# Petition for Writ of Certiorari — Norfolk & Western R. Co. v. Train Dispatchers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0696%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 117 ## Text ) 89 - ] 0 z 7 Suprems Court, U.S. PFiuLED No. ae SEC 78 fs) a IRe IN THE CLERK Supreme Court of the United States” OCTOBER TERM, 1989 NORFOLK AND WESTERN RAILWAY COMPANY and SOUTHERN RAILWAY COMPANY, Petitioners, Vv. AMERICAN TRAIN DISPATCHERS ASSOCIATION, INTERSTATE COMMERCE COMMISSION and UNITED STATES OF AMERICA, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT JEFFREY S. BERLIN (Counsel of Record) MARK E. MARTIN RICHARDSON, BERLIN & MORVILLO 2300 N Street, N.W. Suite 625 Washington, D.C. 20037 (202) 663-8902 WILLIAM P. STALLSMITH, JR. Three Commercial Place Seventeenth Floor Norfolk, Virginia 23510 (804) 629-2815 Attorneys for Petitioners December 28, 1989 NN ee ee ce Na PRESS OF BYRON 8S. ADAMS, WASHINGTON, D.C. (202) 347-8203 QUESTION PRESENTED Does the exemption “from all other law” in the Interstate Commerce Act, 49 U.S.C. § 11341(a), which applies to a railroad participating in a transaction that has been approved by the Interstate Commerce Com- mission, extend to claims that are based on the rail- road’s contracts and are asserted exclusively under federal law? ii LIST OF PARTIES AND RULE 28.1 LIST The names of the parties to the proceeding are contained in the caption.' The common stock of petitioners Southern Railway Company and Norfolk and Western Railway Company is wholly owned by Norfolk Southern Corporation. The other subsidiaries and affiliates of petitioners are: Southern Railway Company subsidiaries: Airforce Pipeline, Inc. Alabama Great Southern Railroad Company, The oo and Charlotte Air Line Railway Company, © Atlantic and East Carolina Railway Company Camp Lejeune Railroad Company Central of Georgia Railroad Company Charlotte-Southern Hotel Corporation Chattanooga Station Company Chattanooga Terminal Railway Company Cincinnati New Orleans and Texas Pacific Railway Company, The ' The decision of the Court of Appeals also covered the court’s Case No. 88-1724, Brotherhood of Railway Carmen v. Interstate Commerce Commission. The parties in Case No. 88-1724 were petitioner Brotherhood of Railway Carmen, Division of Trans- portation-Communications International Union; respondents In- terstate Commerce Commission and United States of America; and intervenor CSX Transportation, Inc. The two cases were not formally consolidated—indeed, a motion for consolidation filed by the labor union parties was denied—but they were argued before the same panel on the same day. Petitioners Southern Railway Company and Norfolk and Western Railway Company understand that CSX Transportation, Inc. will also be filing a petition for a writ of certiorari with respect to the D.C. Circuit decision for which review is sought herein. ili Citico Realty Company Elberton Southern Railway Company Georgia Midland Railway Company, The Georgia Northern Railway Company, The Georgia Southern and Florida Railway Company Highpoint, Randleman, Asheboro and Southern Railroad Company Interstate Railroad Company Live Oak, Perry and South Georgia Railway Company Louisiana Southern Railway Company Memphis and Charleston Railway Company Mobile and Birmingham Railroad Company National Investment Company, The New Orleans Terminal Company Norfolk and Portsmouth Belt Line Railroad Company North Carolina Midland Railroad Company, The St. Johns River Terminal Company South Western Rail Road Comapny, The Southern Rail Terminals, Inc. Southern Rail Terminals of Alabama, Inc. Southern Rail Terminals of North Carolina, Inc. Southern Railway-Carolina Division Southern Region Coal Transport, Inc. Southern Region Industrial Realty, Inc. Southern Region Materials Supply, Inc. Southern Region Motor Transport, Inc. State University Railroad Company Tennessee, Alabama & Georgia Railway Company Tennessee Railway Company Transylvania Railroad Company Virginia and Southwestern Railway Company Yadkin Railroad Company iv ; Vv Norfolk and Western Railway Company subsidiaries: TABLE OF CONTENTS Chesapeake Western Railway Fort Wayne Union Railway Company Page Lake Erie Dock Company ; Norfolk and Portsmouth Belt Line Railroad Guaeame LIST OF PARTIES AND RULE 28.1 LIST .............. il Scioto Valley an d New Englan d Railroad Company, I EEE oc cccccccvcccccccccceveccececsoccosees vil The ia ciscccinccscicsocssconseosesssncsosessensee Shenandoah-Virginia Corporation EE Toledo Belt Railway Company, The Wabash Railroad Company Norfolk Southern Corporation subsidiaries (in addition to Southern Railway Company and Norfolk and West- REASONS FOR GRANTING THE WRIT ...............-.. 10 ern Railway Company): es casecebucosece 26 Appendices: Arrowood-Southern Corporation Company A. Decision, Brotherhood of Railway Carmen ; ‘ v. Arrowood-Southern Executive Park, Inc. Atlantic Investment Company Charlotte-Southern Corporation Lamberts Point Barge Company, Inc. Interstate Commerce Commission, D.C. Cir. No. 88-1724, and American Train Dispatch- ers’ Association v. Interstate Commerce Com- mission, D.C. Cir. No. 88-1694, July 25, 1989 Lamberts Point Docks, Inc. odcocesenséosenaasoossoocosescosessecese maeeiasinrenrcesnnenencccwces la Nickel Plate Improvement Company, Inc. . Order, “saan of Railway Carmen v. In- Norfolk Southern Industrial Development terstate Commerce Commission, D.C. Cir. No. 88-1724, and American Train Dispatchers Corporation Association v. Interstate Commerce Commis- Norfolk Southern Properties, Inc. sion, D.C. Cir. No. 88-1694, September 29, North American Van Lines, Inc. 1989 (amending decision of July 25, 1989). 27a NS Fiber Optics, Inc. . Decision, olk Southern Corp.—Control— NS Transportation Brokerage Corporation Ne estern Ry. a outhern Ry., NW Equipment Corporation 24, 1988 | settenttnalnalaad 29a Pocahontas Development Corporation . Order, Brotherhood of Railway Carmen v. In- Pocahontas Land Corporation terstate Commerce Commission, D.C. Cir. No. Sandusky Dock Corporation 88-1724, and American Train Dispatchers’ te ae see Be Ne ae ose Meco ; , D.C. . No. : tember 29, Virginia Holding Company 1989 (entering judgment) ......... . te 47a vi E. Order, Brotherhood of Railway Carmen v. In- terstate Commerce Commission, D.C. Cir. No. 88-1724, and American Train Association v. Interstate Commerce Commis- sion, D.C. Cir. No. 88-1694, September 29, 1989 (denying petitions for rehearing) sonesece . Order, Brotherhood of Railway Carmen v. In- terstate Commerce Commission, D.C. Cir. No. 88-1724, and American Train Dispatchers’ Association v. Interstate Commerce Commis- sion, D.C. Cir. No. 88-1694, September 29, 1208 (denying suggestions of rehearing en TOG) .” Dispatchers, J.A. 207. None of the Supreme Court accisions, discussed _— 13a below, authorizing the ICC to abrogate an “other law” even suggests that ‘the term means “all legal obstacles.” The ICC itself, prior to its 1983 decision in DRGW,, rec- ognized as much. Sce Gulf, Mobile & Ohio R.R. Co.