Petitioners Brief — Norfolk & Western R. Co. v. Train Dispatchers

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No. 89-1027

IN THE

Supreme Court of the GAnited States”

OCTOBER TERM, 1989

NORFOLK AND WESTERN RAILWAY COMPANY, et al.,

Petitioners,

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF FOR PETITIONERS

NORFOLK AND WESTERN RAILWAY COMPANY

AND SOUTHERN RAILWAY COMPANY

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

May 25, 1990

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

FpceT AUALL ADIC ANKUE

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?

LIST OF PARTIES

The parties in the Court of Appeals were the Amer-

ican Train Dispatchers Association, petitioner; the In-

terstate Commerce Commission and the United States

of America, respondents; and Norfolk and Western

Railway Company and Southern Railway Company,’

intervenors in support of the respondents.’

1 The list of companies affiliated with Norfolk and Western

Railway Company and Southern Railway Company required by

this Court’s Rule 29.1 has previously been supplied in the Petition

for a Writ of Certiorari, at pp. ii-iv.

* The decision in the Court of Appeals also covered that 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. This Court, in its Case

No. 89-1028, has granted certiorari in D.C. Cir. Case No. 88-

1724, and has consolidated Case No. 89-1028 with the instant

case.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................sssessssssseeeeeeeseees i

IE Sitiisccrccnsccscessssscesceccscosscscescesocessee ii

TABLE OF AUTHORITIES. .................cccccseseeeeeeeeeeees iv

ST i cincniccnscsscecccesseosesevsesesosocoes

ST 2

STATEMENT OF THE CASE ..............cccssssesssssssseeees

SUMMARY OF ARGUMENT ................ccccceessssseceeeees 10

ARGUMENT:

THE INTERSTATE COMMERCE ACT, 49 U.S.C.

§ 11341(a), EXEMPTS A RAILROAD CARRYING OUT

AN ICC-APPROVED TRANSACTION FROM THE AS-

SERTION AGAINST IT OF RIGHTS CLAIMED UN-

DER LABOR AGREEMENTS ENFORCEABLE

THROUGH THE RAILWAY LABOR ACT ................. 13

I. SECTION 11341(a) IS EFFECTIVE TO DIS-

PLACE PRIVATE CONTRACTUAL

EEE 16

I]. SECTION 11341(a) IS EFFECTIVE TO DIS-

PLACE RIGHTS DERIVED FROM THE RAIL-

IIIT dinicltibcbennisssscssssnstecsocssecces 23

A. Seven Decades Of Legislative, Judicial,

And Administrative History Establish

That § 11341(a) Displaces RLA-Derived

a 23

B. Congress Did Not, In 1976 Legislation,

Render § 11341(a) Inapplicable To RLA-

i 43

EE” Sibdidsbasdwaniscosevscssssoosesescooccsscoccsescosooceses 48

TABLE OF AUTHORITIES

Cases Page

Altman v. Central of Georgia Ry., 488 F.2d 1302

GG. Gir. BUG) ccccccccsececcscvscccoccneessnscassnvssscscocss 20

American Airlines, Inc. v. CAB, 445 F.2d 891 (2d

Cir. 1971), cert. denied, 404 U.S. 1015

CTU ‘ccccnssvensnssssccscicsnsccscnsnesimmvennssennmmnseceusenscees 37

Andrews v. Louisville & Nashville R.R., 406 U.S.

Be IID seeccniestncesctiviscctcencnserconeepecenezssnessssosees 24

Baker v. System Federation No. 1, 331 F. Supp.

ISEB GED. Par BOTT) ceccoccscceccocccccccssccesescsscsvsees 46

Brotherhood of Locomotive Engineers v. Chicago &

North BB oem Ry., 314 F.2d 424 (8th Cir.

1963), aff'g 202 F. Supp. 277 (S.D. Iowa 1962),

cert. denied, 375 U.S. 819 (1963) ....... 12,34,35,36,41

Brotherhood of Locomotive Engineers v. Boston &

Maine Corp., 788 F.2d 794 (1st Cir.), cert. de-

nied, 479 U.S. 829 (1986) ...........csceceseeeees 12,36,44

Brotherhood of Locomotive Engineers v. ICC, 761

‘ F.2d ne De Cir. 1985), vacated, 482 U.S.

IF COD cnsectecennsteniantantinnntentantimeneneineanese 25

Brotherhood of Locomotive Engineers v. ICC, 885

of fj | 5 En 36

Brotherhood of Maintenance of Way Employes v.

United States, 366 U.S. 169 (1961) ................ 30

Brotherhood of Railway & Steamship Clerks v. Flor-

ida East Coast Ry., 384 U.S. 238 (1966) ....... 40

Bruno v. Western Pacific R.R., 498 A.2d 171 (Del.

Ch. 1985), aff'd, 508 A.2d 72 (Del. 1986), cert.

denied, 482 U.S. 927 (1987) ............csesseeeeeeeees 20

Burli Northern, Inc. v. American Railway Su-

"y pe anon Association, 503 F.2d 58 (7th Cir.

1974) (per curiam), cert. denied, 421 U.S. 975

(19TB) ....cccccccccsscccccccccccccccsccsccosscsssvooseccccsessooeeees 12,36

California v. Taylor, 353 U.S. 553 (1957) ............. 24

Table of Authorities Continued

Page

Chevron U.S.A., Inc. v. National Resources Defense

Council, 467 U.S. 887 (1984) ........cccccccessseeeeeee 39

Chicago & North Western Ry. v. United Transpor-

tation Union, 402 U.S. 570 (1971) ................. 24

City of Palestine v. United States, 559 F.2d 408

(5th Cir. 1977), cert. denied, 485 U.S. 950

GPT ‘secininiesithdbchdinidsdaahadiialiaincdiniabtpaticntanscesesocccee 20

Congress of Railway Unions v. Hodgson, 326

ef 6 US CE. | ae 47

Consolidated Rail Corp. v. Railway Labor Execu-

tives’ Association, 109 S. Ct. 2477 (1989) ...... 41

Consumer Product Safety Commission v. GTE Syl-

vania, 447 U.S. 102 (1980) .............. ce eeeeeeeeee 33

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

Ey ciaihcisatbcitnicsiitcceilininciditinschiphihiiesrpeinanenacenssnnes 13

Detroit & Toledo Shore Line R.R. v. United Trans-

portation Union, 396 U.S. 142 (1969) .......... 11,24,40

Deutsch v. Flannery, 883 F.2d 60 (9th Cir.

EE ithchdiatenchahlbeiadinaibtnitenilideibicteniectiatanitdiateensesccees 20,33

Edmonds v. Cam te Generale Transatlantique,

ES SIE di hitccinicntidnsilceidctimsiienainiisien 48

Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711

IIIT iiicaiiiibiniibaiiNiadabaahteduisntinddtanhieiiddiminiantiindinsatee 11,41

Erie R.R. v. Tompkins, 304 U.S. 64 (1938) .......... 22

Escanaba & Lake Superior R.R. v. United States,

I es 39

FTC v. Fred Meyer, Inc., 390 U.S. 341 (1968) ..... 45

ICC v. Brotherhood of Locomotive Engineers, 482

) RETESET SEEN passim

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) . 22

International Association of Machinists v. Northeast

Airlines, Inc., 473 F.2d 549 (1st Cir.), cert.

denied, 409 U.S. 845 (1972) ...........ccccccsscccocceee 37

Table of Authorities Continued

Page

International Association of Machinists v. Northeast

Airlines, Inc., 536 F.2d 975 (1st Cir), cert. de-

nied, 429 U.S. 961 (1976) ...........cccccceeceeseeeeees 37

International Association of Machinists v. Street,

Pe WE, PP ID cecsnttcccschesceceneccssccsccecccccees 34

International Brotherhood of Electrical Workers v.

ICC, 862 F.2d 330 (D.C. Cir. 1988) ............... 7

Jefferson County Pharmaceutical Association, Inc.

v. Abbott Laboratories, 460 U.S. 150 (1983) .. 32

Kent v. CAB, 204 F.2d 263 (2d Cir.), cert. denied,

Se ne 37

McLean Trucking Co. v. United States, 321 U.S. 67

TEREST os: SSEPOL Acd en a 33

Missouri Pacific R.R. v. United Transportation

Union, 782 F.2d 107 (8th Cir. 1986), cert. de-

nied, 482 U.S. 927 (1987) ...............cceeeeees 35,36,42,44

Nemitz v. Norfolk & Western Ry., 436 F.2d 841

(6th Cir.), aff'd, 404 U.S. 37 (1971) ............. 12,36,41

New York Dock Ry. v. United States, 609 F.2d 83

ents 43,48

Ngiraingas v. Sanchez, 58 U.S.L.W. 4504 (U.S.

April 24, 1990) (No. 88-1281) ......... ee 33

Norfolk & Western Ry. v. Nemitz, 404 U.S. 37

I satericeiech indiassieititidiiad bedi iiiaiiaiatantinnisencowoeves 31

Pennsylvania R.R. v. United States Railroad Labor

= f ' & 5 RCH 33

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

ecutives’ Association, 109 S. Ct. 2584

EA MEU, ZF a ey eee 14,42,44

Railway Labor Executives’ Association v. Guilford

Transportation Industries, Inc., 843 F.2d 1383

(1st Cir. 1988) (per curiam), aff'g 667 F. Supp.

29 (D. Me. 1987), cert. denied, 109 S. Ct. 3213

SETUTEEE xchicsittscisinniiccetiihcdbaidiialaiaeipbihiinbesiiiniibitasendessinds 44

| 7 —

}

Vii

Table of Authorities Continued

Page

Railway Labor Executives’ Association v. United

States, 339 U.S. 142 (1950) 2.0.0.0... eeeeeeee 12,30,31

Schwabacher v. United States, 334 U.S. 182

ITI ciisliiesciegiiesdiliiatindkedeahaihehbcaaianiendimnnugnnceneaees passim

Seaboard Air Line R.R. v. Daniel, 333 U.S. 118

SET asides ceididdinenatintniindahsabianeiiiahunetenentncenmnidese 14,29,30

Snow v. Dixon, 362 N.E.2d 1052 (Ill.), cert. denied,

Se ee ee PU wecentidennsctpeciesccnnicesisitncscces 20

St. Joe Paper Co. v. Atlantic Coast Line R.R., 347

IED iedinicipetlidnaiiinictunintadcsctssceniinacesens 27,30

St. Louis Southwestern Ry. v. City of Tyler, 422

S.W.2d 780 (Tex. Civ. App. 1967) .................. 20

Texas v. United States, 292 U.S. 522 (1934) ...... 29,32,39

United States v. Bornstein, 423 U.S. 303 (1976) ... 32

United States v. Lowden, 308 U.S. 225

SII ciiteniatidaibdeshintiteaddimtanhdimmintaduiesestanscernes 13,23,26,42

United States v. Monsanto, 109 S. Ct. 2657

ITT siitecancaiteliialthieeaipduniinasidiebieiiaiatiibeneaninercesens 32

United Tra ton Union v. Norfolk & Western

Ry., 822 F.2d 1114 (D.C. Cir. 1987), cert. de-

nied, 484 U.S. 1006 (1988) ...........ccccccessssssseees 7

Warren v. United States, 340 U.S. 523 (1951) ...... 22

Decisions of the Interstate Commerce Commission

Brandywine Valley R.R.—Purchase—CSX Tra .

tation, Inc., 5 1.C.C.2d 764 (1989), appeal dock-

eted, No. 89-1503 (D.C. Cir. Aug. 21, 1989) . 39

Denver & Rio Grande Western R.R.—Trackage

Rights—Missouri Pacific R.R., Finance Docket

No. 30,000 (Sub-No. 18), decision served Oc-

tober 25, 1983, a dismissed sub nom. ICC

v. Brotherhood of Locomotive Engineers, 482

CFs SD csccetinttnddiidinitdvsintiasettdinnsesereneees 38,41

Fort Dodge, Des Moines & Southern Ry. Abandon-

ment, 312 1.C.C. 708 (1961) .............ccccccccscccees 21

Table of Authorities Continued

Gulf, Mobile & Ohio R.R.—Abandonment, 282 1.C.C.

