Amicus Curiae Brief — CSX Transportation, Inc. v. Brotherhood of Railway Carmen (Nos. 89-1028, 89-1027)

*

Nos. 89-1027 & 89-1028

IN THE

Supreme Court of the United

OcTOBER TERM, 1989

NokroLk & WESTERN RAILWAY COMPANY and

SOUTHERN RAILWAY COMPANY,

0 Petitioners,

AMERICAN TRAIN DISPATCHERS ASSOCIATION, ef al.,

Respondents.

CSX TRANSPORTATION, INC.,

. Petitioner,

BROTHERHOOD OF RAILWAY CARMEN, et al.,

Respondents.

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE

NATIONAL RAILWAY LABOR CONFERENCE AS

AMICUS CURIAE IN SUPPORT OF THE PETITIONS

Davip P'. Lee Ru ann T. CONWAY

Vice Chairman & Rauen J. Moorr, Jr.

General Counsel (Counsel of Record)

NATIONAL RAILWAY LABOR D. EUGENIA LANGAN

CONFERENCE Sued & GARDNER

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

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

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

Attorneys for the National

Date: January 29, 1990 Railway Labor Conference

Wieon - Erase Paiwrine Co.. Inc. - 769-0086 - Wasnineron,. O.C. 20001

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TABLE OF CONTENTS

Page

ii

2

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE.

Ail

ii

TABLE OF AUTHORITIES

Cases:

Brotherhood of Loc. Engineers v. Boston & Maine

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

U.S. 829 (1986) .

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

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

US. 819 (1963)

Brotherhood of Loe. — ICC, 761 F.2d

714 (D.C. Cir. 1985), rev'd, 482 US. 270

(1987) .

Burlington Northern v. Maintenance Employes,

481 U.S. 429 (1987) .

County of Marin v. United States, 356 US. 412

(1958) ...

Elgin J. 4 K. K Co. v. Burley, $25 F.2d 711

(1945)

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

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

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

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

remanded, 109 8. Ct. 3209 (1989), rev'd on

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

ICC v. Lecomotive Engineers, 482 US. 270

Ce neue

Meintenance Employes V. ‘United States, 366 US.

169 (1961)...

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

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

927 (1987).

Nemitz V. Norfolk 4 W. ‘Ry. 486 F.2d 841 (eth

Cir.), aff'd, 404 U.S. 37 (1°71).

New York Dock Ry.—C mtrol—Brookiyn ED.

Terminal, 360 LC.C. % (1979), aff'd sud nom.

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

83 (2d Cir. 179

Pitteburgh & Lake Erie RR. v. — Labor

Free. Ass'n, 109 S. Ct. 25684 (1989) „

Reilway Clerks v. Florida FC. R. Co. 384 US.

11 ns

—— d H + + ee eee ee eee

Statutes:

iii

TABLE OF AUTHORITIES—Continued

Page

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

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

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

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

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

r . 9

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

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

109 S. Ct. 2684 (1969) ........................................... 11

Railway Labor Ezec. Ass'n v. Pittsburgh & Lake

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

| 11

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

e icrccencemaneeemesennecocs 4

United States v. Lowden, 308 U.S. 225 (1939) 3 7, 8

Revised Interstate Commerce Act, Subtitle IV,

49 U.S. C.:

510101, 49 U.S.C. § 1010 7

§ 10901, 49 U.S.C. § 10901 * 10, 11

§ 11841 (a), 49 U.S.C. § 11341 (a)... passim

§ 11848, 49 U.S.C. § 11343 —- 2, 3, 8

§ 11344, 49 U.S.C. § 113444444... 2

§ 11347, 49 U.S.C. § 11347 » 88

Railroad Revitalization and Regulatory Reform

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

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

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

Stat. 456, 482 (1920) 2-3

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

(1940) :

r ̃ 22 .

§ 7(11), 64 Stat. 908-09... 2

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

r 3

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

iv

TABLE OF AUTHORITIES—Continued

Legislative Materials: Page

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

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

14 9

Supreme Court Rules:

Rule 37.2 1

ccc x

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

Nos. 89-1027 & 89-1028

NoRFOLK & WESTERN RAILWAY COMPANY and

SOUTHERN RAILWAY COMPANY,

7 Petitioners,

AMERICAN TRAIN DISPATCHERS ASSOCIATION, et al.,

Respondents.

CSX TRANSPORTATION, INC.,

. Petitioner,

BROTHERHOOD OF RAILWAY CARMEN, et al.,

Respondents.

