of New Jersey to provide commuter

service in that state. NJT is a “commuter authority” as

defined in Section 1135 (a)(3) of NERSA.

NERSA amended RPSA in order to provide for the

orderly transfer of employees from Conrail to the new

commuter authorities. This case involves Sections 503

through 510 which prescribe the method under which

Conrail commuter employees are to be absorbed by Con-

rail’s successors.

More particularly, this case involves the preservation

of seniority rights of the UTU members as their employer

changes from Conrail to NJT. Congress provided that the

new employers should maintain the employees’ prior

seniority rights, Sec. 508 (c) (5)(7). Each of the gov-

ernmental bodies below, i.e., NJT, Conrail, Referee

Kasher, the Presidential Emergency Board and the 3-

judge 1152(a) Court, have defied the Congressional direc-

tive and held that a new form of seniority shall prevail and

that after January 1, 1983 prior right seniority will no

longer apply.

Pursv#nt to Section 508(a) NJT, Conrail and the UTU

attempted to negotiate a mutually satisfactory

implementing agreement. By August 1, 1982 no such

agreement had been reached. Section 508(d)(1) requires

that, within five days, the parties select a neutral referee

in the event that implementing agreement negotiations

are not completed by August 1, 1982. The parties were

also unable to select an arbitrator by August 6th. Accord-

ingly, pursuant to Section 508(d), the National Mediation

Board appointed Mr. Kasher on September 7, 1982 to

resolve all implementing agreement disputes. Referee

Kasher entered his decision on October 15, 1982 (App. F,

12a-14a). He found that after January 1, 1983 there would

no longer be a prior right seniority system. Rather, there

would be a new form of seniority system. The UTU

moved for clarification and reconsideration of that deci-

sion on October 20, 1982.

There being no Kasher reconsideration, the UTU filed

its complaint in this case on November 12, 1982 raising

objections to the Kasher award insofar as it established a

new form of seniority and scrapped the prior right senior-

ity system (App. G, 15a-16a) which had been mandated by

Congress.

On December 1, 1982 the President’s Emergency

Board adopted the NJT presentation which contained the

Kasher new form of seniority (App. H, 17a-19a).

On December 6, 1982 on motion to clarify and reconsid-

er, Mr. Kasher reaffirmed his original decision and held

that the old form of prior right seniority would no longer

prevail, that although the employees would move over to

NJT according to the old senority system, once over

there, a new form of seniority would be employed (App. I,

20a-21a).

On December 10, 1982, the UTU moved the court

below for a preliminary injunction holding the seniority

status quo, i.e., enjoining the scrapping of the prior right

seniority system and enjoining the implementation of the

Kasher new form of seniority system based solely upon

date of hire.

On December 21, 1982 the Court below entered an

order with decision to follow, denying the preliminary

injunction and affirming the Kasher abolition of prior

right seniority system.

FACTS

The facts are contained in the moving affidavit of UTU

General Chairman Charles P. Jones (App. J, 22a to 30a)

and the intervenor Suzanne Woodard (App. K, 31la-33a)

and are not substantially disputed.

There are approximately 610 UTU employees operat-

ing the trains in New Jersey. These positions have been

held by Conrail employees. On January 1, 1983 these

positions became those of NJT. The legislated spin off of

the New Jersey rail system from Conrail to NJT is com-

pleted.

The seniority system before the spin off was based on

prior and prior prior right system rather than being based

solely on the employee’s date of hire. Prior right means

that an employee has territorial seniority to the original

railroad of employment.' Prior prior rights refer to an

employee’s territorial rights which existed through two

mergers. e.g., a Conrail employee who had originally

hired on the old Pennsylvania Railroad would be said to

have prior prior rights to the old Pennsylvania Railroad

territory and prior rights to the Penn Central territory.

An employee’s prior and prior prior rights were well

understood by the company, the unions and the person-

nel. With each merger over the past four decades these

rights were protected by Congress and the negotiators.

‘Conrail, formed on April 1, 1976 by Congressional merger of

bankrupt railroads in the northeast corridor.

Congress in legislating the NERSA spin off specifically

provided that the “. . . Commuter authority. . . shall, to

the extent possible, preserve their prior seniority

rights.”, (508(c)(5)) and “ensure the retention of prior

seniority on Conrail . . .” (508(c)(7)).

It could not be contended sensibly that it would be

impossible or even difficult to let the 610 UTU positions

continue their prior seniority as it was on December 31,

1982. The prior and prior prior right seniority system had

continued through multiple mergers, it could continue

through a spin off. The seniority status quo could have

been maintained.

Referee Kasher thought a straight date of hire senior-

ity system would be “better” and directed that after

January 1, 1983 there would no longer be a prior right

seniority system.

This bold directive of the referee in the face of the

contrary Congressional directive that prior rights should

be preserved was sanctioned by the court below in affirm-

ing the Kasher award. Contiuing the flaunt of the Con-

gressional directive, the President’s Emergency Board

recommended that prior rights end.