— Abandonment, 282 I.C.C. 311, 335 (1952) (“None of the decisions in the [Supreme Court] cases . . . relates to private contractual rights, but refers [sic] to State laws which prohibit in some way the carrying out of the transaction authorized.’’). Moreover, the FCC’s proposed insertion of “all legal obstacles” into the statutory language would lead to most bizarre resu'ts. Uncer the ICC’s reading, it could set to naught, in order to facilitate a merger, a carrier’s solemn undertaking, in a bond indenture or a bank loan, to refrain from entering into any such transaction without the consent of its creditors. Cf. Gulf, Mobile & Ohio, 282 1.C.C. at 331-35 (declaring itself without power, in an abandonment context, to relieve a carrier from its “contractual obligations for the payment of rent”). We do not think it likely that Congress would grant the ICC a power with so much potential to destabilize the rail- road industry; we are confident, however, that it would not do so without so much as a word to that effect in the statute itself. Never, either in its decisions here under review or in prior cases, has the ICC offered any justi- _ fication for this most unlikely reading of the Act. Perhaps we could tolerate the ICC’s reading if it found strong support in either the “design of the statute as a whole,” K Mart, 108 S.Ct. at 1817, or in its legislative history. We find noting there upon which to sustain it, however; if anything, both tend to support the meaning conveyed by the words of the statute itself. Congress first introduced the immunity provision, in a somewhat different form, in 1920. Transportation Act, 1920, 66th Cong., 41 Stat. 456, 482 (1920) (amending §5 of the Act) (1920 Act) § 407. In the 1920 Act, l4a Congress deputized the ICC to design a master plan to consolidate the nation’s railroads into a limited number of strong systems; the plan was to be implemented by voluntary action on the part of the carriers. 41 Stat. 481 (§§5(4), 5(6), See generally Schwabacher v. United States, 334 U.S. 182, 191-93 (1948). It also, for the first time, gave the ICC exclusive jurisdiction to approve rail- road consolidations; the agency was directed to approve any proposed consolidation that it found to be consistent with (1) its master plan; and (2) the public interest. (Congress removed the first criterion when, in 1940, it discarded the idea of a master plan. See id. at 193.) The immunity provision of the 1920 Act provided that: The carriers affected by any order made under the foregoing provisions of this section and any corpo- ration organized to effect a consolidation approved and authorized in such order shall be, and they are hereby, relieved from the operation of the “antitrust laws,” . .. and of all other restraints or prohibi- tions by law, State or Federal, in so far as may be necessary to enable them to do anything authorized or required by any order made under and pursuant to the foregoing provisions of this section. 41 tat. 482 (§ 5(8) (emphasis added) ). It is reasonably clear from the history of the 1920 Act what Congress intended the immunity provision to ac- complish. In 1917, President Wilson, in the exercise of his wartime powers, had taken possession of the rail- roads, in part :o consolidate them into a unified trans- portation system in aid of the national defense. See Priorities Act, 65th Cong., 40 Stat. 272 (1917); Federal Control Act, 65th Cong., 40 Stat. 451 (1918). See gen- erally 32d Annual Report of the Interstate Commerce Commission (1918) (1918 Annual Report) at 1-2. Prior to that time, the ICC’s authority over the railroads was relatively limited; the States, on the other hand—through 15a their ratemaking commissions, their corporation laws, and their police powers—intensively regulated the car- riers’ rates, finances, and operations. Whereas state reg- ulation had at first severely hampered efforts to enlist the railroads in the war efforts, Schwabacher, 334 U.S. at 191, during the period of nationalization, neither state nor federal law stood in the way of the Government’s purpose to further the war effort. In 1920, when the period of federal control was about to end. Congress thought it imperative to the trans- portation needs of the nation that a program of coordina- tion and consolidation be continued; this it chose to pursue, in part, by facilitating voluntary consolidations in accordance with the master plan the ICC was to de- velop. Jd. at 191-94. See H. Rep. No. 456, 66th Cong. at 6-7, 18-19 (1919); H. Rep. No. 650, 66th Cong. at 643- 64 (1920). See generally I.L. Sharfman, The Interstate Commerce Commission 153-70, 183 (1931). The carriers’ return to private ownership, however, would bring with it two complications. First, they would be again subject to regulation by the uncoordinated and often unfriendly state commissions and legislatures. As the Supreme Court stated in Tran- sit Commission v. United States, 289 U.S. 121, 127 (1933) : . . . Prior to the Transportation Act, 1920, regula- . tions coincidentally made by federal and state au- thorities were frequently conflicting, and often the enforcement of state measures interfered with, bur- dened and destroyed interstate commerce. Multiple control in respect of matters affecting such trans- portation has been found detrimental to the public interest as well as to the carriers. Dominant federal action was imperatively called for. See also Texas v. United States, 292 U.S. 522, 530-31, 534-35 (1933) (in order “to insure an adequate trans- portation system” Congress gave the ICC power “to au- 16a thorize consolidations, purchases, leases, operating con- tracts, and acquisition of control,” to the exclusion of state laws that would burden the ICC’s master plan). Second, they would be newly subject to regulation by the recently invigorated antitrust laws of the federal Government itself; the Supreme Court had recently held that §1 of the Sherman Act made unlawful any merger between carriers that eliminated competition to even a limited extent. See United States v. Union Pacific R.R. Co., 226 U.S. 61, 88-89 (1912). Congress addressed both of these problems with the immunity provision of the 1920 Act. First, Congress placed in the ICC, and removed from the antitrust courts, the duty of considering the anticompetitive effects of any merger proposed to it. 41 Stat. 481 (§5(4)) (ICC mas- ter plant to preserve competition “as fully as possible”) ; McLean Trucking Co. v. United States, 321 U.S. 67, 73- 78 (1944). Second, Congress continued its wartime pol- icy to centralize supervision of the nation’s railroads and to eliminate conflicting state authority; thus, for ex- ample, ICC-approved consolidations could go forward, gided by the immunity provision, free of interference by the States. This general, centralizing sentiment was echoed in other sections of the 1920 Act, which gave the ICC authority, notwithstanding contrary state law, to (1) approve any extension, construction, or abandon- ment of tracks, see 41 Stat. 477-78 (§§ 1/18), 1/20)); Transit Commission, 289 U.S. at 126-28; (2) reject or permit any proposed issuance of securities, 41 Stat. 494- 95 (£$ 20a(2), 20a(7)); and (3) adjust rates it deemed unduly preferential or discriminatory, id. at 484 (§ 13 (4)). The ICC applied the immunity provision of the 1920 Act to exempt merging carriers from a wide variety of state law impediments. See, e.g., Clinchfield Ry. Lease, 90 LC.C. 113, 134 (1924) (constitutional bar to foreign 17a corporation