# Petition — Railway Labor Executives' Ass'n v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1086%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1101 ## Text | ] A DD “31146 No. 83- oe) IN THE Supreme Court of the United States OCTOBER TERM, 1983 RaILway LABOR EXECUTIVES’ ASSOCIATION, Petitioner, Ve UNITED STATES OF AMERICA AND CONSOLIDATED RAIL CORPORATION, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE SPECIAL COURT,REGIONAL RAIL REORGANIZATION ACT OF 1973 JAMES L. HIGHSAW, JR. (Counsel of Record) WILLIAM G. MAHONEY CLINTON J. MILLER, III HIGHSAW & MAHONEY, P.C. Suite 210 1050 - 17th Street, N.W. Washington, D.C. 20036 (202) 296-8500 Attorneys for Petitioner Railway Labor Executives’ Association January 12, 1984 PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C. (202) 347-8203 £ ABE i ISSUES PRESENTED In the opinion of the petitioner, the following issues are presented by this petition: ) * Did Congress abrogate a contractual obligation of the United States to employees of seven rail- roads conveying their rail properties to the Con- solidated Rail Corporation pursuant to the Re- gional Rail Reo ization Act of 1973 in viola- tion of the Fifth Amendment to the Constitution of the United States, when it repealed in 1981 Title V of that statute providing various protec- tions to such employees adversely affected by the conveyances’ Did the Consolidated Rail Corporation violate the requirements of Sections 2, First, 2, Seventh, and 6 of the Railway Labor Act prohibiting the carrier from revising or terminating any provision of a collective ining agreement to which it was a party, when the carrier refused to pay Title V benefits embodied in a collective bargaining agreement after the repeal of the statutory provisions? ‘ TABLE OF CONTENTS Page EE i i ce en eae ccbccateseneeeeese iii EE = 2 ed chs cuassphWine's 6 é¢00s cébevese 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 3 STATEMENT OF THE DM Eiuie se inecOgeensics vees'e 5 REASONS FOR GRANTING THE WRIT ..............-005- 17 I. The Decision Of The Special Court Involves A Sub- stantial Constitutio Issue That Should Be De- ES coo os ha coceascvecceecce 17 II. The Decision Of The Special Court Raises Important Issues With Respect To Federal Statutory Law That This Court Should Decide ..................... 21 tee el CL oseccavnevcvcovceess 25 APPENDICES: APPENDIX A Complaint of RLEA for Declaratory and Permanent Injunctive Relief .......... la APPENDIX B Answer of the Defendant United States lla APPENDIX C Answer of Defendant Consolidated Rail SE Sicha vncGoceesccuneséncce 16a APPENDIX D Stipulation of the Parties ....... ere 20a APPENDIX E Motion of Plaintiff Railway Labor Execu- tives’ AssociationforSummaryJudgment 80a APPENDIX F — : » soars ed ee vor of erica for Summary Judgment on Stipu- DT tiitsciss vecesaweabsceeecs 82a APPENDIX G Motion of Defendant Consolidated Rail Corporation for Summary Judgment on ED cc ivancepsestaescecess 84a APPENDIX H Decision of the Special Court, Filed De- MEE. coccccsceccecososacss 86a APPENDIX I Judgment of the Special Court, Filed De- DEE sch cue ecseesecesecses 96a TABLE OF AUTHORITIES CASES: Page Allen v. McCurry, 449 U.S. 90 (1980) ............05- 23 Hinds v. Conrail, 518 F.Supp. 1350 (Sp. Ct. RRRA, 1981), cert denied, 454 Us. 1145 (1982) .... 19, 20, 21 Indiana Ex. Rel. Anderson v. Brand, 303 U.S. 95(1938) 18 United States v. Larionoff, 431 U.S. 864 (1977) ...... 18 United States v. Lowden, 307 U.S. 225 (1939) ........ 6, 7 United Shwe oor Union v. Conrail, 535 F.Supp. 697 (Sp. Ct. RRRA), cert. denied, sub nom. Cannon : on Rail Corporation, 457 U.S. 1133 - Watt v. Alaska, 451 U.S. 259 (1981) .............55. 23 STATUTES AND OTHER MATERIALS RELIED UPON: Bankruptcy Act, 11 U.S.C. § 1, et seq. Section 77(b), 11 U.S.C. § 205(b) .......... eee eee 6 Interstate Commerce Act, 49 U. S.C. § 10101, et seq. Former Section 5(2)(f), 49 ULS.C. § 11847 ......... 7 Northeast Rail Service Act, 45 U.S.C. § 1101, CO GOG., ccccccvcccveccvccccccesceccvcevecseses passim Section 1134, 45 U.S.C. §1108 ............ eo 14 Section 1148(a), 965 Stat. G61 .......ceccccccccccee 14 OMRON BORG, Gir ts cick lec ccccctecevsncsave 3, 23 Section 1144(a), 96 Stat. 669 ........ccccccccccees 4, 23 Section 1152(a), 45 U.S.C. § 1105(a) ............... 2 Section 1152(b), 45 U.S.C. § 1105(b) .............. 3 Railway Labor Act, 45 U.S.C. § 151, et seg. ....... passim Section 2, First, 45 U.S.C. § 152, First ....... 3, 16, 22 Section 2, Seventh, 45 U.S.C. § 152, Seventh . 3, 16, 22 RONG GD, BB. Cte Oe nos sc cdncee cpacsssccenn 23 Section 6, 45 U.S.C. § 156 ........... miata 3, 16, 23 Section 10, 45 U.S.C. § 160 ......... PE ey ee Re 23 Regional Rail Reorganization Act of 1973, 45 U.S.C. Oe fe ree passim Section 101(a’, 45 U.S.C. § 70l(a) ................. 5 iv Table of Authorities Continued Page I Ae TED 6c viin owecicctccccvnves 2 Section S06, 46 U.S.C. § 748 2... cc ccccccscccccvas 4 SP NE, BOER obicccccconcdcccenens 3, 5 Section 502, 45 U.S.C. § 772 .............: FaGaons 12 Section 502(a), 45 U.S.C. § 772(a) .............00e 22 SE SEP Mie © COW. Soccccncscccccencntes 12 eee ee er 13 Section 504(a), 45 U.S.C. § 774(a) ........... 13, 24, 25 Section 504(d), 45 U.S.C. § 774(d) ............... 14, 22 Section 505(a 45 U.S.C. § 775(a) ................. 12 Section 505(d), 45 U.S.C. § T75(d) ................ 12 ae I Eis OB UUE: vice cn odccewsceveunns 13 Staggers Act, Pub.L.No. 96-448, 94 Stat. 1895 (1980) 14, 19 . GSO scnscwsccsaasrccecses 1, 3, 4, 15 Hearings Before the Surface Transportation Subcommit- tee of the Committee on Commerce of the United States Senate, November 1973 ................. 10 Northeast Railroad Investigation, Report of the ICC to the Senate Committee on Commerce and the House Committee on Interstate and Foreign Commerce SDE suk Gacs'cas Wades conve haere toaubas ae eles 9 IN THE Supreme Court of the Anited States OCTOBER TERM, 1983 No. 83- RAILWAY LABOR EXECUTIVES’ ASSOCIATION, Petitioner, Vv. UNITED STATES OF AMERICA AND CONSOLIDATED RAIL CORPORATION, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE SPECIAL COURT, REGIONAL RAIL REORGANIZATION ACT OF 1973 The petitioner, Railway Labor Executives’ Association (“RLEA”), respectfully prays that a writ of certiorari issue to review the final judgment of the Special Court, Regional Rail Reorganization Act of 1973 (“Special Court”), dated December 23, 1983, dismissing on the merits the Complaint of petitioner RLEA requesting the Special Court (1) to declare the action of Congress in repealing Title V of the Regional Rail Reorganization Act of 1973,' to be unconstitutional as violative of the Fifth Amendment to the United States Constitution and to enjoin enforcement of the repealing statute; and (2) to declare that the Consolidated Rail Corporation may not unilaterally change provisions of its collective bargaining '45 U.S.C. § 771, et seq. 2 agreements containing the labor protective conditions of Title V and enjoin such action as violative of the Railway Labor Act. OPINIONS BELOW The opinion of the Special Court, not yet reported, was entered on December 19, 1983, and is reproduced as Appendix H hereto. The final judgment of the Special Court was entered on December 23, 1983, and is repro- duced as Appendix I hereto.’ JURISDICTION The Special Court was established by Title II, Section 209 of the Regional Rail Reorganization Act of 1973 (hereinafter referred to as the 3R Act, 45 U.S.C. § 719). Its jurisdiction to entertain the Complaint of petitioner RLEA was provided by Section 1152(a) of the Northeast Rail Service Act of 1981, (hereinafter referred to as “NERSA”),‘ which reads as follows: Section 1152. (a) Notwithstanding any other provision of law, the special court shall have original and exclusive jurisdiction over any civil action— (1) for injunctive, declaratory, or other relief relating to the enforcement, operation, execution, or interpretation 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 provi- sion of or amendment made by this subtitle; 245 U.S.C. § 151, et seq. *The Appendix is hereinafter cited as “App.” #45 U.S.C. § 1101, et seq. 3 (3) to obtain, inspect, copy, or review any docu- ment in the possession or control of the Secretary, Conrail, the United States Railway Association, or Amtrak that would be discoverable in litigation under any provision of or amendment made by this subtitle; or (4) seeking judgment upon any claim against the United States founded upon the Constitution and resulting from the operation of any provision of or amendment made by this subtitle. The judgment of the Special Court was entered on December 23, 1983 (App. I). This petition is governed by the provisions of Section 1152(b) of NERSA (45 U.S.C. § 1105(b)), which require the petition to be filed not more than 20 days after entry of such judgment. The provisions of such section read as follows: (b) A judgment of the special court in any action referred to in this section shall be reviewable only upon petition for a writ of certiorari to the Supreme ourt of the United States, except that any order or judgment enjoining the enforcement, or declaring or determining the eee invalidity, of any provision of this subtitle shall be reviewable by direct —_— to the Supreme Court of the United States. Such review is exclusive and any petition or — shall be filed not more than 20 days after entry of such order or judgment. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the provisions of the Fifth Amend- ment to the Constitution of the United States, Section 1144 of NERSA, Title V of the 3R Act (45 U.S.C. § 771, et seq.), and Sections 2, First, 2, Seventh, and 6 of the Railway Labor Act (45 U.S.C. §§ 152, First, Seventh and 6). 4 The Fifth Amendment to the United States Constitu- tion reads as follows: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, in the Militia, when in actual service in time of War or public danger; or shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private proper- ty be taken for public use, without just compensa- tion. Title V of the 3R Act provided protection for employees of seven (7) railroads placed in a worse position with respect to compensation, fringe benefits, rules, and working conditions by the conveyance to Conrail on April 1, 1976, of the rail properties of their employing carriers pursuant to Section 303 of the 3R Act (45 U.S.C. § 748). Applicable sections of the 3R Act are reproduced where pertinent in the petition. Section 1144(a) of NERSA repealed the provisions of Title V of the 3R Act. The Section reads as follows: Section 1144(a)(1). Title V of the Regional Rail a Act of 1973 (45 U.S.C. § 771 et seq.), and the items in the table of contents of such Act relating to such V, are repealed. (2) Notwithstanding the repeal made by para- graph (1) of this subsection— (A) benefits accrued as of the effective date of this subsection as a result of events that occurred, wholly prior to October 1, 1981, shall be disbursed except as provided in paragraph (3); and 5 (B) any dispute or controversy regarding such benefits shall be determined.under the terms of the law in effect on the date the claim arose. (3) Benefits shall not be disbursed under para- graph (2)(A) unless the employee has filed a claim for such benefits within 90 days after the date of repeal; except that, with respect to a claim which is the subject of or is based pew any arbitration decision issued after the date of repeal, such 90-day period shall not commence until such arbitration decision is issued to the employee and the employee’s represen- tative; and no benefits shall be disbursed unless ap- — for such purposes are or become avail- able. STATEMENT OF THE CASE This litigation arises ont of the act of Congress in repealing the protective benefits for railroad employees embodied in Title V of the 3R Act (45 U.S.C. §§ 771, et seq.) and the unilateral refusal of Conrail to provide such protections where embodied in collective bargaining agreements negotiated pursuant to the Railway Labor Act (45 U.S.C. §§ 151, et seq) The 3R Act was enacted by Congress as Public Law No. 93-236, effective January 2, 1974 (45 U.S.C. § 701, et seq.) The statute was enacted, as the findings set forth in Section 101(a), (45 U.S.C. § 701(a)), thereof state, for the essential purpose of continuing and improving essential rail service in the northeast region of the United States, which Congress found to be in the public interest as necessary to the preservation and maintenance of ade- quate national rail services and an efficient national rail transportation service. The statute provided for the crea- tion of the “Consolidated Rail Corporation” (Conrail) to operate the rail properties of the seven northeast rail- roads then in reorganization proceedings in federal courts . 2 under Section 77(b) of the Bankruptcy Act.’ Title V was enacted as an integral part of the statute because some 40 years of history had demonstrated that just and reason- able treatment of railroad employees was an essential element of the public interest in the maintenance of an adequate and efficient transportation system.’ Such a conclusion was recognized and set forth by this Court in its unanimous decision on December 4, 1939, in United States v. Lowden, 308 U.S. 225, reversing a decision of a lower Federal Court invalidating employee protective conditions imposed by the Interstate Commerce Commis- sion (hereinafter, “ICC” or “Commission”) in authorizing a lease of a railroad by one railroad company to another. In affirming the validity of the Commission’s action, this Court declared: One must disre the entire history of railroad relations in the United States to be able to say that the just and reasonable treatment of railroad em- ployees in mitigation of the hardship imposed on them in carrying out the national policy of railway consolidation has no bearing on the successful * The seven railroads which conveyed their rail properties to Con- rail pursuant to the 3R Act and whose employees were covered by Title V of that statute were: Penn Central Lehigh Valley Erie Lackawanna Reading Railroad Company Central of New Jersey Lehigh Hudson Pennsylvania Reading Seashore Lines Ann Arbor R.R. (portions) *Pub. L. No. 93-236, 87 Stat. 986 (1973) 7 prosecution of that policy and no relationship to the maintenance of an adequate and efficient transporta- tion system. *x* * * The now extensive history of legislation regulating the relations of railroad employees and employers plainly evidences the awareness of Congress that Just and reasonable treatment of railroad employees is not only an essential aid to the maintenance of a service uninterrupted by labor disputes, but that it promotes efficiency, which suffers through loss of employee morale when the demands of justice are ignored. (Emphasis supplied.) Id. at 234, 236. The Court’s opinion refers to the fact that there was then pending before the Congress proposals to amend the Interstate Commerce Act to require the Commission to include, as a condition of its approval of any consolidation or lease transaction, “a fair and equitable arrangement to protect the interests of the employees affected.” Such legislation was subsequently enacted as Section 5(2)(f) of Part I of the Interstate Commerce Act (now codified as 49 U.S.C. § 11347). Since 1940, there has developed within the railroad industry an extensive network of collective bargaining agreements, Commission decisions, and legislation, providing protection for employees of railroads involved in various transactions against the adverse affects of the consummated transaction. These protections are trace- able back to the “Agreement of May, 1936, Washington, D.C., Washington Job Protection Agreements” between 219 railroads and 21 labor organizations representing railroad employees, referred to by this Court in its Low- den decision (308 U.S. at 234). The Washington Agree- ment provided that no employee of a particular carrier 8 involved in a particular coordination should “be placed, as a result of such coordination, in a worse position with respect to compensation and rules governing working conditions than he occupied at the time of such coordina- tion.” To this end, the agreement provided allowances for displaced employees and terminated employees, protec- tion of fringe benefits, and protection against losses from the sale of property required by a change of work loca- tion, as well as, expenses in moving to such location. Every collective bargaining agreement in the industry dealing with employee protection and every legislative enactment covering the subject between 1936 and 1973, was patterned after the Washington Agreement.’ In- deed, it even became the pattern for the Civil Aeronau- tics Board in the airline industry in approving air carrier transactions and for agreements between airlines and organizations representing carrier employees.* Consequently, when federal legislation became neces- sary in 1973 to create a viable rail system capable of providing rail service to the Northeast region of the United States, it was clear that such legislation must provide for the just and reasonable treatment of the employees involved. Such treatment was required by the facts of economic necessity to establish stable and effi- cient rail operations which are necessary to the needs of Commerce, the national defense, and the environment of the country. Moreover, the task of Congress was compli- cated by the fact that it was compelled to consolidate seven railroads. the largest of which was the Penn Cen- tral, with some 60,000 employees who were covered by 7 See: Southern Railway-Control-Cent. of Ga. Ry. Co., 331 L.C.C. 151 (1967). *See: Braniff Master Executive Council etc. v. C.A.B., 693 F.2d 220, 222 (D.C. Cir. 1982). 9 protections embodied in collective bargaining agree- ments in the decades since 1936.* Copies of typical agree- ments are attached as exhibits to the Stipulation between the parties before the Special Court. The legislative history of the 3R Act clearly shows that the Congress was made aware of these contracts and the employee rights based thereon as well as the legal need to preserve such rights. In its report to Congress on the proposed 3R Act, the Commission stated:" “It should be recognized that the railroad workers have some substantial legal rights to employment and employment benefits. Those rights have been won over many years of collective bargaining. The railroad employee's rights, however, high the price seems today, are legal rights, evidenced by binding contracts.” The report also advised the Congress that the employees involved “are entitled legally and morally, to assistance in pursuit of their contractual rights” as well as compensation" and the need to provide “comparable protection” if there was to be created a viable Conrail to replace the seven existing carriers. *Examples of these contracts are attached as exhibits to the Stipulation of Facts between the parties (App. D). “Northeast Railroad Investigation, Report of the ICC to the Senate Committee on Commerce and the House Committee on In- terstate and Foreign Commerce,” p. 37 (1973). (emphasis supplied). Jd. (emphasis supplied). 10 Mr. W. Graham Claytor, then President of the South- ern Railway System, advised the Senate Committee on Commerce to this effect as follows:" Second, in this particular instance we are dealing with employees who have that protection, lifetime attrition protection under the terms of the... agreement that was entered into in connection with the New York Central and Pennsylvania Merger. If we do not give comparable protection, something is being taken away from those employees—a contract right which they now have. It was perfectly clear that it would be utterly impossible to reach any kind of agreement that would not result in strikes, dislocation, everything else, unless this were recognized. (emphasis supplied). Likewise, Mr. Stephen Ailes,*the President and Chief Executive Officer of the Association of American Rail- roads, advised the same Senate Committee that the situa- tion was “sui generis” because the Penn Central merger _“guaranteed the rights these employees already have when this particular situation came about." Congress resolved the moral and legal obligations of which it had been advised by legislating Title V as an integral part of the 3R Act. Title V provides as follows: First: The provisions of Title V covered a category of “protected employees,” i.e., those employees of the seven railroads on January 2, 1974, when the 3R Act became effective and on April 1, 1976, when the rail properties of such railroads were conveyed to Conrail who became ' Hearings before Surface Transportation Subcommittee of the Committee on Commerce of the United States Senate, November 15-19, 1973, page 969. ‘8 Jd. at 971. 11 Conrail employees upon the conveyance date."* Section 505 provided such employees protection against being placed in a “worse position” in the form of (a) monthly displacement allowances for employees deprived of em- ployment or adversely affected with respect to compensa- tion; (b) separation allowances for employees accepting an offer of Conrail to resign; (c) termination allowances for employees with less than three years service whom Conrail chose to terminate within one year; and (d) pay- ment of moving expenses required to move to another work location requiring a change of residence. The length of these benefits was tied to years of serv- ice. They could not be received without the employee meeting certain standards. These included a requirement that the employee exercise his or her seniority to obtain the highest paying job his or her seniority would permit not requiring a change in residence,” and provisions authorizing Conrail to charge the compensation of such a job against the employee if he or she failed to bid for it. Moreover, the statute provided that a monthly displace- ment allowance terminated upon the employee’s death, retirement, resignation, or dismissal for cause, and upon suspension of any such allowance for the period of a disciplinary suspension for cause, failure to work due to illness or disability, voluntary furlough, or failure to obtain and retain a job by exercise of seniority. 4 Sections 501(1), (2), and (3). 45 U.S.C. §§ 771(1), (2), and (3). ‘5 As set forth infra page 12, the statute permitted a transfer of employees throughout the system. If the transfer was to a location requiring a change in residence, the employee could go on furlough without an allowance or leave Conrail’s employment with severance pay. 12 The purpose of these protections was set forth in Sec- tion 505(a) of the 3R Act (45 U.S.C. § 775(a)) as follows: Sec. 505. (a) EQUIVALENT POSITION. A rotected employee whose employment is governed y acollective- ining agreement will not, except as explicitly provided in this title, during the period in which he is entitled to protection, be placed in a worse position with respect to compensation, fringe benefits, rules, working conditions, and rights and privileges pertaining thereto, including benefits under any a pension benefit mg in effect on December 1, 1975, other than a plan maintained primarily for the purpose of providing deferred com- pensation for a select group of management person- nel or other highly compensated employees... .” Congress also required in Section 502 of the statute (45 U.S.C. § 772) that Conrail offer employment to all “pro- tected” employees of the seven railroads and apply to such employees the protective provisions of Title V. Second: Congress provided Conrail with flexibility in the utilization of the services of the protected employees by (a) giving the carrier in Section 503 (45 U.S.C. § 773) the right to assign, allocate, reassign, reallocate, and consolidate work formerly performed on the rail prop- erties acquired pursuant to the 3R Act in accordance with the conditions set forth therein and by (b) giving the carrier the right in Section 505(d) (45 U.S.C. § 775(d)) the right to transfer an employee deprived of employment to any bona fide vacancy within the employee’s craft or class for which the employee was qualified in accordance with the provisions of the section. If such an employee refused such a transfer, he or she had the option of becoming a voluntary furloughee with a suspension of a right to re- ceive a monthly displacement allowance or accepting severance pay. 13 Third: Congress provided in Section 504(a) of the 3R Act (45 U.S.C. § 774(a)) that until replaced by the negotiation of a single new agreement covering rates of pay, rules, and working conditions of such craft or class of employees, Conrail was required to assume and apply the obligations of all the contracts on the properties of each of the seven railroad properties conveyed to Conrail, “ex- cept that the Agreement of May 1936, Washington, D.C., and provisions of other existing job stabilization agree- ments shall not be applicable to transactions effected pursuant to this Act with respect to which the provisions of Section 505 of this title shall be superseding and con- trolling.” Thus, Congress achieved uniformity of protec- tions and administration thereof by substituting Title V protections for those contained in existing collective bargaining agreements. (45 U.S.C. § 774). This provision was accepted by the railway labor orga- nizations as providing a “fair and reasonable” arrange- ment for the protection of employees adversely affected by the conveyance of their employer rail properties to Conrail in substitution for the contract rights of the em- ployees involved which the Interstate Commerce Com- mission had advised the Congress were legal rights which there was a “legal and moral obligation” to preserve. This acceptance was made in spite of the fact that Title V provided less than existing contract rights and gave greater freedom to the employing carrier with respect to transfer and utilization of employees than existing con- tracts. It was the employee’s contribution toward making Conrail a viable operation. Many disputes arose with respect to the interpretation and application of Title V, which were settled by the arbitration board provided by Section 507, (45 U.S.C. § 777), over Conrail objections on the basis of the statuto- 14 ry language. This lead to amendments by Congress in the so-called Staggers Act, Pub. L. No. 96-448, 94 Stat. 1895 (1980), effective October 1, 1980, the most important of which was to change the basis of calculating monthly displacement allowances insisted upon by the United States Railway Association, created by Section 201 of the 3R Act to create a Conrail system plan, and adopted by Congress" several months after the original passage of the statute. Only a handful of disputes arose after the Staggers Act amendments with respect thereto. In 1981, Congress passed NERSA, (45 U.S.C. § 1101, et seq.) the declared purposes of which were (1) to remove by a date certain, the federal obligation to subsidize the freight operations of Conrail; (2) to transfer Conrail com- muter services to other entities; and (3) to return Conrail freight service to the private sector. The “goals” of the legislation were set forth in Section 1134 thereof (45 U.S.C. § 1103). Although these goa!s included a reduc- tion of costs by collective bargaining, no mention was made of Title V. Section 1144(a) of the statute, quoted supra, page 4, repealed Title V. Section 1143(a) provided substantially inferior protections or none at all for many employees. (App. A, Para. 19). In 1979, the Brotherhood of Railway and Airline Clerks, Freight Handlers, Express and Station Em- ployes (BRAC), negotiated a new collective bargaining agreement to replace the agreements between BRAC and each of the seven (7) railroads which had conveyed their vail properties to Conrail, as required by Section 504(d) of the 3R Act. Rule 62 of this agreement, effective April 27, 1979, which appears as Exhibit C to the Stipula- '® The proposal for calculation recommended by the railroads and railway labor organizations contained in the original statute followed the Washington Agreement. 15 tion of Facts between the parties in this litigation, (App. D)" imposes on Conrail as a matter of employer-employee contractual obligations, the benefits as provided in Title V. Rule 62 reads as follows: “Protected employees will be afforded the benefits as at in Appendix No. 8 or 9, whichever is appli- cable.” Appendix 8 referred to in Rule 62 is a reproduction of Title V intact and Appendix 9 is a memorandum for the protection of BRAC represented employees in Canada. After the repeal of Title V, RLEA, filed its Complaint in the Special Court against the United States and Con- rail on behalf of its twenty (20) affiliated organizations representing Conrail employees. (App. A, Para. 3). Count I of this Complaint alleged (1) that the United States is bound by its contracts (para. 15); (2) that Conrail employees relied to their detriment in giving up all vested labor protection and scope rules to which they would have been entitled in exchange for the promise and eventual passage of the employee protections contained in Title V; and (3) that Congress violated the Fifth Amendment to the United States Constitution in repealing Title V by violating its contractual promises to continue the protec- tion afforded by Title V, by which the employees gave up their coexisting contractual promises (App. A). Count II of the Complaint alleged a contractual obliga- tion by Conrail to honor Title V rights by incorporating '’ The entire collective bargaining agreement has not been repro- duced as a part of App. D because of its length. Only Rule 62 has been reproduced. 