Amicus Curiae Brief — Norfolk & Western R. Co. v. Train Dispatchers

Nos. 89-1027 & 89-1028 Supseme Court, U.S,

ED

IN THE

JAN 29 1980

Supreme Court of the United ai 2

CLERK

OCTOBER TERM, 1989

NORFOLK & WESTERN RAILWAY COMPANY and

SOUTHERN RAILWAY COMPANY,

8 Petitioners,

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al

Respondents.

CSX TRANSPORTATION, INC.,

Petitioner,

v.

BROTHERHOOD OF RAILWAY CARMEN, et al.,

Respondents.

—

9

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE

NATIONAL RAILWAY LABOR CONFERENCE AS

AMICUS CURIAE IN SUPPORT OF THE PETITIO

NS

DAVID P. LEE Ric HARD T. CONWAY

Vice Chairman & RALPH J. MOORE, JR.

General Counsel (Counsel of Record)

NATIONAL RAILWAY LABOR D. EUGENIA LANGAN

CONFERENCE SHEA & GARDNER

1901 L Street, N.W. 1800 Massachusetts Ave., N.W.

Washington, D.C. 20036 Washington, D.C. 20036

(202) 862-2700 (202) 828-2000

Attorneys for the National

Date: January 29, 1990 Railway Labor Conference

TL TTS RNS FR x; „%

WILSON - Eras PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

% „

/ —————ůů a

The Decision Below Threatens to Bring an Im-

mediate Halt to the Implementation of Railroad

Mergers and Consolidations that Congress Has

Determined Are in the Public Interest and Should

be Encouraged, and Therefore Immediate Review

by this Court is Warranted ..........0...000.0000 eee.

Page

ii

TABLE OF AUTHORITIES

Cases:

Brotherhood of Loc. Engineers v. Boston & Maine

Corp., 788 F.2d 794 (Ist Cir.), cert. denied, 479

eS Ft ne ES

Brotherhood of Loc. Engineers v. Chicago & N.W.

Ry., 314 F.2d 424 (8th Cir.), cert. denied, 375

III .

Brotherhood of Loc. Engineers v. ICC, 761 F.2d

714 (D.C. Cir. 1985), rev’d, 482 U.S. 270

(RBG) ——ññññ .

Burlington Northern v. Maintenance Employes,

I a ES

County of Marin v. United States, 356 U.S. 412

.. ee

Elgin J. & E. R. Co. v. Burley, 325 F.2d 711

9 TD Ua I eS

FRVR Corp. et al., ICC Finance Docket No. 31205

(served Jan. 29, 1988), aff’d as clarified on other

grounds sub nom. Railroad Labor Exec. Ass’n v.

ICC, 861 F.2d 1082 (8th Cir. 1988), vacated and

remanded, 109 S. Ct. 3209 (1989), rev’d on

other grounds, 888 F.2d 1227 (8th Cir. 1989)

ICC v. Locomotive Engineers, 482 U.S. 270

%% — . ——Ü⁰Üö0

Maintenance Employes v. United States, 366 U.S.

122099 ( NT ee

Missouri Pac. R. R. v. United Transp. Union, 782

F.2d 107 (8th Cir. 1986), cert. denied, 482 U.S.

29 ..

Nemitz v. Norfolk & W. Ry., 436 F. 2d 841 (6th

Cir.), af d, 404 U.S. 37 (197157.

New York Dock Ry.— Control — Brooklyn E. D.

Terminal, 360 I. C. C. 60 (1979), aff'd sub nom.

wNew York Dock Ry. v. United States, 609 F.2d

LL AA

Pittsburgh & Lake Erie R. R. v. Railway Labor

Exec. Ass’n, 109 S. Ct. 2584 (1989)

Railway Clerks v. Florida E. C. R. Co., 384 U.S.

| —³

Page

10

10

9, 10

111

TABLE OF AUTHORITIES—Continued

Page

Railway Labor Exec. Ass’n v. Guilford Transp.

