# Amicus Curiae Brief — Burlington Northern Railroad v. Brotherhood of Maintenance of Way Employes

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 429

## Text

|, Supreme Court, U.S. |
; la FILED |
|

No. 86-39 | AUG 15 1986
OS JR.
CLERK
IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

BURLINGTON NORTHERN RAILROAD COMPANY,
UNION PACIFIC RAILROAD COMPANY,
MISSOURI PACIFIC RAILROAD COMPANY,

THE ATCHISON, TOPEKA AND SANTA FE
RAILWAY COMPANY,

BALTIMORE AND OHIO RAILROAD COMPANY,
BALTIMORE AND OHIO CHICAGO TERMINAL COMPANY,
CHESAPFAKE AND OHIO RAILWAY COMPANY,
AND CSX TRANSPORTATION, INC.,

. Petitioners,

BROTHERHOOD OF MAINTENANCE OF
Way EMPLOYES, et al.,

Respondents.

BRIEF OF THE
NATIONAL RAILWAY LABOR CONFERENCE
AS AMICUS CURIAE IN SUPPORT OF
BURLINGTON NORTHERN RAILROAD COMPANY’S
PETITION FOR A WRIT OF CERTIORARI

WILLIAM J. CURTIN
HARRY A. RISSETTO *
1800 M Street, N.W.
Washington, D.C. 20036

(202) 872-5084
Of Counsel:

MORGAN, LEWIS & BOCKIUS

1800 M Street, N.W.

Washington, D.C. 20036

(202) 872-5000 * Counsel of Record

WILSON - Eves PRINTING Co., INc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page
_/> * @ #.,, |, 2 ii
I sdisceeinmapnteeiatansinsaaunebiiiubbianan 1
INTEREST OF AMICUS CURIAE ..}...........------------0-00-+- 2
ca aieneheeeasanbaaaeaiiaieimedaalds 3
ARGUMENT
THE DECISION OF THE COURT OF APPEALS
WILL DESTABILIZE LABOR RELATIONS IN
THE RAILROAD INDUSTRY ................................. 5
is ial 10

ATTACHMENTS ............. ii ehiascahiaeliineabicaetaaednieaians la

ii
TABLE OF AUTHORITIES

Caves

Alton-Southern Ry. v. Brotherhood of Railway and
Airline Clerks, 481 F. Supp. 130 (D.D.C. 1978) ..
Ashley, Drew & Northern Ry. v. United Transpor-
tation Union, 625 F.2d 1357 (8th Cir. 1980) ........
Brotherhood of Railroad Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369 (1969) ......................
Brotherhood of Railroad Trainmen v. Atlantic
Coast Line R.R., 383 F.2d 225 (D.C. Cir. 1967),
cert. denied, 389 U.S. 1047 (1968)................-.--..-...
Brotherhood of Railroad Trainmen v. Atlantic
Coast Line R.R., 362 F.2d 649 (5th Cir.), aff'd
by equally divided court, 385 U.S. 20 (1966) ........
Brotherhood of Railway Clerks v. Florida East
Coast Ry., 384 U.S. 288 (1966) .............................
Burlington Northern R.R. v. Brotherhood of Main-
tenance of Way Employes, No. 86-166, slip op.
a cscinsinsninosonens
Central Vermont Ry. v. Brotherhood of Mainte-
nance of Way Employes, No. 86-5245, slip op.
I a ssiesinmesnwones
Chicago Burlington & Quincy R.R. v. Railway Em-
ployee Department, 301 F. Supp. 603 (D.D.C.
Eg a EET ES
Consolidated Rail Corp. v. Brotherhood of Mainte-
nance of Way Employes, No. 86-7289, slip op.
(2d Cir. June 5, 1986) ..... a
Detroit & Toledo Shore Line R.R. v. United Trans-
portation Union, 396 U.S. 142 (1969) 0.0...
Elain, Joliet & Eastern R.R. v. Burley, 325 U.S. 711
OSS SSRIS NESSIE en ee
International Association of Machinists v. Street,
I ssentnencsee
International Brotherhood of Electrical Workers v.
NLRB, 181 F.2d 34 (2d Cir. 1950) 2.0.
International Union of Electrical Workers v.
NLRB (General Electric Co.), 366 U.S. 667
ae MENS EAT LE A ae
Richmond, Fredericksburg & Petersburg R.R. v.
Brotherhood of Maintenance of Way Employes,
No. 86-3544, slip op. (4th Cir. July 12, 1986)......