operating railroad in state): ; id Operation of Louisiana & Arkansas C ney! ; C 477, 487 (1929) (law forbidding consolidation, stock ownership, or lease of parallel or competing lines) ; Con- trol of San Antonio & Arkansas Pass Ry. by Southern Pacific Co., 94 I.C.C. 701, 704 (1925) (local corporate headquarters requirement); Lease of Louisville. Hender- son & St. Louis Ry. by Louisville & Nashville RR. Co 150 LC.C. 741, 743-44 (1929) (law giving minority stockholders appraisal rights prior to sale of corporate property). And the Supreme Court consistently upheld its application. See, e.g., Seaboard Air Line R.R. Co. v Daniel, 333 U.S. 118, 124-27 (1948) (local incorporation law); Texas v. United States, 292 U.S. at 531-35 ( local corporate headquarters). Thus, in the 1920 Act, Congress “ma ture,” Railroad Commission of Wiest . thie Burlington & Quincy R.R. Co., 257 U.S. 563, 585 (1922). pressing for consolidation of the nation’s railroads in a legal environment that had long been hostile to such a notion. | When, upon the recommendation of the ICC. see Extension of Tenure of Government Control of the Rail. roads: Hearings Before the Committee on Interstate Commerce, United States Senate on the Extension of Time for Relinquishment by the Government of Railroads to Corporate Ownership and Control, 65th Cong. Vol. 1 at 231-305, 339-377 (1919) (remarks of ICC Commis. sioner Edgar E. Clark); Return of the Railroads to Private Control: Hearings Before the Committee on In- terstate and Foreign Commerce of the House of Repre- sentatives on H.R. 4378, 66th Cong. at 8-139, 2857-2966 (1919) (same), it enacted into law a voluntary consoli- dation/immunity program—which the ICC had originally advocated in 1917, see Report of the ICC to the Senate and House of Representatives, 56 Cong. Rec. 45, 65th Cong., H. Doc. 503 (Dec. 5, 1917) (reprinted in 1918 Annual Report at 5-7)—it clearly meant to change that legal environment. 18a From our review of this history, we are confident that Congress did not intend, when it enacted the immunity provision, to override contracts. First, Congress focused nearly exclusively, in the hearings and debates on the 1920 Act, on specific types of laws it intended to elimi- nate—all of which were positive enactments, not common law rules of liability, as on a contract. Cf. Aszociation of Flight Attendants v. Delta Air Lines, Inc., No. 87- 7040, slip op. at 23 (D.C. Cir. July 18, 1989). Indeed, Commissioner Clark, who presented the immunity idea to the House and Senate Commerce Committees in the hearings cited above, did not once suggest, over the course of several days and several hundred pages, that the pro- posed immunity might relieve a carrier of its obligations under negotiated agreements with third parties. Moreover, in the legislative debates both on the 1920 Act and in 1926, when in the RLA it provided a frame- work for the regulation and enforcement of CBAs in the railroad industry, Congress exhibited a healthy respect for privately negotiated contracts; it rejected, for ex- ample, an amendment to the RLA that would have granted the ICC the power to suspend excessively gen- erous wage agreements between carriers and their em--— ployees, in part on the ground that legislation abrogating labor agreements would be unconstitutional, see 67 Cong. Ree. 8884-86, 8892-93, 8896-97, 9190-91, 9196-97 (1926), and in part on the grounds that “there was a fundamen- tal objection to making changes of a substantive nature in the agreement which the parties had reached,” and that “[i]f agreement is to be resorted to [as a means of resolving labor management disputes], . . . the agree- ment should not be destroyed by placing in the act pro- visions which would have that effect.” S. Rep. No. 696, 69th Cong. at 5-6 (1926). And never, on the several occasions when Congress has revisited the immunity pro- vision, has it either broadened that provision so as to reach “all legal obstacles” to an ICC-approved transac- tion, or acted more specifically to bring “contracts” or 19a “collective bargaining agreements” within the reach of the statute. Against this history as background, we can not im- pute to Congress the intention to make the bargained- for provisions of a CBA contingent upon their not later becoming inconvenient to the full realization of operating economies that a merger might make possible. Cf. Asso- ciation of Flight Attendants, supra, slip op. at 23. We recognize that other forces may operate to abrogate a CBA in the post-merger context, as, for example, when the NMB, pursuant to its power under § 2, Ninth of the RLA, 45 U.S.C. § 152, Ninth, decertifies a union following an operational merger. See, e.g., International Brotherhood of Teamsters v. Texas Int'l Airlines, Inc., 717 F.2d 157, 161 (5th Cir. 1983). We simply do not think that Congress has lodged any such power in the ICC, particularly where, as in each of these cases, the CBAs at issue survived the ICC-approved merger and were not, apparently, questioned by the parties thereto unti] the present disputes arose—several years after the merger. B. The Railway Labor Act. At least one court of appeals has held that the im- munity provision of the Act may operate to override pro- visions of the RLA. Brotherhood of Locomotive Engi- neers v. Chicago & Northwest Ry. Co., 314 F.2d 424, 431- 82 (8th Cir. 1963). We decline to address the question here, however, for two reasons. First. The Unions question whether the ICC has the power to apply the immunity provision at all. They note that §11341(a) is in terms “self-executing,” which we take to mean that its effect is not to be determined by the ICC when it passes upon a transaction, but rather by the appropriate tribunal] for the resolution of a par- ticular case in which it is invoked by a carrier as a de- fense to the application of some “other law.” They draw 20a support for this position from two footnotes in Justice Stevens's concurring opinion in JCC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 300 nn. 18 & 14 (1987), in which the four Justices to reach the merits so opined. It is true that the ICC has in the past itself taken this position. See Chicago, St. Paul, Minneapolis & Omaha Ry. Co, Lease, 295 1.C.C. 696, 702 (1958) (noth- ing in the Act “authorizes us to determine and declare the particular laws within the scope of [the immunity provision] from which a carrier shall be relieved. The terms of [the provision] are self-executing, and there is no need for this Commission expressly to order or declare that a carrier be relieved from certain restraints. It is sufficient if we make clear what the carrier is authorized to do, Congress has not conferred upon us the power to determine the disputes which are subject to the Rail- way Labor Act....”) (citation omitted). The ICC’s statement in Chicago, St. Paul is correct to the extent that it means that the Commission is not required to determine what the effect of the immunity provision will be; the Supreme Court has long so held. New York Central Securities Corp, v. United States, 287 U.S. 12, 26-27 (1932) ; Claiborne-Annapolis Ferry Co. v. United States, 285 U.S. 382, 891 (1922). The Court has also held, however, contrary to the implication of the first-quoted