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

v. Petitioners,

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al.,

Respondents.

CSX TRANSFORTATION, INC.,

v. Petitioner,

BROTHERHOOD OF RAILWAY CARMEN, et al.,

Respondents.

On Writs of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

BRIEF FOR THE

NATIONAL RAILWAY LABOR CONFERENCE

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONERS

RICHARD T. CONWAY

(Counsel of Record)

RALPH J. Moore, JR.

D. EUGENIA LANGAN

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

DAVID P. LEE

Vice Chairman and

General Counsel

National Railway

Labor Conference

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for the National

Railway Labor Conference

May 25, 1990 as Amicus Curiae

senses

WILSON - erte Printinc Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

ig

— eA.

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ii

TABLE OF AUTHORITIES

Cases:

Andrews V. Louisville & Nashville R. Co., 406 U.S.

320 (1972)

Page

Broth. of Loco. Engineers v. Boston & Maine Corp.,

788 F.2d 794 (Ist Cir. 1986), cert. denied, 479

761 F.2d 714 (D.C. Cir. 1985), rev’d on other

grounds, 482 U.S. 270 (1987)

Brotherhood of Loc. Eng. v. Chicago & North West-

ern Ry. Co., 314 F.2d 424 (8th Cir. 1963), cert.

denied, 375 U.S. 819 (1963) *

Brotherhood of Ry. Carmen v. I. C. C., 880 F.2d 562

Mc

Brotherhood Ry. Carmen v. CSX Transp., Inc.,

855 F. 2d 745 (11th Cir. 1988), cert. denied, 57

eA A fs es oe aby

Bundy v. Penn Central Co., 455 F.2d 277 (6th Cir.

eee — AA

Burlington Northern, Inc. v. American Ry. Super.

Ass’n, 503 F.2d 58 (7th Cir. 1974), cert. denied,

eS iri eae

Burlington Northern v. Maintenance Employes,

e ee

California v. American Stores Company, 58 U.S.

e \iteateh oe -

California v. Taylor, 353 U.S. 553 99

CSX Corp. Control Chessie and Seaboard C. L. I.

AA es a ie

Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711

(1945), on rehearing, 327 U.S. 661 (1946)

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

Hodge v. Evans Financial Corp., 707 F.2d 1566

Gal, A es RS

ICC v. Locomotive Engineers, 482 U.S. 270 (1987) ..

International Broth. of Elec. Workers v. J. C. C., 862

F. a 380 (D.C. Cir. 1000)

Kaiser Aluminum & Chemical Corporation v.

Bonjorno, 58 U. S.L. W. 4421 (199)

11

10

iii

TABLE OF AUTHORITIES—Continued

Martin v. Equitable Life Assur. Soc. of U.S., 553

Z — —

Missouri Pacific R. Co. v. United Transp. Union,

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

r ̃è ...

Nemitz v. Norfolk and Western Railway Co., 436

F.2d 841 (6th Cir. 1971), aff'd, 404 U.S. 37

MGS EL Se a

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

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

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

. iD

Railroad Trainmen v. Terminal Co., 394 U.S. 369

RE a SEES SSE or oe a ee

Ry. Labor Executives v. Guilford Transp. Indus.,

667 F. Supp. 29 (D. Me. 1987), aff’d (table),

843 F.2d 1383 (1st Cir. 1988), cert. denied, 57

V Se

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

, EI

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

SNES te i

Standard Oil Co. v. United States, 221 U.S. 1

D ee

Teamsters Union v. Oliver, 358 U.S. 283 (1959)

Texas & N.O. Ry. v. Brotherhood of Railroad

Trainmen, 307 F.2d 151 (5th Cir. 1962), cert.

denied, 371 U.S. 952 (1968)

United Transp. Union v. Norfolk and Western R.

Co., 822 F.2d 1114 (D.C. Cir. 1987), cert. denied,

I

United States v. American Tobacco Co., 221 U.S.

F èÄTÄÄ?AUn !

