Opposition Brief — American Train Dispatchers Ass'n v. CSX Transportation, Inc.

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No. 91-972 enheastoe

In The

Supreme Court of the United States

October Term, 1991

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al.,

Petitioners,

Vv.

CSX TRANSPORTATION, INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

RESPONDENT CSX TRANSPORTATION, INC.’s

BRIEF IN OPPOSITION

Nicholas S. Yovanovic, Esquire Ronald M. Johnson

CSX Transportation, Inc. Counsel of Record

500 Water Street Akin, Gump, Hauer & Feld

Jacksonville, FL 32202 Suite 400

(904) 359-1244 1333 New Hampshire Ave., N.W.

Washington, D.C. 20036

(202) 887-4114

Attorneys for Respondent

CSX TRANSPORTATION, INC.

February 3, 1992

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QUESTION PRESENTED

Does the Railway Labor Act’s status quo obligation

preclude a railroad from selling some of its rail lines, where

the Interstate Commerce Commission has authorized the sale

and the railroad’s unions admit that the railroad has the

managerial right, unrestricted by any collective bargaining

agreement, to sell lines of its railroad.

RULE 29.1 STATEMENT

Respondent CSX Transportation, Inc. is a wholly owned

subsidiary of CSX Corporation.

TABLE OF CONTENTS

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REASONS WHY THE PETITION SHOULD

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I. The D.C. Circuit’s Decision Was Fully

Comput WER PALE 2... wk.

II. Supreme Court Review Is Unnecessary

for the Proper Administration

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TABLE OF AUTHORITIES

CASES:

Brotherhood of Ry. & S.S. Clerks v.

Fiorida East Coast Ry., 384 U.S.

DN oe SR eGR Soules See a ea 4 4

Chicago & Northwestern Transp. Co.

v. RLEA, 908 F.2d 144 (7th Cir.

1990), cert. denied, _—siUS.«

Bree ee ek | er ere 2,6,17

CSXT v. United Transp- Union, 139 L.R.R.M.

(i) cores Ge Re. TO) wh re et es 2,17

Detroit & Toledo Shore Line R.R. v.

United Transp. Union, 396 U.S.

ee i a ee ee passim

First Nat'l Maintenance Corp. v.

NELAB, 452 US. G66 (TFS). wwe eee 15,16

Inland Steel Co. v. NLRB, 170 F.2d

247 (7th Cir. 1948), aff'd on

other grounds sub nom. Am.

Communications Ass’n v. Douds,

RG OE os es Dike we ee ees 16

MT Properties, Inc. v.

Transportation-Communications

Int'l Union, 914 F.2d 1083, 1089 (8th Cir. 1990) . . 9

CASES (cont.):

Norfolk & W. Ry. v. American

Train Dispatchers’ Ass'n,

US. VS Ce CY. oes x

Order of R.R. Telegraphers v.

Chicago & N. W- Ry.

Co., 362 U.S. 330 (1960) ..............

Pittsburgh & Lake Erie R.R. Co. v.

Railway Labor Executives Ass'n,

41 US: GO (99) ...... 66 ec ee

RLEA v. Chicago & Northwestern Transp.

Co., 890 F.2d 1024 (8th Cir. 1989),

cert. denied, US. ,

106 C. ATT .... hk

RLEA v. ICC. 930 F.2d 511 (6th Cir.

WN Se eee eee ee

RLEA v. Union Pacific R. R. Co.,

No. 90-110DA (D. Ore. May 14,

1991), appeal dismissed, No. 91-35753

(Pe es COE ee es oh eee ees

Textile Workers Union v. Darlington Mfg. Co..

I as woe eee ees

United States v. Fausto, 484 U.S. 439

tL ee Rees baton Wee x Norte ie

passim

passim

we

os

WN

16

CASES (cont.):

United States v. Underwood, 717 F.2d 482

(9th Cir. 1983), cert. denied, 465 U.S. 1036

ES ee awa de eet ew eA a ee i)

United Transp. Union v. Grand Truck

Western R.R. Co., 133 L.R.R.M. (BNA)

2845 (6th Cir.), cert. denied, 2.