SBD CRBGED ccccccccccccocescessncssenessssssssessevsssovenssccccese 20,21

Maine Central R.R., et al.—Ezemption, Finance

Docket No. 30532, decision served September

13, 1985, aff'd mem. sub nom. Railway Labor

Executives’ Association v. ICC, 812 F.2d 1443

Cis GEER: TED cctcctcctisenetiseentnenithibintenntninsieeees 41

Missouri Pacific R.R.—Abandonment Exemption—

In Marion County, IL, Docket No. AB-3 (Sub-

— decision served November 10, ~

Missouri Pacific R.R.—Merger—Texas & Pacific Ry.,

348 I.C.C. 414 (1976), rev’d sub nom. City of

Palestine v. United States, 559 F.2d 408 (5th

Cir. 1977), cert. denied, 485 U.S. 950 (1978) . 20

New York Dock Ry.—Control—Brooklyn Eastern

District Terminal, 360 1.C.C. 60, affd sub nom.

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

ff YY nae 4,45

Norfolk & Western Ry. and New York, Chicago &

St. Louis R.R.—Merger, Etc., 347 1.C.C. 506

GUID Ginscdiiacnteeusiiniadabecdinsiiiiiadiaiinciibematiintnns 38

Norfolk Southern Corp.—Control—Norfolk & West-

ern Ry. and Southern Ry., 366 1.C.C. 173

SUE chsdihbetmscdinndipitndselicianinntehinaiiiatenienpmrrenccoreee 3,4,5,7

Pere Marquette Railway Merger, Etc., 267 1.C.C.

ee ED snrdiiiacitiniittntitininplinthiabanbintneenenseneene 18

Southern Pacific Co. Merger, Etc., Texas & New

Orleans R.R., 312 I1.C.C. 593 (1961) ............... 20

Southern Ry.—Control—Central of Georgia Ry., 331 ~

I EE IED sciscncinnentenitadinnicciiontintinéogantecseeens 38

St. Louis Southwestern Ry. Lease, 290 1.C.C. 205

SIUIUEED -ceithunsicidedstcsieibsitiiesinhe .siinailieiuldibdiageaiiainasiadadebinens 20

- et ee i

Table of Authorities Continued

Page

Constitutional and Statutory Provisions

U.S. Constitution, amendment V ....................00000+- )

Amtrak nt Act of 1973, Pub. L. No. 93-

a 46

Eme Railroad Transportation

ch. 91, 48 Stat. 211: —

Title I, § 7(b), 48 Stat. 214 oe. 30

Title I, § 10(a), 48 Stat. 215 ......... 11,27,28

Title II, § 202(15), 48 Stat. 219.0000... 11,28,29

Interstate Commerce Act (former and recodified):

Oe I ii cciiciidniniieratuinssncccctessecniniebedeeneecs 37

TN A 19

49 U.S.C. § (2M f) ..c.cccecececcececcececeecececeeees 31,43,47,48

Te 14,22,27,32,33

|, LE CE passim

| 29

A a Re a 19

TE a 42

I 19

a ctenmieias 25

I coins cctrcniutinnineieuninidiicies passim

ee 3,21

EET 3,21

Oe iii ricccrssscinmngnsctnnbienensaces 19

49 U.S.C. § 11844(DX 1D) ...............00.............. 42

SE 19

EL a passim

Michigan Statutes Annotated, § 22.234 .................. 18

Rail Passenger Service Act, Pub. L. No. 91-518, 84

Stat. 1327 (1970):

- SC LSE 43,47

Table of Authorities Continued

Page

OD CD snissitiisencciisieintniibinitninttiininenennnn 46

Railroad Revitalization and Regulatory Reform Act

of 1976, Pub. L. No. 94-210, § 402(a), 90 Stat.

Ds SE ‘ddicicdiciinhtantasicendebiidebiibiendbinddiibditinesininiemrvees 43

Railway Labor Act, 45 U.S.C. §§ 151 et seg:

a le Be BE eitrcccnessiresveisccnscetssccceres 9

Fe ee TED cereciccinstcctcccccccessncccencsese 24

Ss A alec eincenicshinidcintnpnncenivinciandonenie 8,10,41

Transporvation Act of 1920, ch. 91, 41 Stat. 456:

A Is TI oti ncncecepncachetenduainaiesinen 14

Oe IID i niiecsesasiestiliissibiniaiinlisioinntin 32,33

Transportation Act of 1940, ch. 722, §7(11), 54

SLED, GOD. <ennsniiteilianatdienniniianidiueiiieiiunanisianeen 15

Pub. L. No. 92-316, § 7, 86 Stat. 227, 230

IIIT lis hesid picaiiedsadiiiiasdiiaclanieiidedeiiaitsidanaiaaaaaledbehinidanedwens 46

Pub. L. No. 95-473, § 3(a), 92 Stat. 1337, 1466

SII sis hed died siieniditediarcaiaietiniaianiacnippiisiieiiidilnciiaiidientdigianie 15

RE La ne Tn EE 32

ET iiss nicsienidnecsidesciionbeniinenaaieetntininannenniins 2

I a ee dliaeinamamntiined 22

seca sadanicaiiaideneliiisibalibeeiieinonts &

cali 8

I ities ceseesareenraiaasieidsldisnsbaeigndenitiei 8

atic iccaritaiisabidabeenanasionen 8

Rules

Se as IIRL AT TID itis acceicesceinisannestionendneananonebeooecs 8

rh, ee, UD. cssinssesnonsnoononoss 4

Legislative Materials

Presidential Proclamation No. 2082 (May 2,

cada eas aa atideissennis 27

S.J. Res. 112, 74th Cong., 1st Sess., 79 Cong. Rec.

IED - cabaiettcananinniensianenedetpeitientneiansieniedinnese 27

Table of Authorities Continued

Page

S. Rep. No. 606, 69th Cong., Ist Sess. (1975), re-

printed in 1 Railway Labor Act of 1926, Leg-

wslative History (M. Campbell & E. Brewer,

Se GE I cetliitniniicecitiietedncceccitihieintcttnninnecee 34

S. Rep. No. 87, 73d Cong., 1st Sess. 1 (1933) ..... 28

S. Rep. No. 756, 92d Cong., 2d Sess., reprinted in

ote. U.S. Code Cong. & Ad. News 2393,

sdnnncossonsnesuanintagnetesesanetindeiciatsdnneniadtonioassesoce 47

S. Rep. No. 226, 93d Cong., 1st Sess., reprinted

in 1973 U.S. Code Cong. & Ad. News 2324,

SILT sitierndnichebdateadchitiinceisadiatiiiinintimmbinptuniniiiaibuinets 46

S. Rep. No. 499, 94th Cong., 1st Sess. 20 (1975),

> a im 1976 U.S. Code Cong. & Ad. News

5 GE siieetneserisdutaiiedacinensccncdsiicsccnseniadeninatasnindiinsenes 44

OG GARI, TR. Ge GD cceiccccsccieccceecnsnsessccnccecesess 30

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 89-1027

NORFOLK AND WESTERN RAILWAY COMPANY, et al.,

Petitioners,

Vv.

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

BRIEF FOR PETITIONERS

NORFOLK AND WESTERN RAILWAY COMPANY

AND SOUTHERN RAILWAY COMPANY

OPINIONS BELOW

The July 25, 1989 decision of the Court of Appeals

is reported at 880 F.2d 562 and is reprinted in the

Appendix to the Petition for a Writ of Certiorari (‘‘89-

1027 Pet. App.’’) at la. The Court of Appeals’ order

of September 29, 1989, amending the decision, is not

reported and is reprinted at 89-1027 Pet. App. 27a.

The decision of the Interstate Commerce Commission

dated May 28, 1988, which was the administrative

decision under review in the Court of Appeals, is not

reported and is reprinted at 89-1027 Pet. App. 29a.

JURISDICTION

The Court of Appeals entered its decision on July

25, 1989. Norfolk and Western Railway Company

(‘““NW’”’) and Southern Railway Company (‘‘Southern’’)

filed a timely petition for rehearing, which was denied

in an order entered on September 29, 1989 (89-1027

Pet. App. 49a). The petition for a writ of certiorari

was filed on December 28, 1989, and was granted on

March 26, 1990 (J.A. 43).° Jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

49 U.S.C. §11341(a), a section of the Interstate

Commerce Act, provides:

The authority of the Interstate Commerce

Commission under this subchapter is exclu-

sive. A carrier or corporation participating in

or resulting from a transaction approved by

or exempted by the Commission under this

subchapter may carry out the transaction,

own and operate property, and exercise con-

trol or franchises acquired through the trans-

action without the approval of a State

authority. A carrier, corporation, or person

participating in that approved or exempted

transaction is exempt from the antitrust laws

* Citations in this form refer to the consolidated Joint Ap-

pendix filed in connection with this case and with the companion

CSX Transportation, Inc. v. Brotherhood of Railway Carmen, et

al., No. 89-1028.

and from all other law, including State and

municipal law, as necessary to let that person

carry out the transaction, hold, maintain, and

operate property, and exercise control or

franchises acquired through the transaction.

However, if a purchase and sale, a lease, or

a corporate consolidation or merger is in-

volved in the transaction, the carrier or cor-

poration may carry out the transaction only

with the assent of a majority, or the number

required under applicable State law, of the

votes of the holders of the capital stock of

that corporation entitled to vote. The vote

must occur at a regular meeting, or special

meeting called for that purpose, of those

stockholders and the notice of the meeting

must indicate its purpose.

STATEMENT OF THE CASE

The Interstate Commerce Commission (‘“ICC’’) has

broad authority to approve proposed railroad consol-

idations that the ICC finds to be in the public interest.

49 U.S.C. §§ 11843-44. When the ICC does so, a pro-

vision of the Interstate Commerce Act, 49 U.S.C.

§ 11341(a), provides that a person participating in the

approved transaction is ‘‘exempt from the antitrust

laws and from all other law... as necessary to let

that person... carry out the transaction....’’ This

case concerns the reach of the § 11341(a) exemption.

In 1982, the ICC approved the coming together of

NW and Southern under the common control of Nor-

folk Southern Corporation (‘‘Norfolk Southern’’). Nor-

folk Southern Corp.—Control—Norfolk & Western Ry.

and Southern Ry., 366 1.C.C. 173 (1982) (‘‘Norfolk

Southern Control’). The ICC authorized the consoli-

dation of facilities among the various Norfolk South-

ern-controlled railroads in the interest of operational

efficiency, and directed, in accordance with a provi-

sion of the Interstate Commerce Act, 49 U.S.C.

§ 11347, that employees affected by any such con-

solidations—including those not detailed in the origi-

nal Norfolk Southern operating scheme—were to

receive the extensive benefits (including wage pro-

tection for up to six years) prescribed in the ICC’s

““New York Dock’’ employee protective conditions.‘ 366

I.C.C. at 230-31.

In 1986, as part of the ongoing process of consol-

idating their operational functions, NW and Southern

decided to consolidate at one location the function of

“distribution of power’’—the assignment of locomo-

tives to particular trains and facilities. Until then,

power distribution on NW was performed in a facility

in Roanoke, Virginia (the System Operations Center,

or “SOC’’) by employees known as “SOC supervi-

sors,’ who were represented by respondent American

Train Dispatchers Association (““ATDA”’) and worked

under a labor agreement to which the parties were

NW and ATDA. In contrast, power distribution on

Southern was performed in Atlanta, Georgia, by com-

pany officers—nonunion management employees

known as Superintendents Transportation-Locomotive

(“STLs’’).

The railroads proposed that power distribution for

the entire Norfolk Southern system would now be

‘ These conditions were adopted by the ICC in New York Dock

Ry.—Control—Brooklyn Eastern District Terminal, 360 1.C.C.

60, affd sub nom. New York Dock Ry. v. United States, 609

F.2d 83 (2d Cir. 1979).

performed by Southern at its Atlanta facility. Because

this rearrangement was to be carried out under au-

thority of the ICC’s original Norfolk Southern Control

decision, the railroads recognized that the New York

Dock protective conditions would apply. Accordingly,

as required by Art. I, § 4 of the protective conditions,

the railroads notified ATDA of the proposal and of-

fered to negotiate an “implementing agreement’’ to

cover the transaction.®

Negotiations failed. The railroads wanted Southern

to continue to handle power distribution using STLs,

and they proposed to offer all the NW SOC super-

visors management jobs as Southern STLs. This would

result in the employees’ receiving substantia] in-

creases in wages and benefits, as well as generous

relocation allowances and the assurance of six years’

wage protection under the New York Dock conditions.