Statutes:

Interstate Commerce Act, 49 U.S. C.:

eme

2 — — —— —

Page

10

11

1112

7, 8

iv

TABLE OF AUTHORITIES—Continued

Page

r ee ee oe 2

„„. ans 2

Railway Labor Act, 45 U.S.C. 88 151 et 22 passim

Miscellaneous:

Burgoon, Mediation under the Railway Labor Act,

included in The Railway Labor Act at Fifty

e 10

Seniority Practices Railroad Operating Employ-

ees and Other Industries, App. Vol. III to Re-

port of the Presidential Railroad Commission

l..

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

Nos. 89-1027 and 89-1028

NORFOLK AND WESTERN RAILWAY COMPANY, et al.,

1 Petitioners,

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al.,

Respondents.

CSX TRANSPORTATION, INC.,

1 Petitioner,

BROTHERHOOD OF RAILWAY CARMEN, et al.,

Respondents.

On Writs of Certiorari to the United States Court

of Appeals for the District of Columbia Circuit

BRIEF FOR THE

NATIONAL RAILWAY LABOR CONFERENCE

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONERS

This amicus brief is being filed with the written con-

sent of the parties pursuant to Supreme Court Rule 37.3.

STATEMENT OF THE CASE

Under §11343 of the Interstate Commerce Act

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

of control involving two or more rail carriers (herein-

after generally referred to as “consolidations”) “may be

carried out only with the approval and authorization of

the” Interstate Commerce Commission (“ICC” or “Com-

mission”). 49 U.S.C. § 11843. Under § 11344, when con-

sidering such a proposed transaction, the ICC must bal-

ance a number of factors, including “the interest of car-

rier employees affected by the proposed transaction,” and

“shall approve and authorize” the transaction if “con-

sistent with the public interest.“ 49 U.S.C. § 11344. And,

under § 11347, the ICC in approving such a transaction

“shall require” a rail carrier involved in the transaction

“to provide a fair arrangement . . . protective of the in-

terests of employees” as is discussed more fully below.

49 U.S.C. § 11347. Section 11341(a) provides that the

ICC’s “authority” under those provisions “is exclusive,”

and that each participant in an approved transaction “is

exempt from the antitrust laws and from all other law,

including State and municipal law, as necessary to let

that person carry out the transaction... . 49 U.S.C.

§ 11341 (a).

The basic issue in“these cases is whether that exemp-

tion from “all other law” applies to provisions of collec-

tive bargaining agreements, otherwise enforceable under

the Railway Labor Act (“RLA”), 45 U.S.C. 88 151 et

seq., that if enforced would impede the “carrying out” of

an approved transaction. That issue arises out of applica-

tions of employee protection arrangements, imposed by

the ICC upon petitioners under § 11347 of the ICA in

approving acquisitions of control over the components of

what are now the CSX and the Norfolk Southern rail

systems.

In each case, the ICC imposed the so-called New York

Dock employee protections that it normally imposes in

approving consolidations. In general, an employee ad-

versely affected by implementation of the transaction is

assured . of compensation comparable to that received

1 See New York Dock Ry.—Control—Brooklyn E. Dist. Terminal,

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

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

*

prior thereto for up to six years thereafter, indexed in

accordance with general wage increases. An employee

required to move is reimbursed for moving expenses and

for loss incurred in the sale of home or cancellation of a

lease. See 360 JI. C. C. at 84-90. The carrier’s quid pro

quo is that it may rearrange work and employee forces,

pursuant to an implementing agreement or arbitration

award under Art. I, § 4, even if that would not be per-

missible under collective bargaining agreements. The

carrier must give advance notice of a contemplated im-

plementation that “may cause the dismissal or displace-

ment of any employees, or rearrangement of forces. ;

the carrier and employee representatives negotiate upon

an implementing agreement that “shall provide for the

selection of forces from all employees involved on a basis

„ appropriate for application in the particular case

. .’; and, if no agreement is reached, either may sub-

mit the matter to arbitration. The contemplated change

in “operations, services, facilities, or equipment” cannot

take place until after such implementing agreement or

arbitration award is had and “any assignment of em-

ployees made necessary” as a result “shall be made on

the basis” provided therein. See 360 I.C.C. at 85.