Be TOY 5 kn ec cece e cb teues 4

STATUTES:

Railway Labor Act

js es oS. SA eee ene 5

TE BO eee Sine ee 8 eR eR passim

RE PD eee ec eee ee ee ee ee wee SOR ON 2

Interstate Commerce Act

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a De” 3

Public Law No. 102-29 ................00.4. 8

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OTHER:

Report to the President by

Emergency Board No. 219 (Jan. 15, 1991)

Report of the Special Board

(102-29), Requests for Modification

of the Report of Emergency Board

No. 219 (Executive Order No. 12714)

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In The

Supreme Court of the United States

October Term, 1991

No. 91-972

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al.

Petitioners,

¥.

CSX TRANSPORTATION, INC., et al..

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

RESPONDENT CSX TRANSPORTATION, INC.'s

BRIEF IN OPPOSITION

CSX Transportation, Inc. ("CSXT") respectfully

requests that this Court deny the petition for certiorari

submitted by the American Train Dispatchers Association

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and seven other unions (hereinafter "unions"),’ seeking

review of the D.C. Circuit’s decision reported at 938 F.2d

224 (D.C. Cir. 1991) (hereinafter "RLEA v. CSXT").’

The D.C. Circuit’s decision was fully consistent with

Pittsburgh & Lake Erie Railroad Co. v. Railway Labor

Executives Association, 491 U.S. 490 (1989) (hereinafter

"P&LE"), as well as three other appellate decisions

reaching the same conclusion, and with the proper

administration of the Railway Labor Act ("RLA").

COUNTERSTATEMENT OF THE CASE

Like other large railroads, CSXT has been selling

rail lines that were unprofitable or only marginally

profitable to new or existing shoit line railroads, which

were willing to take the risk that they could revitalize

these lines and attract new _ business. Congress

encouraged such sales when it amended the Interstate

Commerce Act ("ICA") in 1980 by the Staggers Rail Act.

Previously, such marginal lines were more often

abandoned by the major carriers.

‘The two largest rail unions, Transportation Communications International

Union and United Transportation Union, have dropped out of this case.

See Pet. at i.

“The D.C. Circuit’s decision is also reproduced in Appendix A to the Petition

CSXT cites pages in the reproduced opinion as "Pet. at

‘CSXT v. United Transp. Union, 139 L.R.R.M. (BNA) 2061 (2d Cir. 1991);

Chicago & Northwestern Transp. Co. v. RLEA, 908 F.2d 144 (7th Cir. 1990),

cen. denied, __ US. __, 111 S. Ct. 1073 (1991); RLEA v. Chicago &

Northwestern Transp. Co., 890 F.2d 1024 (8th Cir. 1989), cert. denied, ___

U.S. __, 110 S. Ct. 3237 (1990)

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Line sales to a non-railroad are subject to approval

by the Interstate Commerce Commission ("ICC")

pursuant to Section 10901 of the ICA, 49 U.S.C. § 10901.

Sales to existing railroads are subject to ICA Section

11343, 49 U.S.C. § 11343. A key difference between the

two types of transactions is that, in a Section 11343 sale,

the ICC is required by statute to impose labor protective

conditions upon the transaction. 49 U.S.C. § 11347.

These conditions, commonly called the New York Dock

conditions, provide that employees of the selling railroad

who may be adversely affected by the sale are

guaranteed their wages for up to six years and are

eligible for other benefits. The cost of these protections

are borne by the selling carrier. RLEA v. CSXT, 938

F.2d at 225, Pet. at 3a. In Section 10901 transactions,

the ICC has discretion whether to impose labor

protective conditions. See, e.g, P&LE, 491 US. at 498-

501. Although the unions complain in their Petition that

the ICC changed its policy of imposing labor protections

in line sales in the early 1980's, Pet. at 3, this change

only related to the [CC’s discretionary authority in

Section 10901 sales. The specific line sales challenged

in this case were Section 11343 sales, which were subject

to the mandatory New York Dock conditions. RLEA v.