16 those rights in collective bargaining agreements; and that Conrail had unilaterally refused to comply with its con- tract obligatioris in violation of the provisions of Sections 2, First, 2, Seventh, and 6 of the Railway Labor Act governing the making, maintenance, and revision or ter- mination of such agreements. (App. A). Defendants United States and Conrail filed answers to the Complaint. (App. B and C). The parties entered intoa Stipulation of Facts, including the authentication of docu- ments attached hereto. (App. D). RLEA filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that there was no genuine issue as to any mate- rial fact and plaintiff is entitled to judgment as a matter of law. (App. E). Defendant United States filed a Motion for Summary Judgment on Stipulated Facts as also did Con- rail. (App. F and G). On December 19, 1983, the Special Court filed its deci- sion finding that Title V constituted social welfare legisla- tion conferring only gratuitous benefits, that the repeal of such legislation does not violate the Fifth Amendment unless it is arbitrary and irrational, and that the repeal of Title V was based on rational grounds. The decision also rejected the claim for relief against Conrail on the basis of the BRAC-Conrail collective bargaining agreement on the grounds that the repeal of Title V voided any con- tractual obligations of Conrail to pay Title V benefits. (App. H). On December 23, 1983, the Special Court filed its judg- ment dismissing the RLEA complaint on the merits. (App. I). 17 REASONS FOR GRANTING THE WRIT I. The Decision Of The Special Court Involves A Substantial Constitutional Issue That Should Be Decided By This Court Count I of the Complaint in this case presented for decision the important constitutional issue of whether Title V of the 3R Act, providing uniform protections for employees of seven (7) railroads consolidated into Con- rail, as a substitute for existing protections set forth in collective bargaining agreements and orders of the In- terstate Commerce Commission, were contractual obligations of the United States. If they were, Congress was without authority to abrogate those obligations as it did in repealing Title V. Such issue is of substantial im- portance because of the wide network of protective collec- tive bargaining agreements negotiated pursuant to feder- al law in the past 40 years in the railroad industry and the countless numbers of employees with rights under such agreements as well as the large number of protective rights embodied in other federal statutes, Interstate Commerce Commission orders already issued and con- tinuing to be issued pursuant to federal law, and the even larger number of arbitration awards interpreting and applying such laws and orders. To a lesser degree, the issue has an impact on similar rights in the volatile air transportation field where there are similar employer- employee arrangements. If these can be brushed aside as the decision below holds, there will be a substantial im- pact on the transportation field. The importance of the issue takes on even greater significance because of the circumstances of the present case in which the Interstate Commerce Commission, the federal agency created by Congress to regulate the rail- road industry, officially reported to Congress on the pro- posed 3R Act that the railroad workers involved had 18 “some substantial legal rights to employment and em- ployment benefits,” and that such rights, “however high the price,” are “legal rights” and that the workers were entitled “morally and legally” to assistance in pursuit of their contractual rights. Such report was followed by Congressional action enacting Title V substituting for these employee rights a uniform package of similar rights. While it is true that the 3R Act does not expressly purport to create a contract with the employees through such an exchange, this Court has recognized that this is not necessary to establish an intent to create contractual rights. Indiana Ex Rel. Anderson v. Brand, 303 U.S. 95 (1938); United States v. Larionoff, 431 U.S. 864 (1977). In the /ndiana case, this Court stated that “it is established that a legislative enactment may contain provisions which, when accepted as the basis of action by in- dividuals, became contracts between them and the state or its railroads.” The Larionoff case contains similar con- clusions. The employees involved took action in reliance on the guarantees contained in Title V which were essen- tial to the formation of Conrail. They also sacrificed already existing rights embodied in agreements and ICC orders. Nor was this reliance unjustified by the facts. When Congress provides protective rights as a substitute for existing rights, which the ICC had advised Congress imposed a “legal and moral” obligation, it is difficult to perceive how the employees or any other reasonable per- sons could have thought anything other than that Con- gress was exchanging one set of contractual legal rights for other such rights, particularly when there is nothing in the statute or legislative history to the contrary. The decision below (App. H) erroneously states that the posi- tion of the employees to be that Congress was fully aware that Title V would supersede existing employee rights. The facts, however, show a much greater degree of Con- 19 gressional knowledge. They show that the ICC, the federal agency created to advise Congress in such mat- ters, had advised that the employees possessed legal and binding contractual rights which created both a legal and moral obligation on Congress to assist “in the pursuit of their contractual rights.” It defies belief that Congress faced with such advice, deliberately destroyed the em- ployee rights without giving any explanation for so doing, or providing new contract statutory rights. The Commis- sion’s advice to Congress, along with the same advice from railroads, completely negates the findings of the decision below that the legislative history of Title V does not indicate Congressional imtent to compensate employ- ees for forfeited contractual rights. That history speaks to the contrary. The decision is also erroneous in other vital respects. It relies heavily, if not entirely, on a footnote in a prior decision of another panel of the Special Court, identified as Hinds v. Conrail, 518 F.Supp. 1350, 1352 n.2 (Sp. Ct. RRRA, 1981) cert. denied, 454 U.S. 1145 (1982), to the effect that Title V constitutes “social welfare legislation” for purposes of Fifth Amendment review. A reading of the Hinds decision, however, shows that (1) no claim that Title V rights where contractual was involved; (2) that the individual plaintiffs in that case presented only a discriminatory treatment claim; and (3) that plaintiffs agreed to the standard of judicial review applicable to a repeal of “gratutious social welfare legislation.” The Hinds decision involved only the issue of whether the Staggers Act amendments of 1980 to Title V concern- ing the method of calculating monthly allowances dis- criminated between groups of employees. The decision itself specifically so states in the following language: » The only issue in this case is whether this aspect of the Staggers Act discriminates between operating 20 employees on the one hand, and maintenance-of-way and managerial employees, on the other, in a way so lacking in rational justification as to violate the equal pcm component of the due process claims of the h amendment. 548 F.Supp. at 1352. Moreover, the same footnote in the Hinds case on which the present decision rests further states as follows that a contract claim in the complaint had been withdrawn: The plaintiffs’ constitutional contentions are narrow- er in their brief than in their complaint in several respects. * * * Second, the complaint alleges that Title V was enacted as a quid pro quo for contractual rights purportedly waived in the transactions that created Conrail. . . . But the plaintiffs withdraw that theory in their brief at 1 n.1. The subsequent statement, therefore, in footnote 2 to the effect that Title V was perceived as a social welfare program is gratuitous dicta not addressed to any issue before the court below and not accompanied by any analy- sis or briefing to assist the court below on the contractual nature of Title V rights. In spite of the above cited facts, the decision below insists (App. H) that the statement in footnote 2 of the Hinds case was not dicta but was necessary to the court’s decision in that case to apply minimal scrutiny analysis and thus has significance for the present case. Not only is such a finding contrary to the cited facts, but also the finding in the Hinds case itself was a result of the agree- ment of plaintiffs therein to the application of the minimal scrutiny standard so that there was no issue with respect 21 thereto. That finding is set forth at page 1353 of the Hinds decision as follows: “The plaintiffs accept the minimum rationality stand- ard as applicable to this case... . This Court consequently has before it a decision from below on the important issue of whether, as the decision itself states (App. H at 89a), “Title V created a con- tractual obligation of the United States or whether the Title V labor protection provisions were instead gra- tuitous, social welfare benefits” which is disposed of by citing as controlling case law a footnote of a different panel in a different case not involving any contract claim in which the plaintiffs agreed that a noncontractual stand- ard was applicable. This erroneous application of the Hinds case is identical since the court below (App. H at 92a) used the finding that Title V constituted social wel- fare legislation, conferring gratuitous, rather than con- tractual benefits, to apply noncontract standards to the repeal action. By this means, the court below concluded that the desire to reduce expenditures constituted a valid basis for the repeal, a basis which the decision below (App. H at 90a) agrees would not permit abrogation of contract rights. It is respectfully submitted that this Court should not permit an important issue such as is to be involved to be decided by a lower court without a full review on the basis of such an analysis. This is particularly true in the circum- stances involved which are enumerated above. II. The Decision Of The Special Court Raises Important Issues With Respect To Federal Statutory Law That This Court Should Decide In 1979, BRAC completed negotiation of a collective bargaining agreement with Conrail to replace the sepa- 22 rate agreements between BRAC and the railroads whose rail properties were conveyed to Conrail. Such an agree- ment was required by Section 504(d) of the 3R Act. (45 U.S.C. § 774(d)). Since Section 502(a) of the 3R Act pro- vided that Conrail “shall be subject to the provisions of the Railway Labor Act,” the negotiations were conducted in accordance with the mandatory provisions of that stat- ute. The agreement contained, among other provisions, Rule 62 (App. D at 77a) providing that protected employ- ees would be afforded the benefits provided in Appendix 8 or 9 thereto. The benefits provided in Appendix 8 are those set forth in Title V, which is reproduced in such appendix to the agreement. The provisions of Appendix 9 cover BRAC represented employees in Canada. Section 2, First of the Railway Labor Act (45 U.S.C. § 152, First) requires Conrail to exert every reasonable effort to make and maintain agreements and settle dis- putes with respect thereto. The Section reads as follows: It shall be the duty of all carriers, their officers, —_ and employees to exert every reasonably effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the applica- tion of such agreements or otherwise, in order to avoid any interruption to commerce or to the opera- tion of any carrier growing out of any dispute be- tween the carrier and the employees. Section 2, Seventh of the Railway Labor Act (45 U.S.C. § 152, Seventh) prohibits Conrail from revising or terminating its agreements except in accordance with the provisions of the Railway Labor Act. The Section reads as follows: No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its em- 23 ployees, as a class as embodied in agreements except in the manner prescribed in such agreements or in . section 5 of this Act. The mandatory provisions for revising agreements in- clude notice, negotiation, mediation and the possibility of a Presidential Emergency Board consideration as re- quired by Sections Five, Six, and Ten of the Act (45 U.S.C., §§ 155, 156, 160). Conrail has taken the position that since the repeal of Title V, it can ignore the obligations of Rule 62 of its collective bargaining agreements thus unilaterally at- tempting to terminate the agreement in violation of the cited requirements of the Railway Labor Act. Count II of the Complaint seeks declaratory and injunctive relief to prevent a unilateral termination thereof by Conrail in clear violation of the statutory commands of the Railway Labor Act cited above. The Special Court decision dismisses Count II on the merits on the ground that “Congress’ subsequent repeal of Title V superseded the terms incorporated by that contract” (page 9). However, Section 1144 of NERSA, quoted in full on page 4, supra, repealing Title V, makes .no reference to any protective obligations of Conrail under collective bargaining agreements. It is a long es- tablished principle of statutory interpretation that re- peals by implication are not favored and legislative intent must be clear and manifest. Watt v. Alaska, 451 U.S. 259 (1981); Allen v. McCurry, 449 U.S. 90 (1980). Nor is a prior decision of the Special Court in United Transportation Union v. Conrail, 535 F.Supp. 697, cert. denied sub nom. Cannon v. Consolidated Rail Corpora- tion, 457 U.S. 1133 (1982), relied upon in the decision below (App. H at 93a) applicable to the issue now before the Court. That case involved a question of whether 24 provisions of Section 702 of NERSA giving Conrail au- thority to terminate certain employees and refuse to fill vacancies applied where refusal to fill a vacancy would be inconsistent with a collective bargaining agreement. That issue is wholly unrelated to the question of whether Con- gress struck down Rule 62 of the BRAC agreement, imposing on Conrail, as