Amicus Curiae Brief — Pittsburgh & Lake Erie R. Co. v. Railway Labor Executives' Assn.

. Supreme Court, ua,

EILED

Nos. 87-1589 and 87-1888 JAN 18 1989

F, SPANIOL, JR,

IN Tae cm

Supreme Court of the United States

OCTOBER TERM, 1988

THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY,

. Petitioner,

RAILWAY LABOR EXECUTIVES’ ASSOCIATION and

(in No. 87-1888) INTERSTATE COMMERCE COMMISSION,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Third Circuit

_ BRIEF FOR THE

NATIONAL RAILWAY LABOR CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

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

January 18, 1989 Railway Labor Conference

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

STATEMENT OF THE CASE ...........................00:.00000-

INTEREST OF AMICUS CURIAE ...............................

SUMMARY OF ARGUMENT ................0.......0..22--1-0000+-

I bietiiiciiinitrtionicinsirheriiatenennainnitnenetimeneapicintnncnsinnnanmnat

I. The Railway Labor Act and the Norris-

LaGuardia Act Should Be Accommodated to the

Jurisdiction of the Interstate Commerce Com-

I Ge BR TD atceccetcnsserttncicesecccerengccenee

Il. Neither the Decision to Sell Nor the Effects of

A Line Sale Upon Employees Is A Mandatorily

Bargainable Issue Under the Railway Labor

eee

Page

11

20

30

ii

TABLE OF AUTHORITIES

Cases Page

Bakery Drivers Union v. Wagshal, 333 U.S. 437

(| DE eh 27

Bangor & Aroostook R. Co. v. Brotherhood of Loco-

motive F. & E., 253 F. Supp. 682 (D.D.C. 1966),

aff'd in part, 385 F.2d 581 (D.C. Cir. 1967),

cert. denied, 390 U.S. 923 (1968) ........................ 21

Boys Markets v. Clerks Union, 398 U.S. 235

CIID eeerecnnecesncesenisstentenninntimi 13

Brotherhood of Rail. Train. v. New York Central

R. Co., 246 F.2d 114 (6th Cir. 1957), cert. de-

ee | BS Se) | 21

Burlington Northern Railroad Co. v. Brotherhood

of Maintenance of Way Employes, 55 U.S.L.W.

GET CIID aeecenevnsscrcecscsceccaresansceieneees 6

Chicago and North Western Transp. Co.v. RLEA, —

855 F.2d 1277 (7th Cir. 1988), cert. denied, 57

ha ee a ne 5

Chicago & North Western Ry. v. Order of Rail.

Tel., 264 F.2d 254 (7th Cir. 1959), rev'd, 362

U.S. 330 (1960) ........... nineteen 21

Chicago & N.W. Tr. Co. v. Kalo Brick & Tile Co.,

OS BE) | 11,17

Class Exemption for the Acquisition and Opera-

tion of Rail Lines under 49 U.S.C. 10901, 1

1.C.C.2d 810 (1985), aff’d, 817 F.2d 145 (D.C.

ED | NN nae ee HE 2, 19, 20

Eagle Express Co., 273 N.L.R.B. 501 (1984) -......... 24

Fibreboard Corp. Vv. Labor Board, 379 U.S. 203

(RGD nnn nncncoccccssnsinvvnseencticnticnsiensstennnesieseaeneeeennnn 22, 23, 25

First National Maintenance Corp. v. NLRB, 452

U.S. 666 (1981)... stim &, 9, 21, 24-26, 28

Ford Motor Co. v. NLRB, 441 US. 488 (1979)........ 23

FRVR Corporation, Ete., F.D. No. 31205 (1988),

aff'd as clarified, 861 F.2d 1082 (8th Cir. 1988)... 5, 17,

18, 25

ICC v. Railway Labor Assn., 315 U.S. 373 (1942).. 15

Illinois Central R. Co. v. Locomotive Engineers,

443 F.2d 136 (7th Cir. 1972) .......-.-0ccceecccconse-s--- 21

iii

‘TABLE OF AUTHORITIES—Continued

Illinois Commerce Commission V. I.C.C., 787 F.2d

Ce ecescssensecners

Inland Steel Company, 77 N.L.R.B. 1 (1948), en-

forced, 170 F.2d 247 (7th Cir. 1948), aff’d, 339

EE a

International Ass’n of M. & A. W. v. Northeast

Airlines, Inc., 473 F.2d 549 (1st Cir. 1972), cert.