Indus., Inc., 667 F. Supp. 29 (D. Me. 1987),

aff'd, 843 F.2d 1383 (Ist Cir.) (Table), cert.

denied, 109 S. Ct. 3213 (1989) 10

Railway Labor Exec. Ass’n v. ICC, 784 F.2d 959

r ̃ͤ ͤrl !!! 9

Railway Labor Exec. Ass’n v. Pittsburgh & Lake

Erie R. R., 831 F.2d 1231 (3d Cir. 1987), rev’d,

e 11

Railway Labor Exec. Ass’n v. Pittsburgh & Lake

Erie R.R., 845 F.2d 420 (3d Cir. 1988), rev’d,

109 8. Ct. 2584 (1989) — 11

Shore Line v. Transportation Union, 396 U.S. 142

e ̃è »ůmÜRꝛʃ: xxx 4

United States v. Lowden, 308 U.S. 225 (1939) 7,8

Statutes:

Revised Interstate Commerce Act, Subtitle IV,

49 U.S. C.:

§ 10101a, 49 U.S.C. § 10101 7

Z 10, 11

§ 11341 (a), 49 U.S.C. § 11341 (a) passim

§ 11848, 49 U.S.C. § 11848 .......:........................... 2, 3, 8

§ 11844, 49 U.S.C. 6 11844. 2

— 2, 3

Railroad Revitalization and Regulatory Reform

Act, Pub. L. No. 94-210, 90 Stat. 31 (1976) 8

Section 101 (a) (2), 45 U.S.C. § 801 (a) (2)...... 9

Transportation Act of 1920, ch. 91, § 407 (8), 41

4 2-3

Transportation Act of 1940, ch. 722, 54 Stat. 899

(1940) :

. &

ee 2

Public Law 95-573, 92 Stat. 1337 (1978) 2

V 3

Railway Labor Act, 45 U.S.C. 88 151 et seg. 3, 4, 9, 10, 11

iv

TABLE OF AUTHORITIES—Continued

Legislative Materials:

S. Rep. No. 94-499, 94th Cong. Ist Sess. (1975),

reprinted in 1976 U.S. Code Cong. & Ad. News

14 ... 3

Supreme Court Rules:

r 8

Rule 11

Page

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1989

Nos. 89-1027 & 89-1028

NORFOLK & WESTERN RAILWAY COMPANY and

SOUTHERN RAILWAY COMPANY,

. Petitioners,

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al.,

Respondents.

CSX TRANSPORTATION, INC.,

- Petitioner,

BROTHERHOOD OF RAILWAY CARMEN, et al.,

Respondents.

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE

NATIONAL RAILWAY LABOR CONFERENCE AS

AMICUS CURIAE IN SUPPORT OF THE PETITIONS

This amicus brief is being filed with the written con-

sent of the parties pursuant to Supreme Court Rule 37.2.

The National Railway Labor Conference (NRLC“)

urges the Court to grant the petitions for writs of cer-

tiorari in these two cases, which seek review of the same

decision of the District of Columbia Circuit.

2

STATEMENT OF THE CASE

Under §11343 of the Interstate Commerce Act

(“ICA”), railroad mergers and consolidations and other

similar transactions “may be carried out only with the

approval and authoriz tion of the“ Interstate Commerce

Commission (ACC) Under ICA § 11344, when con-

sidering a proposed merger or consolidation, the ICC

must balance a number of factors, including “the interest

of carrier employees affected by the proposed transac-

tion,” and “shall approve and authorize” the transaction

“when it finds the transaction is consistent with the

public interest.” The ICC is then required under ICA

§ 11347 to impose labor protective conditions to com-

pensate employees for adverse effects resulting from the

transaction.

Section 11341(a) of the ICA provides that the ICC’s

authority under §§ 11343-11347 is “exclusive,” and that

“a carrier, corporation, or person participating in” a

transaction approved under those provisions “is exempt

from the antitrust laws and from all other law, includ-

ing State and municipal law, as necessary to let that

person carry out the transaction * .“

1 The ICA was codified in 1978 as Subtitle IV of 49 U.S.C. Public

Law 95-573, 92 Stat. 1337. Citation herein to a current section of

the Act is to that section of 49 U.S.C.

2Current §11341(a) derives from former §5(11) of the ICA,

which was enacted in 1940 to provide that the Commission’s au-

thority over mergers and consolidations “shall be exclusive and

plenary,” and that carriers participating in such approved trans-

actions “shall be and they hereby are relieved from the operation

of the antitrust laws and of all other restraints, limitations, and

prohibitions of law, Federal, State, or municipal, insofar as may

be necessary to enable them to carry into effect the transaction so

approved or provided for in accordance with the terms and condi-

tions, if any, imposed by the Commission * * *.” Transportation

Act of 1940, ch. 722, 87 (11), 54 Stat. 899, 905 (1940) (emphasis

added). Similar provisions have appeared in the ICA since 1920.