distinguished from the United States, contractual obligations, when it repealed the federal obligations set forth in Title V. Such issue turns solely on an interpretation of the repealing provision of NERSA. The decision below also asserts (App. H at 94a) that the repeal of Title V covers Rule 62, because the latter is inconsistent with the protections contained in NERSA and cites the Conference Report on the legislation that “any employee protection contained in collective bargain- ing agreements is replaced by this protection.” The diffi- culty with this argument is that the NERSA statute does not do that. When Congress passed the 3R Act. it in- cluded in Section 504(a) a specific proviso, cited above at page 13, that Title V protections superseded those found in the Washington Agreement and in other job stabiliza- tion agreements. No such NERSA provision is cited by the court below with respect to existing protective agree- ments. Thus, having considered the problem when the 3R Act was passed, the Congress specifically provided for the superseding of existing agreement protections and in the enactment of NERSA it did not do so. The situation, therefore, gets back to the fact that there is no specific repeal of Rule 62 or of any other collective bargaining protection so that a repeal must be implied. The cases cited at page 23, supra, from this Court reject repeal by implication. The conclusion of an intent not to repeal such protections is further strengthened by the failure of Con- 25 gress in NERSA to utilize the method that it had previ- ously used to accomplish that result. This is particularly true when the subject matter is the voiding of a collective bargaining agreement which should not be implied in the absence of specific superseding language as in Section 504(a) of the 3R Act. CONCLUSION For the reasons enumerated above, a Writ of Cer- tiorari should be issued by this Court to review the judg- ment and opinion of the Special Court and upon such review reverse that judgment. Respectfully submitted, JAMES L. HIGHSAW, JR. ™ (Counsel of Record) WILLIAM G. MAHONEY CLINTON J. MILLER, III HIGHSAW & MAHONEY, P.C. Suite 210 1050 - 17th Street, N.W. Washington, D.C. 20036 (202) 296-8500 Attorneys for Railway Labor Executives’ Association January 12, 1984 APPENDIX la APPENDIX A SPECIAL COURT REGIONAL RAIL REORGANIZATION ACT OF 1973 Civil Action No. 82-11 RAILWAY LABOR EXECUTIVES’ ASSOCIATION, 400 First Street NW Washington, DC 20001, Plaintiff, V. UNITED STATES OF AMERICA and CONSOLIDATED RAIL CORPORATION, Six Penn Center Plaza Philadelphia, PA 19107, Defendants. COMPLAINT OF RAILWAY LABOR EXECUTIVES’ ASSOCIATION FOR DECLARATORY AND PERMANENT INJUNCTIVE RELIEF JURISDICTION 1. This Court has jurisdiction over this matter pursuant to 45 U.S.C. § 1105, as amended, which provides, in pertinent part: “(a) Notwithstanding any other provision of law, the special court shall have original and exclusive jurisdiction over any civil action— (1) for injunctive, declaratory, or other relief relat- ing to the enforcement, operation, execution, or in- terpretation of any provision of or amendment made by 2a this subtitle, or administrative action taken thereunder to the extent such action is subject to judicial review;” 2. Additionally, this action is filed pursuant to 28 U.S.C. § 2201 since this is an actual controversy among the parties over which this Court has jurisdiction, thereby empowering this Court to declare the rights and duties of the parties with regard to each other. PARTIES 3. Plaintiff Railway Labor Executives’ Association (hereinafter, “RLEA”) is an unincorporated association with which are affiliated the chief executive officers of all of the standard national and international railway labor unions in the United States. The organizations whose chief executive offic- ers are members of the RLEA are listed below. American Railway and Airway Supervisors Association, Division of BRAC American Train Dispatchers Association Brotherhood of Locomotive Engineers Brotherhood of Maintenance of Way Employes Brotherhood of Railroad Signalmen Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes Brotherhood Railway Carmen of the United States and Canada Hotel & Restaurant Employees & Bartenders International Union International Association of Machinists and Aerospace Workers International Brotherhood of Boilermakers and Blacksmiths International Brotherhood of Electrical Workers International Brotherhood of Firemen & Oilers International Longshoremen’s Association International Organization of Masters, Mates and Pilots National Marine Engineers Beneficial Association Railroad Yardmasters of America 3a Sheet Metal Workers’ International Association Seafarers International Union of North America Transport Workers Union of America United Transportation Union RLEA maintains its headquarters at 400 First Street, NW, Washington, DC 20001. The organizations whose chief execu- tive officers are members of the RLEA represent employees of the Consolidated Rail Corporation [hereinafter, “Conrail”). Said organizations are parties to collective-bargaining agree- ments with Conrail governing rates of pay, rules, and working conditions of Conrail employees represented by said organiza- tions, which were negotiated and are maintained in accordance with the requirements of the Railway Labor Act (45 U.S.C. § 151, et seq.) and the Regional Rail Reorganization Act of 1973 (45 U.S.C. § 771, et seq.). 4. Defendant Conrail is a corporation organized and exist- ing under the laws of the State of Pennsylvania with principal offices in Philadelphia, Pennsylvania, and also organized pur- suant to authority contained in Section 301 of the Regional Rail Reorganization Act of 1973 (hereinafter, “3R Act”) (45 U.S.C. § 741), which is engaged in the transportation of passengers and property for hire in interstate and foreign commerce sub- ject to the provisions of the Interstate Commerce Act (49 U.S.C. § 10101, et seg.) and is a “carrier” within the meaning of that term as defined in the Railway Labor Act (45 U.S.C. § 151, et seq.). Conrail is an integral part of the nationwide railway system of the United States and is governed by the provisions of the Interstate Commerce Act (49 U.S.C. § 10101, et seq.) and the Railway Labor Act (45 U.S.C. § 151, et seq.) and connects and interchanges freight and passengers with other railroads engaged in interstate commerce. STATEMENT OF CLAIMS FOR RELIEF COUNT I 5. Title V of the Regional Rail Reorganization Act of 1973 (hereinafter, “3R Act” ]provided for employee protection for a da class of employees defined in §§ 501(2) and 501(3) of said Act to wit: (2) “employee ofa railroad in reorganization” means a person who on the effective date of a conveyance of rail properties of a railroad in reorganization to the Corpora- tion or any subsidiary thereof, to the National Railroad Passenger Corporation, to an oe railroad, or to a State pursuant to section 208(d)(2) of this Act has an _ employment relationship with either said railroad in reor- ization or any carrier (as defined in parts I and II of the nterstate Commerce Act) which is leased, controlled, or operated by the railroad in reorganization (except a Class I railroad which is not wholly owned, operated, or leased by a railroad in reorganization but is controlled by a rail- road in reorganization), but does not include a president, vice president, treasurer, secretary, comptroller, and any other person who performs functions corresponding to those performed by the foregoing officers; (3) “protected employee” means any employee of— (A) an acquiring or selling railroad who is adversely affected by a transaction; (B) the Corporation who, immediately preceding such employment by the Corporation, was employed by a selling railroad and who is adversely affected by the sale of rail properties to the Corporation pursuant to an offer designated under section c)(2) of this Act; (C) a railroad in reorganization in the region; and (D) a railroad who is adversely affected by a sup- plemental transaction under section 305 of this Act or by a project recommended under section 206(g) of this Act; who, in any such case, has not reached age 65 on the effective date of this Act; 6. Conrail was required to offer employment to such em- ployees and to apply the protective provisions of Title V to said employees by Section 502(b) of the 3R Act. 7. Section 505 of the 3R Act spelled out the employee protections for said class of employees, which included: that protected employees would not be placed in a worse position oa with respect to compensation, fringe benefits, rules, and work- ing conditions during the protective period (Section 505(a)); that a monthly displacement allowance be paid to protected employees for any calendar month in which said employees were deprived of employment or adversely affected with re- gard to compensation (Section 505(b)); that the duration of the displacement allowance for such employees be until attainment of age 65 for any protected employee with five (5) or more years of service on the effective date of the Act (Section 505(c)); that such protected employees be subject to transfer by Conrail upon certain conditions (Section 505(d)); that protected em- ployees tendered an offer by Conrail who accepted said offer were entitled to a separation allowance by Sections 505(e) and 505(f); that moving expense benefits were provided for pro- tected employees by Section 505(g); and, that non-contract employees were entitled to protections contained in Section 505(i). 8. The method of computation of the monthly displace- ment allowances was changed by the Staggers Rail Act of 1980, 94 Stat. 1895, 1948, but otherwise the protections of Title V remained intact. 9. In hearings before the Surface Transportation Sub- committee of the Committee on Commerce of the United States Senate held November 15, 16, and 19, 1973, W. Graham Claytor, then President of the Southern Railway System, tes- tified with regard to the employee protective benefits and other contractual rights that railroad employees on railroads in reorganization in the Northeast were relinquishing in return for the protections prescribed in Title V of the 3R Act. Mr. Claytor stated, in part: Second, in this icular instance we are dealing with employees who have that protection, lifetime attrition protection under the terms of the. . . agreement that was entered into in connection with the New York Central and Pennsylvania Merger. If we do not give comparable protection, something is erp Fg away from those employees—a contract right which they now have. 6a It was perfectly clear that it would be utterly impossible to reach any kind of agreement that would not result in strikes, dislocation, everything else, unless this were rec- ognized. (emphasis supplied). Hearings at 969. We have been ee in this colloquy on the attrition, the guarantee of a job until retirement age for these people, but I would like to mention I think we should keep in mind that this agreement has something in it that is favorable to management, favorable to the new- corporation, that has never been, so far as I know, in an labor agreement: That is the right to trasfer [sic] people within their craft outside of their seniority district. Ifa job opens up in another place, and if the man doesn’t take that, then he is required to resign and take severance pay or go on unpaid furlough. Now, this is terribly important as a practical matter because it means that attrition will work much, much faster. You don’t have to wait for a job to open where you are. A job opens up anywhere on the system, and the man can be assigned to it. Work can also be transferred freely. That is, you may close a shop here and concentrate all the work in another shop there. Theve two things are very important, and they were the principal items that we felt, principal reasons that we felt this agreement made that really made this new corpora- tion a viable thing and that we though would hold the money down within the limites stated. I think those are very important advances that were made in this agreement. (emphasis supplied) Hearings at 972-73. 10. Stephen Ailes, President and Chief Executive Officer of the Association of American Railroads testified at page 971 of said Hearings: “The thing that makes this case sui generis is that Lewis Sanders [obviously a reference to the Luna- Saunders Penn Central merger protection Agreement] guaranteed the rights these employees already have when this particular situation came about.” Ta ll. Historically, railroads have accepted employee protec- tion as a cost of effecting change in the industry. In light of that history, no railroad would have attempted to deny employee protection in consummating the types of transactions necessi- tated by the passage of the 3R Act of 1973. 12. In 1973 the affected rail employees had extensive pre- existing contractual and statutory rights to employee protec- tion. These contractual rights were based on a number of employee protection agreements, such as the Washington Job Protection Agreement and the Penn Central merger protec- tion agreement. The statutory rights were based on the ICC’s statutory mandate to protect the interests of rail employees in approving mergers, acquisitions, and abandonments. 13. Ifthe railroads which became part of Conrail had re- fused to provide adequate employee protection, the unions could have taken a number of steps, including a strike, to prevent the trains from running. Moreover, the tens of thou- sands of employees who would have been affected would have demanded protection compensation regardless of what union leaders decided to do. Prospective purchasers recognized the certainty of labor unrest. For that reason, prospective pur- chasers would not have purchased a line until the employee protection issue had been resolved. Additionally, the new corporation (Conrail) was freed from provisions of existing collective-bargaining agreements which prohibited the trans- fer of work from one railroad to another or from one seniority district to another. 