denied, 409 US. ro

Jacksonville Bulk Terminals V. Longshoremen, 457

I

Japan Air Lines Co. v. Intern. Ass’n of Machinists,

nn csneccseccecees

Kirkwood Fabricators v. N.L.R.B., —— F.2d ——

Teen secusuasscunseceees

Labor Board vy. Borg-Warner Corp., 356 U.S. 342

a cmsconatoorecoonens

Labor Board v. Katz, 369 U.S. 736 (1962) 0.0.0.0...

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

ES

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

782 F.2d 107 (8th Cir. 1986), cert. denied, 55

A 10,

Morton v. Mancouwri, 417 U.S. 535 (1974) -.00000.......

National Family Opinion, Inc., 246 N.L.R.B. 521

i a

Nemitz v. Norfolk and Western Railway Company,

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

a ccsmmaseanbovneees

Norfolk & Western R. Co. v. Nemitz, 404 U Ss. 37

ss 2 Sh A Ee

P.J. Hammil Transfer Co., 277 N.L.R.B. 462

REE 2 EA

Presto Casting Co., 262 N.L.R.B. 346 (1982), en-

forced in part, 708 F.2d 495 (9th Cir. 1983).........

Pullman Co. Vv. Railway Conductors, 45 L.R.R.M.

3162 (N.D. Ill. 1962), rev’d, 316 F.2d 456 (7th

Cir. 1963), cert. denied, 375 U.S. 820 (1963) __.

Radzanower v. Touche Ross & Co., 426 U.S. 148

a celiulanelinsibsinoccen

Page

17

23, 24

28, 29

18, 19

15, 17

12

26, 27

iv Vv

TABLE OF AUTHORITIES—Continued TABLE OF AUTHORITIES—Continued

Page

' ; Page

— ee * National Labor Relations Act, 29 U.S.C. §§ 141

Railway Clerks v. Florida E.C.R. Co., 384 U.S. 238 Ob BOG. —nneeeveveevevverrerennnnnnnnnnnnnnnnnnnnnnnnnnnennnnceeeeceeeeet passim

RAS 8 re eer IT 6 SUT sschcanstnsocaaeteaiaseatenbGntadmnataeses= competceemaaesine 20

Railway Labor Assn. v. United States, 339 U.S. § BC) ann. eeeeeeeeeeecseneeneeteeeeeeeeeeceeeessnnnnnennneeneeeenet 20

I ss siosecsresdancninnnthincdebshanaihaceniaiieeeattaemianionaces 16 i sttinineassasincsenenechspmnianessahtnininneiiatinpninaineettagete 27

Seaboard World Airlines, Inc. v. Transport Work- Norris-LaGuardia Act, 29 U.S.C. § 104... passim

ers Union, 425 F.2d 1086 (2d Cir. 1970), and Railroad Revitalization and Regulatory Reform

443 F.2d 437 (2d Cir. 1971)... eee 21 A PN I OO sincere coscesi en so ected 16

Shore Line v. Transportation Union, 396 U.S. 142 - Railway Labor Act, 45 U.S.C. §§ 151 et seq. .......... passim

ERT i debiscciidsdassssinnaienacatisihtiesitatibaeapudinancaiceédisecinibitadii 6 .