sentence from Chicago, St. Paul, that the ICC is authorized to make a determination, in approving a transaction, that laws standing in the way of its im- plementation must give way. See Seaboard, 333 U.S. at 124-27; Texas v. United States, 292 U.S. at 531-35; Schwabacher, 334 U.S. 182. See also Gulf, Mobile & Ohio R.R. Co, Abandonment, 282 1.C.C. $11, 385 (1952) (reading above cases as giving it the authority to set aside “State laws which prohibit in some way the carry- ing out of the transaction authorized”). Thus, we must reject the Unions’ argument that the ICC lacks any power to consider a question of exemption that is properly pre- sented to it. Although the ICC’s disclaimer of power in Chicago, St. Pau! is overbroad insofar as it suggests that the ICC never has the power to determine a particular question of exemption, the result there can be reconciled with the Supreme Court cases cited above. In each of those cases the question of exemption arose before the consummation of the approved transaction; the issue was whether the ICC could, in the course of its approval of the transac- tion, remove a state law barrier to its effectuation. Scc Schwabacher, 334 U.S. at 200-01 (ICC may override state law granting dissenting stockholders right to block merger) ; Scaboard, 333 U.S. at 121; Texas v. United States, 292 U.S. at 531-32. As the Unions correctly note, Chicago, St. Paul—like the cases now before us—in- volved a carrier's request, submitted well after the con- summation of the ICC-approved transaction, for exemp- tion from the RLA. The ICC declined the carrier’s re- quest, saying: It is apparent that the [RLA] has not prevented the North Western from effectuating the transaction authorized by the prior order. That order author- ized the lease by North Western of the lines of rail- road and other properties owned, used, or operated by the Omaha, and this has been accomplished. The order did not provide any particular method for in- tegration of the physical operations involved, and, except for the imposition of . . . conditions for the protection of employees, did not deal with employer- employee relationships. 295 LC.C. at 702. The ICC’s broader disclaimer of any power to declare a carrier exempt from a law can thus be understood in the context in which it was presented; as the ICC inter- preted the Act in 1958, it was without power to revisit an approved and successfully consummated transaction merely in order to relieve the merged carrier, after the fact, from the burden of complying with the RLA. 22a Even so understood, however, the ICC’s holding in Chicago, St. Paul is still inconsistent with its current position; the transactions here at issue had long since been consummated when the ICC undertook to confer upon the merged carriers immunity from the RLA be- cause it affected the “particular method for integration of the physical operations involved... .” 295 I.C.C. at 702. An additional difficulty is presented by the ICC’s rul- ing with respect to the RLA generally. The ICC’s inter- pretation of the immunity provision, as of its 1958 de- cision in Chicago, St. Paul, was that Congress had not given it the power to override the RLA at all. It re- affirmed that view in 1967 in Southern Railway Co., supra, when it stated that, in the absence of a stand-by agreement among the affected carriers and unions that would displace their existing CBAs in the event of a rail merger, “section 6 of the [RLA] would seriously impede mergers,” 331 I.C.C. at 170-71—a statement that would not make sense if the agency thought it had the power simply tu override § 6 “as necessary” to let an approved transaction go forward. The ICC’s current interpretation of the immunity pro- vision departs from this view, but we have found no ex- planation for the departure, save a citation in DRGW— the 1983 case in which it adopted its current stance— and decisions following it, to the Eighth Circuit’s 1963 decision in Chicago & North Western Ry., supra. Because that case arose out of a dispute between a carrier and the unions representing its employees, however—a dis- pute to which the ICC was not a party—the court did not have the beenfit of the agency’s (then presumably contrary) views on the matter, nor did it cite any ICC precedent in support of its conclusion (apparently be- cause, as of that time, none existed). For the ICC now to reverse its position solely on the basis of the court’s holding is somewhat troubling, for three reasons. First, 23a in 1967, in Southern Railway Co., the ICC was still of the view, the Eight Circuit’s intervening decision not- withstanding, that it lacked the authority to override the RLA. Second, in light of the ICC’s close involve- ment with the historical development of the Act, it is dis- turbing that it would switch its position in unelaborated reliance upon a court case, which raised the issue in a different context and to which it was not a party, with- out giving any independent consideration to the matter. Third, the ICC has never related its current position to the context of the 1920 Act in which the immunity pro- visions first appeared; it has not, for example, related the original immunity provision in the 1920 Act to the comprehensive provisions of the same legislation gov- erning labor-management relations, see 1920 Act, 41 Stat. 469-74—provisions that were, as we understand the legislative sequence, the immediate precursor to the RLA. It may be that the ICC has made a conscious decisiun simply to depart from its earlier precedent. The ICC has not, however, said that it is doing so, much less articulated its reasons. As we stated in Oil, Chemical and Atomic Workers Int’l Union v. NLRB, 806 F.2d 269, 273-74 (D.C. Cir. 1986), “[wJe need hardly elaborate on the settled principle that an agency may not depart from its precedent without explaining and justifying its change in position.” Second. In light of our holding that §11341{a) does not empower the ICC to override a CBA, it is unclear what are the consequences, if any, of its rulings that the carriers need not comply with the RLA. In The Car- men’s Case, the heart of the dispute before the ICC was whether either the Commission or, derivatively, the Com- mittee, had the power to relieve CSX from the terms of Orange Book that, as the Committee had interpreted them, prohibited the proposed transfer of work and of employees. The RLA was implicated, as we understand 24a the dispute, only insofar as the Brotherhood argued that CSX could not unilaterally depart from the Orange Book without first complying with the procedures of the RLA. Recause the ICC, in response, started from a premise (that §11841/a) gave it the power to relieve CSX of its contractual responsibilities) and reached a concit.sion (that the RLA could not stand in the way of that power) that we hold was in error, it appears that nothing turns anv longer on its conclusion. We remand the case to the ICC for reconsideration, however, in order to enable it to assess the sit. ‘on in the first instance. As for The Dispatchers’ Case, the ramifications of our CRA ruling are somewhat less clear. There the CBA issue was whether the ICC could, by means of the im- munity provision, relieve the N&W of obligations under