Page

8

4,5,7

7

iii

TABLE OF AUTHORITIES—Continued

Statutes Page
Norris-LaGuardia Act, 29 U.S.C. § 101, et seq....... 5
Railway Labor Act, 45 U.S.C. § 151, et seq. -........... passim

RE Bk Ted DY eee 7
Section 5(e), 45 U.S.C. § 155 (e) ......................... 6
Section 10, 45 U.S.C. § 160...........................0000..-. 4

Miscellaneous

Executive Order No. 12557, 51 Fed. Reg. 18,429
SEITE -scchiccraissateehieiactiiadeipitoicnilteisi Abi aiheiesteneaisadbuanientatinsiin 4

48 National Mediation Board Annual Report........... 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-39

BURLINGTON NORTHERN RAILROAD COMPANY,
UNION PACIFIC RAILROAD COMPANY,
MISSOURI PACIFIC RAILROAD COMPANY,

THE ATCHISON, TOPEKA AND SANTA FE
RAILWAY COMPANY,

BALTIMORE AND OHIO RAILROAD COMPANY,
BALTIMORE AND OHIO CHICAGO TERMINAL COMPANY,
CHESAPEAKE AND OHIO RAILWAY COMPANY,
AND CSX TRANSPORTATION, INC.,

. Petitioners,
BROTHERHOOD OF MAINTENANCE OF
WAY EMPLOYES, et al.,
Respondents.

BRIEF OF THE
NATIONAL RAILWAY LABOR CONFERENCE
AS AMICUS CURIAE IN SUPPORT OF
BURLINGTON NORTHERN RAILROAD COMPANY’S
PETITION FOR A WRIT OF CERTIORARI *

INTRODUCTION

The Petitioners and Amicus Curiae, the National Rail-
way Labor Conference, urge this Court to grant the Peti-
tion for a Writ of Certiorari. Respondents have escalated
a local dispute, which directly concerns only 110 employ-

* Letters of consent from all parties to the filing of this brief
have been filed with the Clerk of this Court.

2

ees and a small railroad in a remote part of the country,
into a conflict which threatens to disrupt the national
system of rail transportation. The escalation has been
<ecomplished by means of picketing against railroads who
are strangers to the underlying dispute and are power-
less to hasten its end.’

The Conference respectfully submits that the escala-
tion of the primary labor dispute has given rise to nu-
merous lawsuits that, in turn, have created uncertainty
about the legal limits of economic self-help in a railway
labor dispute and the injunctive power of the federal
judiciary to vindicate the objectives of the Railway Labor
Act and related legislation. The uncertainty is mani-
fested by a split among the federal courts of appeals,
which cannot agree upon the intention of Congress re-
garding secondary boycotts under the Railway Labor
Act. The need for a definitive interpretation of the Rail-
way Labor Act and its relationship to the Norris-La
Guardia Act are issues of first importance to rail car-
riers, the labor organizations that represent their em-
ployees, and the public that depends on rail transporta-
tion. Until the questions presented by this case are an-
swered, the railroad and airline industries will function
in a state of uncertainty that will disrupt ongoing col-
lective bargaining and imperil labor relations stability.

INTEREST OF AMICUS CURIAE

Virtually all of the nation’s Class I railroads are mem-
bers of the National Railway Labor Conference (“NRLC”
or “Conference”’). The Conference is the multiemployer

The Court has often addressed the “primary-secondary” distinc-
tion under Taft-Hartley. International Union of Elec. Wkrs. v.
NLRB (General Elec.), 366 U.S. 667 (1961). In its simplest form,
the secondary boycott is characterized by economic “saactions
[which] bear, not upon the employer who alone is a party to the
dispute, but upon some third party who has no concern in it.” Id.
at 672 (citing, International Bhd. of Elec. Wkrs. v. NLRB, 181
F.2d 34, 37 (2d Cir. 1950) ).