ATDA maintained, however, that the Railway Labor

Act, 45 U.S.C. §§ 151 et seg. (“RLA’’), and the SOC

supervisors’ labor agreement would not permit this

® Art. I, §4 of the protective conditions requires the railroad

to give 90 days’ written notice of a transaction that ‘“‘may cause

the dismissal or displacement of any employees, or rearrange-

ment of forces,’’ and, if requested, to negotiate an ‘‘agreement

with respect to application of’ the protective conditions to the

transaction. The section also provides that “{eJach transaction

which may result in a dismissa] or displacement of employees

or rearrangement of forces, shall provide for the selection of

forces from all employees involved on a basis accepted as ap-

propriate for application in the particular case and any assign-

ment of employees made necessary by the transaction shal! be

made on the basis of an agreement or decision under this section

4.”’ If the parties are unable to agree on the terms of this so-

called “implementing agreement,” either party may submit the

dispute to binding arbitration. 360 I.C.C. at 85.

result, and that the NW power distribution work could

be moved to Atlanta only if the existing NW/ATDA

labor agreement moved to Atlanta with the work and

continued to cover the NW SOC supervisors in their

new location.

The railroads invoked arbitration under Art. I, § 4

of the protective conditions, and, following a hearing,

the arbitrator issued an award in which he imposed

an implementing agreement.® The arbitrator author-

ized the transfer of work from Roanoke to Atlanta

as proposed by the railroads. He also ruled that NW >

SOC supervisors who accepted STL positions with

Southern could not carry their existing labor agree-

ment with them to Atlanta but would become South-

ern officers. The implementing agreement he imposed

provides, inter alia, that ‘[wJhere rules, other agree-

ments and practices conflict with this agreement, the

provisions of this agreement shall apply.” J.A. 31.’

® Norfolk & Western Ry. and Southern Ry. and ATDA, May

19, 1987 (Harris, Arb.) The arbitrator’s award is reproduced in

the Joint Appendix at J.A. 8-32. Technically, the award was

rendered by a three-person “committee” or “‘panel’’ established

by agreement of the parties; the panel consisted of a neutral

referee (the arbitrator), one member representing the railroads,

and one member representing the union. For this reason, the

ICC decision below refers to the award as the “‘panel’s’’ decision.

The railroad member of the panel concurred in the arbitrator's

award and the union member dissented.

7 The transfer of power distribution work took place on June

6, 1987. Southern offered STL positions to all nine active and

all three furloughed NW SOC supervisors, and nine of the total

accepted and moved to Atlanta.

ATDA sought review of the award by the ICC.®

The ICC affirmed the award in all respects, holding,

inter alia, that the arbitrator

correctly found . . . that the terms of [Norfolk

Southern Control] and specifically the com-

pulsory, binding arbitration required by Ar-

ticle I, section 4 of New York Dock, took

precedence over RLA procedures whether as-

serted independently or based on existing col-

lective bargaining agreements. Moreover, an

action taken under our control authorization

is immunized from conflicting laws by section

11341(a). The proposed transfer, although not

specifically mentioned in Norfolk Southern

Control, is one of the future coordinations

and public benefits expected to flow from,

and is therefore part of, the control trans-

action that we approved.

89-1027 Pet. App. 35a (citations omitted). On the mer-

its of the case, the ICC agreed with the arbitrator’s

decision not to impose the NW/ATDA labor agree-

ment on work in the consolidated Atlanta office—

relief sought by ATDA-finding that to impose that

agreement “‘would jeopardize the transaction because

the work rules it mandates are inconsistent with the

* The ICC exercises authority to review the awards of arbi-

trators acting under the employee protective conditions. Inter-

national Brotherhood of Electrical Workers v. ICC, 862 F.2d 330

(D.C. Cir. 1988). See United Transportation Union v. Norfolk &

Western Ry., 822 F.2d 1114 (D.C. Cir. 1987) (arbitration award

is not reviewable under RLA but is exclusively subject to review

pe Interstate Commerce Act), cert. denied, 484 U.S. 1006

carriers’ underlying purpose of integrating the power

distribution function.’’ 89-1027 Pet. App. 37a.

ATDA sought judicial review of the ICC’s decision

under 28 U.S.C. §§ 2321(a) and 2341 et Seq.® In the

Court of Appeals, ATDA’s principal contention was

that the ICC exceeded its jurisdiction by upholding

the arbitrator’s authority to allow the transfer of work

rather than remitting the parties to the RLA pro-

cedures for negotiating changes in agreements, 45

U.S.C. § 156.

In its July 25, 1989 decision covering this case and

the companion Brotherhood of Railway Carmen v. ICC,

the Court of Appeals resolved only the first of what

it perceived to be three primary questions relating to

the reach of the ICC’s power under the Interstate

Commerce Act presented by this case. The court, con-

cluding that § 11341(a) reaches only “positive enact-

ments,” not contracts, 89-1027 Pet. App. 18a, held

that § 11341(a) ‘“‘does not grant the ICC its claimed

power to override provisions of a [collective bargain-

ing agreement],’’ 89-1027 Pet. App. 26a, and reversed

the ICC on this point.

The Court of Appeals declined to decide what it

took to be the separate question whether 49 U.S.C.

§ 11341(a) ‘‘may operate to override provisions of the

RLA”’ itself. 89-1027 Pet. App. 19a. And the court

also declined to address the ICC decision’s conclusion

* ATDA filed its petition for review in the United States Court

of Appeals for the Eleventh Circuit. NW and Southern obtained

leave to intervene in the review proceeding as of right, under

28 U.S.C. §§ 2323 and 2348 and Fed. R. App. P. 15d). By order

of September 15, 1988, the Eleventh Circuit transferred the case

to the District of Columbia Circuit.

that the arbitration procedure in the New York Dock

conditions, adopted under § 11347, displaces RLA-de-

rived rights. 89-1027 Pet. App. 25a-26a. The court

remanded the case with respect to the issues it had

not addressed “in order that the agency may deter-

mine whether further proceedings are necessary.”’ 89-

1027 Pet. App. 26a.

NW and Southern petitioned for rehearing and filed

a suggestion of rehearing en banc. The petition and

suggestion were denied by orders issued on Septem-

ber 29, 1989. 89-1027 Pet. App. 49a, 5la.™

On March 26, 1990, this Court granted the petition

of Southern and NW for a writ of certiorari to the

©The Court of Appeals did not address objections ATDA had

raised based on the Fifth Amendment and 45 U.S.C. § 152

Fourth.

The ICC also filed a document styled as a petition for re-

hearing. The ICC, however, did not ask the Court of Appeals

to rehear the case immediately but instead represented that it

intended to conduct a proceeding on remand as directed by the

court, and it asked the court “to refrain from ruling on this

petition for rehearing until the Commission’s decision on remand

is published.”’ ICC Petition for Rehearing at 2. By order entered

on September 29, 1989, the Court of Appeals directed ‘‘that

consideration of the aforesaid petition is deferred pending re-

lease of the ICC’s decision on remand.” 89-1027 Pet. App. 54a.

Also by separate orders entered on the same date, the Court

of Appeals entered its judgment of remand, 89-1027 Pet.

App. 47a, and amended its July 25, 1989 decision to specify that

it was remanding only the ‘records’ and not the “cases” to

the ICC. 89-1027 Pet. App. 27a-28a. The effect of that amend-

ment, under the court’s local rule 15(c), was to make clear that

the court retained jurisdiction over the matter and that it would

not be necessary for a party aggrieved by the ICC’s eventual!

decision on remand to file a new petition for review. The ICC

is now in the process of conducting its proceeding on remand.

District of Columbia Circuit Court of Appeals; and,

on that date, the Court also granted the petition for

a writ of certiorari of CSX Transportation, Inc. in

the companion CSX Transportation, Inc. v. Brother-

hood of Railway Carmen, et al., and consolidated the

two cases. J.A. 43.

SUMMARY OF ARGUMENT

This Court ruled in Schwabacher v. United States,

334 U.S. 182 (1948), that a railroad participating in

a consolidation that has been approved by the Inter-

state Commerce Commission is, by operation of the

exemption ‘‘from all other law’ contained in 49 U.S.C.

§ 11341(a), exempt from claims based on the railroad’s

private contracts. The Court of Appeals, presented

with the question whether § 11341(a) extends to claims

asserted under labor agreements governed by the

Railway Labor Act (““RLA’’), held that the statutory

exemption does not extend to claims based on con-

tracts at all. That holding is plainly wrong under

Schwabacher.

The Court of Appeals went farther and concluded

that claims based on labor agreements, in particular,

survive the § 11341(a) exemption, and that a railroad

is not freed from such claims even if their recognition

would prevent the railroad from carrying out the ICC-

approved consolidation. The effect of the Court of

Appeals’ decision is to hand to labor unions the power

of veto over the implementation of transactions found

to be in the public interest. The right asserted under

the labor agreements in question here is the right to

bargain over changes in existing agreements in ac-

cordance with the procedures set forth in § 6 of the

RLA, 45 U.S.C. § 156, before the approved consoli-

dation may be carried out. Not only is exhaustion of

the §6 procedure ‘‘an almost interminable process,”

Detroit & Toledo Shore Line R.R. v. United Trans-

portation Union, 396 U.S. 142, 155 (1969), but the

whole point of the RLA is precisely not to force par-

ties to agreement, see Elgin, Joliet & Eastern Ry. v.

Burley, 325 U.S. 711, 725 (1945). Permitting a labor

union to assert claims based on its agreements would

allow the union to thwart a consolidation’s imple-

mentation simply by insisting on strict adherence to

the agreements’ terms and refusing to agree to any

necessary changes. That result cannot survive Schwa-

bacher and ignores decades of legislative, judicial, and

administrative history establishing the reach of the

§ 11341(a) exemption.

The exemption provision now found in § 11341(a)

dates back to the Transportation Act of 1920. Since

then, Congress has on several occasions visited the

question whether the carrying out of an ICC-approved

transaction must yield to rights asserted by unions

under their labor agreements with the merging rail-

roads. For one three-year period, between 1933 and

1936, Congress expressly fashioned the law to accord

unions the power to block transactions by standing

on the terms of their existing agreements and their

rights under the RLA.’ But Congress has otherwise

unswervingly denied this power to the unions.’* Con-

gress carefully studied the entire matter in passing

the Transportation Act of 1940, when it explicitly

2 Emergency Railroad Transportation Act of 1933, ch. 91, tit.

I, § 10(a), 48 Stat. 211, 215.

‘8 Compare, for example, § 10(a) of Title 1 of the Emergency

Railroad Transportation Act with § 202 (15) of Title II of that

statute, 48 Stat. 219.

rejected a proposal—known as the Harrington amend-

ment—that would have restored a veto power to la-

bor. See Railway Labor Executives’ Association v.

United States, 339 U.S. 142, 151 (1950). Reflecting

this congressional action, the courts of appeals, until

now, have uniformly concluded that the § 11341(a)

exemption reaches all rights derived from the RLA,

including the right to assert claims based on labor

agreements.'* Four Justices of this Court have already

reached the same conclusion. ICC v. Brotherhood of

Locomotive Engineers, 482 U.S. 270, 287 (1987) (Ste-

vens, J., concurring). And the ICC has itself long

shared the settled judicial understanding of the reach

of the § 11341(a) exemption.

Tne Court of Appeals went out of its way to reject

sub silentio the unequivocal legislative record and the

decades of established case law and consistent ad-

ministrative application. Giving force to the Court of

Appeals’ crabbed assessment of the scope of the

§ 11341(a) exemption would inevitably stymie trans-

actions and thereby contradict the long-standing pur-

pose of the Interstate Commerce Act to foster railroad

consolidations in the interest of economy and effi-

ciency. The decision of the Court of Appeals is un-

founded and should be reversed.

“ E.g., Brotherhood of Locomotive Engineers v. Chicago &

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

U.S. 819 (1963); Brotherhood of Locomotive Engineers v. Boston

& Maine Corp., 788 F.2d 794, 801 (1st Cir.), cert. denied, 479

U.S. 829 (1986); Burlington Northern, Inc. v. American Railway

Supervisors Association, 503 F.2d 58, 62-63 (7th Cir. 1974) (per

curiam), cert. denied, 421 U.S. 975 (1975); Nemitz v. Norfolk &

Western Ry., 436 F.2d 841, 845-46 (6th Cir.), affd on other

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

ARGUMENT

THE INTERSTATE COMMERCE ACT, 49 U.S.C.