In these cases, the ICC upheld (with some revision in

one case) arbitration awards under Art. I, § 4, of New

York Dock. The ICC concluded that the proposed im-

plementations were a carrying out of the transactions it

approved; and that such implementations appropriately

may include both transfers of work and transfers of

employees even if inconsistent with a collective bargain-

ing agreement or the RLA. See CSX Corp.—Control—

2 The ICC has exclusive jurisdiction to review arbitration awards

under employee protection arrangements it imposes. See, €.9.,

Brotherhood Ry. Carmen v. CSX Tranep., Inc., 855 F.2d 748. 748-

749 (11th Cir. 1988), cert. denied, 57 U.S. EN 3543 (1989) Inter-

national Broth. of Elec. Workers v C. 2 F.2d 330 (D.C. Cir.

1988); United Transp. Union v. Norfolk and Western R. Co,, 822

F.2d 1114 (D.C. Cir. 1987), cert. denied, 484 U.S. 1006 (1988).

4

Chessie and Seaboard C. L. I., 4 I. C. C. 2d 641, 648-650

(1988). As stated by the Commission in its unpublished

opinion regarding the Norfolk Southern coordination:

“. . . [T]here can be no assurance that post-

consummation coordinations contemplated as part of

the transaction [approved by the ICC] could ever be

accomplished if RLA dispute resolution mechanisms

were followed. Thus, the [arbitration] panel cor-

rectly found. .. that terms of the Commission’s

order, and specifically the compulsory, binding arbi-

tration required by Article I, section 4 of New York

Dock, took precedence over RLA procedures whether

asserted independently or based upon existing col-

lective bargaining agreements... . Moreover, an

action taken under our control authorization is im-

munized from conflicting laws by section 11341(a)

lof the ICA]. ... The proposed transfer is

one of the future coordinations and public benefits

expected to flow from, and is therefore part of, the

control transaction that we approved.” Pet. in No.

89-1027 at 35a (citations omitted).

The Court of Appeals reversed because, in its view,

§11341(a) of the ICA “does not grant the ICC its

claimed power to override provisions of a” collective bar-

gaining agreement. Brotherhood of Ry. Carmen v. J. C. C.,

880 F.2d 562, 574 (D.C. Cir. 1989). In exempting the

carrying out of approved transactions from “the anti-

trust laws and from all other law,” § 11341(a) does not

“say that the ICC may also override contracts” (id. at

567); and “Congress focused nearly exclusively, in the

hearings and debates . . , on specific types of laws it

intended to eliminate—all of which were positive enact-

ments, not common law rules of liability, as on a con-

tract” (id. at 570).

The court below declined to consider whether that

immunity provision . . . may operate to override provi-

sions of the RLA” (id. at 570), since, among other

things, in “light of our holding that § 11341(a) does not

OO ²— ˙—h —˙ eae Pr

r en mn

5

empower the ICC to override a [collective bargaining

agreement], it is unclear what are the consequences, if

any, of its rulings that the carriers need not comply with

the RLA” (id. at 572). Thus, it remanded the cases to

the ICC “to determine whether there is any live RLA

issue remaining” (id. at 573); and, also, to reconsider

its “theory that the labor protective conditions required

by § 11347 of the Act are exclusive,” and “its related

assertion .. that §4 [Art. I] of the New York Dock

conditions gives the arbitration committee the ‘absolute

right’ to effectuate the transfer of employees, and to

override any contrary provision of a” collective bargain-

ing agreement (ibid.).

INTEREST OF AMICUS CURIAE

The National Railway Labor Conference (“NRLC”) is

an unincorporated association which includes most of the

nation’s major railroads (including petitioners) among

its members. The NRLC represents members in multi-

employer collective bargaining under the RLA and with

respect to other labor relations issues of general concern

to the railroad industry, including those arising in liti-

gation before the courts.