14. Itis clear that rail labor played a substantial role in the creation of the legislation which became the 3R Act of 1973. Rail labor had substantial labor protections from a host of previous agreements, including the Penn Central Merger Protection Agreement. In exchange for Title V of the 3R Act of 1973, these employees gave up all of the vested protections which they then had, including those in scope rules of existing collective-bargaining agreements. Moreover, it is apparent that the Congress was well aware of the cooperation of rail 8a labor in presenting the 3R Act to the Congress at the request of the Department of Transportation by virtue of the testimony of Mr. Claytor and Mr. Ailes. In short, Congress accepted the offer of rail labor (worked out with rail management) of waiv- ing the vested protections to which it was entitled by virtue of longstanding agreements and statutes, as well as the Penn Central Merger agreement, in exchange for inclusion of Title V inthe 3R Act. The 3R Act was passed by the Congress with the full knowledge that such was the case. 15. The United States is bound by its contracts as in- dividuals are bound by virtue of the Fifth Amendment of the United States Constitution. See, Sinking Fund Cases, 99 U.S. 700 (1879). While Congress is free to reduce gratuities it con- siders excessive, it is without the power to “reduce ex- penditures by abrogating contractual obligations of the United States.” Lynch v. United States, 292 U.S. 571, 580 (1934). The Court in Lynch also stated: “The Fifth Amendment commands that property be not taken without making just compensation. Valid contracts are property, whether the obligor be a private individual, a State or the United States. — against the United States arising out of a contract with it are protected by the Fifth Amendment.” Id. at 579. See also, Perry v. United States, 294 U.S. 330, 354 (1935). 16. Conrail employees represented by the RLEA relied to their detriment in giving up all vested labor protections and scope rules to which they would have been entitled in exchange for the promise and eventual passage of the employee protec- tions contained in Title V of the 3R Act. 17. Inthe Northeast Rail Service Act of 1981 (hereinafter, “NERSA"J, the Congress repealed Title V of the 3R Act with all its protections, in § 1144 of NERSA (95 Stat. 669). 18. Insorepealing Title V of the 3R Act, Congress violated the Fifth Amendment to the United States Constitution in 9a violating its contractual promise to the employees to railroads in reorganization in the Northeast to continue the protections afforded by Title V of the 3R Act, for which promise said employees gave up all of their preexisting contractual protec- tions, some of which were more beneficial then those provided by Title V of the 3R Act. 19. Congress replaced Title V with new Title VII of the 3R Act in Section 1143 of NERSA (95 Stat. 661-68) which provides for much less employee protection, and in most cases no protec- tion. COUNT II 20. Plaintiff RLEA incorporates by reference paragraphs 1-18 above as if fully restated herein. 21. Title V has been incorporated by reference and by appendix in collective-bargaining agreements which exist be- tween Conrail and the various classes and crafts of employees. For example, Rule 62 entitled “Employee Protection” of the agreement existing between Conrail and the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employes (hereinafter, “BRAC”] states “protected employees will be afforded the benefits as provided in Appendix No. 8. . .” Appendix 8 contains the provisions of Title V of the 3R Act. 22. Section 6 of the Railway Labor Act (45 U.S.C. § 156), which governs the employment relationship between Conrail and employees represented by constituent members of the RLEA, requires that certain mandatory procedures be fol- lowed before any existing collective-bargaining agreements can be changed. 23. Conrail has unilaterally refused to comply with rules of collective-bargaining agreements which incorporate by refer- ence Title V of the 3R Act in violation of §§ 2, First, 2, Seventh, and 6 of the Railway Labor Act (45 U.S.C. §§ 152, First, 152, Seventh, and 156). 10a WHEREFORE, plaintiff RLEA prays that the Court: 1. Issue a judgment declaring that the action of the Con- gress in repealing Title V of the 3R Act was unconstitutional as violative of the Fifth Amendment to the United States Con- stitution, and therefore is null and void; 2. Issue ajudgment declaring that Conrail may not unilat- erally change any of its collective-bargaining agreements which provide for the labor protections contained in Title V of the 3R Act; 3. Issue an order enjoining enforcement of Title VII of the 3R Act set forth in § 1143 of NERSA (95 Stat. 661-68) and ordering that Title V of the 3R Act remain in full force and effect; and 4. Issue an order enjoining Conrail from violating Sec- tions 2, First, 2, Seventh, and 6 of the Railway Labor Act under the color of Section 1144 of NERSA, and requiring Conrail to honor its collective-bargaining agreements with constituent members of the RLEA which incorporate by refer- ence Title V of the 3R Act. 5. Such other and different relief as may be proper in the premises. Respectfully submitted, /s/ Norton N. Newborn NorTON N. NEWBORN GAINES & STERN, Co., L.P.A. 1700 Ohio Savings Plaza 1801 East Ninth Street Cleveland, OH 44114 (216) 781-1700 Attorney for Railway Labor Executives’ Association Date: April 7, 1982 lla APPENDIX B SPECIAL COURT REGIONAL RAIL REORGANIZATION ACT OF 1973 Civil Action No. 82-11 RAILWAY LABOR EXECUTIVES’ ASSOCIATION, Plaintiff, We UNITED STATES OF AMERICA, et al., Defendants. ANSWER OF THE UNITED STATES The United States of America, through its undersigned counsel, in answer to the Complaint filed in the above-styled action hereby admits, denies and answers as follows: JURISDICTION 1. Paragraph 1 contains conclusions of law to which no response is required. To the extent an answer is deemed neces- sary, admitted. 2. Paragraph 2 contains conclusions of law to which no response is required. To the extent an answer is deemed neces- sary, denied. PARTIES 3. Admitted. 4. Admitted. COUNT I 5. The allegations of paragraph 5 are admitted to the extent they are consistent with the statutes cited. The Court is respectfully referred to the text of these statutes for a full and complete statement of their contents. 12a 6. The allegations of paragraph 6 are admitted to the extent they are consistent with the statutes cited. The Court is respectfully referred to the text of these statutes for a full and complete statement of their contents. 7. The allegations of paragraph 7 are admitted to the extent they are consistent with the statutes cited. The Court is respectfully referred to the t»xt of these statutes for a full and complete statement of their contents. 8. The allegations of paragraph 8 are admitted to the extent they are consistent with the statutes cited. The Court is respectfully referred to the text of these statutes for a full and complete statement of their contents. 9. The allegations of paragraph 9 are admitted only to the extent that W. Graham Claytor testified before the Senate Commerce Committee in 1973 concerning legislation that be- came the former Title V of the Regional Rail Reorganization Act of 1973 (Rail Act) and that the quotations contained in paragraph 9 are excerpts from that testimony. 10. The allegations of paragraph 10 are admitted only to the extent that Stephen Ailes testified before the Senate Com- merce Committee and that the quotation contained in para- graph 10 is an excerpt from that testimony. 11. The first sentence of paragraph 11 is admitted only to the extent that it alleges that, at least since 1933, most common carriers by railroad have accepted some employee protective conditions negotiated with representatives of rail labor in the context of discussions preparatory to, or imposed by Govern- ment in connection with approval of, rail mergers, consolida- tions and other coordinations; otherwise, denied. The second sentence of paragraph 11 is denied. 12. The first sentence of paragraph 12 of the Complaint is denied except to admit that certain employees of railroads in reorganization who later became eligible to receive benefits under Title V of the Rail Act had some rights against the railroads in reorganization with respect to job and/or income 13a protection and other benefits at the time of legislative consid- eration of the Rail Act in 1973. The second sentence is denied except to admit that a number of widely disparate employee protective arrangements covered certain of the employees later eligible for benefits under Title V of the Rail Act. The third sentence is admitted to the extent supported by In- terstate Commerce Commission Act. The Court is respectfully referred to former Section 5(2)(f) of the Interstate Commerce Act (45 U.S.C. 5(2)(f) (1970) for a full and complete statement of its contents. 13. The first four sentences of paragraph 13 contain speculative allegations to which no response is required. To the extent an answer is deemed necessary, denied. The allegations of the fifth sentence are denied except to admit that Title V of the Rail Act provided certain latitude to the Consolidated Rail Corporation (Conrail) to transfer work from one location to another within the Conrail system and that, on information and belief, certain collective bargaining agreements in effect on the railroads in reorganization restricted transfer. 14. The first sentence of paragraph 14 of the Complaint is denied except to admit that rail labor, among other interested groups, influenced the development of the Rail Act. The second sentence repeats the allegations of paragraph 12; and the Court is respectfully referred to paragraph 12 of this Answer. The remainder of the paragraph contains conclusions of law to which no response is required. 15. The allegations of paragraph 15 contain conclusions of law to which no response is required. To the extent an answer is deemed necessary, denied. 16. Denied. 17. Denied except to admit that Section 1144 of the North- east Rail Service Act, Subtitle E, Title XI, Pub. L. No. 97-35 (NERSA) repealed Title V of the Rail Act, effective Septem- ber 1, 1981. This Court is respectfully referred to NERSA fora full and complete statement of its contents. l4a 18. Paragraph 18 contains conclusions of law to which no response is required. To the extent an answer is deemed neces- sary, denied. 19. Denied except to admit that NERSA enacted a new Title VII of the Rail Act which provides for certain protections for certain employees of Conrail who were previously pro- tected by Title V. This Court is respectfully referred to Section 1143 of NERSA (Title VII of the Rail Act, as amended) for a full and complete statement of its contents. COUNT II 20. The United States incorporates by reference its re- sponses to paragraphs 1 through 18 above as if fully restated herein. 21. Denied except to admit that the text of Title V as revised through February 5, 1976 was reprinted as an appen- dix to the agreement between Conrail and the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, ’ Express and Station Employees of April 27, 1979 and was referred to in Rule 62 thereof. 22. The United States admits only that the Railway Labor Act (45 U.S.C. 151 et seq.) prescribes certain procedures governing collective bargaining in the railroad industry. The Court is respectfully referred to the text of the Act for a full and complete statement of its contents. 23. Denied. The United States specifically denies all of the allegations of the Complaint not otherwise answered. l5a SEPARATE DEFENSE The Complaint fails to state a claim upon which relief can be granted. Respectfully submitted, J. PAUL McGRATH Assistant Attorney General DENNIS G. LINDER /s/ C. Max Vassanelli C. MAX VASSANELLI Attorneys, Department of Justice 9th & Pennsylvania Avenue, N.W. Room 3730 Washington, D.C. 20530 Telephone: (202) 633-4776 Attorneys for Defendants. OF COUNSEL: GrapDy C. COTHEN, JR., Attorney Federal Railroad Administration Department of Transportation 400 Seventh Street, S.W. Washington, D.C. 20590 162 APPENDIX C SPECIAL COURT REGIONAL RAIL REORGANIZATION ACT OF 1973 Civil Action No. 82-11 RAILWAY LABOR EXECUTIVES’ ASSOCIATION, 400 First Street, N.W. Washington, D.C. 20001 Plaintiff, We UNITED STATES OF AMERICA, and CONSOLIDATED RAIL CORPORATION Six Penn Center Plaza Philadelphia, PA 19107 Defendants. ANSWER OF DEFENDANT CONSOLIDATED RAIL CORPORATION Defendant, Consolidated Rail Corporation (hereinafter “Conrail”), by its undersigned attorneys, hereby answers the averments contained in the Plaintiffs Complaint in the above- entitled action, in accordance with the numbered paragraphs thereof, as follows: 1. Defendant admits that this Court has jurisdiction of this action to the extent consistent with of the Regional Rail Reorganization Act of 1973, as amended, by § 1152 of the Northeast Rail Service Act of 1981. 2. Defendant admits that pursuant to 28 U.S.C. § 2201 this Court is empowered to declare the rights and duties of the 17a parties in relation to each other, to the extent the Court has subject matter jurisdiction. 3. Defendant admits the averments of paragraph 3 on the basis of information and belief. 4. Admitted. 5,6,7. The allegations of paragraphs 5, 6, and 7 are admit- ted to the extent that they are consistent with the statute cited, Title V of the Regional Rail Reorganization Act of 1973, § 501 et seq. The Court is respectfully referred to the text of that statute for a full and complete statement of its contents. 8. The allegations of paragraph 8 are admitted to the extent they are consistent with the statute cited, the Staggers Rail Act of 1980, Pub. L. No. 96-448, 94 Stat. 1895 (1980). The Court is respectfully referred to the text of that statute for a full and complete statement of its contents. 9,10. Defendant admits to the existence of the statements recorded in the legislative history of the Regional Rail Reorga- — nization Act of 1973. The Court is respectfully referred to the legislative history of the Act, specifically the cited Hearings Before the Surface Transportation Subcommittee of the Com- mittee on Commerce of the United States Senate, for a full and complete statement of the contents of the legislative history. 11. Paragraph 11 contains speculative and conclusory statements to which no response is required. To the extent an answer is deemed necessary, the allegations are denied. 12. Defendant admits that in 1973, employees of Conrail’s predecessor railroads were covered under provisions of con- tractual employee protection agreements adopted pursuant to statute. The Court is respectfully referred to the text of such contracts for a full and complete statement of their contents. 13. Paragraph 13 contains speculative and conclusory statements to which no response is required. To the extent an answer is deemed necessary, the allegations are denied. 18a 14. Defendant admits the allegations of the first and second sentences of paragraph 14. Defendant denies the remaining allegations of paragraph 14 as conclusions of law. 15. - Paragraph 15 contains conclusions of law to which no response is required. To the extent an answer is deemed neces- sary, the allegations are denied. 