Taft Broadcasting Co., 163 N.L.R.B. 475 (1967), a sauce anenaetaeseoneeeenuaaueaaremaeneamanmeeeenceene 11, 21

enforced, 395 F.2d 622 (D.C. Cir. 1968) ....... a. 26 hor RRepIERNRER 12

Telegraphers v. Chicago & N.W. R. Co., 362 U.S. GD ceeneervaresvesnssnsensnnsecerrerescewnsoenee sencewecsopanssces 4,11, 21

REE a 0 Se I EN eee 13, 22 Staggers Act of 1980, 94 Stat. 1985 002... 16

Texas & N.O. R. Co. v. Ry. Clerks, 281 U.S. 548 Transportation Act of 1920, 41 Stat. 456.0... ra 14

(EAE SSSERIE pe pee eae ODT OA sla LSND 11 Transportation Act of 1940, 54 Stat. 898... 15, 16

“ae V. Darlington Co., 380 U.S. 263 a

Trainmen V. Chicago R. & I.R. Co., 353 U.S. 30 OS POG. Meg. GOST (TGDB) nnn... sccnccseeseseseseseses 2

SRE pease eer caret ee Meee BM PEON 12 Morris, The Developing Labor Law ( 2d ed. 1983). 26

Transmarine Navigation Corporation, 170 N.L.R.B.

389 (1968) .............. PPEIEIIP IAA BAe SA A NTE 27

Triplex Oil Refining Division, 194 N.L.R.B. 500

LEON IER ty SI Resear eh AD AILS TARE eee TPR 24

es he | O55 & Fy | nee nonmn 9

United States v. Fausto, 56 U.S.L.W. 4128 (1988) ..6, 9, 12

United States v. Lowden, 308 U.S. 225 (1939)... 7, 14,15

Yorke v. N.L.R.B., 709 F.2d 1138 (7th Cir. 1983),

cert. denied, 465 U.S. 1023 (1984) .......00000 00... 27

Statutes

Interstate Commerce Act, 49 U.S.C. §§ 10101 et

I. caliecipbeoniintiecninsetcinereth sesdbnaatenegeniie bidetiiieanaiaameatuadl passim

ENR ne Ae nee 13, 17, 18

a EIT siaiselllcisctnsipacipedcahishninictiaieanenaevenibediagdieadiaéiamiens passim

§ 10903... ei ee ES 12, 14, 15

Te — WW

IE Ue aa eens 12, ‘14, ‘15, 16, 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

Nos. 87-1589 and 87-1888

THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY,

7 Petitioner,

RAILWAY LABOR EXECUTIVES’ ASSOCIATION and

(in No. 87-1888) INTERSTATE COMMERCE COMMISSION,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF FOR THE

NATIONAL RAILWAY LABOR CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

This amicus brief is being filed with the written con-

sent of the parties pursuant to Supreme Court Rule 36.2.

STATEMENT OF THE CASE

Under § 10901 of the Interstate Commerce Act (“ICA”),'

a noncarrier can acquire a rail line from an existing

railroad only if the Interstate Commerce Commission

(“ICC” or “Commission”) approves “with conditions the

Commission finds necessary in the public interest’”—which

may include employee protections. In its Ex Parte 392

proceeding, the ICC established an expedited class exemp-

1The ICA was codified in 1978 as Subtitle IV of 49 U.S.C., 92

Stat. 1337. Citation herein to a current section of the Act is to

that section of 49 U.S.C.

2

tion procedure authorizing a proposed § 10901 acquisition

to be consummated seven days after notice is filed with

the Commission.? Rejecting arguments by Respondent

Railway Labor Executives’ Association (“RLEA”), the

ICC concluded that “{e]mployee protection is also incon-

sistent with our goals in granting this class exemption

and would discourage acquisitions and operations that

should be encouraged. The record supports a conclusion

that the acquirer would not be able to complete the trans-

action if those conditions were imposed” (1 I.C.C.2d at

814); and—unlike the abandonment alternatie—‘in

transactions under section 10901, operations are continu-

ing and jobs for rail employees will continue to be avail-

able” (id. at 815).'