See Transportation Act of 1920, ch. 91, § 407(8), 41 Stat. 456,

The question presented by the petitions in these cases

is whether the exemption from “all other law” iv.

§ 11341(a) applies to provisions of collective bargaining

agreements, otherwise enforceable under the Railway

Labor Act (“RLA’”’), 45 U.S.C. §§ 151 et seg., that if en-

forced would prevent a carrier from “carrying out” an

approved merger or consolidation.

In each of the two instant cases, the petitioners, pur-

suant to merger authority granted by the ICC, proposed

to consolidate certain operating functions on the merged

railroad systems, which would require the transfer of

some work and employees. Affected employees would,

however, be entitled to make-whole compensatory benefits

under the ICC’s standard New York Dock Labor protec-

tive conditions required under ICA § 11347 for all trans-

actions undertaken pursuant to merger authority under

ICA § 11343.*

Under the New York Dock conditions, an “implement-

ing agreement” providing the terms for any rearrange-

ment of work-forces must be in place before a trans-

action can be consummated; binding arbitration is re-

quired on any such implementing issues that remain

unresolved through negotiations after 90 days’ notice of

the proposed transaction is given to unions representing

affected employees.* In these cases, the respondent unions

argued in the implementing arbitration proceedings that

their collective bargaining agreements would not permit

(and in No. 89-1028, actually prohibited) the transfers

of work and employees on the terms proposed by the car-

482 (1920). Section 5(11) was recodified “without substantive

change” as §11341(a) in 1978. Public Law 95-473 §3(a), 92

Stat. 1466.

8 See New York Dock Ry.—Control—-Brooklyn E.D. Terminal,

360 I. C. C. 60, 84-90 (1979), aff'd sub nom. New York Dock Ry. v.

United States, 609 F.2d 83 (2d Cir. 1979).

* New York Dock, supra, 360 I.C.C. at 85.

4

riers, and that the consolidations must therefore be de-

layed until the carriers exhausted the RLA “major dis-

pute” procedures for negotiating changes to collective

bargaining agreements. Those procedures, as this Court

has noted, are notoriously “long and drawn out” and “al-

most interminable.” * If these RLA procedures are ex-

hausted without yielding agreement, arbitration is avail-

able, but cannot be compelled,“ and when unions refuse

arbitration they are free to resort to strikes and nation-

wide secondary picketing to block changes proposed by

carriers.“

The arbitrator in each of these cases rejected the

unions’ arguments that their collective bargaining rights

under the RLA could be enforced to prohibit the pro-

posed transactions. The unions appealed the arbitration

awards to the ICC, which also held in each case that

§ 11341(a) relieved the carriers of the obligations the

unions had asserted under the RLA and their collective

bargaining agreements since these obligations would

otherwise defeat the proposed transactions. (No. 89-1027

App. 33a-35a, 37a; No. 89-1028 App. 44a).

The unions sought review of the ICC’s decisions in the

District of Columbia Circuit, which “dispose[d] of the

two cases together because they raised] common issues

with respect to the ICC’s authority [under ICA

§ 11341(a)] to exempt a party to a merger between two

railway carriers” from “the provisions of (1) a Collective

Bargaining Agreement (CBA); and (2) the Railway

Labor Act * * *.” (No. 89-1027 App. 2a). The court

of appeals held that the exemption under § 11341 (a)

5 Railway Clerks v. Florida E.C. R. Co., 384 U.S. 238, 246, 244

(1966); Shore Line v. Transportation Union, 396 U.S. 142, 149

(1969).

See Elgin J. & E. R. Co. v. Burley, 325 F.2d 711, 725 (1945).

See Burlington Northern v. Maintenance Employes, 481 U.S.

429, 450-53 (1987).

5

from “all other law * * * as necessary * * * to carry

out” an approved merger or consolidation, does not apply

to RLA collective bargaining agreements, because, in

the court’s view, the exemption should confer immunity

only from “positive enactments, not eommon law rules of

liability, as on a contract.” (Jd. at 18a). In light of

that holding, the court of appeals deemed it unnecessary

to decide whether the § 11341 (a) exemption applies to

the RLA itself, and remanded that issue, among others,

to the ICC. (Id. at 25a).

The ICC, in a document styled “Petition for Rehear-

ing,” advised the court of appeals that it would conduct

proceedings on the remanded issues, and asked the court

to hold the “Petition” pending the outcome of those pro-

ceedings. The court of appeals has deferred considera-

tion of the ICC’s petition until the decision on remand

is issued, and the original panel has amended its judg-

ment to retain jurisdiction of the cases. (No. 89-1027

Pet. App. 54a, 27a-28a).