16. Denied. 17. The allegations of paragraph 17 are admitted to the extent they are consistent with the Northeast Rail Service Act of 1981, Pub. L. No. 97-35, 95 Stat. 357 (1981). The Court is respectfully referred to the text of that statute for a full and complete statement of its contents. 18. Denied. 19. The allegations of paragraph 19 are admitted to the extent they are consistent with the provisions of the Northeast Rail Service Act of 1981. The Court is respectfully referred to the text of that statute for a full and complete statement of its contents. 20. Defendant’s answers to paragraphs 1-19 are incorpo- rated by reference. 21. The allegations of paragraph 21 are admitted to the extent they are consistent with the terms of the collective bargaining agreement described. The court is respectfully re- ferred to those documents for a full and complete statement of their contents. 22. The allegations of paragraph 22 are admitted to the extent they are consistent with the Railway Labor Act. The Court is respectfully referred to the text of that statute for a full and complete statement of its contents. 23. Denied. 19a AFFIRMATIVE DEFENSE The Plaintiff fails to state a claim upon which relief can be granted. OF COUNSEL: Respectfully submitted, 's/ Harry A. Rissetto Harry A. RISSETTO 1800 M Street, N.W. Washington, D.C. 20036 (202) 872-5084 /s/ Dennis A. Arouca DENNIS A. AROUCA Consolidated Rail Corporation 1138 Six Penn Center Plaza Philadelphia, Pennsylvania 19103 (215) 977-4998 Attorneys for Consolidated Rail Corporation MorcANn, Lewis & BockIUs 1800 M Street, N.W. Washington, D.C. 20036 (202) 872-5000 20a APPENDIX D SPeCIAL COURT REGIONAL RAIL REORGANIZATION ACT OF 1973 Civil Action No. 82-11 RAILWAY LABOR EXECUTIVES’ ASSOCIATION, 400 First Street, N.W. Washington, D.C. 20001 Plaintiff, Vv. UNITED STATES OF AMERICA, and CONSOLIDATED RAIL CORPORATION, Six Penn Center Plaza Philadelphia, PA 19103, Defendants. STIPULATION The parties hereto, by their undersigned counsel, for pur- poses of this action only, hereby stipulate and agree that the following facts shall be taken as true, including a stipulation as to the authenticity of the documents attached hereto, with the proviso that any party may object in brief and argument on materiality or relevancy grounds to any of the facts stipulated or documents authenticated. 1. That the “Agreement for Protection of Employees in the Event of Merger of Pennsylvania and New York Central Rail- roads” among the Pennsylvania Railroad Company, New York Central Railroad Company, and Brotherhood of Railroad Trainmen dated November 16, 1964, effective on and after January 1, 1964, with pertinent appendices attached thereto, attached hereto as Exhibit A, is true and authentic. The same 2la or similar type of agreement was reached by the Pennsylvania Railroad Company and New York Central Railroad Company with representatives (who are constituent members of plain- tiff) or all of the other crafts and classes of employees involved in said merger. 2. That the “Agreement for Protection of Employees of Erie-Lackawanna Railroad Company Following Merger of Said Company Into Erie Lackawanna Railway Company” be- tween the Erie Lackawanna Railroad Company and plaintiff herein, on behalf of its constituent labor organizations, dated August 19, 1968, effective on and after April 1, 1968, with the attached “Agreement Effective January 10, 1962, and Four Attached Memoranda of Understanding for Protection of Em- ployees in Event of Approval of Merger and Related Applica- tions Filed by Norfolk and Western Railway Company and Other Carriers in I.C.C. Finance Docket Nos. 21510, 21511, 21512, 21513, and 21514,” attached hereto as Exhibit B, is true and authentic. 3. That certain employees of Conrail, represented by con- stituent members of plaintiff, were covered by the agreements embodied in Exhibits A and B attached hereto, later were eligible for benefits under Title V of the Regional Rail Reorga- nization Act of 1973, and later were eligible for benefits under Title VII of the Regional Rail Reorganization Act, as amended by the Northeast Rail Services Act of 1981. 4. That the “Agreement Between Consolidated Rail Corporation and Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees - Clerks” signed April 27, 1979, effective on and 22a after July 1, 1979, with attached appendices, enclosed here- with as Exhibit C, is true and authentic. For the Railway Labor Executives’ Association: /s/ Clinton J. Miller, III CLINTON J. MILLER, III Highsaw & Mahoney, P.C. Suite 210 1050 Seventeenth St., N.W. Washington, D.C. 20036 For the United States of America: /s/ C. Max Vassanelli C. Max VASSANELLI U.S. Department of Justice Room 3730 9th & Pennsylvania Ave., N.W. Washington, D.C. 20530 For the Consolidated Rail Corporation: /s/ Harry A. Rissetto Harry A. RISSETTO Morcan, Lewis & Bockius 1800 M Street, N.W. Washington, D.C. 20036 23a EXHIBIT A AGREEMENT FOR PROTECTION OF EMPLOYEES IN EVENT OF MERGER OF PENNSYLVANIA AND NEW YORK CENTRAL RAILROADS WHEREAS, The Pennsylvania Railroad Company and the New York Central Railroad Company (hereinafter sometimes referred to individually as Pennsylvania and Central or collec- tively as the Carriers) have filed a joint application with the Interstate Commerce Commission (hereinafter called the Commission) for authority under Section 5(2) of the Interstate Commerce Act to merge the properties and franchises of Cen- tral into Pennsylvania for ownership, management, and opera- tion of the properties now separately owned and operated, and for certain other authority incidental thereto, as more fully described in Finance Dockets Nos. 21989 and 21990; AND WHEREAS, the Joint Agreement of Merger dated January 12, 1962, provides that the corporation to survive the merger will be a corporation of the Commonwealth of Pennsyl- vania with its name changed to “Pennsylvania-New York Cen- tral Transportation Company” (hereinafter referred to as the merged company) which will assume and be bound by the collectively bargained labor agreements of both Pennsylvania and Central; AND WHEREAS, it is the intent and purpose of Pennsylva- nia and Central, in the event of approval of their joint applica- tion, to effectuate the merger through the unification, coordination and consolidation of their separate facilities, all of which will or may have adverse effect upon employes repre- sented by the labor organization parties hereto; AND WHEREAS, the labor organization signatory hereto is the authorized and recognized representative of certain of the employes of Pennsylvania and Central and has intervened on behalf of said employes through the Railway Labor Execu- tives’ Association in opposition to the said merger and related 24a transactions in proceedings before the Commission, which op- position is not waived by this Agreement; AND WHEREAS, Section 5(2)(f) of the Interstate Com- merce Act provides: “As a condition of its approval, under this paragraph (2), of any transaction involving a carrier or carriers by rail- road subject to the provisions of this chapter, the Commis- sion shall require a fair and equitable arrangement to protect the interests of the railroad employes affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transac- tion will not result in — of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protec- tion afforded to any employe pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employe was in the employ of such carrier or carriers prior to the effective date of such order. Notwithstanding any other provisions of this chapter and chapters 8 and 12 of this title, an agreement pertaining to the protection of the interests of said employes may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or repre- sentatives of its or their employes.” AND WHEREAS, pursuant to the provisions of the Rail- way Labor Act, a amended, and in accordance with the last sentence of Section 5(2)(f) of the Interstate Commerce Act above quoted, the parties signatory hereto have reached agreement respecting the protection to be afforded employes of the railway carriers involved or who may become involved in the aforesaid applications and transactions; NOW, THEREFORE, it is mutually agreed as follows: Section 1. (a) If, notwithstanding the opposition of the said labor organization, the Commission should approve the said merger, then upon consummation thereof the provisions of the Wash- “0a ington Job Protection Agreement of 1936 (a copy of which is attached hereto as Appendix A) shall be applied for the protec- tion of all employes of Pennsylvania and Central as of the effective date of this Agreement or subsequent thereto up to and including the date the merger is consummated who may be adversely affected with respect to their compensation, rules, working conditions, fringe benefits or rights and privileges pertaining thereto incident to approval and effectuation of said merger; provided, however, that in addition te benefits set forth in the said Washington Job Protection Agreement, it is further agreed as follows: (b) On the date the said merger of Central into Pennsylva- nia is consummated the merged company will take into its employment all employes of Pennsylvania and Central as of the effective date of this Agreement or subsequent thereto up to and including the date the merger is consummated who are willing to accept such employment, and none of the present employes of either of the said Carriers shall be deprived of employment or placed in a worse position with respect to compensation, rules, working conditions, fringe benefits or rights and privileges pertaining thereto at any time during such employment. For the purposes of this Agreement the term “present em- ployes” is defined to mean all employes of Pennsylvania or Central who render any compensated service between the effective date of this Agreement and the date the merger is consummated (both dates inclusive) provided, however, that in the event two or more employes, including those on leave-of- absence, have employment rights to the same job, said em- ployes will be protected hereunder and their employment pre- served only to the extent of their individual equities in said job; provided further, that the merged company shall also take over, assume and continue the employment relationship of al: employes on furlough or leave-of-absence and preserve their rights and equities as they may exist as “f the effective date of this Agreement or subsequent thereto up to and including the 26a date the merger is consummated subject, however, to the transfer of work and employes as hereinafter set forth. Pennsylvania and Central agree to furnish rosters (which shall be attached as Appendix B to this Agreement): of all employes entitled to preservation of employment, compensa- tion, and fringe benefits as of the effective date of this Agree- ment, and also separate rosters (which shall be attached as Appendix C) of all employes on furlough or leave-of-absence, each of which rosters shall also set forth the Carrier by which the employes are employed and the labor organization party to this Agreement representing such employes. The Carrier will furnish, upon request, information specified in Appendix E to this Agreement. Pennsylvania and Central further agree that the said rosters are subject to revision as necessary to include any employes to be added or deleted from said rosters between the effective date of this Agreement and the date the merger is consummated. An employe shall not be regarded as deprived of employ- ment or placed in a worse position with respect to his compen- sation, rules, working conditions, fringe benefits, or rights and privileges pertaining thereto in case of his resignation, death, retirement, dismissal for cause in accordance with existing agreements, or failure to work due to disability or discipline, or failure to obtain a position available to him in the exercise of his seniority rights in accordance with existing rules or agree- ments, or reductions in forces due to seasonal requirements (including lay-offs during the Miners’ Holiday and the Christ- mas season), provided, however, that employes furloughed due to seasonal requirements shall not be furloughed in any twelve-month period for a greater period than they were fur- loughed during the twelve months preceding the date the merger is consummated; provided, further, however, that in the event of a decline in the merged company’s business in excess of 5% in the average percentage of both gross operating revenue and net revenue ton miles in any 30-day period com- pared with the average of the same period for the years 1962 and 1963, a reduction in forces in the craft represented by the 27a organization signatory hereto may be made at any time during the said 30-day period below the number of employes entitled to preservation of employment under this Agreement to the extent of one percent for each one percent the said decline exceeds 5%. The average percentage of decline shall be the total of the percent of decline in gross operating revenue and percent of decline in net revenue ton miles divided by two. Advance notice of any such force reduction shall be given as required by the current schedule Agreements of the organiza- tion signatory hereto. Upon restoration of the merged com- pany’s business following any such force reduction employes entitled to preservation of employment must be recalled in accordance with the same formula within 15 calendar days. Notwithstanding other provisions of this Agreement, the merged company shall have the right to make force reductions under emergency conditions such zs flood, snowstorm, hurri- cane, earthquake, fire or strike, provided that operations are suspended in whole or in part and provided further that be- cause of such emergencies the work which would be performed by the incumbents of the positions to be abolished or the work which would be performed by the employes involved in the force reductions no longer exists or cannot be performed. When forces have been so reduced and thereafter operations are restored employes entitled to preservation of employment must be recalled upon the termination of the emergency. In the event the merged company is required to make force reduc- tions because of the aforesaid emergency conditions, it is agreed that any decline in gross operating revenue and net revenue ton miles resulting therefrom shall not be included in any computation of a decline in the merged company’s business pursuant to the provisions of the preceding paragraph. In consideration of