§ 11341(a), EXEMPTS A RAILROAD CARRYING OUT AN

ICC-APPROVED TRANSACTION FROM THE ASSERTION

AGAINST IT OF RIGHTS CLAIMED UNDER LABOR

AGREEMENTS ENFORCEABLE THROUGH THE

RAILWAY LABOR ACT.

The Court of Appeals misconstrued the scope of

the § 11341(a) exemption “from all other law,” hold-

ing that the exemption does not extend to claims

asserted under labor agreements governed by the

Railway Labor Act. That holding conflicts with

Schwabacher v. United States, 334 U.S. 182 (1948)

(‘“Schwabacher’’); it is at odds with the repeatedly

expressed intent of Congress and fundamental na-

tional policy; and it is inconsistent with the decisions

of all of the other circuit courts to have considered

the issue and with iongstanding administrative prec-

edent.

The railroad industry has for many years been in

a greater or lesser degree of economic disarray, char-

acterized by increased competition from other trans-

portation modes and declining traffic, revenues, and

employment. Congress’ response has been to adopt,

and continually to recommit itself to, a national policy

of fostering railroad consolidations, in the interest of

economy and efficiency."* Section 11341(a), and its

16 F.g., United States v. Lowden, 308 U.S. 225, 232 (1939) (“As

a result of the enactment of the Transportation Act in 1920,

consolidation of the railroads of the country, in the interest of

economy and efficiency, became an established national policy’’);

County of Marin v. United States, 356 U.S. 412, 416, 417-18

(1958, (the Transportation Act of 1940 was designed ‘‘to facil-

predecessors, have been a cornerstone of this legis-

lative design. Schwabacher, 334 U.S. at 190-97; Sea-

board Air Line R.R. v. Daniel, 333 U.S. 118, 125

(1948).

The language of the exemption provision traces back

seventy years to the Transportation Act of 1920. Sec-

tion 407(8) of that Act provided that carriers affected

by orders of the ICC approving consolidations:

shall be, and they are hereby, relieved from

the operation of the “antitrust laws,”’ as des-

ignated in section 1 of the Act entitled ‘An

Act to supplement existing laws against un-

lawful restraints and monopolies, and for

other purposes,”’ approved October 15, 1914,

and of all other restraints or prohibitions by

law, State or Federal, in so far as may be

necessary to enable them to do anything au-

thorized or required by any order made un-

der and pursuant to the foregoing provisions

of this section.

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

456, 482, codified as 49 U.S.C. § 5(8) (“§ 5(8)’’).'* The

itate merger and consolidation in the national transportation

system” and ‘‘expresse[d] clearly the desire of Congress that

the industry proceed toward an integrated national transporta-

tion system through substantial corporate simplification’’); Pitts-

burgh & Lake Erie R.R. v. Railway Labor Executives’

Association, 109 S. Ct. 2584, 2596-97 (1989) (the Railroad Re-

vitalization and Regulatory Reform Act of 1976 and the Staggers

Rail Act of 1980 were “aimed at reversing the rail industry's

decline through deregulatory efforts, above al] by streamlining

procedures to effectuate economically efficient transactions’’).

16 The complete text of the predecessors to § 11341(a) is re-

produced at pages 118a-120a to the separately bound Appendix

exemption provision was reenacted in virtually iden-

tical terms in the Emergency Railroad Transportation

Act of 1933;!’ and it was reenacted again in the

Transportation Act of 1940, where it provided that

any carriers or other corporations, and their

officers and employees and any other per-

sons, participating in a transaction approved

or authorized under the provisions of this sec-

tion shall be and they are hereby relieved

from the operation of the antitrust laws and

of all other restraints, limitations, and pro-

hibitions of law, Federal, State, or municipal,

insofar as may be necessary to enable them

to carry into effect the transaction so ap-

proved....

Transportation Act of 1940, ch. 722, § 7(11), 54 Stat.

899, 908, codified as 49 U.S.C. § 5(11) (“§ 5(11)’).

Finally, the exemption provision was recodified in

1978, without substantive change, as § 11341(a)."*

In each version of the exemption provision, the op-

erative language has been similar and the meaning ©

has been constant: to effectuate the national trans-

portation policy by immunizing carriers from collat-

eral legal challenges to the carrying out of

transactions approved by the ICC as in the public

interest. The Court of Appeals’ mistaken holding re-

jects the settled understanding of the effects of ICC

to the Petition For A Writ of Certiorari filed by CSX Trans-

portation, Inc., in Case No. 89-1028.

7 The text of the 1932 provision is found in note 30, below.

* Pub. L. No. 95-473, § 3(a), 92 Stat. 1337, 1466 (1978); ICC

v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 299 n.12

(Stevens, J., concurring).

approval and, to the extent it dictates adherence to

the terms of existing labor agreements, threatens to

prevent consolidations and thereby condemns the rail-

road industry to a destabilized future.

I. SECTION 11341(a) IS EFFECTIVE TO DISPLACE PRI-

VATE CONTRACTUAL OBLIGATIONS.

At the core of the Court of Appeals’ conclusion

that § 11341(a) does not apply to labor agreements is

its erroneous holding that the exemption “from all

other law’’ does not reach contracts. 89-1027 Pet.

App. 12a, 18a.'* The Court of Appeals’ interpretation

of § 11341(a) is foreclosed by this Court’s decision in

Schwabacher, which held that former § 5{11) of the

Interstate Commerce Act, the direct predecessor of

§ 11341(a), relieved carriers from private contractual

obligations, to the extent necessary to carry out an

ICC-approved transaction. 334 U.S. at 185-89, 194-

95, 199-201.

Schwabacher involved a challenge to an ICC order

approving the merger of the Pere Marquette Railway

Company with another carrier, brought by a group

of dissenting Pere Marquette preferred stockholders.

In the ICC approval proceeding, these stockholders

claimed that under t'-e Pere Marquette charter, which

was enforceable under the laws of Michigan, they

were entitled <o receive at least $172.50 per share of

stock; and they objected to the proposed merger plan

because it allocated them substantially less than this

amount and thereby deprived them “‘of contract rights

under Michigan law....’’ 334 U.S. at 188. The ICC

1’ No party to this case made such an argument and the Court

of Appeals embraced it without benefit of briefing or oral ar-

gument on the point.

approved the proposed merger plan but left the stock-

holders to pursue in state court their claims for mon-

ies owed under the terms of the charter. Jd.

This Court rejected the ICC’s approach and, rely-

ing, inter alia, on § &(11), held that once the ICC

approved the merger, the surviving carrier was re-

lieved from any claims for additional payments based

on rights assertedly conferred by the Pere Marquette

charter. 334 U.S. at 194-95; 201-02.

The Court of Appeals wrongly thought Schwabacher

was concerned with the ICC’s authority ‘‘to override

state law,’’ by which the court meant state statutory

law, “granting dissenting shareholders [the] right to

block [a] merger.’’ 89-1027 Pet. App. 21a. This read-

ing of Schwabacher is insupportable. Although Schwa-

bacher contains many references to Michigan or state

law, the decision does not involve any state statute

conferring a substantive right on the preferred stock-

holders, let alone a right to block the merger.

The references to state law in Schwabacher relate

to only two subjects: (1) the question whether, as a

matter of Michigan law, the merger effected a ‘“‘wind-

ing up” of Pere Marquette, as it was this event that

would trigger rights under the express terms of the

charter; and (2) the availability of the state court sys-

tem to hear and decide the claims asserted by the

stockholders under their private contract with the

Pere Marquette. The sole source of the dissenting

stockholders’ claimed right to receive $172.50 per

share was the promise made in the charter, and it

was this contractual promise that, by operation of

§ 5(11), was abrogated.”°

* This Court expressly recognized that “‘Michigan law pro-

All of this is evident from the face of the opinion

in Schwabacher. But the point is buttressed by con-

sideration of the underlying ICC decision approving

the Pere Marquette merger and of the parties’ pres-

entation of the case in this Court. In its approval

decision, the ICC had concluded that “{wJhether dis-

senting stockholders, as members of a class created

by the merger, are entitled to better treatment under

their charter contract with the Pere Marquette, is a

question not within our province to decide.” Pere

Marquette Railway Merger, Etc., 267 1.C.C. 207, 248

(1947) (citation omitted). In this Court, the ICC

framed the question presented as:

Whether, in passing upon the agreement of

merger here involved,... the Commission

was required, as a condition to its approval

of the merger under the provisions of Section

5 (2-13), and Section 20a (1-11) of the Inter-

state Commerce Act, to adjudicate and en-

force the claimed contractual rights, arising

vide[d] no specific right or procedure for appraisal and retire-

ment of the holdings of a stockholder dissenting from a railroad

merger.” 334 U.S. at 185. The applicable Michigan merger stat-

ute merely ensured that the surviving company was required to

honor the preexisting obligations of the merging companies: the

‘‘debts, liabilities and duties” of the merged companies “shal!

thenceforth attach to such new corporation, and be enforced

against the same, to the same extent, and in the same manner,

as if such debts, liabilities and duties had been originally incurred

by it.’’ Michigan Statutes Annotated, § 22.234, quoted in Schwa-

bacher, Brief for Appellants at 9. When the Schwabacher Court

spoke of state law imposing financial obligations on the surviving

carrier, e.g., 334 U.S. at 201, it was referring to the possibility

that the Michigan courts might uphold the stockholders’ claim

under their contract.

under State law, of dissenting stockholders

as a separate and distinct class... .

Schwabacher, Brief for Appellee ICC at 2. The dis-

senting Pere Marquette shareholders agreed that the

rights they sought to have the ICC enforce were con-

tractual in nature.”

This Court concluded that neither party’s view of

the working of the statutory scheme was correct. 334

U.S. at 189-90. Instead, the Court held that the ICC

had exclusive authority to determine the rights of

stockholders notwithstanding the provisions of their

private contract with the corporation, and that the

ICC’s approval of the merger supplanted the state

court remedies that otherwise would have been avail-

able to those stockholders to vindicate their putative

right to $172.50 per share under the letter_of the

contract.”

21 See Schwabacher, Brief for Appellants at 2; Schwabacher,

Reply Brief for Appellants at 2 (“Appellants have stated the

question here as whether the Commission unlawfully declined to

take jurisdiction (question presented, brief 2). The Commission

states the question similarly, as whether it was required ‘to

adjudicate and enforce the claimed contractual] rights * * * of

dissenting stockholders.’ ’’ (footnote omitted)).

22 Schwabacher also establishes that in approving a merger the

ICC is required by 49 U.S.C. §§ (2b) and 20a (now 49 U.S.C.

§§ 11344(a), (c) and 11301) to find that the merger terms are

just and reasonable to stockholders, as measured by the fair

economic value of their stock. 334 U.S. at 198-99. There would

be no warrant for reading Schwabacher as encompassing only

the operation of the ICC’s approval authority, not its exemption

authority, and Schwabacher has not been read that way. To the

contrary, four Justices of this Court have understood Schwa-

bacher to be construing the § 5(11) (now § 11341(a)) exemption,

ICC v. Brotherhood of Locomotive Engineers, 482 U.S. at 298-

Our understanding of Schwabacher is not new. The

Court of Appeals itself has previously agreed with it.

Altman v. Central of Georgia Ry., 488 F.2d 1302

(D.C. Cir. 1973) (claims for payment of dividends al-

legedly due under the terms of a railroad’s charter

and bylaws are barred). See also Snow v. Dixon, 362

N.E.2d 1052 (Ill.), cert. denied, 434 U.S. 939 (1977);

St. Louis Southwestern Ry. v. City of Tyler, 422

S.W.2d 780 (Tex. Civ. App. 1967). And since Schwa-

bacher, the ICC has routinely asserted its authority,

under the exemption provision, to override contrac-

tual obligations.”

99 (Stevens, J., concurring), as have the lower federal courts,

e.g., Deutsch v. Flannery, 883 F.2d 60, 62-63 (9th Cir. 1989),

the state courts, e.g., Bruno v. Western Pacific R.R., 498 A.2d

171, 174 (Del. Ch. 1985), aff'd, 508 A.2d 72 (Del. 1986), cert.

denied, 482 U.S. 927 (1987), and the ICC, e.g., St. Louis South-

western Ry. Lease, 290 1.C.C. 205, 212-13 (1953). No other read-

ing of Schwabacher is possible, for this Court was there plainly

ruling on the effect that, by operation of § 511), the approval

of the Pere Marquette merger carried with it: the extinguishing

of the stockholders’ right to pursue their contract claim.