“MEXTEBEST OF AMICUS CURIAE

The NRLC is an unincorporated association which in-

cludes most of the nation’s major railroads among its

members. The NRLC represents its members in multi-

employer collective bargaining under the RLA and with

respect to other labor relations issues of general concern

to the railroad industry that may arise before federal

and state courts, legislatures, and administrative agencies.

The question presented in these cases is of paramount

importance to the railroad industry. The ability of car-

riers to rationalize their operations through mergers and

consolidations is critical to the maintenance of a viable

national railroad transportation system. The decision

below creates substantial doubt as to whether carriers

will have that ability any longer, for the holding that

§ 11341(a) does not exempt carriers from obligations

under collective bargaining agreements paves the way for

6

rail labor to interpose its asserted private interests

under agreements as impediments or even absolute bars

to the implementation of mergers and consolidations au-

thorized by the ICC under the ICA’s public interest stand-

ard. That doubt will exist even where no express merger-

barring provision is included in a collective bargaining

agreement (as in the case in No. 89-1027), because the

unions have asserted in the proceedings before the ICC in

this matter that transfer of work and employees in

mergers and consolidations is effectively barred by senior-

ity rules and other general rules that, in the NRLC’s

experience, are included in virtually every work-rule

agreement in the railroad industry. Unless the decision

below is reversed promptly, many carriers will be de-

terred from undertaking mergers and consolidations, or

from further implementing those already approved by

the Commission and underway. Accordingly, the NRLC

and its member railroads have a vital interest in prompt

resolution by this Court of the uncertainty created by

the decision below as to the railroads’ right to imple-

ment mergers and consolidations on the terms approved

by the ICC.

SUMMARY OF ARGUMENT

The petitions for certiorari demonstrate that the de-

cision of the District of Columbia Circuit is in conflict

with decisions of this Court and of other circuits and is

flatly contrary to the plain language of § 11341 (a) and

its legislative history. The NRLC will not repeat that

showing here, but will address itself to the reason why

this Court should grant review of the question presented

in these cases now, notwithstanding the pendency of fur-

ther proceedings on other questions before the ICC and

the court of appeals. Simply put, the question presented

by the decision below is of such imperative public im-

portance that immediate review by this Court is war-

7

ranted.* Congress has determined and repeatedly stated

that railroad consolidations and mergers are generally

in the public interest. Congress has vested the ICC

with exclusive jurisdiction to determine whether indi-

vidual mergers and consolidations comport with the pub-

lic interest standard and te establish the conditions upon

which such transactions may go forward. Under the de-

cision below, the private interests of rail labor under

RLA collective bargaining agreements may trump both

the general public interest determination of the Congress

and the individual public interest determinations of the

ICC by blocking approved mergers and consolidations.

The resulting uncertainty as to the ability of carriers to

implement mergers and consolidations approved by the

ICC threatens to call an immediate halt to such transac-

tions, contrary to the public interest and the express in-

tent of Congress. Immediate review by this Court is nec-

essary to remove that injurious uncertainty.

ARGUMENT

The Decision Below Threatens to Bring an Immediate

Halt to The Implementation of Railroad Mergers and

Consolidations that Congress Has Determined Are in

the Public Interest and Should be Encouraged, and

Therefore Immediate Review by this Court is Warranted.

The cardinal purpose of the ICA, as this Court has

observed, is “the maintenance of an adequate rail trans-

portation system.” United States v. Lowden, 308 U.S.

225, 230 (1939). That purpose is today expressed in

ICA § 10101a, which establishes the “policy of the United

States” with respect to the railroad industry. See

§ 10101a(3), (4), (5). And for over 60 years, Congress

has sought to effectuate that purpose by encouraging rail-

8 Indeed, this Court granted certiorari on a similar question, in

very similar circumstances, in JCC v. Locomotive Engineers, 482

U.S. 270 (1987). In that case the District of Columbia Circuit had

vacated ICC orders which relied on § 11341(a) to reject a union’s

8

road mergers and consolidations. As this Court explained

in Lowden, supra, [a]s a result of the Transportation

Act in 1920,” the progenitor of the modern ICA, “con-

solidation of the railroads of the country, in the interest

of economy and efficiency, became an established national

policy * * * so intimately related to the maintenance of

an adequate and efficient rail transportation system that

the ‘public interest’ in the one cannot be dissociated from

that in the other.” 308 U.S. at 232.