CSXT, 938 F.2d at 225, Pet. at 3a.

As rail labor conceded in the Courts below, CSXT’s

line sales do not violate any provision in its collective

bargaining agreements with its unions. However, when

the parties’ collective bargaining agreements came open

“The ICC’s application of its New York Dock protections in Section 11343

line sales was upheld in RLEA v. ICC, 930 F.2d 511 (6th Cir. 1991), which

involved one of the line sales also at issue in this case. The unions did not

seek this Court’s review of the Sixth Circuit’s affirmance of the ICC.

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for amendment in 1988, the unions served bargaining

proposals, called Section 6 notices in RLA parlance,

seeking to improve their rates of pay and other benefits.’

Among other topics, the unions proposed that a

successorship provision be added to their collective

bargaining agreements. This provision would require a

railroad involved in a line sale, lease, or similar

transaction, to protect its employees from any adverse

impacts by obligating the acquiring entity to assume the

selling carrier’s unions, collective bargaining agreements,

and employees. The railroads, including CSXT, served

counter Section 6 notices on the unions. CSXT and the

unions agreed that their respective bargaining proposals,

including the successorship proposal, would be handled

in national bargaining between railroads such as CSXT

and the unions, which had agreed to the national

bargaining.°

The service of the parties’ Section 6 notices initiated

the RLA’s procedures for amending collective bargaining

agreements, sometimes called the "major" dispute

procedures. These procedures, involving bargaining,

mediation. cooling-off periods, and, occasionally,

Presidential and Congressional intervention, have been

characterized as "purposefully long and drawn out,"

Brotherhood of Ry. & S. S. Clerks v. Florida E. Coast Ry.,

384 U.S. 238, 246 (1966), and “almost interminable,"

‘The written bargaining proposals take their name from Section 6 of the

RLA. 45 U.S.C. § 156.

°Many of the nations’ railroads have historically bargained with the umions on

a national. multi-employer basis. See, e.g, United Transp. Union v. Grand

Trunk Western R.R. Co., 133 L.R.R.M. (BNA) 2845 (6th Cir.), cert. denied,

US. . 111 S. Ct. 55 (1990).

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Detroit & Toledo Shore Line R.R. v. United Transp. Union,

396 U.S. 142, 149 (1969) ("Shore Line"). In Shore Line,

this Court explained that, during the pendency of these

procedures, the parties had to maintain the status quo.

That status quo requirement embraced the working

conditions out of which the dispute arose.

Bargaining and mediation under the auspices of the

National Mediation Board ("NMB"), pursuant to Section

5 of the RLA, 45 US.C. § 155, failed to produce

settlement of the parties’ Section 6 proposals. The

unions conceded that CSXT participated in these efforts.

RLEA v. CSXT, 938 F.2d at 226, Pet. at 5a. The

President then appointed an emergency board,

Presidential Emergency Board No. 219 ("PEB"), pursuant

to Section 10 of the RLA, 45 US.C. § 160, to

recommend a settlement of the disputed issues.

District Court Proceedings

In the meantime, the unions took the position that,

once they had served their Section 6 notices seeking to

bargain new benefits for employees affected by line sales.

CSXT could no longer sell rail lines until after the RLA’s

major dispute procedures had been exhausted.

According to the unions, the working conditions here

included the continued operation and ownership by

CSXT of all of the rail lines which it owned or operated

on the particular day the unions served their respective

Section 6 notices. They brought a complaint in District

Court against CSXT, where they sought to enjoin, as a

violation of the RLA status quo, six specific Section

11343 line sales to short line railroads, which had been

approved by the ICC.