3

representative of its member railroads both in national
collective bargaining with unions pursuant to the Rail-
way Labor Act and in regard to other labor-management
relations problems that are of concern to the railroads
generally. In addition, the Conference serves as a clear-
inghouse for labor relations information and advises and
assists its member railroads about the system established
by the Railway Labor Act to adjust disputes arising out
of workplace grievances or the interpretation of collec-
tive bargaining agreements.

The Conference requests that the Court grant the in-
stant Petition and respectfully submits that its statement
in support is desirable because it will more fully apprise
the Court of the nationwide impact of the issue before it.
The Conference’s participation will also more fully in-
form the Court of the danger posed by Respondent’s pick-
eting to the national transportation system and the econ-
omy which depends upon it for survival.

BACKGROUND

The Brotherhood of Maintenance of Way Employees
(“BMWE”) represents approximately 110 active railroad
workers employed by Maine Central Railroad (“MEC’)
and the Portland Terminal Co. (“PT’’), small local rail
carriers located in Maine. The BMWE contract with
MEC/PT reopened in 1984, and the parties began nego-
tiations aimed at a new contract on rates of pay, rules
and working conditions. By March 3, 1986, the parties
had exhausted the major dispute resolution procedures of
the Railway Labor Act. The BMWE commenced a law-
ful strike against the carrier, and later, its corporate
affiliates, the Boston & Maine and the Delaware & Hud-
son. The union was unable to force MEC to capitulate
through its use of a primary strike. In the spring of
1986, the BMWE attempted to ratchet up the pressure
by picketing third-party, neutral employers in an admit-
tedly secondary campaign of economic warfare. The eco-

4

nomic pressure exerted upon neutral employers as far
away as California, would disrupt the flow of commerce
throughout the nation and, as a by-product, economically
asphyxiate the BMWE’s diminutive opponent. The union
apprised the Conference of its plans in a letter of April
8, 1986, in which its President expressed the intention of
shutting down “the national rail system.”

On May 15, 1986, BMWE commenced picketing at the
facilities of the Consolidated Rail Corporation (‘Con-
rail”), and caused substantial disruption to Conrail’s
operations. Confronted with the threatened shutdown of
Conrail as well as other rail carriers, the President of
the United States adopted the recommendation of the
National Mediation Board and issued an Order appoint-
ing an Emergency Board in accordance with the discre-
tion conferred upon him by § 10 of the Railway Labor
Act. The Board’s mandate was to assist the parties in
resolving their dispute. See Executive Order No. 12557,
appended hereto as Attachment 1. The Railway Labor
Act required both parties to maintain the status quo by
refraining from all further self-help until July 21, 1986.”
At that time the parties were free, if so inclined, to re-
sume their posture “at each others’ throats,” * or, in the
case of the BMWE, at the throat of any other railroad
it sees fit to entangle in its struggle. To date the combat
has not resumed, nor has the dispute been settled.

Prior to the establishment of the Emergency Board,
Petitioners had successfully urged the United States Dis-
trict Court for the Northern District of Illinois to issue

* The President appointed the members of the Emergency Board
on May 23. The Board issued its recommendations to the President
on June 21, initiating another 30-day cooling off period in which all
self-help or other displacement of the status quo is forbidden. See
45 U.S.C. § 160; Exec. Order No. 12557, 51 Fed. Reg. 18,429 (1986),
Attachment 1.

’ Burlington N. R.R. Co. v. BMWE, No. 86-166, Pet’n at 4a (7th
Cir. June 4, 1986).