Congress has repeatedly reaffirmed that “established

national policy.” The Transportation Act of 1920, which

left mergers and consolidations largely to the Commis-

sion’s initiative (see 308 U.S. at 232), proved insufficient

to its end. In the Transportation Act of 1940, therefore,

Congress amended the ICA to add the predecessor of cur-

rent § 11343, giving rail carriers principal authority to

initiate mergers and consolidations. §7(2), 54 Stat.

905. The chief goal of this amendment ‘was to facili-

tate merger and consolidation in the national transpor-

tation system.“

Congress last revisited this issue in the Railroad Re-

vitalization and Regulatory Reform Act of 1976 (‘4-R

Act“), Pub. L. 94-210, 90 Stat. 31, which continued the

claim that its collective bargaining agreement and the RLA barred

implementation of a § 11343 transaction as approved by the Com-

mission; the court held that the ICC was required to make explicit

findings as to the necessity for the § 11341(a) exemption and re-

manded the case back to the ICC for further proceedings. Brother-

hood of Loc. Engineers v. ICC, 761 F.2d 714, 716 (D.C. Cir. 1985),

rev'd on other grounds, 482 U.S. 270 (1987). This Court granted

certiorari “on the question of the proper construction of § 11341(a)”

despite the remand order (although the Court ultimately concluded

on other procedural grounds that the question was not properly

presented in that case). 482 U.S. at 277, 284, 286-87. Cf. Supreme

Court Rule 11, authorizing writs of certiorari before judgment.

® Maintenance Employes v. United States, 366 U.S. 169, 173

(1961), quoting County of Marin v. United States, 356 U.S. 412,

416 (1958).

9

national pro-merger policy. The 4-R Act “was an at-

tempt to restructure the railroad industry in the face of

chronic financial losses and line closures.” *® It sought

to promote an efficient rail transportation system through

(among other things) “the encouragement of efforts to

restructure the system on a more economically justified

basis” by providing an expedited procedure for deter-

mining whether merger and consolidation applications

are in the public interest * * *.” 4-R Act-§ 101(a) (2),

90 Stat. 33, codified at 45 U.S.C. § 801 (a) (2). Once

again, Congress avowedly “intended to encourage mer-

gers, consolidations and joint use of facilities that tend

to rationalize and improve the Nation’s rail system

* *# #7911

The decision below strikes an immediate and poten-

tially crippling blow to this important national policy.

If RLA collective bargaining agreements can be en-

forced to prohibit the implementation of approved mer-

gers and consolidations, notwithstanding the express ex-

emption in ICA § 11341 (a) from all obligations under

“other law” that might otherwise have such merger-

barring effect, and if, as the unions contend, those agree-

ments cannot be altered except through the RLA major

dispute provisions, then rail labor will have “carte

blanche authority to frustrate and avoid a material term

of a consolidation approved by the ICC” or to “block con-

solidations which are in the public interest,” as the United

States Court of Appeals for the Eighth Circuit has rec-

ognized.'* The federal courts have long agreed that sub-

jecting the implementation of an approved merger or

consolidation to the RLA major dispute procedures, with

10 Railway Labor Exec. Ass’n v. ICC, 784 F.2d 959, 965 (9th Cir.

1986).

118. Rep. No. 94-499, 94th Cong. Ist Sess. 20-21 (1975), re-

printed in 1976 U.S. Code Cong. & Ad. News 14, 34.

12 Missouri Pac. R.R. v. United Transp. Union, 782 F.2d 107, 112

(8th Cir. 1986), cert. denied, 482 U.S. 927 (1987).

10

their attendant delays and ultimate threat of strikes,

would “threaten to prevent many consolidations” and

mergers, because “under the Railway Labor Act major

dispute] provisions it is possible for either party to

completely block any change in working conditions by re-

fusing to agree to a change and refusing to arbitrate.” ™

Until the decision below, the courts have likewise

agreed that it is “inconceivable” that Congress could

have intended to grant rail labor such a “veto” power

over transactions Congress and the ICC have determined

are in the public interest.“ The decision below noncha-

lantly accepts the possibility that such a labor veto exists,

opining, for example, that the carriers in No. 89-1027

might as well decide to cancel the disputed consolida-

tion in that case, regardless of the outcome of the issues

remanded to the ICC, in view of the court’s holding that

ICA § 11341(a) could not be applied to “set aside” any

agreement that “would have prevented the consolidation

from going forward * * *.” (No. 89-1027 App. 25a).