As we shall show in our Argument, the Congress since

1920 has encouraged railroad consolidations to further

the public interest in more economical and efficient rail

service. Most of the major railroad systems are the prod-

uct of past consolidations, some of which have yet to be

fully consummated, and congressional policy continues

to favor further such transactions. However, if the com-

ponent parts, and their respective work forces, cannot in

fact be consolidated insofar as inconsistent with a collec-

tive bargaining agreement, unless and until such agree-

ment is changed in accordance with the RLA, a true con-

solidation will be impracticable if not impossible.

It is still generally true, as it was when United States

v. Lowden, 308 U.S. 225 (1939), was decided, that the

6

seniority rights of railroad employees “are restricted in

their operation to those members of groups who are em-

ployed at specific points or divisions.” Jd. at 233. An

employee can neither exercise seniority to transfer to

another seniority district nor be reassigned thereto by

the carrier. If an employee voluntarily accepts employ-

ment in another seniority district, his seniority therein

dates from that time so that he commences at the bot-

tom of the seniority roster.“

The significance of this in a merger situation perhaps

can best be illustrated by a hypothetical example. As-

sume that an operation on component A utilizing 50 em-

ployees is consolidated into a like operation on component

B utilizing 100 employees, and that the consolidated

operation requires 125 employees at the outset. If the

seniority rules can be overridden, an implementing

agreement or award determines how the 125 active em-

ployees from the 150-man combined workforce are se-

lected and their seniority rights accommodated; the other

25 are furloughed, until recalled to work because of in-

creasing business or attrition of more senior employees,

and paid their guaranteed compensation for up to six

years. If those rules cannot be overridden, it is unlikely

that the 50 employees at A will accept an offer to work

at B. If they remain at A, they will be entitled to guar-

anteed compensation for six years without working, and

they would have bottom seniority if they move to B. In

short, instead of working 125 experienced employees and

paying a protective allowance to no more than 25, the

carrier might have to hire 25 new employees to work

with the 100 already employed at B and pay the protec-

tive allowance to all 50 that worked at A for up to six

years.

Thus, if the seniority rules cannot be overridden, an

actual consolidation could well mean that the carrier

8 See, e.g., Seniority Practices—Railroad Operating Employees and

Other Industries, App. Vol. III to Report of the Presidential Rail-

road Commission (1962) at 227, 230-235.

7

for years would pay a significantly greater number of

employees (many of whom would not be working) than

if such consolidation is not effectuated, while utilizing a

less experienced work force. Moreover, collective bar-

gaining agreements often include scope rules or other

provisions that the unions contend prevent a transfer

of work from one component of the system to another.

Such a contention was upheld by the arbitrator in the

CSX proceedings involved in these cases, which could

have barred the transfer of any work unless, as the

arbitrator determined with the approval of the ICC, the

implementing aw-rd overrides that limitation.“

If implementations of approved consolidations must be

delayed until the unions agree in bargaining under the

RLA, or the carriers have exhausted the “major dis-

pute” procedures governing such bargaining, the unions

could substantially delay and as a practical matter likely

could prevent such implementations at any time. As this

Court has observed, those procedures are notoriously

“long and drawn out“ and “almost interminable.”* In

In view of that ruling, the ICC did not reach the issue of

whether the arbitrator’s interpretation of the agreement was errone-

ous as the carrier contends. See 4 I.C.C.2d at 647, 649-650.

5 Railway Clerks v. Florida E.C. R. Co., 384 U.S. 238, 246 (1966) ;

Shore Line v. Transportation Union, 396 U.S. 142, 149 (1969). See,

also, Burlington Northern v. Maintenance Employes, 481 U.S. 429,

444 (1987) (“virtually endless”). The major dispute procedures are

succinctly outlined, in Railroad Trainmen v. Terminal Co., 394 U.S.