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The unions argued that their case was not controlled

by P&LE, which they would limit to the situation where -

a railroad was selling all of its rail lines. Instead, the

unions relied on this Court’s decisions in Shore Line and

Order of Railroad Telegraphers v. Chicago & North Western

Railway Co., 362 U.S. 330 (1960) ("Telegraphers"), for

their construction of the RLA _ status quo. In

Telegraphers, the Court held that a railroad had to

bargain over its decision to reduce and consolidate the

number of stations along its rail lines. In Shore Line, the

Court held that the rail yard reporting points where

employees historicaily reported for work assignments

were working conditions subject to the status quo

requirement. Therefore, the railroad could not alter such

reporting points without first exhausting the RLA’s major

dispute procedures.

CSXT took the position that the rationale of PLE

applied equally to the sale by a railroad of portions of its

system as to all of its rail system. Hence, under this

Court’s P&LE decision, the ownership and operation of

rail lines were not working conditions within the meaning

of the RLA’s status quo requirement. The District Court

agreed and dismissed the unions’ complaint.

Appellate Proceedings

The unions then appealed to the D.C. Circuit, which

agreed with the District Court that the case was

controlled by P&LE. The D.C. Circuit found itself in

agreement with other appellate courts which had heard

these same unions’ arguments and concluded that there

was "no sensible basis" to limit P&LE’s rationale to its

facts, as they unions urged, citing Chicago & Northwestern

aS. a

Transportation Co. v. RLEA, 908 F.2d 144, 152 (7th Cir.

1990) ("C&NW v. RLEA"), cert. denied, US. ___, 111

S. Ct. 1073 (1991); and RLEA v. Chicago & Northwestern

Transportation Co., 890 F.2d 1024, 1025 (8th Cir. 1989),

cert denied, US. __, 110 S.Ct. 3237 (1990). 938

F.2d at 229, Pet. at 10a. The D.C. Circuit denied

rehearing and rehearing en banc on September 19, 1991.

Subsequent PEB and Congressional Proceedings

As the unions note in their petition, while their

appeal was pending, the PEB investigated the labor

dispute between the railroads and unions. The PEB

received written submissions and conducted hearings on

the parties’ positions in collective bargaining, including on

the line sale issue. See Report to the President by

Emergency Board No. 219 at 15-18 and 116 ("Several

other issues, such as the Organizations’ proposals

regarding Line Sales, were also considered by the

Board.") (Jan. 15, 1991). Indeed, the unions made a

separate presentation to the PEB on the line sale issue,

urging it to adopt their successorship proposal.

Ultimately, although the PEB adopted certain union

proposals, it did not include in its recommendations the

unions’ line sale proposal. The PEB also recommended

a moratorium, until November 1, 1994, on the service of

new Section 6 notices, by labor or management, which

sought to re-open matters that were or could have been

raised during this round of bargaining. The purpose of

the moratorium was to ensure labor peace during this

period.

Under the RLA, the PEB’s recommendations are not

binding and were rejected by the unions. A resulting

5 1

one-day nation-wide rail strike was ended when Congress

imposed the PEB’s recommendations on the parties in

Public Law No. 102-29 (April 18, 1991). Congress there

also created a Special Board, which the parties could ask

to modify the PEB’s recommendations. Jd. § 2. In fact,

the unions asked the Special Board to modify the

moratorium in the PEB report to allow unions to re-

open the line sale issue. The Special Board found that

‘the recommendations of PEB 219 are fair and

-demonstrably equitable" and rejected their request for

modification in a report issued July 18, 1991. Report of

the Special Board (102-29), Requests for Modification of

the Report of Emergency Board No. 219 (Executive Order

No. 12714) at 15 (July 18, 1991). The PEB’s

recommendations became effective July 28, 1991.

REASONS WHY THE PETITION SHOULD BE DENIED

The unions argue that Supreme Court review is

justified for two reasons. First, they argue that the D.C.

Circuit’s decision was contrary to this Court’s opinions in

P&LE, Shore Line, and Telegraphers. Second, they fall

back on the old saw that review is necessary for the

proper administration of a statute, here the RLA.