the foregoing employe benefits the merged company shall be entitled to transfer the work of the employes protected hereunder throughout the merged or con- solidated system and the labor organization will, subject to provisions contained in the Memorandum of Understanding attached hereto as Appendix F, enter into implementing 28a agreements providing for the trasnfer and use of employes and allocation or rearrangement of forces made necessary by changes for which protection is herein provided and the em- ployes, their organization and the Carriers will cooperate to that end. The implementing agreements to be negotiated with respect to the transfer and use of employes and allocation or rearrangement of forces shall enable the merged company to transfer such employes and rearrange forces without liability to furloughed employes who may be affected by such transfer. None of the provisions of this Agreement are applicable to employes temporarily hired for work on non-recurring proj- ects between the effective date hereof and the date of the consummation of the merger. (c) Without limiting the provisions of subsection (b) hereof, the merged company further agrees to maintain work forces represented by the organization signatory hereto in such man- ner that force reductions below the established base as defined herein shall not exceed five percent (5%) per annum. The established base shall mean the total number of employes in the craft represented by the organization signatory hereto entitled to preservation of employment as of the date of con- summation of the merger. (d) The merged company will take over and assume all contracts, schedules and agreements between Pennsylvania, Central, and the labor organization signatory hereto concern- ing rates of pay, rules, working conditions and fringe benefits in effect at the time of consummation of the said merger and will be bound by the terms and provisions thereof, subject to changes in accordance with the provisions of the Railway Labor Act, as amended, in the same manner and to the same extent as if the merged company had been a party thereto. (e) For purposes of this Agreement, Section 13 of the Washington Job Protection Agreement is deleted and the following provision inserted in lieu thereof: In the event any dispute or controversy arises between Pennsylvania, Central, or the merged company and the labor 29a organization signatory to this Agreement with respect to the interpretation or application of any provision of this Agree- ment or of the Washington Job Protection Agreement (except as defined in Section 11 thereof) or of any implementing agree- ment entered into between the merged company and the labor organization party hereto pertaining to the said merger or related transactions, which cannot be settled by said Carriers and the labor organization involved within thirty days after the dispute arises, such dispute may be referred by either party to an arbitration committee for consideration and determination. Upon notice in writing served by one party on the other of intent by that party to refer the dispute or controversy to an arbitration committee, each party shall, within ten days, select a member of the arbitration committee and the members thus chosen shall endeavor to select a neutral member who shall serve as Chairman, in which event the compensation and ex- penses of the Chairman shall be borne equally by the parties to the proceeding. All other expenses shall be borne by the party incurring them. Should the members designated by the parties be unable to agree upon the appointment of the neutral mem- ber within ten days, either party may request the National Mediation Board to appoit the neutral member, whose com- pensation and expenses shall then be paid in accordance with existing law. If any party fails to select its member of the arbitration committee within the prescribed time limit, the representative of such party signatory to this Agreement or his designated representative shall be deemed to be the selected member and the committee shall then function and its decision shall have the same force and effect as though all parties had selected their members. The decision of the major- ity of the arbitration committee shall be final and binding, except that in any case in which there is an unequal number of carrier and organization members on the arbitration commit- tee, the decision of the neutral member shall be final and binding. Section 2. In the event merger or control of other carriers not now involved in the aforesaid merger proceedings sould be ordered by the Commission as a condition of its approval of the pending transaction, this Agreement shall be subject to amendment by the parties so as to provide the employe benefits set forth in Section 1 hereof to the employes of any such carrier controlled by or merged into the merged company. Section 3. The foregoing represents an agreed settlement of protection of the interest of the employes of Pennsylvania and Central in the said merger. Said agreed settlement of protective benefits is made on behalf of said employes by their authorized and recognized bargaining representative signatory hereto pur- suant to Section 5(2)(f) of the Interstate Commerce Act and applicable provisions of the Railway labor Act, as amended, and shall become applicable only in the event of approval by the Commission of the proposed merger and consummation there- of. It shall be considered and construed as a separate agree- ment between Pennsylvania, Central and the labor organiza- tion signatory hereto. Section 4. It is understood and agreed that the provisions of this Agreement shall be for the benefit only of the employes repre- sented by the labor organization party hereto. Section 5. The effective date of this Agreement shall be January 1, 1964. 3la IN WITNESS WHEREDOF the parties to this Agreement have hereunto executed the same by and through their duly authorized representative this 16th day of November, 1964.* *This agreement was signed by the Pennsylvania Railroad Com- pany, the New York Central Railroad Company and by officers of the Brotherhood of Railroad Trainmen. The signatures are not repro- duced in the interest of space. ATTACHMENTS: . Appendix A—Washington Job Protection Agreement. Appendix ee of employes a i Seg by the r organization y to the Agreement on each of the ales involved entitled to preservation of employment, compensa- tion and fringe benefits as of the effective date of this Agreement or subsequent thereto up to and including date merger is consummated. Appendix C—Rosters of all employes on furlough or leave-of-absence, setting forth Carner by which employe is employed and labor orga- nization party to this Agreement repre- senting such employe. Appendix E—Memorandum of Understanding re employ- ment information to be furnished upon re- quest and computations respecting com- pensation due operating employes under Agreement. Appendix F—Memorandum of Understanding re moving expenses, and lump sum separation allo- wances. Appendix G—Memorandum of Understanding re election _ to take furlough Appendix H—Memorandum of Understanding re official, supervisory and fully excepted personnel. Appendix I—Memorandum of Understandin —. employes with exclusive road and yar seniority. Appendix J—Letter of Intent. 33a APPENDIX E MEMORANDUM OF UNDERSTANDING RE EMPLOYMENT INFORMATION TO BE FURNISHED UPON REQUEST AND COMPUTATONS RESPECTING COMPENSATION DUE OPERATING EMPLOYES UNDER AGREEMENT This Memorandum of Understanding is attached to and made a part of the Agreement for Protection of Employes in Even of Merger of Pennsylvania and New York Central Rail- roads, effective January 1, 1964. Upon request the merged company will furnish the operat- ing signatory organization, for any employe appearing on the rosters in Appendices B and C, information respecting his current rate of pay, compensation paid and hours worked during a base period comprised of the last twelve (12) months in which he performed compensated service immediately preced- ing May 16, 1964. All elements of compensation received from the merged company (including vacation pay, arbitraries, pay for time lost and so forth), but excluding payments made on account of personal injuries when such payments are for reasons other than time lost, will be included in determining compensation referred to below. For purposes of determining whether, or to what extent, such an employe has been placed in a worse position with respect to his compensation, his total compensation and total time paid for during the base period will be separately divided by twelve. If his compensation in his current position is less in any month (commencing with the first month following the date of consummation of the merger) than his average base period compensation (adjusted to include subsequent general wage increases), he shall be paid the difference less compensa- tion for any time lost on account of voluntary absences to the extent that he is not available for service equivalent to his average time paid for during the base period, but he shall be compensated in addition thereto at the rate of the position 34a filled for any time worked in excess of the time paid for during the base period; provided, however, that in determining com- pensation in his current position the employe shall be treated as occupying the position producing the highest rate of pay and compensation to which his seniority entitles him under the working agreement and which does not require a change in residence. Employes not entitled to preservation of employment but entitled to the benefits of the Washington Job Protection Agreement pursuant to the provisions of Section 1(a) of the Protective Agreement shall be entitled to compensation com- puted in accordance with the provisions of said Washington Job Protection Agreement. 35a APPENDIX F MEMORANDUM OF UNDERSTANDING RE MOVING EXPENSES AND LUMP SUM SEPARATION ALLOWANCES This Memorandum of Understanding is attached to and made a part of the Agreement for Protection of Employes in Event of Merger of Pennsylvania and New York Central Rail- roads, effective January 1, 1964. In the case of any transfers or rearrangement of forces for which an implementing agreement has been made, any em- ploye entitled to protection under the aforesaid Protective Agreement who is requested by the merged company pursuant to said implementing agreement to transfer to a new point of employment requiring him to move his residence shall be given an election, which must be exercised within seven calendar days from the date of recuest, to make such transfer or to resign and accept a lump sum separation allowance in accord- ance with the following provisions: If the employe elects tétransfer to the new point of employ- ment requiring a change of residence, such transfer and change or residence shall be subject to the benefits contained in Sec- tions 10 and 11 of the Washington Agreement notwithstanding anything to the contrary contained in said provisions and in addition to such benefits shall receive a transfer allowance of five hundred dollars ($500) and six working days instead of the “two working days” provided by Section 10(a) of said Agree- ment. If the employe elects to resign in lieu of making the re- quested transfer as aforesaid, he shall do so as of the date the transfer would have been made and shall be given (in lieu of all other benefits and protections to which he may have been entitled under the Protective Agreement and Washington Agreement) a lump sum separation allowance which shall be computed in accordance with the schedule set forth in Section 9 of the Washington Agreement; provided, however, that force 36a reductions permitted to be made under the Protective Agree- ment shall be in addition to the number of employes who resign to accept the separation allowance herein provided. This Memorandum of Understanding is applicable to the employes represented by the organization signatory to the said Agreement of which it is a part and supersedes all existing agreements which may be in conflict herewith. 37a APPENDIX G MEMORANDUM OF UNDERSTANDING RE ELECTION TO TAKE FURLOUGH This Memorandum of Understanding is attached to and made a part of the Agreement for Protection of Employes in Event of Merger of Pennsylvania and New York Central Rail- roads, effective January 1, 1964. An employee entitled to protection who is displaced as a result of any change for which protection is herein provided may elect to go on furlough in accordance with existing rules or practices but shall not, while so furloughed, be entitled to any money or other allowance or protection provided under the Agreement of which this Appendix is a part. 38a APPENDIX H MEMORANDUM OF UNDERSTANDING RE SUPERVISORY AND EXCEPTED PERSONNEL This Memorandum of Understanding is attached to and made a part of the Agreement for Protection of Employes in Event of Merger of Pennsylvania and New York Central Rail- roads, effective January 1, 1964. If, subsequent to the effective date of the Protective Agree- ment, i.e., January 1, 1964, officials, supervisory or fully ex- cepted personnel exercise seniority rights in a craft or class of employes protected under said Agreement, then, during the period such seniority is exercised, such officials, supervisory or fully excepted personnel shall be entitled to the same protec- tion afforded by the said Agreement to employes in the craft or class in which such seniority is exercised, and no employe subject to said Agreement shall be deprived of employment or adversely affected with respect to compensation, rules, work- ing conditions, fringe benefits, or rights and privileges pertain- ing thereto, by the return of the official, supervisory, or fully excepted employe to work under the schedule Agreement. Employes who cannot qualify as “present employes” by reason of being on leave-of-absence for full-time union busi- ness, shall have the protection set forth above for official, supervisory or excepted personnel. 39a APPENDIX I MEMORANDUM OF UNDERSTANDING INVOLVING EMPLOYES WITH EXCLUSIVE ROAD AND YARD SENIORITY This Memorandum of Understanding is attached to and made a part of the Agreement for Protection of Employes in Event of Merger of Pennsylvania and New York Centra! Rail- roads, effective January 1, 1964. It is understood that an employe having exclusive seniority in yard service will not, unless otherwise agreed to, be re- quired to transfer to a new point of employment in road service and an employe having exclusive seniority in road service will not, unless otherwise agreed to, be required to transfer to a new point of employment in yard service. 