The ICC authorized a noncarrier to acquire all the rail

lines of Petitioner (“P&LE”’), effective September 26,

1987, after denying RLEA’s petition for a stay since

“it is in the public intérest to allow the class exemption

2 Class Exemption for the Acquisition and Operation of Rail Lines

under 49 U.S.C. 10901, 1 1.C.C.2d 810 (1985), aff’d sub nom. with-

out opinion, Jllinois Commerce Com’n Vv. i.C.C., 817 F.2d 145 (D.C.

Cir. 1987). The judgment on that appeal (to which the RLEA was

a party), App. A to NRLC’s amicus brief in support of the petition

in No. 87-1589, reveals that the affirmance was “for the reasons set

forth in the decision of the Commission.” In a subsequent Ex

Parte-392 proceeding, the ICC increased the notice period for

larger transactions (requiring 14-days pre-filing notice and author-

izing consummation 21 days after filing). See 53 Fed. Reg. 5981.

In an accompanying unpublished opinion (served February 29,

1988), the JCC observed (p. 2) that “the exemption process has

been successful beyond expectation” in facilitating establishment of

“new carriers [that] preserve service, jobs, and rail investment”

and that “typically provide better service, more tailored to indi-

vidual shippers’ needs;” and that the “ability to begin operations

promptly is a key to the exemption’s success.”

% The ICC reserved jurisdiction to “revoke the exemption, in

whole or in part, and impose labor protection” upon “an extraordi-

nary showing of circumstances justifying” such protection in an

individual case. 1 I.C.C.2d at 815.

3

to take effect” (Pet. in No. 87-1888 at 103a). In the

meantime, unions representing P&LE employees served

notices of proposals for a collective agreement under

which in the event of sale P&LE would be required to

provide employees lifetime wage guarantees, and treble

damages (in addition to make-whole damages) for any

losses incurred, and to include in any contract of sale

provisions requiring the purchaser to assume P&LE’s em-

ployees, collective agreements and unions; RLEA filed

this action on behalf of those unions to enjoin consum-

mation of the sale until the major-dispute provisions of

the Railway Labor Act (“RLA”) have been exhausted

in regard to the employee protections to be provided; and

on September 15, 1987, the unions struck the P&LE.

The District Court preliminarily enjoined that strike,

holding that the ICA superseded any duty to bargain

under the RLA and that §4 of the Norris-LaGuardia

Act (“NLGA”) must be accommodated to the jurisdic-

ion of the ICC. App. B to Pet. in No. 87-1589. The

Third Cireuit summarily reversed in an opinion limited

to the NLGA issue (id., App. A), Railway Labor Evec.

v. Pittsburgh & Lake Frie R., 831 F.2d 1231 (1987)

(“P&LE I’), now before this Court in No. 87-1589. Al-

though the Third Circuit acknowledged that the NLGA

should be accommodated to other statutes “adopted as a

part of a pattern of labor legislation,” in its view § 10901

of the ICA is not such a statute because labor protection

is only one of “fifteen policies relevant to the regulation

of the railroad industry” and thus is merely “incidental”

to the “regulatory scheme over rail transport ....” Pet.

at A-6 and 7-8; 831 F.2d at 1234, 1235.

Upon remand, the District Court ordered P&LE to bar-

gain with the unions and enjoined consummation of the

sale until the major-dispute procedures of the RLA are

exhausted, unless the sale agreement “include!s] provi-

sions for the maintenance of the status quo” by the pur-

chaser. Pet. in No. 87-1888 at 85a. The Third Circuit

d

affirmed in Ry. Labor Executives v. Pittsburgh & Lake

Erie R., 845 F.2d 420 (1988) (“P&LE II’), now before

this Court in No. 87-1888. Among other things, it held

that P&LE has a duty under the RLA to bargain about

the effects of the sale upon employees and thus to defer

consummation of the sale pending such bargaining unless

that duty has been superseded by the ICA (Pet. at 18a-

26a; 845 F.2d at 428-432); that the injunction does not

constitute a collatera! attack upon the ICC’s authoriza-

tion of the sale (Pet. at 36a-43a; 845 F.2d at 437-440) ;