5

a preliminary injunction forbidding BMWE from picket-
ing them as neutral parties unconnected with the dis-
pute. On June 4, 1986, however, the Seventh Circuit re-
versed the district court, vacating the injunction. Bur-
lington N. R.R. Co. v. Brotherhood of Maint. of W. Em-
ployes, No. 86-166, slip op. (7th Cir. June 4, 1986).
Although the BMWE has not yet resumed its secondary
boycott activity, the Court of Appeals’ decision to vacate
the injunction removes the only legal obstacle to its use.
The Conference respectfully requests this Court to grant
the petition for certiorari and to resolve the troublesome
uncertainty surrounding the relationship of the Norris-
LaGuardia Act, 29 U.S.C. § 101, et seg., and the Railway
Labor Act in the context of secondary picketing, and the
meaning to be imputed to the absence of any express pro-
vision in the Railway Labor Act addressing secondary
picketing.

THE DECISION OF THE COURT OF APPEALS WILL
DESTABILIZE LABOR RELATIONS IN THE RAIL-
ROAD INDUSTRY.

The important national goal of stable labor relations
in the railroad industry is accomplished through a com-
plex collective bargaining procedure established by the
Railway Labor Act (“RLA”), 45 U.S.C. § 151, et seq.
The RLA provides for resolution of disputes over the
establishment or modification of rates of pay, rules and
working conditions (“major disputes”) by requiring the
employer and the labor organization representing a craft
or class of its employees to provide notice of the intended
change, negotiate over it, take part in government-con-
trolled mediation if it is requested of or proffered by the
National Mediation Board (“NMB”) and, finally, to par-
ticipate in a Presidential Emergency Board invest’ gation
if the dispute threatens to deprive a region of the country
of essential transportation servcice. All of these proce-
dures must be exhausted before either the rail carrier or
the labor organization can use economic self-help to force

6

acceptance of its demands. See Detroit & T.S.L.R.R. v.
United Transp. Union, 396 U.S. 142 (1969).

During the sixty years that have followed passage of
the Railway Labor Act, labor and management have
evolved their own procedures within the parameters of
the statute to deal with the major disputes that occur in
the industry. Elgin, J & E. R. v. Burley, 325 U.S. 711,
752-753 (Frankfurter, J. dissenting) (1945), accord, In-
ternational Ass’n of Machinists v. Street, 367 U.S. 740,
750-60 (1961) (analogizing to the NLRA). The number
of these disputes is considerable. The NMB has reported
that as of 1982, there were approximately 7200 individual
railroad industry labor agreements on file with the Board,
and the number is growing. There were 1000 more in
1982 than in 1975. 48 NATIONAL MEDIATION BoARD ANN.
ReEp., 64 (1982). These written agreements represent only
the fraction of major disputes that are resolved by writ-
ten agreements submitted to the NMB pursuant to Sec-
tion 5(e) of the RLA. See 45 U.S.C. § 155/e).

Some issues are negotiated on a multiemployer basis.
These national negotiations are traditionally conducted by
the National Railway Labor Conference on behalf of most
of the major railroads in the United States. In these
negotiations, which take place with individual unions or
groups of aligned unions, the parties set wage rates and
other basic rules and working conditions. See Brotherhood
of R. Trainmen v. Atlantic Coast Line R.R., 383 F.2d 225
(D.C. Cir. 1967), cert. denied, 389 U.S. 1047 (1968) ;
Chicago B. & Q. R.R. v. Railway Employee Department,
301 F. Supp. 603 (D.D.C. 1969). Other elements of the
employment relationship are negotiated on an individual
carrier basis. In turn, some of these subjects are nego-
tiated on a carrier or system-wide basis and others are
resolved by an agreement that is applicable to a work
site or local area. At any point in time, there are hun-
dreds of pending major disputes in the railroad industry
at various stages in the collective bargaining process.

7

This tradition of continual collective bargaining in the
railroad industry* exists in delicate harmony with the
first-stated purpose of the RLA: “To avoid any interrup-
tion to commerce or to the operation of any carrier en-
gaged therein.” 45 U.S.C. §15la. This method of bar-
gaining has evolved and endured because the parties have
predictable expectations about the bargaining procedure
and the economic self-help that is permissible if the pro-
cedure does not result in an agreement.

The decision of the Court of Appeals in the Burlington
Northern litigation has unsettled the expectations that
undergird the collective bargaining process. The uncer-
tainty it has created about the lawful bounds of self-help
transcend the dispute between the Maine Central Railroad
and the Brotherhood of Maintenance of Way Employes.
It can change the dynamics of collective bargaining in the
railroad industry.