*3 F.g., Missouri Pacific R.R.—Merger—Texas & Pacific Ry.,

348 1.C.C. 414, 430 (1976), rev'd on other grounds sub nom. City

of Palestine v. United States, 559 F.2d 408 (5th Cir. 1977) (as-

suming arguendo that ICC has authority to abrogate contracts,

but concluding that ICC’s exercise of this power in the circum-

stances was incorrect), cert. denied, 435 U.S. 950 (1978); South-

ern Pacific Co. Merger, Etc., Texas & New Orleans R.R., 312

I.C.C. 598, 602 (1961); St. Louis Southwestern Ry. Lease, 290

1.C.C. 205, 211-13 (1953). -

The Court of Appeals incorrectly suggested, 89-1027 Pet.

App. 13a, that in Gulf, Mobile & Ohio R.R.—Abandonment, 282

1.C.C. 311 (1952), the ICC disclaimed authority, under 49 U.S.C.

§ 5(11), to abrogate contracts. The decision was precisely to the

contrary. Gulf, Mobile was an abandonment case; § 5(11) (like

The Court of Appeals was content to leave trans-

actions that have been approved as in the public in-

terest under 49 U.S.C. §§ 11343-44 vulnerable to

defeat through claims asserted under private con-

tracts because it did not think that the phrase “all

other law’’ encompassed “‘contracts.’’ 89-1027 Pet.

App. 12a, 18a.“ Precedent aside, even considered as

today’s § 11341(a)) applied to mergers and consolidations, not

abandonments. The ICC held, in Gulf, Mobile, that it could not

abrogate contracts in abandonment cases because it could do so

“only upon a clear grant of statutory authority similar to that

contained in section 5(11).’’ 282 I.C.C. at 335. Moreover, the

ICC subsequently determined that private contracts could not

stand in the way of its authority to approve abandonments. E.9.,

Fort Dodge, Des Moines & Southern Ry. Abandonment, 312 1.C.C.

708, 710-11 (1961) (“The existence of a private contract for

continued service between a carrier and a shipper is not suffi-

cient to prevent abandonment of the line, if the facts so warrant.

The power of Congress over interstate commerce is unrestricted

by the obligations of private contracts and ouf decision may not

be affected thereby.”’); see also Missouri Pacific R.R.—Abandon-

ment Exemption—In Marion County, IL, Docket No. AB-3 (Sub-

No. 77X), decision served November 10, 1988.

The Court of Appeals expressed concern that if the law

were otherwise, the ICC “‘could set to naught, in order to fa-

cilitate 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,’ 89-1027 Pet.

App. 13a. In fact, there has been no doubt since Schwabacher

that the ICC does have precisely that power, within the other

confines of § 11341(a). Indeed, the main difference between the

“solemn undertaking’ hypothesized by the Court of Appeals and

the “solemn undertaking’’ embodied in the Pere Marquette

charter at issue in Schwabacher is that, of the two, the latter

posed the lesser threat to the carrying out of an approved trans-

action. As the Court acknowledged in Schwabacher, the ICC had

there found that even if the dissenting Pere Marquette stock-

holders’ contractual claims were sustained by the Michigan

an original matter there is nothing to be said for that

conclusion; it artificially restricts the operative sta-

tutory language and runs counter to the goals the

exemption has always sought to promote.” But this

courts, the amount involved would “not impair the carrier’s

ability to perform its services’ after the merger, 334 U.S. at

197—a fact that the dissenting Justices thought sufficient to

preclude the application of § 5(11), 334 U.S. at 207 (Frankfurter,

J., dissenting), but that the Court did not.

2% The Court of Appeals, loosing the phrase “all other law’

as it now appears in § 11341(a) from its textual source, took

the statutory language to comprehend only “positive enact-

ments,”’ 89-1027 Pet. App. 18a, and chastised the ICC for seeing

in it a broader reference to “ ‘all legal obstacles.’ ”’ 89-1027 Pet.

App. 13a. The Court of Appeals apparently forgot that the im-

mediate predecessor to § 11341(a), the former § 5(11), exempted

carriers “from the operation of the antitrust laws and of all

other restraints, limitations, and. prohibitions of law, Federal,

State, or municipal.’ This language is traceable directly to the

original 1920 provision (the former § 5(8)) and removes any doubt

that the exemption encompasses not merely positive enactments

but all restraints, limitations, and prohibitions of law—all “‘legal

obstacles” to the carrying out of a transaction. The 1978 re-

codification of § 5{11) as § 11341(a) did not effect any substantive

change in the exemption provision.

Further, even considered on its own, the phrase ‘‘al] other

law” plainly is broad enough to encompass claims founded on

a private contract. The common law, no less than statutory law,

is “law’’ within the ordinary meaning of the term. E.g., Illinois

v. City of Milwaukee, 406 U.S. 91, 99-101 (1972) (“‘we see no

reason not to give ‘laws’ its natural meaning... and therefore

conclude that [28 U.S.C.] § 1331 jurisdiction will support claims

founded upon federal common law as well as those of a statutory

origin”); Warren v. United States, 340 U.S. 523, 526 (1951) (the

“term law in our jurisprudence usually includes the rules of court

decisions as well as legislative acts’’); Erie R.R. v. Tompkins,

304 U.S. 64, 78-79 (1938). It is precisely because contracts create

obligations that are legally enforceable that contracts could, if

is not an original matter. It has been understood for

forty-two years that private contractual claims are

barred by the statutory exemption as authoritatively

interpreted by this Court in Schwabacher.

II. SECTION 11341(a) IS EFFECTIVE TO DISPLACE

RIGHTS DERIVED FROM THE RAILWAY LABOR ACT.

A. Seven Decades Of Legislative, Judicial, And Admin-

istrative History Establish That § 11341(a) Displaces

RLA-Derived Rights.

The § 11341(a) exemption “from all other law’’ in-

disputably extends to collective bargaining agree-

ments existing under the Railway Labor Act. Because,

as Schwabacher holds, the statutory exemption applies

to purely private contracts, it certainly applies to con-

tracts, like those in question here, that are themselves

constructs of federal statutory law.

The Court of Appeals likened railroad labor agree-

ments to contracts governed by ‘‘common law rules

of liability,’ 89-1027 Pet. App. 18a, and went on from

there to attempt to drive a wedge between the “‘ov-

erride’”’ of such labor agreements and the “‘override’’

of the RLA. This was simply wrong. Railroad labor

allowed, interfere with the carrying out of an approved trans-

action.

Moreover, the Court of Appeals’ conclusion that the exemp-

tion covers only “‘positive enactments” is inherently implausible.

Under that interpretation, a railroad’s attempt to carry out a

transaction, though exempt from suit under the antitrust stat-

utes, would remain subject to attack under myriad state common

law rules respecting unfair competition or unreasonable re-

straints of trade. It is unthinkable that Congress left such a

gaping hole in its effort to ensure ‘‘the maintenance of an ad-

equate rail transportation system,” United States v. Lowden, 308

U.S. 225, 230 (1939).

agreements are not governed by the common law.

Collective bargaining agreements in the railroad in-

dustry are creatures of the RLA and have no meaning

apart from the rights and obligations that statute

bestows; the RLA prescribes the procedures for cre-

ating agreements and the exclusive means of enforc-

ing them. Andrews v. Louisville & Nashville R.R.,

406 U.S. 320 (1972) (railroad labor agreements are

not enforceable in state court); Detroit & Toledo Shore

Line R.R. v. United Transportation Union, 396 U.S.

at 156 (RLA, 45 U.S.C. § 152 Seventh, “‘operates to

give legal and binding effect to collective agree-

ments’’).”° The dichotomy the Court of Appeals sought

to create between railroad labor agreements and the

federal statute obligating adherence to their terms

has not been recognized and is not valid. A well-

elaborated legislative and judicial history definitively

establishes that the question whether the exemption

provision applies to labor agreements is inextricably

linked with the question whether it applies to the

RLA. And it is established that § 11341(a) is effective

to override both the agreements and the statute.

That conclusion will come as no surprise to this

Court; four Justices have already expressly reached

it. Justices Stevens, Brennan, Marshall, and Black-

mun, concurring in.the judgment in JCC v. Brother-

hood of Locomotive Engineers, 482 U.S. 270, 287

(1987) (Stevens, J., concurring) (“JCC v. BLE”’), have

agreed that § 11341(a) is effective to displace the RLA

26 See also Chicago & North Western Ry. v. United Transpor-

tation Union, 402 U.S. 570, 576-78 (1971) (obligation to ‘‘main-

tain’’ agreements is founded on RLA); California v. Taylor, 353

U.S. 553, 561 (1957) (railroad labor agreements supersede state

law).

and that the power to modify or override labor agree-

ments is encompassed in the § 11341(a) exemption. In

ICC v. BLE, as here, what was at stake was precisely

the claim of certain railroad employees that the ‘‘Rail-

way Labor Act... and their collective bargaining

agreements” gave them the right to perform certain

work. 482 U.S. at 295 (Stevens, J., concurring). The

concurring Justices would have rejected that claim

because of the § 11341(a) exemption, explaining:

[Section] 11341 automatically exempts a per-

son from ‘‘other laws’ whenever an exemp-

tion is ‘‘necessary to let that person carry

out the transaction....’’ 49 U.S.C. § 11341.

The breadth of the exemption is defined by

the scope of the approved transaction, and

no explicit announcement of exemption is re-

quired to make the statute applicable.

482 U.S. at 298 (citing Schwabacher; “ootnote omit-

ted).?’

27In ICC v. BLE, a majority of a panel of the District of

Columbia Circuit had remanded the case to the ICC, directing

the agency to make specific findings as to the necessity of an

override of RLA-derived rights, including rights assertedly based

on labor agreements, in the particular case. Brotherhood of Lo-

comotive Engineers v. ICC, 761 F.2d 714 (D.C. Cir. 1985). This

Court vacated the Court of Appeals’ decision on the ground that

the appeal of the ICC decision had been untimely and that the

Court of Appeals accordingly lacked jurisdiction. The four con-

curring Justices would have reached the merits of the case and

concluded that the § 11341(a) exemption is self-executing and

therefore does not require specific findings as to the necessity -

of an override of RLA rights, including rights claimed to arise

under labor contracts. 482 U.S. at 298.

The conclusion reached by the four concurring Jus-

tices in ICC v. BLE is exactly the one contemplated

by the Court in United States v. Lowden, 308 U.S.

225 (1939) (““Lowden’’). Lowden upheld the ICC’s au-

thority to impose labor protection when approving a

railroad consolidation, prior to enactment of the first

statutory requirement for such protection. As the

Lowden Court explained, protective arrangements

were appropriate in significant part because railroad

consolidations necessarily result in the abridgment of

rights previously held under existing labor agree-

ments:

[T]he Commission has estimated in its report

on the unification of the railroads that 75%

of the savings will be at the expense of rail-

road labor. Not only must unification result

in wholesale dismissals and extensive trans-

fers, involving expense to transferred em-

ployees, but in the loss of seniority rights

which, by common practice of the railroads

are restricted in their operation to those

members of groups who are employed at

specified points or divisions. It is thus ap-

parent that the steps involved in carrying out

the Congressional policy of railroad consoli-

dation in such manner as to secure the de-

sired economy and efficiency will unavoidably

subject railroad labor relations to serious

stress and its harsh consequences may so se-

riously affect employee morale as to require

their mitigation. ...

308 U.S. at 233. These inevitable effects on employees

justified the imposition of compensatory labor pro

tection as ‘‘an essential aid to the maintenance of a

service uninterrupted by labor disputes.” Jd. at 235-

36.

The application of § 11341(a) to all RLA-derived

rights is precisely what Congress intended. The leg-

islative record makes it clear that Congress has al-

ways understood that the Interstate Commerce Act’s

exemption provision will cause both the RLA and

agreements negotiated under that statute to yield to

the carrying out of an approved transaction.

Congress’ purpose is revealed dramatically and une-

quivocally in the Emergency Railroad Transportation

Act of 1933 (“ERTA”’). Title I of ERTA was tem-

porary legislation, ultimately of three years duration,

that responded to the extraordinary circumstances

created by the Depression. See generally St. Joe Paper

Co. v. Atlantic Coast Line R.R., 347 U.S. 298, 317

(1954).% Section 10(a) of ERTA Title I contained an

exemption fror “restraints or prohibitions by law,

State or Federal,” similar to that found in the Trans-

portation Act of 1920 (then 49 U.S.C. § 5(8)), to which

Congress added the limitation that

nothing herein shall be construed to repeal,

amend, suspend, or modify any of the re-

quirements of the Railway Labor Act or the

duties and obligations imposed thereunder or

through contracts entered into in accordance

with the provisions of said Act.

