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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1094

## Text

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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
OE Os) Ss
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REASONS WHY THE PETITION SHOULD
a a

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

ta ES! |) 3

8 ee : rrre 3

a De” 3
Public Law No. 102-29 ................00.4. 8

- Vi -

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

ay

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)

|
ae

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.

ee

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).

~

«5S <

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.

ay

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.

me ae

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2187%3A2. Public record. Not legal advice.