Prior to the Burlington Northern and related decisions,’
a rail carrier engaged in a major dispute with a labor
organization representing its employees understood the
implications of exhausting the collective bargaining proc-
ess without reaching an agreement. The employees in the
affected craft or class could strike and set up picket lines.
Other carrier employees might honor the picket-line and
refuse to report for work. The employees of other employ-
ers having business at the picketed facility might also
refuse to cross the picket-line. For the most part, the
bounds of lawful self-help were coterminous with the
rail facilities of the primary employer.®

4 See Elgin, J. & E.R. v. Burley, 325 U.S. at 752-53 (Frankfurter,
J., dissenting).

° Burlington N. R.R. v. BMWE, No. 86-166, slip op. (7th Cir.,
June 4, 1986) ; Richmond, F. & P. R.R. v. BM WE, No. 86-3544, slip
op. (4th Cir., July 12, 1986); Central Vermont Ry. v. BMWE, No.
86-5245, slip op. (D.C. Cir., June 27, 1986) ; Consolidated Rail Corp.
v. BMWE, No. 86-7282, slip op. (2d Cir., June 5, 1986).

®In the Florida East Coast strike in 1966 and in the BRAC-
Norfolk and Western strike in 1978, extension of picket-lines to

8

Now, under the decision of the Court of Appeals, the
picketing can be extended to the facilities of other rail-
roads having nothing to do with the major dispute, or to
the premises of the carrier’s shippers, suppliers, and con-
signees. The decision of the Court of Appeals effects a
fundamental modification in the “arsenal of weapons”
available to a labor organization in a major dispute. The
capacity of a union in a dispute with a small carrier to
threaten the entire national rail system through the use
of secondary picketing will necessarily alter the dynamics
of bargaining in the hundreds of major disputes that are
currently pending throughout the industry." The questions
presented in Burlington Northern’s Petition are of para-
mount national importance and should be resolved by this
Court.

In addition to presenting a question of compelling im-
portance, the decision of the Court of Appeals for the
Seventh Circuit is in conflict with the decisions of the
Court of Appeals for the Eighth Circuit in Ashley, D. &

other railroads occurred either because the railroads shared common
facilities or because the “secondary” railroads were rendering spe-
cial strike-related assistance to the primary carrier. See Brother-
hood of R.R. Trainmen v. Atlantic Coast Line R.R., 383 F.2d at 225;
Alion S. Ry. v. Brotherhood of Ry. and Airline Clerks, 481 F. Supp.
130 (D.D.C. 1978).

7The RLA is applicable to airlines as well as railroads. The
Court of Appeals’ opinion necessarily enhances the prospect of
secondary picketing in major disputes in both industries. The
prospect for such picketing, and the disruptive effect of even its
threat, was illustrated by the recent statement of the International
Association of Machinists (“IAM”) to the U.S. Department of
Transportation in the Texas Air-Eastern Acquisition Case, Docket
No. 48825. The IAM argued that labor protective conditions should
be imposed as a condition to the merger in order to prevent a
nationwide disruption to air service that could result from a labor
dispute incident to the merger. Because of the Burlington Northern
and related court decisions, “the possibility of a nationwide disrup-
tion of the air transportation as a result of this merger is therefore
greatly increased.” Jd. at 14.

9

N. Ry. v. United Transportation Union, 625 F.2d 1357
(8th Cir. 1980), and United States Court of Appeals for
the Fifth Circuit in Brotherhood of Railroad Trainmen
v. Atlantic Coast Line R.R., 362 F.2d 649 (5th Cir.), aff'd
by equally divided court, 385 U.S. 20 (1966). In both
cases the courts held that there were limits to the right
to picket incident to self-help in a major dispute and
that the limits were enforceable by a court injunction.