* Onginally enacted for one year, Title | was extended for

an additional year by Presidential proclamation, Proclamation

No. 2082 (May 2, 1934), and for a third year by Congress. S.J

Res. 112, 74th Cong.. Ist Sess.. 79 Cong. Rec. 9346 (1935)

48 Stat. at 215.” Quite plainly, there would have been

no need for this specific limitation if the exemption

provision, by its terms, did not reach the RLA and

labor agreements in the first place.

At the same time, Congress did not carve out a

special exception for the RLA or labor agreements

from the exemption from ‘‘all other restraints or pro-

hibitions by or imposed under authority of law, State

or Federal,’ contained in § 202(15) of the permanent

Title II of ERTA, which was an amendment to the

Interstate Commerce Act. That provision was sub-

stantially identical to the exemption provision found

in the 1920 Act.* It is this unqualified exemption

2 Title I of ERTA established a federal railroad coordinator

to encourage carriers to eliminate unnecessary expenses and

duplication of services. S. Rep. No. 87, 73rd Cong., 1st Sess. 1

(1933). The restrictive proviso quoted in text was the last part

of Section 10(a) of ERTA Title I, which otherwise provided:

The carriers or subsidiaries subject to the Interstate

Commerce Act, as amended, affected by any order of

the Coordinator or Commission made pursuant to this

title shall, so long as such order is in effect, be, and >

they are hereby, relieved from the operation of the

antitrust laws, as designated in section 1 of the Act

entitled ‘“‘An Act to supplement existing laws against

unlawful restraints and monopolies, and for other pur-

poses’, approved October 15, 1914, and of all other

restraints or prohibitions by law, State or Federal,

other than such as are for the protection of the public

health or safety, in so far as may be necessary to

enable them io do anything authorized or required by

such order made pursuant to this title: Provided, how-

ever, That nothing...

* Section 202(15) of ERTA Title I] provided:

The carriers and any corporation affected by any or-

provision, codified as 49 U.S.C. § 5(15), that was a

forerunner of § 11341(a). This Court has previously

recognized, in construing the reach of the exemption

provision, that differences between Title I and Title

II of ERTA “indicate an intentional distinction.”

Texas v. United States, 292 U.S. 522, 534 (1934) (con-

trasting the all-encompassing exemption contained in

§ 202(15) of Title II with a provision in Title I ex-

pressly guaranteeing that carriers would not be re-

lieved from contractial agreements to keep offices in

particular locations).

Congress reaffirmed its purpose in the Transpor-

tation Act of 1940, in two principal ways. First, Con-

gress reenacted (as 49 U.S.C. § 5(11)) the broad

exemption from “the operation... of all... re-

straints, limitations, and prohibitions of law, Federal,

State, or municipal... ,’’ without any exception for

the RLA or labor agreements.*' This provision was

der made under the foregoing provisions shal] be, and

they are hereby, relieved from the operation of the

“antitrust laws,’’ as designated in section 1 of the Act

entitled ‘“‘An Act to supplement existing laws against

unlawful restraints and monopolies, and for other pur-

poses,” approved October 15, 1914, and of all other

restraints or prohibitions by or imposed under au-

thority of law, State or Federal, insofar as may be

necessary to enable them to do anything authorized

or required by such order.

Emergency Railroad Transportation Act, ch. 91, tit. I], § 202(15),

48 Stat. 211, 219, codified as 49 U.S.C. § 515) (§ 15)’).

*! The 1940 Act also provided ‘additional proof,’’ if any were

needed, of Congress’ intent to grant the ICC an adequate ex-

emption power, by making the ICC's jurisdiction over transac

ticns “exclusive and plenary.’’ Seaboard Airline R.R. v. Danie’,

later recodified as § 11341(a), without substantive

change.

Second, Congress, in enacting the predecessor to

49 U.S.C. § 11347, which placed a statutory founda-

tion under labor protection, rejected a proposal known

as the Harrington amendment. Under the Harrington

amendment, consolidations would have been permitted

to occur only if all rights under the RLA and labor

agreements were preserved, and no jobs were lost;

the amendment proposed to bar the ICC from ap-

proving any transaction that would “result in un-

employment or displacement of employees of the

carrier or carriers, or in the impairment of existing

employment rights of said employees.”’ 84 Cong. Rec.

9882 (1939) (emphasis added). The Harrington amend-

ment essentially sought to return to the situation that

had existed under the temporary ERTA Title I. Be-

fore it expired, Title I of ERTA had both placed the

RLA and labor agreements outside the scope of its

exemption provision and also provided for a job

freeze;** the Harrington amendment echoed those pro-

visions. See Brotherhood of Maintenance of Way Em-

ployes v. United States, 366 U.S. 169, 173-76 (1961);

Railway Labor Executives’ Association v. United

States, 339 U.S. at 150 & n.13.

Congress rejected the Harrington amendment, just

as it earlier had chosen not to enact the ERTA Title

333 U.S. 118, 125 (1948).

In addition, the 1940 Act relieved the ICC of the responsibility

it had under the 1920 Act to promulgate a national consolidation

plan, and instead left “the power to initiate mergers and con-

solidations ... completely in the hands of the carriers.”’ St. Joe

Paper Co. v. Atlantic Coast Line R.R., 347 U.S. at 319.

* ERTA, ch. 91, tit. I, § 7(b), 48 Stat. 211, 214.

I restrictions as permanent legislation. Instead, Con-

gress enacted what became 49 U.S.C. § 5(2\f), the

predecessor to § 11347, requiring the ICC, in ap-

proving a transaction, to provide a “fair and equitable

arrangement to protect the interests of the [affected]

employees.”” The Harrington amendment had

introduced a new problem. Until it appeared,

there had been substantial agreement on the

need for consolidations, together with a rec-

ognition that employees could and should be

fairly and equitably protected. This amend-

ment, however, threatened to prevent all

consolidations to which it related.

Railway Labor Executives’ Association v. United

States, 339 U.S. at 151. The defeat of the Harrington

amendment confirmed Congress’ intent to permit rail-

roads to carry out approved transactions that cause

changes in existing labor agreements, but to ensure

that affected employees receive fair compensation un-

der the ICC’s protective cunditions. See id. at 147-

54; Norfolk & Western Ry. v. Nemitz, 404 U.S. 37,

42 (1971).

The Court of Appeals missed all of this and instead

narrowly directed most of its inquiry to the legiriative

history of the Transportation Act of 1920, 89-1027

Pet. App. 17a-18a, while professing itself unable to

find any iater suggestion that Congress meant to

bring collective bargaining agreements ‘within the

reach of the statute,’ 89-1027 Pet. App. 19a. The

Court of Appeals not only misread the history of the.

1920 Act,** but was obviously wrong in proceeding as

* It is evident, as the Court of Appeals noted (89-1027 Pet.

though § 11341(a)—which has been reenacted several

times over the past seventy years—is effectively cab-

App. 14a-17a), that when Congress enacted the exemption pro-

vision in 1920 (then codified as 49 U.S.C. § &(8)), it did so to

relieve consolidating carriers from the restraints of the federal

antitrust laws and of state corporation and transportation stat-

utes. But it is equally evident that had Congress meant the

exemption to apply only to those particular statutes, it would

not have enacted the provision it did, which broadly encompassed

“all other restraints or prohibitions by law, State or Federal,”

41 Stat. 482 (emphasis added). See Texas v. United States, 292

U.S. 522, 534-35 (1934); see generally Jefferson County Phar-

maceutical Association v. Abbott Laboratories, 460 U.S. 150, 159

n.18 (1983) (the absence of a specific ‘congressional focus is

immaterial where the plain language applies’’); United States v.

Bornstein, 423 U.S. 303, 309-10 (1976) (same).

The Court of Appeals also observed that Title III of the 1920

Act, ch. 91, 41 Stat. 456, 469, created a framework for the

regulation of collective bargaining in the railroad industry, and

suggested that it found nothing in the Act’s legislative history

to indicate that the exemption provision applied to Title III. 89-

1027 Pet. App. 18a, 23a. But the Court of Appeals has the

analysis backwards. The exemption provision, by its clear terms,

covered all restraints of federal law, and Title II] was indis-

putably a federal law. That the exemption provision did not

expressly refer to Title III does not demonstrate ambiguity, but

breadth. See generally United States v. Monsanto, 109 S. Ct.

2657, 2663 (1989) (“‘Congress’ failure to supplement [21 U.S.C.]

§ 853(a)’s comprehensive phrase—‘any property’—with an excla-

matory ‘and we even mean assets to be used to pay an attorney’

does not lessen the force of the statute’s plain language’’; em-

phasis in original). There is no basis—and certainly no need—

for looking beyond a statutory provision that is plain on its face

to see if Congress happened to repeat in the legislative history

what it unambiguously enacted as the law. If anything, the pres-

ence of Title III in the 1920 Act simply shows that the Congress

that enacted the exemption provision unquestionably knew that

the body of federal law included a statute governing relations

ined by the particular circumstances that Congress

confronted in 1920, see McLean Trucking Co. v. United

States, 321 U.S. 67, 78-79 (1944) (expansive language

of § 5(11) refutes contention that because motor car-

riers faced less severe economic circumstances in 1935

than did railroads in 1920, scope of § &(11) is nar-

rower for motor carriers than for railroads); Deutsch

v. Flannery, 883 F.2d 60, 62-63 (9th Cir. 1989)

(§ 11341(a) bars claims under Securities Exchange Act

of 1934). See generally Ngiraingas v. Sanchez, 58

U.S.L.W. 4504, 4506 (U.S. April 24, 1990) (No. 88-

1281) (‘successive enactments” of statute, “in con-

text,’’ indicate congressional intent).*

between labor and management in the railroad industry. The

significance of the legislative history of the 1920 Act in this

respect is that it does not reveal any congressional intent to

remove Title III from the coverage of the broad language of

what became § 5(8). See generally Consumer Product Safety Com-

mission v. GTE Sylvania, 447 U.S. 102, 108 (1980) (absent a

clearly expressed legislative intention to the contrary, language

of the statute must be regarded as conclusive).

Moreover, contrary to the Court of Appeals’ apparent belief

(89-1027 Pet. App. 18a, 23a), there is obviously no inconsistency

in Congress’ having enacted Title III and simultaneously made

it subject to the exemption provision. Title II] created a Railroad

Labor Board as a means for the peaceful settlement of labor

controversies between carriers and their employees. See Penn-

sylvania R.R. v. United States Railroad Labor Board, 261 U.S.

72, 79 (1923). The functions of the Labor Board were not tied

to the ICC’s authority over transactions; rather, they covered

ordinary day-to-da@ relations between labor and management.

The Labor Board, whose decisions were not supported by legal

sanction in any event, id. at 79-80, was empowered to carry

out its assigned functions except when to do so would conflict

with the carrying out of a railroad consolidation subject to § 5(8).

“The Court of Appeals also looked to the legislative history

In accordance with the dispositive legislative his-

tory, the courts of appeals, beginning with Brother-

hood of Locomotive Engineers v. Chicago & North

Western Ry., 314 F.2d 424 (8th Cir. 1963), affg 202

of the Railway Labor Act of 1926, but it misunderstood that

history as well. The court-mistakenly relied on Congress’ rejec-

tion, in 1926, of a proposed amendment to the bill that became

the RLA that would have permitted the ICC to suspend wage

agreements it believed were not in the public interest.

The Court of Appeals purported to find in language quoted

from a 1926 Senate Report—“ ‘tnere was a fundamental objec-

tion to making changes of a substantive nature in the agreement

which the parties had reached’ ’’—specific evidence of congres-

sional hostility to ICC interference with negotiated wage agree-

ments. 89-1027 Pet. App. 18a. But the quoted passage in fact

did not address this subject at all. The ‘‘agreement’’ to which

the Senate Report referred was not a negotiated wage agree-

ment (or such agreements in general), but, rather, the overall

agreement between management and labor as to what the RLA

as a whole should say. The quoted passage simply affirmed that

the new RLA should ratify, and not change the terms of, the

national legislative compact between management and labor. S.