its existing CBA in connection with the transfer of su- pervisory positions from Roanoke to Atlanta; the ICC caid that it could, and we have held that it erred on that point. The RLA issues, as we understand them, were (1) whether the carriers could effect the transfer without first complying with the procedures of the RLA; and (2) whether the transfer, insofar as it deprived employees of rights under their CBA, violated the RLA. The second iesye seems to drop out of this case for the same reason as the RLA issue appears to have become irrelevant in The Carmen's Case: because we hold that the ICC may not relieve the carriers of obligations under the CBA, the question whether it would violate the RLA to do so is purely hypothetical. The first issue, if we are correct in stating it—the rec- ord on this point is less than erystal clear—may yet be alive The ICC's opinion, however, gives us pause; it states that the continuation of the old agreement will ‘jeopardize the transaction”—by which it means not the merger but the transfer to Atlanta—“because the work rules it mandates are inconsistent with the carriers’ underlving purpose of integrating the power distribu- —=-_-—— 25a tion function.” J.A. 291. Similarly, the carriers, as intervenors here, note that had the ICC not set aside the Roanoke CBA, its continuation “would have prevented the contolidation from going forward... ."’ Because we hold that the ICC was without authority to set aside that CBA, it is unclear how the carriers will proceed. They may find it both impractical to adhere to the Roanoke CBA in the Atlanta setting, because it would introduce non-uniform work rules, and uneconomical to renegotiate the Roanoke CBA in order to achieve such uniformity: if so, they may determine simply to transfer the ern plovees back to Roanoke. There would then he no issre left, so far as we can tell, regarding their duty to comply with the procedures of the RLA. In light of this uncertainty as to the effects of our ru! ing on the continued vitality of the disputes hefore us, we think it best to remand them for the ICC to determine whether there is any live RLA issue remaining. Should the ICC determine that further proceedings are necessary on the RLA issue, it should, on remand, either provide an explanation for its new position on that issue, or adhere to its prior position. - C. Other Issues We decline to address either the ICC's theory that the labor protective conditions required by § 11347 of the Act are exclusive, or its related assertion, in The Diepatchere’ Case, that $4 of the New York Dock conditions gives the arbitration committee the “absolute right’ to effectuate the transfer of emplovees, and to override any contrary provisions ef a CBA. As noted earlier, the IC has not argued the first theory to us at all; indeed, in its brief it took the position that the proceedings in Pitfehurgh & Lake Erie R.R. Co. v. Railway Labor Ererutives Ase'r, — § Ct , (No. 87-1589, slip op. June 21, 1989 }(P&LE|, which was then pending hefore the Su- preme Court, were not relevant here, even though its ex- 26a clusivity argument before the Supreme Court would ap- pear also to encompass both the § 11347 theory and the $4 rationale advanced in the decisions here under re- view. We do not consider as a basis for affirming the decisions a ground upon which the agency places no reli- ance on appeal. Cf. SEC v. Chenery Corp., 318 U.S. 80 (1943). In any event, we think it best for the ICC, if it ‘has not abandoned its § 11347 and §4 rationales alto- gether, to reconsider them in the first instance in light of the Supreme Court’s intervening decision in P&LE rejecting the ICC’s related position. Because we hold that Congress did not, in enacting § 1134i(a), give the ICC the power to override pro- visions of a CBA, we need not address either the Unions’ arguments that to do so would be unconstitutional or their claim that, in amendments to the Act in 1976, Con- gress specifically preserved employees’ contractual rights. Our decision also makes it unnecessary to reach either (1) the Brotherhood’s argument in The Carmen’s Case that the ICC applied an improper standard when it re versed the Committee’s ruling in favor of the Union; or (2) the Association’s argument that the ICC, in its deci- sion in The Dispatchers’ Case, deprived employees of their rights under § 2, Fourth of the RLA. IV. CONCLUSION Because § 11341(a) of the Act does not grant the ICC its claimed power to override provisions of a CBA be- tween a carrier and its employees, we grant the peti- tions for review in that respect and reverse the ICC’s decision. We remand the cases respect to the ICC’s RLA holdings in order that the may determine whether further proceedings are necessary. It is so ordered. 27a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 88-1724 September Term, 1989 Brotherhood of Railway Carmen, et al., Petitioner Vv. Interstate Commerce Commission & USA Respondents CSX Transportation, Inc. Intervenor No. 88-1694 American Train Dispatchers’ Association, Petitioner V. Interstate Commerce Commission and the United States of America, Respendents Norfolk & Western Railway Co. and Southern Railway Company, Intervenor United States Court of Appeals For the District of Columbia Circuit FILED SEP 29 1989 CONSTANCE L. DUPRE CLERK : he FORE: Wald. Chief Judge; Edwards and D. H. Gins- burg, Circuit Judges ORDER It is ordered, by the Court, sua sponte, that the opinion of the Court filed on July 25, 1989 is amended as follows: At Page 2, last line delete the word “cases” and insert in lieu, thereof the word “records” At Page 24, line 9 delete the word “case” and insert in lieu thereof the word “record’’ At Page 26, last paragraph, line 5 delete the word “cases” and insert in lieu thereof the word ‘“‘records”’ At Page 26, last paragraph Add the following new text: See General Rule 15(c). Per Curiam FOR THE COURT: CONSTANCE L. DUPRE, CLERK BY: Wendy Jemus for Robert A. Bonner Deputy Clerk 29a APPENDIX C INTERSTATE COMMERCE COMMISSION DECISION Finance Docket No. 29430 (Sub-No. 20) NORFOLK SOUTHERN CORPORATION—CONTROL— NORFOLK AND WESTERN RAILWAY COMPANY AND SOUTHERN RAILWAY COMPANY Decided: May 24, 1988 The American Train Dispatchers Association (ATDA) seeks review of an arbitration panel’s decision and award in Nor- folk and Western Railway Company, Southern Railway Com- pany, and American Train Dispatchers Association, (Harris, May 19, 1987) (“referee’s award”). Norfolk and Western Railway Company (N&W) and Southern Railway Company (Southern) filed a joint reply. ATDA invokes our jurisdiction to review the referee’s award uncer the standards an- nounced in Chicago & North Western Tptn. Co. - Abandon- ent, 8 1LC.C.2d 729 (1987) (the so-called Lace Curtain decision). The carriers agree that we have jurisdiction but urge that the arbitration decision be affirmed. We are accepting administrative review of this arbitration decision because it involves a dispute under the labor pro- tective conditions imposed in Norfolk Southern Corp.—Con- trol—Norfolk & W. Ry. Co., 366 I.C.C. 173 (1982) (Norfolk Southern Control), and raises significant issues of general 30a importance regarding the interpretation of those conditions.’ See Lace Curtain, supra. Lace Curtain essentially adopted the standard enunciated by the Supreme Court in the so-called Steelworkers Trilogy. In reviewing arbitral resolutions of disputes arising under collective bargaining agreements, courts do not vacate awards because of substantive mistake unless there is egre- gious error, the award fails to draw its essence from the collective bargaining agreement, or the arbitrator exceeds the specific contract limits on his authority. Loveless v. East- orn Airlines, Inc., 681 F.2d 1272, 1275-76 (11th Cir. 1982). We adopted similar standards. BACKGROUND In 1982 in Norfolk Southern Control, this Commission authorized Norfolk Southern Corporation (NS) to acquire control of the separate railroad systems of N&W and South- ern under 49 U.S.C. 11343, subject to the employee pro- tective conditions in New York Dock Ry. - Control - Brooklyn East. Dist., 360 I.C.C. 60 (1979) (New York Dock). On Sep- On January 5, 1988, ATDA filed a so-called supplement to its earlier petition to review the arbitration award. It submitted a corrected filing ven if an adverse action has occurred, it is wholly to the instant, Geaue. The proper procedure is for petitioners to submit such additional disputes to arbitration, where they can be resolved on their own merits on a complete record. Aya Uni teelworkers v. American Mfg. Co., 363 U.S. : wed y. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); and United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). 3la tember 12, 1986, N&W and Southern notified ATDA that they intended to coordinate N&W’s “distribution of power’’ work from an N&W facility in Roanoke, VA, to a Southern facility in Atlanta, GA. Distribution of power refers to the assignment of locomotives to particular locations and trains. At N&W, the work had been performed by Systems Op- erations Control (SOC) supervisors who are represented by ATDA in a collective bargaining agreement with N&W.* Under the carriers’ coordination plan, the N&W work would be centralized into the Southern Railway Control Center, which would be responsible for the distribution of power for the entire combined N&W/Southern System. The work would be performed by Southern’s Superintendents of Transpor- tation (ST), who historically have been considered as man- agement employees and as such would not be subject to a collective bargaining agreement. In a proposed implementing agreement, N&W and Southern offered the SOC supervisors the opportunity to follow their work by granting them first consideration for new ST positions to be created on the Southern, which are higher paid than the SOC positions on the N&W. It is the intent of the carriers ultimately to distribute locomotive power throughout the combined system without regard to the historical territorial division, generally north- south, between N&W and Southern. Instead, power distri- bution functions would be aligned along an assertedly more *In 1964, the former New York, Chicago, and St. Louis Railroad Company (the Nickel Plate) was merged into N&W, which agreed to assume all the Nickel Plate labor contracts including a 1951 agreement with ATDA. On August 2, 1968, the Nationa] Rai] Adjustment Board in Award No, 16556 sustained ATDA’s claim that the newly established N&W position of “power supervisor’’ embraced work subject to the agreement. Consequently, on Apri] 1, 1971, N&W and ATDA executed a memorandum of agreement which recognized that the distribution of power by SOC supervisors was to be subject to the collective bargaining agreement between N&W and ATDA. The latest such agreement, ex- ecuted in 1979, is still in force. It is not a part of the record in this proceeding, but there is no dispute between the parties as to its terms. 32a efficient east-west division of the combined system. This will permit substantial cost savings because fewer locomotives will be needed and the remaining locomotives can be used more efficiently. Moreover, the technology and procedures at Southern’s Railway Control Center differ from N&W’s in that Southern ST’s have computer access to other divi- sions whereas the N&W SOC supervisors produce internal information that is displayed on a board located at the cen- ter. Thus, while N&W’s SOC supervisors were given first consideration for the new jobs, the carriers have been un- willing to assign the transferred SOC supervisors the same duties and territorial responsibility they had on the N&W. Believing that the proposed work coordination was a part of the Norfolk Scuthern Control transaction, the carriers opened negotiations with ATDA under Article I, section 4 of New York Dock in an effort to reach a mutually ac- ceptable implementing agreement. After negotiations proved unsuccessful, the carriers invoked mandatory arbitration. A 3-member pane] was selected, and a hearing held before a neutral referee. The referee’s award found (organization member Mahoney dissenting) that: the transfer was au- thorized by this Commission in Norfolk Southern Control; the arbitral issue was the proper application of New York Dock standards; and Article I, section 4 of New York Dock empowers the arbitral panel to modify existing collective bargaining agreements or to approve the transfer of work from a location subject to an agreement to a location where no agreement will apply. Accordingly, a revised implement- ing agreement submitted by the carriers (which granted SOC supervisors consideration, but no priority, for ST jobs) was placed in effect.’ ‘The neutral, Mr. Harris, was selected by the National Mediation Board (NMB) when the two partisan members were unable to agree on a neutral. ‘The carriers’ omginal proposed agreement and ATDA’s proposed agreement were rejected as going beyond the terms of New York Dock, 33a In a decisior served June 10, 1987, we denied ATDA’s petition to stay the referee’s award. Subsequently, the car- riers effected the coordination of work and offered Southern ST positions to all nine active and three furloughed N&W SOC supervisors. Nine of the twelve accepted and are now so employed; two declined and one retired. There were no displacements of other employees. DISCUSSION AND CONCLUSIONS Article I, wection 2 of New York Dock requires that col- lective bargaining rights be preserved in a section 11343 transaction. Also, the Railway Labor Act (RLA) contains extended dispute resolution procedures and prohibits any unilateral change in rates of pay, rules, or working condi- tions during pendency of those procedures. However, Article I, section 4 of New York Dock provides for compulsory, binding arbitration of disputes. It has long been the Com- mission’s view that private collective bargaining agre®ments and RLA provisions must give way to the Commission-man- dated procedures of section 4 when parties are unable to agree on changes in working conditions required to imple- ment a transaction authorized by the Commission.’ Absent such a resolution, the intent of Congress that Coanmission- authorized transactions be consummated and fully imple- mented might never be realized. Moreover, 49 U.S.C. 11341(a) exempts from other law a carrier participating in a section 11343 transaction as necessary to carry out the transaction. ATDA argues first that: (1) the transfer of locomotive distribution functions from Roanoke to Atlanta was in vi- olation of the RLA, and the arbitration panel’s authorization and the parties were thus given 14 days to negotiate revisions to the adopted agreement. * The pane! notes (p. 14) that the arbitration pane! was created under the New York Dock conditions and then states, “‘{A]}s a creature of the ICC, this panel is bound to the ICC view.” We agree. 34a of the transfer was in excess of its jurisdiction; and (2) the Commission's approval of NS’s control of N&W and South- ern did not exempt the carriers from the RLA in regard to the subject transfer because (a) the coordination of lo- comotive distribution is not a transaction subject to approval by the Commission, and (b) the transfer was not specifically mentioned, and thus was not exempted, in the Commission’s authorization in Norfolk Southern Control. In our June 10th stay decision, we rejected this line of argument. We found that the arbitration panel’s jurisdiction over the transfet stems from the Commission’s jurisdiction over the control transaction. The transfer is not subject to the RLA because the Commission, in Norfolk Southern Con- ‘rol. authorized the coordination of N&W and Southern un- der NS, subject to New York Dock. The mandatory arbitration provisions of New York Dock take precedence over the RLA dispute resolution procedures in transactions approved by this Commission because, as we stated at pp. 7 in Finance Docket No. 30532, Maine Central R.R. Co. et al - Exemption from 49 U.S.C. 11842 and 11843 (not printed), served September 13, 1985 (Maine Central) (quoted in the referee's award at 12): It is the Commission order, not RLA or [the Washington Job Protection Agreement of ~ Ro that is to govern employee-management relations in connection with the approved transaction. Such a result is essential if transactions approved by us are not to be subjected to the risk of non-consum- mation as a result of the inability of the partes parhes will arrive at agreement, there can be no assumance that the approved transacuon will ever be effected 35a Similarly, there can be no assurance that post-consum- mation coordinations contemplated as part of the transaction could ever be accomplished if RLA dispute resolution mech- anisms were followed. Thus, the panel correctly found (ref- eree’s award at 12-14) that terms of the Commission’s order, and specifically the compulsory, binding arbitration required by Article I, section 4 of New York Dock, took precedence over RLA procedures whether asserted independently or based on existing collective bargaining agreements. Maine Central, supra, at 6-7. Moreover, an action taken under our control authorization is immunized from conflicting laws by section 1134l(a). Brotherhood of Loc. Eng. v. Chicago & North Western Ry., 314 F.2d 424 (8th Cir. 1963). The pro- posed transfer, although not specifically mentioned in Nor- folk Southern Control, is one of the future coordinations and public benefits expected to flow from, and is therefore part of, the contro] transaction that we approved. Indeed, the arbitration panel found that coordination of locomotive power is precisely the type of action that might reasonably be expected to flow from the control transaction. See referee's award at 10-11. The carriers do not disagree. The arbitration panel, citing Maine Central, correctly exercised its jurisdic- tion over the dispute arising from the transfer. See Broth- erhood of Loc. Eng. v. Chicago & North Western Ry., supra; compare United Transp. Union v. Norfolk & Western Ry., 822 F.2d 1114 (D.C. Cir. 1987). Nor does the collective bargaining agreement between N&W and ATDA impair the panel’s jurisdiction to authorize the transfer. See Maine Central, supra, at 6, 7 n.11 (re- jecting argument that the preservation of collective bar- gaining rights and agreements in Article I, Section 2 of New York Dock somehow displaced the Article I, Section 4 mechanism for resolving disputes). See also, Brotherhood of Locomotive Engineers v. ICC, 808 F.2d 1570, 1576-78 (D.C. Cir. 1987) (collective bargaining rights normally pre- served pursuant to Commission-imposed labor protection conditions must give way to permit consummation of a Com- ~ 36a mission-approved transaction despite unilateral management change of working conditions.) Moreover, in Finance Docket No. 30,000 (Sub-No. 18), Denver and R. G. W. R.R. Co.— Trackage Rights—Missouri P. R.R. Co. Between Pueblo, CO and Kansas City, MO, et al. (not printed), served October 25. 1983, rev'd sub nom. Brotherhood of Loc. Engineers v. ICC, 761 F.2d 714 (D.C. Cir. 1985), rev’d on other grounds ___ US. __, 107 S.Ct. 2360 (June 8, 1987), cert. den. __ US. __, 107 S.Ct. 3209 (June 15, 1987) (DRGW), we found that: As UTU notes, standard labor protection con- ditions generally preserve working conditions and collective bargaining agreements. The terms of those conditions, however, must be read in con- junction with our decision authorizing the involved transaction and the underlying statutory scheme. To the extent that existing working conditions and collective bargaining agreements conflict with a transaction which we have approved, those con- ditions and agreements must give way to the im- plementation of the transaction. The labor conditions imposed under [49 U.S.C.] 11347 pre- serve conditions and agreements in the context of the authorized transaction. ATDA further contends that, even if the arbitration pane] had authority to override the collective bargaining agree- ment and the RLA, it should not have done so. Assertedly, the transfer of power distribution work to Atlanta could have been effected pages more be ch ag a collective bargaining contract ‘ . tinuation of those rights would not create a “risk of non- consummation.” See Maine Central, supra. The jobs could simply be transferred subject to the collective bargaining agreement. ATDA notes that the arbitration panel made no factual finding that abrogation of the agreement was nec- essary to the transfer, much less to the ultimate control transaction. Rather, the referee’s award simply states (id. e 37a at 15): “It is clear that if the employees who are moved to Atlanta are consolidated with the present Atlanta employ- ees, the present collective bargaining agreement between N&W and ATDA may not be carried along * * *.” In reply, the carriers acknowledge that the referee’s award did not recite the record evidence upon which the panel based this conclusion. However, the carriers contend that, under the Steelworkers Trilogy standards, an arbitrator need not give his reason for an award and is entitled to deference in his ultimate factual findings. In any event, they argue, the record shows that the collective bargaining agreement would be inconsistent with and wouid frustrate the purpose of the coordination by preventing the carriers from realign- ing SOC job responsibilities to officer status and thus cre- ating an integrated systemwide facility without regard to the historical N&W-Southern separation. In their view, ATDA’s proposal would result in covered employees being limited to the work previously performed in Roanoke by SOC supervisors and to their work rules and lower salary schedule. In Lace Curtain, we stated that ‘“{w]e do not intend to review arbitrators’ decisions on issues of causation, the cal- culation of benefits, or the resolution of other factual ques- tions.”” We believe that this is precisely the nature of the review ATDA seeks. Petitioner does not contend that the referees’ award contains egregious error, fails to ‘draw its essence” from the New York Dock conditions, or exceeds the panel’s authority under New York Dock. Instead, in regard to this issue, it criticizes the panel’s judgment and lack of detailed discussion. These alleged shortcomings are not matters we would review under Lace Curtain. In any event, the record supports the conclusio: of the arbitration panel. Imposition of the collective bargaining agreement would jeopardize the transaction because the work rules it mandates are inconsistent with the carriers’ under- lying purpose of integrating the power distribution function. 