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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989

## Text

*

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

- — Q , ß

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0697%3A07. Public record. Not legal advice.