Rep. No. 606, 69th Cong., Ist Sess. 6 (1926), reprinted in 1

Railway Labor Act of 1926, Legislative History at 100, 105 (M.

Campbell & E. Brewer, III, eds. 1988). See generally Interna-

tional Association of Machinists v. Street, 367 U.S. 740, 758

(1961).

What the Senate Report actually said about the proposed

amendment to the RLA bill was that it would embroil the ICC

in a “field of controversy’ and thereby impair the ICC’s effec-

tiveness. S. Rep. No. 606, at 6, reprinted in 1 Railway Labor

Act of 1926, Legislative History at 105. In any event, the pro-

posed amendment was not related to the ICC’s jurisdiction over

transactions, but would have given the ICC a roving commission

to suspend wage agreements generally. The amendment'’s rejec-

tion provides no evidence that Congress intended (either prior

to or after 1926) to exclude the RLA, and labor agreements

enforceable under it, from the reach of the exemption provision.

F. Supp. 277 (S.D. Iowa 1962), cert. denied, 375 U.S.

819 (1963) (“BLE v. C&NW”’’), have, until now, uni-

formly concluded that the exemption provision now

roy A § 11341(a) reaches all rights derived from

e :

In BLE v. C&NW, the Eighth Circuit held that

former § 5(11) exempted a railroad carrying out an

ICC-approved transaction from the assertion against

it of rights claimed under the RLA, including rights

based on collective bargaining agreements. 314 F.2d

at 426, 431-33. In that case, the union had argued

that § 5(11) ‘only purports to relieve the railroad of

‘restraints’ or ‘limitations’ or ‘prohibitions’ of law and

does not purport to relieve the railroad of its con-

tractual obligations’’—there, the railroad’s asserted

obligation to respect seniority rights arising by virtue

of certain labor contracts. 202 F. Supp. at 283. The

district court, citing Schwabacher, rejected the union’s

arguments. 202 F. Supp. at 284. The Eighth Circuit,

though not mentioning Schwabacher explicitly, af-

firmed the district court in all respects, explaining

that to hold otherwise ,“‘would be to disregard the

plain language of §5(11) conferring exclusive and

plenary jurisdiction upon the ICC to approve mergers

and relieving the carrier from all other restraints of

federal law.” 314 F.2d at 431-32. The Eighth Circuit

further reasoned that excluding RLA-derived rights

from the reach of the § 11341(a) exemption would

“threaten to prevent many consolidations,”’ 314 F.2d

at 431, and thereby produce the very result that Con-

gress had repudiated in 1940 by rejecting the Har-

rington amendment, id. at 430-31. Accord Missouri

Pacific R.R. v. United Transportation Union, 782

F.2d 107, 111-12 (8th Cir. 1986), cert. denied, 482

U.S. 927 (1987).*

All the other circuits to have considered the issue

have followed BLE v. C&NW in similarly concluding

that rights asserted under the RLA are subordinate

to the Interstate Commerce Act’s exemptive provi-

sion. Brotherhood of Locomotive Engineers v. Boston

& Maine Corp., 788 F.2d 794, 801 (1st Cir.), cert.

denied, 479 U.S. 829 (1986); Burlington Northern, Inc.

v. American Railway Supervisors Association, 503

F.2d 58, 62-63 (7th Cir. 1974) (per curiam), cert. de-

nied, 421 U.S. 975 (1975); Nemitz v. Norfolk & West-

ern Ry., 436 F.2d 841, 845-46 (6th Cir.), aff'd on other

grounds, 404 U.S. 37 (1971). In so deciding, none of

these courts distinguished between rights claimed un-

der the RLA and those claimed under labor agree-

ments enforceable through that statute. To the

contrary, these courts, like the four concurring Jus-

tices in ICC v. BLE, all treated these RLA-derived

rights as of a piece, never doubting that the exemp-

tion “from all other law’’ immunizes a railroad against

all RLA-based challenges to the carrying out of an

ICC-approved transaction.*

85 In a somewhat different context, the Eighth Circuit, without

reference to its own prior decisions and without any independent

analysis, has subsequently favorably cited the conclusion of the

Court of Appeals that the ICC purportedly lacks the power to

override the provisions of a labor agreement. Brotherhood of

Locomotige Engineers v. ICC, 885 F.2d 446, 449-50 (8th Cir.

1989).

% The circuit courts have reached similar results in cases aris-

ing in the airline industry, which is subject to the RLA, even

though the statutory scheme governing consolidations in that

industry did not contain an exemption provision comparable to

This same understanding of the reach of the

§ 11341(a) exemption has been a pillar of ICC regu-

lation for many years. The ICC explicitly stated as

long ago as 1974 that the exemption provision is ef-

fective to displace RLA-derived rights:

... RLEA’s assertion that the [NW merger

protective] agreement and the wages, rules,

and working conditions governed by the Rail-

way Labor Act may not be changed except

in accordance with the procedures prescribed

by that act is squarely refuted by the lan-

guage of section 5(11) of the Interstate Com-

merce Act which confers exclusive and

plenary jurisdiction upon this Commission to

approve mergers and relieve carriers from all

other restraints of Federal law. The Railway

Labor’ Act is a Federal act and is thereby

preempted by section 5(11). Thus the Com-

mission may relieve the railroad from the re-

quirements of that act insofar as is necessary

to carry into effect the transaction approved

pursuant to section 5(2).

§ 11341(a). Every court to consider the question held that the

RLA, and labor agreements entered into under it, must yield

to the Civil Aeronautics Board's authorization of a transaction.

subject to employee protective conditions. Jnternational Asso-

cuation of Machinists v. Northeast Airlines, Inc., 586 F.2d 975.

977 (ist Cir), cert. denied, 429 U.S. 961 (1976); International

Association of Machinists v. Northeast Airlines, Inc., 473 F.2d

549, 559-60 (1st Cir.), cert. denied, 409 U.S. 845 (1972): Amer-

wan Airlines, Inc. v. CAB, 445 F.2d 891, 896-97 (2d Cir. 1971),

cert. denied, 404 U.S. 1015 (1972); Kent v. CAB, 204 F.2d 263.

266 (2d Cir.) (“[a] private [labor] contract must yield to the

paramount power of the [CAB] to perform its duties under the

Statute creating it to approve mergers’’), cert. denied, 346 U.S.

826 (1953).

Norfolk & Western Ry. and New York, Chicago & St.

Louis R.R.—Merger, Etc., 347 1.C.C. 506, 511-12

(1974). When called upon to do so, the ICC elaborated

upon the basis for its position, reiterating its view

that § 11341(a) encompasses rights claimed under la-

bor agreements. E.g., Denver & Rio Grande Western

R.R.—Trackage Rights—Missouri Pacific R.R., Fi-

nance Docket No. 30,000 (Sub-No. 18), decision served

October 25, 1983, slip op. at 6 (“[t]o the extent that

existing working conditions and collective bargaining

agreements conflict with a transaction which we have

approved, those conditions and agreements must give

way to the implementation of the transaction’)

(“DRGW’’), appeal dismissed sub nom. ICC v. BLE,

482 U.S. 270 (1987). The interpretation of § 11341(a)

adhered to by the ICC in our case is fully in accord

with the ICC’s established jurisprudence;*’ that sta-

%*The Court of Appeals’ decision to remand the question

whether § 11341(a) extends to rights asserted under the RLA

for further explanation is premised on a misreading of the ICC’s

precedents and invokes no sound principle of administrative law.

The Court of Appeals mistakenly thought (89-1027 Pet. App. 22a)

that the ICC first took the position that § 11341(a) applies to

the RLA in 1983, in DRGW, and that this position deviated

~ without explanation from a position the ICC had adopted in 1967

in Southern Ry.—Control—Central of Georgia Ry., 331 1.C.C. 151

(1967) (‘Southern Control’). But neither point is true. As we

have just shown, the ICC had expressly said im 1974 that

§ 1134l(a) overrides RLA-derived rights. Norfolk & Western

Ry.and New York, Chicago & St. Louis R.R.—Merger, Etc., 347

1.C.C. 506, 511-12 (1974). Moreover, the Court of Appeals’ read

ing of Southern Control ignores that the whole point of that

decision was to make clear that employees could not invoke RLA

rights in connection with the carrying out of an approved trans

action. 331 1.C.C. at 162-64, 171. Indeed, the ICC observed that,

if not displaced, the RLA “would seriously impede mergers.”

tutory interpretation is not only permissible, but

clearly correct. It is entitled to deference. Chevron

U.S.A., Inc. v. National Resources Defense Council,

467 U.S. 837, 842-43 (1984).

The restrictive reading of § 11341(a) adopted by the

Court of Appeals defies history, decades of clear leg-

islative intent, and the previously uniform understand-

ing of the courts and the ICC; its application would

defeat the purpose that the exemption provision is

intended to serve. The scope of the § 11341(a) ex-

emption must be measured by Congress’ aim of pro-

moting economy and efficiency in _ interstate

transportation. Texas v. United States, 292 U.S. at

534-35. See Escanaba & Lake Superior R.R. v. United

States, 303 U.S. 315, 320 (1938) (provisions in Trans-

portation Act of 1920 governing consolidations “are

to be given liberal construction in aid of the purposes

Congress had in mind’’). There can be no doubt that

a requirement of unquestioned adherence to existing

labor agreements—or a requirement that approved

transactions not be implemented until the RLA § 6

procedures for the negotiation of changes in existing

agreements have been exhausted—would stifle the

Id. at 171.

Following the decision of the Court of Appeals, the ICC in-

itially professed to accept the court's instruction that the

§ 11341(a) exemption does not reach labor agreements. Bran-

dyuine Valley R.R.—Purchase—CSX Transportation, Inc., 5

1.C.C.2d 764, 772 n.5 (1989), appeal docketed, No. 89-1503 (D.C.

Cir. Aug. 21, 1989). Because the Court of Appeals was wrong,

the ICC’s initial acquiescence in the court's holding has no force.

Moreover, in subsequent administrative proceedings in which no

forma! decisions have yet been rendered, the ICC has apparently

receded from its initial position in Brandywine

continuing implementation of already-approved rail-

road consolidations and the undertaking of new ones.

Indeed, under the Court of Appeals’ decision, labor

unions would effectively be given the right to exercise

the power of veto over the carrying out of transac-

tions the ICU has approved as in the public interest.

That the Court of Appeals understood it was extend-

ing this power to unions is demonstrated by the

Court’s own laconic suggestion that NW and Southern

might now simply prefer to undo the transfer of power

distribution work at issue here in light of the court’s

holding that § 11341(a) is not effective to “set aside’’

any agreements that ‘‘ ‘would have prevented the con-

solidation from going forward.’”’ 89-1027 Pet.

App. 25a.

Other courts of appeals and the ICC have long rec-

ognized that unless a railroad seeking to carry out

an approved transaction is exempt from the assertion

against it of rights claimed under the RLA, achieve-

ment of the national purpose of facilitating consoli-

dations would be frustrated. Obviously, if an existing

collective bargaining agreement contains terms that

restrict a consolidation of work that implements an

approved transaction, strict compliance with those

terms will impede (if not thwart entirely) the carrying

out of the transaction.

Resort to the RLA §6 process for changing agree-

ments would not provide an answer. The RLA’s pro-

cedures are ‘‘purposely long and drawn out,”’

Brotherhood of Railway & Sieamship Clerks v. Flor-

ida East Coast Ry., 384 U.S. 238, 246 (1966), and

exhaustion of them is “‘an almost interminable proc-

ess,’ Detroit & Toledo Shore Line R.R. v. United

Transportation Union, 396 U.S. at 155. Moreover,

the point of the RLA is precisely not to force parties

to agreement. Under the RLA, unless both parties

voluntarily agree to arbitration, “‘no authority is em-

powered to decide the dispute.”’ Elgin, Joliet & East-

ern Ry. v. Burley, 325 U.S. at 725.% Accordingly, if

rights can be asserted under the RLA, consolidations

will inevitably be threatened, for it would then be

“possible for either party to completely block an;

change in working conditions by refusing to agree to

a change and refusing to agree to arbitrate.” BLE

v. CaNW, 314 F.2d at 431; accord Nemitz v. Norfolk

& Western Ry., 436 F.2d at 845; Maine Central R.R.,

et al.—Exemption, Finance Docket No. 30532, decision

served September 13, 1985, slip op. at 7 (since, under

the RLA, “there is no mechanism for insuring that

the parties will arrive at agreement, there can be no

assurance that the approved transaction will ever be

effected”’), affd mem. sub nom. Railway Labor Ex-

ecutives’ Association v. [CC, 812 F.2d 1443 (D.C. Cir.