Neither claim is true; the Petition should be denied.

This Court recently visited in P&LE the issue

presented by the unions Petition. While P&LE’s holding

that the RLA’s status quo requirement did not preclude

consummation of an ICC-authorized line sale was in the

context of a total line sale, the P&LE opinion’s rationales

clearly apply to partial line sales, as the D.C. Circuit and

. 2

three other circuits have held.’ The uniform application

by these courts of appeal of the clear reasoning of this

Court does not warrant review of the D.C. Circuit

decision.’

Furthermore, the D.C. Circuit’s application of PALE

to a partial line sale was correct. Two rationales

underlay P&LE. First, not all topics are mandatory

subjects of bargaining under the RLA. This Court held

in P&LE that the decision to sell rail lines was a

“management prerogative’ and that the unions had no

expectation that "labor would have a substantial role in

the decision to sel] or in negotiating the terms of the

sale." 491 U.S. at 507. Second, P&LE found its

construction of the RLA was necessary to avoid a conflict

with the ICA and that statute’s encouragement of line

sales. As the ‘D.C. Circuit concluded, both of these

rationales apply equally to partial line sales. Just as

there is no indication Congress intended in the RLA that

unions be able to dictate the terms of a total line sale,

~

‘See note 3 supra. The unions avoided the possibility of yet another adverse

appellate decision by voluntarily dismissing their appeal in RLEA v. Union

Pacific Railroad Co., No. 90-110DA (D. Ore. May 14, 1991). appeal dismissed,

No. 91-35753 (9th Cir. 1991). That Court. like the District Court here,

dismissed an essentially identical union complaint on the same basis upheld

by the D.C. Circuit. See also MT Properties, Inc. v. Transportation-

Communications Int'l Union, 914 F.2d 1083, 1089 (8th Cir. 1990).

“As the Ninth Circuit stated in United States v. Underwood, 717 F.2d 482,

486 (9th Cir. 1983), cert denied, 465 U.S. 1036 (1984), "[i]n the decision of

individual cases the [Supreme] Court must and regularly does establish

guidelines to govern a variety of situations related to that presented in the

immediate case. The system could not function if lower courts were free to

disregard such guidelines whenever they did not precisely match the facts of

the case in which the guidelines were announced.”

- 10- ‘

there is no indication of any intent to give unions that

power over partial line sales.

In addition, by arguing P&LE should be limited to its

facts, the unions completely ignore the second basis tor

the P&LE holding -- the "obligation to avoid conflicts

between two statutory regimes, namely, the RLA and

ICA, that in some respects overlap." 491 U.S. at 510.

The unions’ Petition omits any reference to this aspect of

P&LE. The D.C. Circuit correctly concluded that the

need to give effect to the RLA and ICA had equal force

in the circumstance of partial line sales, which obviously

occur more frequently than a total line sale. Moreover,

the obligation to avoid a conflict with the ICA is even

stronger in the context of Section 11343 transactions,

given this Court’s recent decision that ICC autharization

of such transactions can supersede inconsistent RLA

obligations. Norfolk & W. Ry. v. Amencan Train

Dispatchers’ Assn, US. ___, 111 S. Ct. 1156 (1991).”

Supreme Court review also is unnecessary tor the

proper administration of the RLA. As indicated, there

is no disagreement among the lower courts on the

implications of P&LE. In addition, nothing in the D.C.

Circuit decision precludes the unions from again raising

the issue of the effects on employees of line sales when

the parties’ agreements are susceptible to amendment in

1994,

“Unlike the sales identified in the unions’ complaint here. the line sale at

issue in P&LE was subject to IGC approval under Section 10901 rather than

Section 11343 of the ICA.