369, 378 (1969), as follows: A party desjring to effect a change of

rates of pay, rules, or working conditions must give advance written

notice. § 6. The parties must confer, § 2 Second, and if conference

fails to resolve the dispute, either or both may invoke the service of

the National Mediation Board, which may also proffer its services

sua sponte if it finds a labor emergency to exist. § 5 First. If media-

tion fails, the Board must endeavor to induce the parties to submit

the controversy to binding arbitration, which can take place, how-

ever, only if both consent. §§5 First, 7. If arbitration is rejected

and the dispute threatens ‘substantially to interrupt interstate com-

merce to a degree such a: to deprive any section of the country of

the NRLC’s experience, they often require two or more

years to exhaust. And if exhausted without an agree-

ment, the unions can resort to primary strikes and to

secondary picketing extending to the carriers nation-

wide.“ Hence, the NRLC urges this Court to reverse

the decision below. Otherwise, the efficiencies and econo-

mies that Congress anticipates from railroad consolida-

tions seldom could be realized in fact.

SUMMARY OF ARGUMENT

In holding that the exemption from “all other law” is

inapplicable to railroad collective bargaining agreements,

without considering whether that exemption is applicable

to the RLA, the Court of Appeals misconceived the rela-

tionships between such agreements and the RLA. The

agreements are made and enforced under the RLA to

which the plain terms of the exemption apply even if, as

the court below erroneously concluded, it is not applicable

to common-law obligations.

ARGUMENT

The Court of Appeals considered railroad collective

bargaining agreements to be enforceable under the com-

mon law, and concluded that the exemption in § 11341(a)

of the ICA from “all other law“ does not extend to such

common-law obligations. It held that the exemption does

not provide a basis for overriding a labor agreement that

would impede an implementation of a consolidation ap-

proved by the ICC under § 11343 without deciding

whether that exemption may be applicable to the RLA.

essential transportation service, the Mediation Board shall notify

the President,’ who may create an emergency board to investigate

and report on the dispute. § 10. While the dispute is working its

way through these stages, neither party may unilaterally alter the

status quo. §§ 2 Seventh, 5 First, 6, 10.”

6 See, e. g., Burlington Northern v. Maintenance Employes, supra,

481 U.S. at 450-453; Railway Trainmen v. Terminal Co., supra, 394

U.S. at 378-379, 384-385.

That approach reflects a radical misconception of the

relationships between railroad labor agreements and the

RLA. The holding that the §11341(a) exemption is

limited to statutory law is clearly erroneous in our

opinion,’ but that error essentially is irrelevant by reason

of the Court’s even more astonishing error in concluding

that railroad labor agreements are enforceable under

common law. Those agreements are bargained, construed

and enforced under the RLA.* That is what the RLA is

all about. But for the RLA, the railroads could terminate

such agreements at will including any obligations there-

under that might impede implementation of a transaction

approved by the ICC.“ And, the RLA undoubtedly is a

The common law is “law” within any ordinary meaning of that

term just as much as is statutory law. See, e.g., Erie R. Co. v.

Tompkins, 304 U.S. 64, 78-80 (1938). Moreover, it simply is not

believable that the Congress intended, for example, to prevent stat-

utes enacted by State legislatures from impeding the implementation

of approved transactions but to permit State courts to achieve the

same result through application of their common law doctrines. We

note that, when enacted in 1920, the first predecessor of § 11341(a)

also expressly applied to the antitrust laws. That was only nine

years after the well-known decisions construing the Sherman Act

as incorporating the “rule of reason” developed in the common law

respecting unreasonable restraints of trade. Standard Oil Co. v.

United States, 221 U.S. 1, 50-62 (1911); United States v. American

Tobacco Co., 221 U.S. 106, 178-180 (1911). See California v. Ameri-

can Stores Company, 58 U.S.L.W. 4529, 4532-4533 (1990), regard-

ing the controversy that arose out of those “most famous” decisions.

