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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 117

## Text

No. 89-1027

IN THE

Supreme Court of the GAnited States”

OCTOBER TERM, 1989

NORFOLK AND WESTERN RAILWAY COMPANY, et al.,
Petitioners,
We

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

iv

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 —
4
:
4
}

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. 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).

5

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.

10

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-

1]

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.

12

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).

13

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-

14

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

15

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).

16

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
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-

29

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’,

30

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.

31

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.

32

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

33

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

34

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.

35

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

36

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

37

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).

38

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.”

39

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

40

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,

41

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).

42

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.

43

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-

44

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

45

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.

46

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

47

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).

oe
.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0696%3A10. Public record. Not legal advice.