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I. The D.C. Circuit’s Decision Was Fully Consistent

with P&LE

Here, as in P&LE, the unions argued that, once they

served Section 6 notices seeking to amend _ their

agreements to obligate the railroad to require any

purchaser, as a condition of the sale, to take the seller’s

unions, agreements, and employees, the railroad could

not consummate the sa’e until the RLA’s major dispute

procedures had been exhausted. Otherwise, the unions

argued, the railroad would violate the RLA status quo

requirement. The unions also contended that scope of

the status quo obligation was defined by the scope of the

bargaining obligation. Relying on Telegraphers, the unions

argued that the railroad had to bargain over its decision

to sell as well as the sale’s effects on employees. Since

the unions’ bargaining demands, if adopted, would dictate

in part the terms of the sale, in order to preserve the

Status quo, the railroad had to forgo the sale during

bargaining.

In P&LE the Court rejected the unions’ construction

of the RLA status quo and bargaining requirements as

unsupported by the statute or legislative intent. The

RLA limits mandatory subjects of bargaining to "rates of

pay, rules, or working conditions." 45 U.S.C. § 156. In

essence, this Court found the RLA did not intend that all

topics be mandatory subjects of bargaining. P&LE’s

decision to sell its rail lines and reduce employment was

held to be a managerial prerogative and not "a change in

the conditions of employment forbidden by the status quo

provision of § 156." 491 U.S. at 509. The Court

distinguished Shore Line, as having "extended the relevant

language of § 156 to its cuter limits... ." /d. at 306.

7

The Court then limited Shore Line and Telegraphers to

their facts and further distinguished them on the basis

that they did not involve the fundamental decision of "a

railroad’s freedom to leave the market." Jd. at 508 n.17."

This Court also found that its construction of the RLA

was necessary to fulfill its obligation to avoid conflicts

between two statutory regimes, the RLA and ICA. 7d. at

510. See, also, id. at 511 ("[W]e are confident that the

RLA is reasonably subject to a construction that would,

at least to a degree, harmonize the two statutes."). The

Court recognized that the unions’ construction of the

RLA would frustrate Congress’ intent in the ICA to

encourage the timely sale of failing rail lines. /d. at 510-

11.

The D.C. Circuit applied these rationales to a partial

line sale. The unions concede that the D.C. Circuit’s

“conclusions are consistent with this Court’s decision in

P&LE ...." Pet. at 12. However, the unions argue that

P&LE should be limited to the facts of a railroad going

completely out of the rail business. While this Court

limited its holding in P&LE to the facts before it, nothing

in P&LE indicates that its reasoning would not apply to

partial line sales. As the D.C. Circuit found, a

managerial decision to sell part of a rail system is not

qualitatively different from the decision to sell all rail

lines. Both decisions involve "a railroad’s freedom to

‘The unions apparently reference the 1936 Washington Job Protection

Agreement as some evidence that rail unions have an expectation to bargain

over a railroad’s decision to sell lines. Pet. at 14. However, as the Petition

itself explains, that Agreement went to effects, not to the decision uself.

Moreover, the Agreement related to mergers, not line sales. From the

undisputed fact that CSXT’s agreements contain no restricuons on its right

to sell parts of its rail system, .t is clear that heretofore the umions have never

had any expectation to affect the terms of such saies.

=

leave the market." RLEA v. CSXT, 938 F.2d at 228, Pet.

at 9a-10a (quoting PALE, 491 U.S. at 508 n.17). The

unions now argue that CSXT was not, in fact, leaving the

market, because the subject rail lines would still be

operated by someone, who will interchange freight with

CSXT. Pet. at 17-18. An argument that the D.C. Circuit

misconstrued facts never presented to the District Court

is hardly the basis for Supreme Court review. In any

event, there was no basis for the unions’ contention chat

CSXT did not leave the markets where it sold lines of its

-railroad. The fact that CSXT may interchange rail traffic

with the new railroads does not mean CSXT has not left

these markets and redirected its capital. As a common

carrier, CSXT is required by law to interchange with all

rail carriers with which it interconnects. This in no way

alters the fact that, after the sale, markets left by CSXT

are served by lines owned and operated by independent

carriers, unaffiliated with CSXT. These carriers are

responsible for the service provided on these lines and

for their success or failure.”