Surely, the Congress did not intend to permit approved transactions

to be subjected to common law rules of liability as unreasonable

restraints of trade. f

Among many possible citations, even if limited to decisions by

this Court, see, e. g., Andrews v. Louisville & Nashville R. Co., 406

U.S. 320 (1972); Shore Line v. Transportation Union, supra, 396

U.S. at 156; Elgin, J. & FE. R. Co. v. Burley, 325 U.S. 711, 722-728

(1945), on rehearing, 327 U.S. 661 (1946).

Another among the railroad industry practices which influenced

the provisions of the Railway Labor Act was that of negotiating

open-end collective bargaining agreements. Railroad agreements do

not expire on a given date but remain in effect until one party or

10

“law” to which the §11341(a) exemption on its face

applies.

Thus, the issue of whether the § 11341(a) exemption af-

fords a basis for obviating obstacles posed by labor agree-

ments to a carrier’s implementation of a transaction ap-

proved by the ICC is subsumed within the issue of whether

that exemption applies to the RLA. The “paramount force

of the federal law remains even though it is expressed in

the details of a contract federal law empowers the parties

to make, rather than in terms of an enactment of Con-

gress. See Railway Employes’ Dept. v. Hanson, 351 U.S.

225, 232.” Teamsters Union v. Oliver, 358 U.S. 283, 296-

297 (1959). See also, e. g., California v. Taylor, 353 U.S.

553, 561 (1957). Cf., Schwabacher v. United States,

the other proposes modification of certain of the agreement’s provi-

sions, whereupon negotiations take place on the specific issues

raised and, when agreement is reached, the contract is modified

accordingly. The earliest railroad agreements known, dating back

to the last quarter of the 19th Century, were of this open-ended type

and the practice continues throughout the industry to the present

time.” Burgoon, Mediation under the Railway Labor Act, included

in The Railway Labor Act at Fifty (GPO, 1977), at 71, 72. Under

the common law, such open-ended agreements would be terminable at

will by either party. See, ¢.g., Hodge v. Evans Financial Corp., 707

F.2d 1566, 1568 (D.C. Cir. 1983); Martin v. Equitable Life Assur.

Soc. of U.S., 553 F.2d 573, 574 (8th Cir. 1977); 17A C. J. S., Con-

tracts, § 398, p. 478.

10 The Court of Appeals previously had recognized that applica-

tion of the § 11341(a) exemption to alleged rights under a collective

bargaining agreement turned upon whether the exemption is applica-

ble to the RLA. In Brotherhood of Locomotive Engineers v. I. C. C.,

761 F.2d 714 (D.C. Cir. 1985), the ICC had relied upon that exemp-

tion in rejecting a union contention that the Commission’s approval

of a consolidation. . . did not alter previous labor arrangements”

between the unions and carrier parties to that transaction. 761

F.2d at 719. Although concluding that the exemption could apply to

the RLA (and thus to alleged contractual rights under that statute)

in appropriate circumstances (see 761 F.2d at 722-724), the Court

of Appeals disagreed with the ICC’s view that the exemption is

self-executing and remanded the case for an explanation of why

11

334 U.S. 182, 199-202 (1948), where the Court held that

the predecessor of § 11341 (a) exempted the carrier par-

ties to an approved transaction from contractual obliga-

tions enforceable under State law inconsistent with im-

plementation of that transaction.

The exemption from “all other law“ hardly could be

phrased more broadly and there can be no doubt that the

RLA on its face is an “other law.” As this Court once

again reiterated in Kaiser Aluminum & Chemical Cor-

poration v. Bonjorno, 58 U.S.L.W. 4421, 4423 (1990):

“The starting point for interpretation of a statute

‘is the language of the statute itself. Absent a clearly

expressed legislative intention to the contrary, that

language must ordinarily be regarded as conclusive.’ ”

The Congress has not expressed an intent to exclude the

RLA from scope of the exemption plainly expressed

in 511341 (a). Hence, as the lower courts consistently

have recognized, that exemption is applicable in appro-

priate circumstances to the RLA.™ Hence, it also is ap-

application of the exemption so as to terminate the unions’ “asserted

right to participate in crew selection is necessary ....” 761 F.2d

at 725; generally, at 724-725). This Court reversed essentially on

the ground that the unions had not raised their contentions before

the ICC in a timely manner. JCC v. Locomotive Engineers, 482 U.S.