and that the ICA does not supersede P&LE’s duty to

bargain under the PLA (Pet. at 44a-56a; 845 F.2d at

440-446) because, among other things, as held in P&LE

I, § 10901 is not a labor law and only one of “fifteen dis-

tinct policies upon which the ICC must focus . . . directs

the ICC’s attention to the interests of labor”; so that

“the interests of labor are, at best, only a relatively small

concern of the ICC,” making “it highly unlikely that

Congress intended that rail labor look te the ICC as its

sole source of protection” (Pet. at 47a-48a; 845 F.2d at

442). In reaching those conclusions, the court acknowl-

edged that “imposing the RLA requirements in this sit-

uation may well have the practical «ffect of torpedoing

the sale” (Pet. at 20a; 845 F.2d at 429). That has since

occurred.

INTEREST OF AMICUS CURIAE

The National Railway Labor Conference (“NRLC”)

is an unincorporated association of almost all of the na-

tion’s class I railroads. It represents members in multi-

employer collective bargaining under the RLA and in

regard to other labor relations matters of concern to the

railroad industry generally. The NRLC on occasion has

been confronted with union proposals for a_ national

agreement upon protections for employees affected by a

transaction approved by the ICC and such proposals are

included in pending notices served by the unions under

$6 of the RLA. The NRLC has maintained that such

5

issues should be determined by the ICC and are not man-

datorily bargainable under the RLA.

As is most fully set forth in FRVR Corporation, Etc.,

F.D. No. 31205 ‘served January 29, 1988), aff'd as

clarified on other grounds, 861 F.2d 1082 (8th Cir. 1988),

Ex Parte 392 was a deliberate, thoroughly considered,

policy decision to facilitate the establishment of short-

line and regional railroads, through line sales to non-

carriers, as a viable alternative to abandonments. See

App. B to the NRLC’s amicus brief in support of the

petition in P&LE I, and the discussion thereof at pp. 6-9

of that brief. Until virtually brought to a halt by the

decisions below in this case, that “policy had been vali-

dated by practical results. New raileoa! formation quick-

ened, abandonments fell, service was maintained and

typically improved, and rail jobs that might otherwise

have been lost were preserved.” App. B at 6a.

If a railroad is required to exhaust the major-dispute

procedures of the RLA before consummating a line sale,

the delay in itself may torpedo the sale (as occurred in

regard to the P&LE), since it must be rare that a poten-

tial purchaser can obtain assurances of financing or

otherwise is willing and able to wait out prolonged de-

lays.' Those procedures include conferences, mediation

4 Although not at issue in this case, a carrier may have at least

an arguable basis for contending that the effects of line sales upon

employees are governed by general provisions in existing agree-

ments, such as those regarding furloughs, or by established prac-

tices, so as to give rise to a minor dispute for an adjustment board

to decide. E.q., Chicago and North Western Transp. Co. v. RLEA,

855 F.2d 1277 (7th Cir. 1988), cert. denied, 57 U.S.L.W. 3574

(1988). If so, the sale normally may be consummated without

awaiting the decision of the adjustment board. /bid. The court

below noted that the parties had not argued that P&LE’s collective

agreements either permit or prohibit the proposed sale, so as to

require an interpretation of those agreements and thus give rise

to a minor dispute in this case. Pet. in P&eLE //] at 16a-17a n.9; 845

. F.2d at 428 n.9. In any event, an adverse arbitration ruling could

give rise to claims for damages, even if the sale is not required to be

6

and, at the discretion of the President, investigation and

recommendations by an emergency board. See Railroad

Trainmen Vv. Terminal Co., 394 U.S. 369, 378 (1969).

With good reason, they have been characterized by this

Court as “long and drawn out,” Railway Clerks v. Flor-

ida E.C.R. Co., 384 U.S. 238, 246 (1966), as “almost in-

terminable,” Shore Line v. Transportation Union, 396

U.S. 142, 149 (1969), and as “virtually endless,” Burl-

ington Northern Railroad Co. v. Brotherhood of Mainte-

nance of Way Employes, 55 U.S.L.W. 4576, 4580 (1987).