On Petitions for Writs of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF FOR THE

NATIONAL RAILWAY LABOR CONFERENCE AS

AMICUS CURIAE IN SUPPORT OF THE PETITIONS

This amicus brief is being filed with the written con-

sent of the parties pursuant to Supreme Court Rule 37.2.

The National Railway Labor Conference (“NRLC”)

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

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

decision of the District of Columbia Circuit.

STATEMENT OF THE CASE

Under § 11343 of the Interstate Commerce Act

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

similar transactions “may be carried out only with the

approval and authorization of the” Interstate Commerce

Commission (“ICC”).' Under ICA § 11344, when con-

sidering a proposed merger or consolidation, the ICC

must balance a number of factors, including “the interest

of carrier employees affected by the proposed transac-

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

“when it finds the transaction is consistent with the

public interest.” The ICC is then required under ICA

§ 11347 to impose labor protective conditions to com-

pensate employees for adverse effects resulting from the

transaction.

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

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

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

transaction approved under those provisions “is exempt

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

ing State and municipal law, as necessary to let that

person carry out the transaction.

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

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

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

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

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

thority over mergers and consolidations “shall be exclusive and

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

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

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

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

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

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

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

Act of 1940, ch. 722, §7(11), 54 Stat. 899, 905 (1940) (emphasis

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

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

The question presented by the petitions in these cases

is whether the exemption from “all other law” in

§ 11341(a) applies to provisions of collective bargaining

agreements, otherwise enforceable under the Railway

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

forced would prevent a carrier from “carrying out” an

approved merger or consolidation.

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

suant to merger authority granted by the ICC, proposed

to consolidate certain operating functions on the merged

railroad systems, which would require the transfer of

some work and employees. Affected employees would,

however, be entitled to make-whole compensatory benefits

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

tive conditions required under ICA § 11347 for all trans-

actions undertaken pursuant to merger authority under

ICA § 11343."

Under the New York Dock conditions, an “implement-

ing agreement” providing the terms for any rearrange-

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

action can be consummated; binding arbitration is re-

quired on any such implementing issues that remain

unresolved through negotiations after 90 days’ notice of -

the proposed transaction is given to unions representing

affected employees.“ In these cases, the respondent unions

argued in the implementing arbitration proceedings that

their collective bargaining agreements would not permit

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

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

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

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

Stat. 1466.

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

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

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

* New York Dock, supra, 360 1.C.C. at 85.

s view, the

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

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

barring provision is included in a collective bargaining

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

Hu

.

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

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

States” with respect to the railroad industry. See

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

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

very similar circumstances, in /CC v. Locomotive Engineers, 482

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

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

road mergers and consolidations. As this Court explained

in Lowden, supra, als a result of the Transportation

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

solidation of the railroads of the country, in the interest

of economy and efficiency, became an established national

policy * * * so intimately related to the maintenance of

an adequate and efficient rail transportation system that

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

that in the other.” 308 U.S. at 232.

Congress has repeatedly reaffirmed that “established

national policy.” The Transportation Act of 1920, which

left mergers and consolidations largely to the Commis-

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

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

Congress amended the ICA to add the predecessor of cur-

rent § 11343, giving rail carriers principal authority to

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

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

tate merger and consolidation in the national transpor-

tation system“.

Congress last revisited this issue in the Railroad Re-

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

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

claim that its collective bargaining agreement and the RLA barred

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

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

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

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

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

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

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

despite the remand order (although the Court ultimately concluded

on other procedural grounds that the question was not properly

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

Court Rule 11, authorizing writs of certiorari before judgment.

* Maintenance Employes ¥. United States, 366 US. 169, 173

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

416 (1968).

applications

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

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

to rationalize and improve the Nation's rail system

The decision below strikes an immediate and poten-

tially crippling blow to this important national policy.

If RLA collective bargaining agreements can be en-

forced to prohibit the implementation of approved mer-

gers and consolidations, notwithstanding the express ex-

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

“other law” that might otherwise have such merger-

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

ments cannot be altered except through the RLA major

dispute provisions, then rail labor will have “carte

Railway Labor Exec. Ass'n v ICC, 784 F 2d 969, 965 (9th Cir.

1986).

"8S. Rep No. 94-499, 94th Cong. Ist Seas. 20-21 (1975), re

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

" Missouri Pac. RR. ¥. United Tranep. Union, 782 F.2d 107, 112

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

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