38a Moreover, ATDA’s unsupported allegation that jobs can be transferred subject to the agreement misconstrues the na- ture of the transaction. It is the work function, not jobs, that will be transferred, and new jobs will be created to perform this and other functions. The referee’s award is somewhat confusing on the related issue of whether Southern must recognize ATDA as the bargaining representative of the transferred SOC supervi- sors. Representation is a collective bargaining “right” and, as such, is protected by Article I, section 2 of New York Dock. The panel suggests (id. at 15) that its award abrogates not only the collective bargaining agreement but ATDA’s representative status as well, yet it acknowledges (ibid.) that ATDA’s rights as an incumbent bargaining representative are for determination by the National Mediation Board (NMB). It also acknowledges that the former SOC super- visors may join with the Southern ST’s as a bargaining unit and petition the NMB for the selection of a bargaining representative. We find that, under the circumstances present here, New York Dock does not preempt any NMB determination as to representation, as the panel seems clearly to have recog- nized. To the extent the.award could be construed as sug- gesting otherwise, that construction is erroneous. This is not to say that ATDA may in fact retain its status. That, as the panel recognized, is for the NMB to determine, and we recognize that there are legal as well as practical obstacles to such recognition.’ ’ The policy of the NMB is to recognize systemwide bargaining units. ATDA pen points out that exceptions have been made, but the case it relies on, Burlington Northern, Inc. v. American Railway Su- pervisors Ass'n, 503 F.2d 58 (7th Cir. 1974), is inapposite because its recognition of a less-than-systemwide class was based on the common law of contracts. It is unclear whether Southern’s status as a successor employer mandates an exception to the NMB policy. The courts have apparently not addressed this issue under the RLA. il eS 39a Finally, ATDA complains that the panel improperly im- posed the carriers’ proposed implementing agreement and not ATDA’s. ATDA’s proposed agreement provided for en- hanced economic benefits, as well as continuation of its col- lective bargaining agreement. The panel concluded that ATDA’s proposed implementing agreement, and the car- riers’ initial proposed agreement as well, could not be im- posed because they went “beyond the terms of an implementing agreement set forth in New York Dock.” ATDA contends that the New York Dock conditions are only a baseline, which the arbitrator may exceed. It contends further that the panel mistakenly assumed that it must adopt one of the proferred agreements in its entirety. We noted in our June 10th stay decision that ATDA has raised an interesting and perhaps significant issue concerning the au- thority of the arbitration panel. As such, we will review the panel’s determination as meeting the Lace Curtain criteria for review. We fashioned the New York Dock conditions to satisfy the level of employee protection mandated by section 11347. We have consistently recognized our authority to require a greater level of protection in any given case. See Finance Docket No. 30965, Delaware & Hudson Ry. Co. - Lease and Trackage Rights Exemption - Springfield Terminal Ry. Co., et al., 4 1.C.C.2d (served February 25, 1988). It does not follow, however, that, once we determine the appro- priate level of protection, an arbitrator is free to impose a higher level. On the contrary, the arbitration panel’s au- Under the National Labor Relations Act, 29 U.S.C. 151 et seg., a successor employer may in some circumstances be obligated to recognize and bargain with the representative of its predecessor’s employees. See John Wiley & Sons, Inc. v. Livingstone, 376 U.S. 543 (1964) and NLRB v. Burns International Security Services Inc., 406 U.S. 272 (1972). NLRA cases are not controlling but have been held to offer an analogy in the solution of similar RLA problems. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369 (1969), reh. den. 394 U.S. 1024 (1969). 40a thority is derived solely from the New York Dock conditions themselves, and nothing in those conditions authorizes the arbitrator to expand the basic benefit structure prescribed by the Commission. Rather, it is the arbitrator’s task to determine the appropriate application of conditions pre- scribed by the Commission. The proper forum for employees seeking a level of labor protection in excess of New York Dock is thus not in the arbitration of individual disputes but rather before this Commission where we consider the merits of the section 11343 transaction. In fact, in Norfolk Southern Control, labor interests sought a higher level of protection, but we found that New York Dock was appropriate. 366 LC.C. at 229-31. In so doing, we did not delegate to an arbitrator the authority to overturn this determination. Of course, an arbitrator has discretion to fashion a remedy within the limits of New York Dock. To this end, he may combine specific proposals of the parties, may develop com- promises, or may evea develop his own conditions, limited only in each case by the Commission-mandated level of pro- tection. Nothing in the referee’s award demonstrates a mis- understanding of this principle. On the contrary, the referee’s award expressly modifies the proposed implementing agree- ment by adding a condition that the parties meet to consider whether any mutually agreeable revisions could be imposed. ATDA does not contend that the higher level of protection it seeks is consonant with New York Dock. In fact, it tacitly acknowledges that the implementing agreement adopted by the panel provides the minimum economic benefits described in Article I, section 9 of New York Dock. It follows that the additional economic benefits ATDA proposed, i.e. prior- ity consideration for ST positions,® transfer of accrued va- * The proposal for } ‘ority consideration is moot in light of Southern’ hiring of all willing SOC supervisors. The record does not indicate whether those who declined Southern positions would be eligible the proposed displacement allowance. y 4Ja cation and sick leave, additional moving allowances,® displacement allowances for cetiianes ahe choose