Furthermore, as in the case of a total line sale, there

is no indication in the language or purpose of the RLA

that Congress intended unions to be able to dictate the

terms of partial line sales or preclude such sales through

their bargaining demands. Yet, that is the result the

unions are seeking. Under their construction of the RLA

status quo, CSXT would have had to cease selling rail

lines for the three year period the parties were in

bargaining over the parties’ Section 6 notices. This

argument is made despite the unions’ admission that

‘Moreover, in many of these sales. the purchaser has connections with other

railroads

"2

CSXT’s management right to sell rail lines was not

limited by existing collective bargaining agreements.

According to the union theory, CSXT could resume

selling lines after this period, but only until November

1994, when the unions would again be free to serve new

section 6 notices relating to line sales. Presumably,

CSXT would again be barred from consummating line

sales until after exhaustion of that round of bargaining,

and so-on and so-forth. As the D.C. Circuit found, the

unions "concept of ‘status quo’. . . is defined by the

wishes of the unions as expressed in their bargaining

proposals," 938 F.2d at 229, Pet. at 10a, a concept for

which there is no support in the RLA.

The D.C. Circuit also heeded P&LE’s admonition

that the Courts have an obligation to construe the RLA

to avoid conflicts with the ICA. RLEA v. CSXT, 938

F.2d at 230, Pet. at 12a (citing PRLE, 491 U.S. at 510-

11). The unions’ argument in this case would create an

even greater conflict between the RLA and ICA than

was present in P&LE. It would be an anomalous result

to avoid a conflict with the ICA in the relatively rare

instance of a total line sale, but not in the more common

partial line sale. Understandably, the unions nowhere

address this aspect of P&LE in their Petition.

Similarly, the D.C. Circuit, like this Court in P&LE,

properly distinguished Shore Line and_ Telegraphers.

Neither decision involved a carrier’s decision to sell lines.

In Shore Line, the issue was whether the railroad had to

bargain over a change in employees’ reporting points. In

Telegraphers, the issue was whether the railroad had to

bargain over the reduction in the number of train stations

it would staff along rail lines it would continue to own

and operate. In neither case did the railroad propose to

me

sel] its rail lines. The D.C. Circuit’s conclusion that

Telegraphers and Shore Line involved the "utilization of

labor," rather than the scope of a carrier’s business was

fully consistent with this Court’s characterization of these

decisions in PALE. 491 U.S. at 508 n. 17. These two

decisions also did not involve the need to "harmonize"

the RLA and ICA.”

Finally, the D.C. Circuit did not run afoul of

Telegraphers or footnote 23 of First National Maintenance

Corp. v. NLRB, 452 U.S. 666 (1981) (hereinafter '"Firsr

National Maintenance"), by importing First National

Maintenance’s balancing test into the RLA. The D.C.

Circuit, while citing, without discussion, First National

Maintenance, clearly relied on P&LE for its holding.

Moreover, First National Maintenance, like Textile Workers

Union v. Darlington Manufacturing Co., 380 U.S. 263

(1965), is fully consistent with P&LE. All three decisions

involved an employer's decision to restructure its business

and, as a result, "leave the market" through the sale of

operation. In contrast, as explained, Telegraphers was not

about leaving a market or the utilization of capital, but

the utilization of labor. But, even if the scope of

mandatory bargaining were broader under the RLA than

the National Labor Relations Act ("NLRA"), the RLA

clearly still does not make all topics bargainable."’

‘There is absolutely no basis for the unions’ suggestion that P&LE drew a

distincuon between total and partial line sales based on constitutional!

considerations. Pet. at 13. The P&LE opinion nowhere discusses any such

considerations.

“While unnecessary to decision in this case, there is no reasoned basis for the

unions claim that the scope of mandatory bargaining 1s broader under the

RLA than the NLRA. There is dicta to this effect in P&LE, 491 U.S. at 508

(continued

i ee

II. Supreme Court Review Is Unnecessary

for the Proper Administration of the RLA

The unions do not articulate with any specificity or

clarity why Supreme Court review is "of exceptional

importance to the orderly administration of the [RLA]."