The consequences of abolition of the prior rights sys-

tem were drastic and pointed out to the Court below in

the affidavits of Charles Jones and Suzanne E. Woodard.

Employees hired after February 18, 1965 would not make

the Kasher list. All black and female employees hired

pursuant to affirmative action programs would not be

hired according to the Kasher seniority system. The new

railroad employer would have an all male, practically all

white, work force. The minority employees would pre-

serve their jobs if the congressionally mandated prior

right system were continued, but it was not.

REASONS FOR GRANTING THE WRIT

1. The State, Presidential Emergency Board And The Judi-

cial Contradiction Of A Simple Congressional Directive

To Preserve Prior Seniority Rights Constitutes A Review-

able Conflict Between Governmental Agencies At The

Highest Level And Portends Labor Strife Throughout The

Railroad Labor Force Of The United States.

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 337

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

tive purpose is é¢xpressed by the ordinary meaning of

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

ordinarily conclusive. Conswmer 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 this case at the urging of the

State of New Jersey, was to ally itself with Referee

Kasher and the Presidential Board so as to act as super-

legislators and decide a different and “better” seniority

system in direct contradiction to the Congressional direc-

tive to preserve the prior right seniority system of the

UTU employees. This is clearly contrary to past holdings

of this Court. American Tobacco Co. v. Patterson, supra,

71 L. Ed. 2d at 757, n.6; Griswold v. Connecticut, 381

U.S. 479, 482 (1965).

The smooth transition from Conrail to the commuter

authorities explicitly envisioned by the Congress in

NERSA hangs in the balance. Unions cannot stand by

and see seniority rights eroded in direct contradiction to

the Congressional intent to preserve prior rights. The

unions involved have read Congress’ dictates, i.e. the. . .

Commuter authority ... shall, to the extent possible,

preserve their seniority rights.” (508(c)(5)).

After NERSA enactment, the Unions’ prior rights

were safe. Next the unions were met with the notice of

the State of New Jersey that it did not intend to grant any

prior rights; next, the Kasher decision denied prior right

seniority protection; next the Presidential Board sided

with the State of New Jersey, and, finally, the Court

below affirmed the abolition of prior rights. To expect the

union leadership, in the face of such high level gov-

ernmental contradiction, to lead its enraged membership

to a smooth transition is unrealistic.

The importance of the issue far exceeds the expected

labor turmoil generated by the executive and judicial

medling in the prior right seniority area which Congress

had specifically preserved. The issue involves the free-

dom of Congress, within the bounds of the Constitution,

to legislate toward such ends as it chooses without in-

terference from the Judiciary, the states or Presidential

boards. This is particularly so given the intensive federal

concern with railroads in general. See U.S. Railroad

Retirement Board v. Fritz, 449 U.S. 166, 179 (1980). Such

high level conflict between the three branches of the

United States government and a state should be re-

viewed by this Court.

2. The Implementation Of The New Kasher Seniority System

And Elimination Of The Prior Right System By The

Efforts And/Or Concurrence Of The State Of New Jersey,

Presidential Emergency Board And The Court Below Will

Result In De Facto Racial And Sexual Discrimination In

Violation Of Title VII Of The Civil Rights Act Of 1964, 42

U.S.C. § 1981 and 1983, The Fifth, Thirteenth And Four-

teenth Amendments To The U.S. Constitution.

The affidavit of Charles Jones, Suzanne E. Woodard,

Intervenors rule 24, Pleading (App. L, 34a) as well as the

memorandum and argument before the Court below

raised the racial and sexual discrimination issues. The

failure of the Court below to follow the dictate of Con-

gress to preserve prior rights resulted in the loss of jobs

of the black, Hispanic and female employees hired pur-

suant to the affirmative action programs.’

Implementation of the new seniority system would

leave a completely male work force and would eliminate

virtually all of the minority employees hired pursuant to

affirmative action programs. Of the minority men who

will remain (only a few) they will be deprived of their

prior seniority rights and will thereby stand at the bottom

of the seniority list. For any and all seniority purposes

they will be second class employees.

The abolition of prior rights results in state and federal-

ly induced de facto sexual and racial discrimination in

violation of the Constitution and Civil Rights Act. Cer-

tiorari ought be granted.

* The proceeding below afforded no opportunity for proof or cross

examination other than the presentation of affidavits and exhibits.

The weighty issues presented to the three judge court below were

finally decided on papers alone.

CONCLUSION

The decision below is in direct conflict with decisions of

this Court that plain and unambiguous Congressional

language must be given effect, It concerns the fun-

damental question of the freedom of Congress to state

what it means free from judicial, state and Presidential

Board interference, It concerns state, judicial and Pres-

idential Board implementation of and/or concurrence in

an unconstitutional seniority system. A writ of certiorari

should issue to review the order, judgment and, if issued,

the opinion of the Special Court.

Respectfully submitted,