40a APPENDIX J LETTER OF INTENT In construing that said Agreement for Protection of Em- ployes in Event of Merger of Pennsylvania and New York Central Railroads, effective January 1, 1964, made by and between The Pennsylvania Railroad Company, the New York Central Railroad Company and the labor organization signato- ry thereto, it is understood and agreed that in the event of any application of Section 1(e) of said Agreement, any dispute with respect to the interpretation or application of any provision of said Agreement or of the Washington Job Protection Agree- ment includes the provision set forth in Section 1 (b) of said Agreement whereby the labor organization signatory hereto agrees to “enter into implementing agreements providing for the transfer and use of employes and allocation or rearrange- ment of forces.” Dated this 16th day of November, 1964.* *The signatures have not been reproduced in the interest of space. 4la EXHIBIT B AGREEMENT FOR PROTECTION OF EMPLOYEES OF ERIE-LACKAWANNA RAILROAD COMPANY FOLLOWING MERGER OF SAID COMPANY INTO ERIE LACKAWANNA RAILWAY COMPANY WHEREAS, the Interstate Commerce Commission, by its Report and Order in Finance Docket No. 21510, dated June 5, 1967, as modified by Orders dated August 10, 1967, September 1, 1967, and March 14, 1968, has authorized the merger of Erie-Lackawanna Railroad Company into Erie Lackawanna Railway Company; and, WHEREAS, said Report and Orders provide inter alia that “We believe that petitioners’ employees should be protected in the same manner as counterpart employees of carriers in- cluded in the N&W System and the prior report . . .”; and, WHEREAS, Erie-Lackawanna Railroad Company was one of the petitioners referred to in the above-quoted passage; and, ‘WHEREAS, pursuant to terms of said Orders, the merger, authorized as above stated, was effected at 10:25 A.M. E.S.T., on April 1, 1968; and, WHEREAS, pursuant to the provisions of the Orders of the Interstate Commerce Commissioin aforesaid, and in accord- ance with the last sentence of Section 5(2)(f) of the Interstate Commerce Act, the parties signatory hereto have reached agreement respecting the protection to be afforded employees of Erie-Lackawanna Railroad Company: NOW, THEREFORE, it is mutually agreed as follows: 1. That said Erie Lackawanna Railway Company adopts the terms and conditions of the “Agreement For Protection Of Employees In The Event Of Approval Of et And Related Applications Filed By Nor- folk and Western Railway Company And Other Car- riers In Interstate Commerce Commission Finance Dockets Nos. 21510, 21511, 21512, 21513 and 21514”, dated April 16, 1962, and retroactively effective Janu- ary 10, 1962, as modified by (i) the Memoranda of 42a Understanding between Norfolk and Western Rail- way Company and parties signatory to the above- mentioned agreement, all of which are incorporated in a document appended hereto as Appendix “A”, and (ii) (insofar as the terms and conditions of the documents below specified are — the implementin adem to the above basic Agreement an emoranda specified in Appendix “B” hereto, both of which appendices and the terms and conditions of the agreements and understandings embraced thereby are incorporated herein by reference. This Agreement shall be effective as of April 1, 1968, and shall afford protection to employees of Erie- Lackawanna Railroad pay od who had an employ- ment relationship with said Company on April 1, 1968, except that the term Wye employees” in the Agreement of April 16, 1962, shall apply only to those ee de in the active service of the Erie- Lackawanna Railroad Company on April 1, 1968. (Note: It is intended that this Section 2 will protect as “present employees” all employees of the Erie- Lackawanna Railroad Company who were on vaca- tion or on off-day on April 1, 1968, or who, on that date, were on leave of absence or sick leave and who later exercise their seniority rights and return to service in positions occupied on April 1, 1968, by em- ployees junior to them. The junior employees thereby affected shall, in turn, be —— to — os seniority rights against employees junior to them shall be entities to whatever rights those employees had under this Agreement.) Nothing in this Agreement shall be construed as depriving any employee of any rights, protections or benefits which such employee may have under exist- ing protective ments, nor shall this Agreement be construed as lessening any rights, protections or benefits which any employee may now be receiving or hereafter be entitled to receive under such agree- ments, provided that employees shall not be entitled to duplicate benefits under this Agreement and other protective agreements. 43a IN WITNESS WHEREOF, the parties hereto have set their hands this 19th day of August, 1968. ERIE LACKAWANNA RAILWAY COMPANY By/s/ John Fishwick JOHN FISHWICK Chairman of the Board RAILWAY LABOR EXECUTIVES’ ASSOCIATION by Mulholland, Hickey & Lyman Its Attorneys /s/ William G. Mahoney, Partner WILLIAM G. MAHONEY, PARTNER AGREEMENT Effective January 10, 1962 and Four Attached Memoranda of Understanding For Protection of Employees in Event of Approval of Merger and Related Applications Filed by NORFOLK AND WESTERN RAILWAY COMPANY and Other Carriers in I.C.C. Finance Docket Nos. 21510, 21511. 21512, 21513, and 21514 45a AGREEMENT FOR PROTECTION OF EMPLOYEES IN EVENT OF APPROVAL OF MERGER AND RELATED APPLICATIONS FILED BY NORFOLK AND WESTERN RAILWAY COMPANY and Other Carriers in I.C.C. Finance Docket Nos. 21510, 21511. 21512, 21513, and 21514 I. WHEREAS, a joint application has been filed with the Interstate Commerce Commission (herein called the Commis- sion) in Finance Docket No. 21510 by the Norfolk and Western Railway Company (herein called Norfolk & Western) and the New York, Chicago and St. Louis Railroad Company (herein called Nickel Plate) under Section 5(2) of the Interstate Com- merce Act (herein called the Act) for authority to merge the properties and franchises of Nickel Plate into Norfolk & West- ern, and for certain other authority incident thereto by way of acquisition of control of carriers subsidiary to or affiliated with . Nickel Plate and to acquire certain trackage rights; II. AND WHEREAS, Norfolk & Western has further filed an application with the Commission in Finance Docket No. 21511 under Section 5(2) of the Act for authority (a) tolease the lines of railroad and certajn of the franchises and other properties of the Wabash Railroad Company (herein called Wabash); (b) to acquire control of Wabash through stock own- ership; (c) to acquire sole or joint control of certain carriers subsidiary to or affiliated with Wabash through lease or stock ownership; and (d) to acquire trackage rights over or joint use of the railroad lines of certain carriers now held by Wabash; III. AND WHEREAS, Norfolk & Western has further filed an application with the Commission in Finance Docket No. 21512 under Section 5(2) of the Act for authority (a) to purchase from The Connecting Railway Company (now oper- 46a ated by The Pennsylvania Railroad Company) its line of rail- road between Columbus, Ohio and Sandusky, Ohio, together with certain trackage in Columbus; and (b) to acquire trackage rights over certain lines of The Connecting Railway Company in Columbus, Ohio; IV. AND WHEREAS, other applications have been filed by Norfolk & Western with the Commission under Section 20a of the Act for authority to issue capital stock and assume certain obligations and liabilities of both Nickel Plate and Wabash, all of which is more fully described in Finance Docket Nos. 21513 and 21514; V. AND WHEREAS, certain other applications may be later filed with the Commission under Section 5(2) of the Act involving the lease, control by or merger into Norfolk & West- ern of The Akron, Canton & Youngstown Railroad Company and Pittsburgh & West Virginia Railway or transactions may be undertaken by the carriers heretofore named including Nickel Plate and Wabash involving the diversion of Wabash traffic from the Canadian National Railways to Nickel Plate, or the diversion of Nickel Plate passenger operations from the LaSalle Street Station (Rock Island Lines) in Chicago, Illinois, to the Chicago and Western Indiana Railroad ( rm Street Station), Chicago, Illinois, which applications or transactions may have adverse effects upon employees repre- sented by the labor organizations parties hereto, the extent of which is not now determinable; VI. AND WHEREAS, the international and national rail- way labor organizations signatory hereto are the authorized and recognized representatives of employees of Norfolk & Western, Nickel Plate, Wabash and other carriers involved in the said transactions, and have intervened (through the Rail- way Labor Executives’ Association) in the above-described proceedings before the Commission on behalf of the said em- ployees in opposition to the said merger and related transac- tions, which opposition is not waived by this Agreement; 47a VII. AND WHEREAS, Section 5(2)(f) of the Act (49 U.S.C.A. § 5(2)(f)) provides: “As acondition of its approval, under this paragraph (2), of any transaction involving a carrier or carriers by rail- road subject to the provisions of this chapter, the Commis- sion shall require a fair and equitable ment to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transac- tion will not result in employees being in a worse position with respect to their employment, except that the protec- tion afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date o such order. Notwithstanding any other provisions of this chapter and chapters 8 and 12 of this title, an peo ge pertaining to the protection of the interests 0 said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or repre- sentatives of its or their employees.” VIII. AND WHEREAS, pursuant to the provisions of the Railway Labor Act, as amended, and in accordance with the last sentence of Section 5(2)(f) of the Interstate Commerce Act above quoted, the parties signatory hereto have reached agreement respecting the protection to be afforded employees of the rail carriers involved in the aforesaid application and transactions. NOW. THEREFORE, it is mutually agreed as follows: Section 1. (a) In the event the Commission should, notwithstanding the opposition of the said labor organizations to these transac- tions, approve any or all of the aforesaid applications, then, upon consummation thereof, the provisions of the Washington Job Protection Agreement of 1936 (a copy of which is attached hereto) will be applied for the protection of all employees of Norfolk & Western, Nickel Plate, Wabash and (except as 48a hereafter modified in Section 3) all other carriers involved in each of the transactions designated or described in this Agree- ment, provided the applications or transactions mentioned therein are consummated, who may be adversely affected with respect to their compensation, rules, working conditions, fringe benefits or rights or privileges pertaining thereto, in- cident to approval and effectuation of any of said applications or transactions; provided, however, that in addition to the benefits set forth in the said Washington Job Protection Agreement, it is further agreed as follows: (b) On the date the aforedescribed merger of Nickel Plate into Norfolk & Western is consummated, Norfolk & Western will take into its employment all employees of Nickel Plate as of the effective date of this Agreement or subsequent thereto up to and including the date the merger is consummated who are willing to accept such employment, and none of the present employees of either of the said carriers shall be deprived of employment or placed in a worse position with respect to compensation, rules, working conditions, fringe benefits, or rights and privileges pertaining thereto, at any time during such employment. For purposes of this Agreement the term “present employees” is defined to mean all employees except those on furlough or leave of absence as of the effective date of this Agreement or subsequent thereto up to and including the date the merger is consummated; provided, however, in the event two or more employees, including those on leave of absence, have employment rights to the same job, said employ- ees will be protected hereunder and their employment pre- served only to the extent of their individual equities in said job; provided, further, that the carrier shall also take over, assume and continue the employment relationship of all employees on furlough or leave of absence and preserve their rights and equities as they may exist as of the effective date of this Agreement or subsequent thereto up to and including the date the merger is consummated subject, however, to the transfer of work and employees as hereinafter set forth. Norfolk & Western agrees to furnish rosters (which shall be attached as 49a Appendix B to this Agreement) of all employees entitled to preservation of employment, compensation, and fringe bene- fits as of the effective date of this Agreement, together with their current rates of pay, compensation paid, and hours work- ed during the preceding twelve months, and also separate rosters (which shall be attached hereto as Appendix C) of all employees on furlough or leave of absence, each of which rosters shall also set forth the carrier by which the employees are employed and the labor organization party to this Agree- ment representing such employees. Norfolk & Western fur- ther agrees that the said rosters are subject to revision as necessary to include any employees to be added or deleted from the said rosters between the effective date of this Agree- ment and the date the merger is consummated. An employee shal! not be regarded as deprived of employment or placed ina worse position with respect to his compensation in case of his resignation, death, retirement, dismissal for cause in accord- ance with existing agreements, failure to work due to disability or discipline in accordance with existing rules or agreements or furloughs because of reduction in forces due to seasonal re- quirements or decline in volume of traffic or revenues. Where employees are furloughed for seasonal requirements they shall not be furloughed in any twelve-month period for a greater period than they were furloughed during the twelve months preceding the date the merger is consummated. In consideration of the foregoing employee benefits, Norfolk & Western and the other carriers heretofore named shall be entitled to transfer the work of the employees protected hereunder throughout the [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1086%3A1. Public record. Not legal advice.