Pet. at 11. Contrary to the unions’ implication, the D.C.

Circuit’s decision in no way impairs labor relations in the

rail industry; nor does it impair the unions’ ability to

bargain over the effects of line sales. During this round

of bargaining, the unions were able to have the line sale

issue considered by the railroads, the NMB, the PEB,

Congress, and the Special Board. In other words, the

RLA worked exactly as Congress intended. The fact that

rail labor did not obtain what it desired through this

process and may seek bargaining over line sales again

after the contracts come open for amendment in

November 1994, also does not justify Supreme Court

(continued)

n.17, and First National Maintenance, 452 U.S. at 687 n.23. Nothing in the

language of the RLA, however, requires this conclusion. Indeed, the

legislative history of the NLRA indicates that the scope of RLA bargaining

is Narrower than under the NLRA. Inland Steel Co. v. NLRB, 170 F.2d 247,

254-55 (7th Cir. 1948), aff'd on other grounds sub nom. Am. Communications

Ass’n v. Douds, 339 U.S. 382 (1950). Additionally, the judicial gloss that

RLA bargaining is broader is no longer valid in view of congressional intent,

as expressed in the Staggers Act, that railroads have at least the same ability

as other employers to make critical decisions regarding the scope of their

business. See United States v. Fausto, 484 U.S. 439, 453 (1988).

'4CSXT took the position that there was no mandatory effects bargaining

obligation in Section 11343 sales, because of the ICC’s exclusive jurisdiction

and imposition of statutory labor protections addressing the effects on

employees from such sales. However, the effects issue was presented by the

unions to the PEB. CSXT and the nature of the effects bargaining obligation

in such sales never became an issue in this case. See RLEA v. CSXT, 938

F.2d at 226, Pet. at Sa.

re

review. Nor is there "an urgent need for a definitive

resolution to this controversy," Pet. at 17, because, the

line sale issue has been put to rest by the four appellate

decisions rejecting the unions’ characterization of the

Status quo requirement in partial sales. The unions’

contention that these decisions "lack a consistent thread,"

Pet. at 16, is meritless. All relied upon P&LE. The

unions themselves concede that the D.C. Circuit and

Second Circuit decisions employed the same rationale.

Compare RLEA v. CSXT with CSXT v. United

Transportation Union, 139 L.R.R.M. (BNA) 2061 (2d Cir.

1991) ("CSXT v. UTU"). While the Seventh Circuit

posited alternative rationales, all were premised upon

P&LE, see, e.g, C&NW v. RLEA, 908 F.2d at 152, 155,

and the Seventh Circuit’s decision was cited with

approval by the D.C. and Second Circuits, neither of

which saw any inconsistency. CSXT v. UTU, 139

L.R.R.M. at 2067; RLEA v. CSXT, 938 F.2d at 224. Pet.

at lla. The D.C., Second and Seventh Circuits also cited

with approval the Eighth Circuit’s decision.

Finally, there is also no urgent need for this Court’s

review, because, as the unions’ own Petition

demonstrates, bargaining between the parties on the line

sale issue is closed until November 1994. At that time,

the unions will be free to serve new Section 6 notices

and, if they so desire, raise the issue of the effects of line

sales again.

- 18 -

CONCLUSION

For the reasons set forth above, the petition for writ

of certiorari should be denied.

Respectfully submitted,

Nicholas S. Yovanovic Ronald M. Johnson

CSX Transportation, Inc. Counsel of Record

500 Water Street Akin, Gump, Hauer & Feld

Jacksonville, FL 32202 1333 New Hampshire Avenue, NW

(904) 359-1244 Suite 400

Washington, D.C. 20035

(202) 887-4114

Attorneys for Respondent

CSX TRANSPORTATION, INC.

February 3, 1992

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