While the possibility of such a labor veto over mergers

and consolidations exists, few, if any, of these trans-

actions are likely to go forward. That can be seen from

the history of the litigation over the application of RLA

major dispute procedures to line sales to new regional

railroads under ICA § 10901, which culminated in this

18 Brotherhood of Loc. Engineers v. Chicago & N.W. Ry., 314

F.2d 424, 431 (8th Cir.), cert. denied, 375 U.S. 819 (1963); accord

Nemitz v. Norfolk & W. Ry., 436 F.2d 841, 845 (6th Cir.), aff’d on

other grounds, 404 U.S. 37 (1971).

14 Missouri Pacific, supra, 782 F.2d at 112; see also, e.g., Brother-

hood of Loc. Engineers v. Boston & Maine Corp., 788 F.2d 794,

799-801 (1st Cir.), cert. denied, 479 U.S. 829 (1986); Nemitz,

supra, 436 F.2d at 845; Chicago & N.W. Ry., supra, 314 F.2d at

432; Railway Labor Exec. Ass'n v. Guilford Transp. Indus., Inc.,

667 F. Supp. 29, 34-35 (D. Me. 1987), af d, 843 F.2d 1383 (1st

Cir.) (Table), cert. denied, 109 S. Ct. 3213 (1989). See also JCC

v. Locomotive Engineers, 482 U.S. 270, 296-99 (1987) (Stevens, J.,

concurring).

11

Court's decision last Term in Pittsburgh & Lake Erie

R. R. v. Railway Labor Exec. Ass’n, 109 S. Ct. 2584

(1989). Prior to 1987, the federal courts had repeatedly

and consistently rejected rail labor’s efforts to veto these

transactions under the RLA. In 1987, however, the

United States Court of Appeals for the Third Circuit

held that unions have the right to strike to prevent such

sales, and followed up in 1988 with a decision holding

that such sales may be delayed pending exhaustion of

the RLA major dispute procedures.“ The resulting un-

certainty about the right of carriers to sell lines under

§ 10901 without the unions’ consent had “an immediate”

chilling “impact on the formation of small railroads,

threatening to halt the revitalization of marginal rail-

road sectors—a restructuring that the Commission ha[d]

found to be in the interest of carriers, labor, and the

shipping public.“ “ This Court granted certiorari to

resolve the uncertainty that the Third Circuit’s rulings

had created, and ultimately rejected the veto power rail

labor claimed over § 10901 sales. 109 S. Ct. at 2597.

The need for immediate review by this Court is even

more acute in these cases than it was in the Pittsburgh

& Lake Erie cases. The decision below threatens a simi-

lar immediate chilling effect on mergers and consolida-

tions, transactions that the Congress itself has repeatedly

and unequivocally found to be in the public interest and

vital to the national rail transportation policy. Only a

15 Railway Labor Exec. Ass'n v. Pittsburgh & Lake Erie R.R.,

831 F.2d 1231 (3d Cir. 1987), rev’d on other grounds, 109 S. Ct.

2584 (1989).

16 Railway Labor Exec. Ass’n v. Pittsburgh & Lake Erie R.R.,

845 F.2d 420 (3d Cir. 1988), rev’d, 109 S. Ct. 2584 (1989).

17 FRVR Corp. et al., ICC Finance Docket No. 31205, p. 8 (served

Jan. 29, 1988), af d as clarified on other grounds sub nom. Railroad

Labor Exec. Ass'n v. ICC, 861 F.2d 1082 (8th Cir. 1988), vacated

and remanded, 109 S. Ct. 3209 (1989), rev’d on other grounds,

888 F.2d 1227 (8th Cir. 1989).

12

definitive ruling by this Court on the question presented

can ensure that the decision below will not allow rail

labor to frustrate this important federal policy.

CONCLUSION

For the foregoing reasons, as well as those set forth in

the petitions for certiorari, the Court should grant writs

of certiorari to review the decision of the District of

Columbia Circuit.

Respectfully submitted,

DAVID P. LEE RICHARD T. CONWAY

Vice Chairman & RALPH J. Moore, JR.

General Counsel (Counsel of Record)

NATIONAL RAILWAY LABOR D. EUGENIA LANGAN

CONFERENCE SHEA & GARDNER

1901 L Street, N.W. 1800 Massachusetts Ave., N.W.

Washington, D.C. 20036 Washington, D.C. 20036

(202) 862-2700 (202) 828-2000

Attorneys for the National

Date: January 29, 1990 Railway Labor Conference

— —