1987); DRGW, slip op. at 6 (if ICC approval “did not

include authority for the railroads to make necessary _

changes in working conditions, subject to payment of

specified benefits, our jurisdiction to approve trans-

actions requiring changes of the working conditions

of any employees would be substantially nullified’’)

" Under section 6 of the RLA, 45 U.S.C. § 156, a party pro-

posing to change “rates of pay, rules, or working conditions,”

must give notice to the other side and then negotiate over the

proposed changes. If agreement is not reached, the process con-

tinues through mediation, voluntary arbitration, and conciliation.

Throughout the process, the status quo must be maintained. The

parties are not compelled to agree, however, and if in the end

they cannot, they are free to resort to self-help. Consolidated

Rail Corp. v. Railway Labor Executives’ Association, 109 S. Ct.

2477, 2480 (1989).

Until now it has been thought “‘inconceivable,”’ Mis-

souri Pacific R.R. v. United Transportation Union,

782 F.2d at 112, that § 11341(a) should be read so

as to preserve to labor the ability to veto the carrying

out of a transaction the ICC has found to be in the

public interest. That unsurprising conclusion directly

reflects the intent of Congress, which has twice ex-

plicitly denied such power to labor;** it is inherent in

this Court’s decision in Lowden and has been explic-

itly endorsed by the four concurring Justices in JCC

v. BLE. The contrary holding of the Court of

Appeals is wrong.

8° At the same time, Congress has ensured that the interests

of railroad employees are protected in consolidation transactions

notwithstanding the operation of § 11341(a). Congress has in-

structed the-I€C to consider ‘‘the interests of carrier employees

affected by the proposed transaction,”’ 49 U.S.C. § 11344(bX1XD),

when considering a proposed merger or consolidation and, in

§ 11347, has mandated labor protective conditions to provide

compensation for the changes in work arrangements that, as

this Court recognized in Lowden, inevitably result from consol-

idations and related transactions. The ‘fair arrangement”’ now

mandated by § 11347 includes wage protection for up to six

years; and the ICC may, if circumstances warrant, impose a

greater level of protection in favor of employees. Finally, the

§ 11341(a) exemption operates only as necessary to permit the

carrying out of an approved transaction.

“ Nothing in Pittsburgh & Lake Erie R.R. v. Railway Labor

Executives’ Association, 109 S. Ct. 2584 (1989), is to the con-

trary. That case involved a sale of rail assets to a newly formed

“noncarrier” entity carried out under 49 U.S.C. § 10901. The

transaction was not covered by the provisions of the Interstate

Commerce Act governing consolidations of rail carriers, and the

§ 11341(a) exemption did not apply. Further, the transaction was

similarly not subject to § 11347, and no labor protective con-

ditions were imposed.

B. Congress Did Not, In 1976 Legislation, Render

§ 11341(a) Inapplicable To RLA-Derived Rights.

Respondent ATDA predictably will contend, as it

did below, that even if the forerunners of § 11341(a)

were once effective to displace RLA-derived rights,

Congress nullified the applicability of § 11341(a) to the

RLA in 1976—by amending the predecessor to

§ 11347. Such a contention would lack all merit.

Section 402(a) of the Railroad Revitalization and

Regulatory Reform Act of 1976 (““4R Act’’), Pub. L.

No. 94-210, § 402(a), 90 Stat. 31, 62, amended 49

U.S.C. § 5(2\f) (recodified in 1978 without substantive

change as § 11347) to require that a carrier engaging

in a transaction approved or exempted by the ICC

provide a “fair arrangement’’ for its employees con-

taining provisions ‘“‘no less protective of the interests

of employees than those heretofore imposed pursuant

to [§ 5(2\f)] and those established pursuant to section

405 of the Rail Passenger Service Act (45 U.S.C. -

§ 565) [the Amtrak Act].’’ 90 Stat. 62. The protection

afforded to employees pursuant to the Amtrak Act,

- in turn, refers to the so-called ‘“‘Appendix C-1” con-

ditions adopted by the Secretary of Labor in 1971

under that statute. New York Dock Ry. v. United

States, 609 F.2d 83, 94 (2d Cir. 1979). ATDA has

professed to see, in the incorporation of the Appendix

C-1 conditions by reference in § 11347, a congres-

sional directive that all existing collective bargaining

agreements be preserved—unless employee consent to

change is obtained through the RLA § 6 process—

when railroads attempt to engage in transactions to

which the protective conditions apply. ATDA is wrong.

First, the four concurring Justices in JCC v. BLE

have already rejected the proposition that the amend-

f § 11347 in the 4R Act somehow removed the

RLA bs the scope of the § 11341(a) exemption. At

least one of the union respondents in ICC v. BLE

made exactly this argument, Brief of Respondent

United Transportation Union, ICC v. BLE, at pp. 45-

50; see 482 U.S. at 295 (‘‘[t]he unions argued that . .

certain provisions of the Interstate Commerce Act

gave employees the right to perform particular work)

(Stevens, J., concurring), and the concurring Justices

necessarily found it wanting in concluding» that

§ 11341(a) is effective to displace RLA-derived rights.

ATDA’s contentions are further belied by the deci-

sions of the courts of appeals, since 1976, holding

that § 11341(a) immunizes a carrier from all RLA-

based claims, as necessary to permit it to carry out

the transaction. Railway Labor Executives Associa-

tion v. Guilford Transportation Industries, Inc., 843

F.2d 1383 (1st Cir. 1988) (per curiam), affg 667 F.

Supp. 29 (D. Me. 1987), cert. denied, 109 S. Ct. 3213

(1989); Brotherhood of Locomotive Engineers v. Boston

& Maine Corp., 788 F.2d at 801; Missourt Pacific

R.R. v. United Transportation Union, 782 F.2d at

111-12.

her, the policy animating the 4R Act precludes

‘on pene of 2 1976 nullification of § 11341(a). a

s designed the 4R Act “to encourage mergers,

pase and joint use of facilities that tend to

rationalize and improve the Nation’s rail system|.]

S. Rep. No. 499, 94th Cong., 1st Sess. 20 (1975),

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

34; see Pittsburgh & Lake Erie R.R. v. Railway Labor

Executives’ Association, 109 S. Ct. at 2596-97. Forc-

ing a railroad desiring to carry out an approved trans-

action to abide by all the terms of existing

agreements, or to exhaust the protracted RLA §6

procedure for changing them, would severely interfere

with transactions and thereby retard the very policy

Congress was hoping to advance. See generally FTC

v. Fred Meyer, Inc., 390 U.S. 341, 349 (1968) (court

“cannot, in the absence of an unmistakable directive,

construe [a statute] in a manner which runs counter

to the broad goals Congress intended to effectuate’’).

Moreover, the Appendix C-1 conditions themselves

never had the expansive meaning that ATDA would

now wrongly read into them. ATDA’s contention de-

pends on the language in Article I, §2 of the Ap-

pendix C-1 conditions, directing that rights under

collective bargaining agreements be preserved,*! which

ATDA asserts must, by congressional mandate, now

be included in any protective conditions the ICC im-

poses under § 11347. But the terms contained in

Art. 1, § 2 of Appendix C-1 are of limited and specific

scope, and certainly do not erect a barrier to the

application of § 11341(a) to the RLA.

The Appendix C-1 requirement applied only to the

railroads contracting with Amtrak, not to Amtrak it-

“ Article 1, §2 of the Appendix C-1 conditions provides:

The rates of pay, rules, working conditions and all

collective bargaining and other rights, privileges and

benefits (including continuation of pension rights and

benefits) of the railroad’s employees under applicable

laws and/or existing collective bargaining agreements

or otherwise shal] be preserved unless changed by

future collective bargaining agreements or applicable

Statutes.

This provision now also appears as Article I, §2 of the New:

York Dock conditions. New York Dock Ry.—Control—Brooklyn

Eastern District Terminal, 360 I.C.C. at 84.

self, e.g., Baker v. System Federation No.1, 331

F. Supp. 1363, 1365-66 (E.D. Pa. 1971), reflecting the

particular way in which Amtrak assumed operation

of passenger train service. Initially, most of the rail-

roads contracted to provide passenger service for Am-

trak using their own employees.” Article I, § 2 of the

Appendix C-1 conditions therefore had the unremark-

able effect only of requiring, for example, that the

labor agreements of Penn Central Transportation

Company continue in effect when Penn Central per-

formed services under contract for Amtrak. Later on,

when Amtrak began to operate using its own em-

ployees, the Appendix C-1 conditions did not require

Amtrak to assume the Jabor agreements that had been

in effect on the railroads on which Amtrak employees

formerly worked.* To the contrary, the Appendix C-

“ Section 305 of the original Amtrak Act, Pub. L. No. 91-

518, 84 Stat. 1327 (1970) contemplated this arrangement. The

Amtrak Improvement Act of 1973, Pub. L. No. 93-146, 87 Stat.

548 (1973) removed this provision, reflecting Congress’ intent

that Amtrak convert to a scheme in which it would directly

operate and control its service. S. Rep. No. 226, 98d Cong., Ist

Sess., reprinted in 1973 U.S. Code Cong. & Ad. News 2324,

2325.

* At that juncture, Congress amended the Amtrak Act to

reaffirm this point:

Upon commencement of operations in the basic sys-

tem, the [employee protection] requirements... shal!

apply to [Amtrak]... except that nothing in this sub-

section shall be construed to impose upon [Amtrak]

any obligation of a railroad with respect to any right,

privilege, or benefit earned by any employee as a re-

sult of prior service performed for such railroad.

Pub. L. No. 92-316, §7, 86 Stat. 227, 230 (1972) (codified at

45 U.S.C. § 565). The accompanying Senate Report explained

1 conditions were predicated on the understanding

that employees moving to Amtrak would not take

their former labor agreements with them. The pro-

tection available for these employees was compensa-

tion, not a guarantee of ‘‘frozen’’ job conditions.“

ATDA would transform this circumscribed provision

into a blanket preservation of existing labor agree-

ments and RLA negotiating rights in connection with

ICC-approved consolidations that present circumstan-

ces bearing no resemblance to those in which Article I,

§ 2 of the Appendix C-1 conditions itself applied. In

effect, ATDA contends that in a statutory amendment

expressly adopting language of continuity, not change,

Congress reversed its long established course and en-

that the amendment was “designed to remove the fear... that

Amtrak would have to assume all the obligations incurred by

the railroads for those railroad employees who are later em-

ployed by Amtrak.’”’ S. Rep. No. 756, 92d Cong., 2d Sess., re-

printed in 1972 U.S. Code Cong. & Ad. News 2393, 2399.

“ Certainly the labor unions have never treated the language

of Art. I, §2 of the Appendix C-1 conditions as conferring the

extraordinary rights that ATDA now purports to find there. The

unions unsuccessfully challenged the Appendix C-1 conditions,

claiming that they failed to meet the requirement of § 405 of

the Amtrak Act that employees be afforded benefits not “‘less

than those established pursuant to section i(2\f) of the Inter-

state Commerce Act,” because the C-1 conditions established a

procedure for the negotiation or, failing that, arbitration of im-

plementing agreements that did not require that consummation

of the transaction be deferred until] an agreement had been

reached. Congress of Railway Unions v. Hodgson, 326 F. Supp.

68 (D.D.C. 1971). In challenging the conditions, the unions did

not suggest that employees already possessed, by virtue of the

RLA, the far more potent right to require that, prior to con-

summation, railroads negotiate an agreement with the unions

governing the terms of a transaction’s implementation in ac-

cordance with RLA § 6.

acted, sub silentio,“ the Harrington amendment and

the been found

——

court, o

— a had

only in the temporary ERTA Title I. That

the 4R Act has never never been adopted by any

the ICC, and it is incorrect.

CONCLUSION

For the foregoing reasons, the decision of the Court —

of Appeals should be reversed.

Respectfully submitted,

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

May 25, 1990

“ The provision of the 4R Act amending § 5(2\f) was a “last

minute addition to the statute” without specific legislative his-

tory. New York Dock Ry. v. United States, 609 F.2d at 93.

Congress’ “silence is most eloquent, for such reticence while

contemplating an important and controversial change in existing

law is unlikely." Edmonds v. Campagnie Generale Transatlan-

tique, 443 U.S. 256, 266-67 (1979).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.