270 (1987). In a concurring opinion by Justice Stevens, four mem-

bers of the Court agreed with the “ICC’s argument that § 11341 is

self-executing and that the Commission need not make any explicit

necessity findings” (482 U.S. at 297), and thus would have reversed

the Court of Appeals for that reason.

11 In addition to the case discussed in n.10 above, see, e.g., Broth.

of Loco. Engineers v. Boston & Maine Corp., 788 F.2d 794, 799-801

(Ist Cir. 1986), cert. denied, 479 U.S. 829 (1986); Missouri Pacific

R. Co. v. United Transp. Union, 782 F.2d 107, 111 (8th Cir. 1986),

cert. denied, 482 U.S. 927 (1987); Burlington Northern, Inc. v.

American Ry. Super. Ass’n, 503 F.2d 58, 62-63 (7th Cir. 1974),

cert. denied, 421 U.S. 975 (1975); Bundy v. Penn Central Co., 455

F.2d 277, 279-280 (6th Cir. 1972); Nemitz v. Norfolk and Western

Railway Co., 436 F.2d 841, 845 (6th Cir. 1971); aff’d, 404 U.S. 37

a

1 „ _ — . Fl — —

7

plicable to collective bargaining agreements enforceable

under the RLA insofar as they would impede the carry-

ing out of a transaction approved by the ICC. The court

of appeals erred in holding to the contrary.”

(1971) ; Brotherhood of Loc. Eng. v. Chicago & North Western Ry.

Co., 314 F.2d 424, 482 (8th Cir. 1963), cert. denied, 375 U.S. 819

(1963); Texas & N.O. Ry. v. Brotherhood of Railroad Trainmen,

307 F.2d 151, 161-162 (5th Cir. 1962), cert. denied, 371 U.S. 952

(1963); Ry. Labor Executives v. Guilford Transp. Indus., 667

F. Supp. 29, 35 (D. Me. 1987), aff’d (table), 843 F.2d 1383 (ist Cir.

1988), cert. denied, 57 U.S.L.W. 3839 (1989).

12 Assuming that it otherwise is applicable, the exemption from

“all other law” applies insofar “as necessary to let” a participant in

a transaction approved by the ICC “carry out the transaction

Thus, that “as necessary” requirement is not applicable to the trans-

action itself, but to the carrying out of the transaction in a manner

that comes within the scope of the ICC’s approval. See ICC v.

Locomotive Engineers, supra, 482 U.S. at 298 (concurring opinion).

Since the ICC held that the implementations proposed by the carriers

in these cases do come within the scope of its approvals, and au-

thorized certain transfers of work and employees in connection

therewith, the only issue under the “as necessary” requirement is

whether the RLA or agreements thereunder would impede the car-

riers from carrying out those rulings by the ICC if not exempted

under § 11341(a). If the carriers otherwise would have to comply

with requirements of the RLA before transferring such work or

employees, then the exemption is “necessary” and is applicable to

relieve the carriers of such requirements and from any inconsistent

provisions of agreements under the RLA.

18

CONCLUSION

The decision by the Court of Appeals should be re-

versed.

Respectfully submitted,

RICHARD T. CONWAY

(Counsel of Record)

RALPH J. MOORE, JR.

D. EUGENIA LANGAN

SHEA & GARDNER

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

(202) 828-2000

DAVID P. LEE

Vice Chairman and

General Counsel

National Railway

Labor Conference

1901 L Street, N.W.

Washington, D.C. 20036

(202) 862-7200

Attorneys for the National

Railway Labor Conference

May 25, 1990 as Amicus Curiae