The Court of Appeals below interpreted the Railway
Labor Act to permit unrestrained self-help once the col-
lective bargaining procedures are unsuccessfully ex-
hausted. This has never been the view of this Court and
it is at odds with the policies of the RLA. When the
Court restricted the carrier’s self-help in Brotherhood of
Railway Clerks v. Florida East Coast Ry., 384 U.S. 238
(1966), it “honored” the “spirit of the Railway Labor
Act” by prohibiting the carrier from using a strike as an
occasion to make sweeping changes in the work rules of
its employees. Jd. at 247. The Court held that a strike
does not destroy the community of the striking employees
and the carrier, “as the strike represents only an inter-
ruption in the continuity of the relations.” Jd. at 246-47
(footnote omitted). The appropriateness of specific forms
of self-help have to be evaluated against this transcending
relationship. Jd. at 247. The Court of Appeals below
erred when it failed to take account of the impact of
unlimited wnion self-help on the ongoing relationship of
the parties to the major dispute, as well as on the labor
relationships of other neutral carriers who become the
targets of secondary boycotts and picketing.

The Petition for a Writ of Certiorari analyzes the
Court of Appeals’ misapplication of this Court’s decision
in Brotherhood of Railroad Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369 (1969). Amicus Curiae
agrees with that analysis and would emphasize that the
court below misunderstood the design of the Railway
Labor Act and, in particular, the relationship between

10

collective bargaining and self-help. “Economic warfare”
under the Act is not Armageddon. It is only a means of
securing agreement on one or more discrete issues in the
overall employer-employee relationship. The Court of
Appeals’ decision, if allowed to stand, will disrupt labor
relations in the railroad and airline industries by per-
mitting a work stoppage on one carrier to infect the
labor relations of employers and employees unrelated to
the primary dispute.

CONCLUSION

For the foregoing reasons, amicus curiae National Rail-
way Labor Conference urges that the instant petition be
granted.

WILLIAM J. CURTIN

HARRY A. RISSETT®
1800 M Street, N.W.
Washington, D.C. 20036
(202) 872-5084

Of Counsel:

MorGAN, LEWIS & BOCKIUS

1800 M Street, N.W.

Washington, D.C. 20036

(202) 872-5000

la
ATTACHMENT No. 1

Federal Register Vol. 51, No. 97
Tuesday, May 20, 1986

PRESIDENTIAL DOCUMENTS
Title 3—
Executive Order 12557 of May 16, 1986

The President

Establishing an Emergency Board To Investigate Dis-
putes Between the Maine Central Railroad Company /
Portland Termina! Company and Certain of Their Em-
ployees Represented by the Brotherhood of Maintenance
of Way Employees

Disputes exist between the Maine Central Railroad Com-
pany/Portland Terminal Company and certain of their
employees represented by the Brotherhood of Maintenance
of Way Employees.

These disputes have not heretofore been adjusted under
the provisions of the Railway Labor Act, as amended [the
“Act’’] :

These disputes, in the judgment of the National Media-
tion Board, threaten substantially to interrupt interstate
commerce to a degree such as to deprive a section of the
country of essential transportation services.

NOW, THEREFORE, by the authority vested in me by
Section 10 of the Act (45 U.S.C. § 160), it is hereby or-
dered as follows:

Section 1. Establishment of Board. There is hereby estab-
lished, effective May 16, 1986, a board of three members
to be appointed by the President to investigate these
disputes. No member shall be pecuniarily or otherwise
interested in any organization of railroad employees or

2a

any carrier. The board shall perform its functions sub-
ject to the availability of funds.

Sec. 2. Report. The board shall report its findings to the
President with respect to these disputes within 30 days
from the date of its creation.

See. 3. Maintaining Conditions. As provided by Section
10 of the Act, from the date of the creation of the board
and for 30 days after the board has made its report to the
President, no change, except by agreement of the parties,
shall be made by the carriers or the employees in the
conditions out of which these disputes arose.

Sec. 4. Expiration. The board shall terminate upon the
submission of the report provided for in Section 2 of this
Order.

THE WHITE HOUSE,
May 16, 1986.
/s/ Ronald Reagan

Editorial note: For the White House announcement of May 16 on
the establishment of the emergency board, see the Weekly Compila-
tion of Presidential Documents (vol. 22, no. 20).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0291%3A05. Public record. Not legal advice.