In NRLC’s experience, exhaustion of those procedures

often requires two years or more. After that, as those

cases also demonstrate, the union may strike the railroad

primarily involved in the dispute and secondarily picket

all other rai!roads.

As the ICC found, the decision in P&LE I is “threat-

ening to halt the revitalization of the marginal railroad

sectors—a restructuring that the Commission has found

to be in the interests of carriers, labor, and the shipping

public.” FRVR Corporation, Etc., App. B supra at 12a.

Even if that decision is reversed, the P&LE I] decision

would similarly obstruct effectuation of the ICC’s policy

unless also reversed. Both decisiuns decide important

questions of law and both should be reversed.

SUMMARY OF ARGUMENT

This case invokes “the classic judicial task of recon-

ciling’’ potentially conflicting provisions in three statutes

“and getting them to ‘make sense’ in combination... .”

United States v. Fausto, 56 U.S.L.W. 4128, 4132 (1988).

This can best be done by holding that any duty to bar-

gain under the RLA and the prohibition of strike injunc-

undone? And, neither a minor-dispute ruling nor an arbitration

decision upholding the carrier would in itself prevent the unions

from progressing their §6 notices through the major-dispute pro-

cedures of the RLA and from striking once those procedures are

exhausted in the absence of an agreement upon the unions’ demands.

7

tions in the NLGA must be accommodated to, and thus

have been superseded by, the exclusive jurisdiction of the

ICC over line sales and to condition authorized sales upon

employee protections when in the public interest. This

is particularly so since the RLEA could (and did) pre-

sent its views to the ICC.

This Court has accommodated the NLGA to other stat-

utes enacted as part of a pattern of labor legislation,

particularly when those statutes have established admin-

istrative techniques for the peaceful resolution of labor

disputes such as is done by § 10901 of the ICA. The er-

roneous conclusion below in P&LE ! that § 10901 is not

a labor statute because labor protection is only one of 15

policies specified in the national railroad transportation

policy to guide the ICC, led to the erroneous conclusion

in P&LE II that the ICA does not supersede any duty

under the RLA to bargain about employee protections

since “the interests of labor are, at best, only a rela-

tively small concern of the ICC.”

The jurisdiction of the ICC over labor protections in

regurd to line sales is not an aberration, as similar ju-

risdiction is conferred in regard to abandonments, mer-

gers and various other railroad transactions requiring

ICC authorization. This Court recognized that the pred-

ecessors of those provisions of the ICA as well as the

predecessor of the RLA were part of the “extensive his-

tory of legislation regulating the relations of railroad

employees and employers.” United States v. Lowden,

308 U.S. 225, 235 (1939). And, the Court held there

and elsewhere that the employee-protection jurisdiction

of the ICC serves the public interest by, among other

things, preventing disputes in that regard from inter-

rupting rail transportation. Moreover, there is no basis

for the asserted “small concern” with the interests of

labor other than the fact that the ICC also considers

other interests and policies. That weighing of conflicting

interests and policies is a traditional function of admin-

8

istrative agencies. The fact that Congress has entrusted

the ICC with that function as to line sales affords a

strong reason for accommodating the RLA and the NLGA

to the jurisdiction of the ICC rather than for concluding

—as did the court below—that this made “it highly un-

likely that Congress intended that rail labor look to the

ICC as its sole source of protection.”

In the alternative, the Court also could hold that em-

ployee protections in connection with line sales are not

included in the “rates of pay, rules, or working condi-

tions” as to which the RLA mandates bargaining. In

giving the ICC jurisdiction to condition such authoriza-

tions upon employee protections when in the public in-

terest, Congress must have concluded that they are not

amenable to “the belief that collective discussions backed

by the parties’ economic weapons will result in decisions

that are better for both management and labor and for

society as a whole’’—upon which “the concept of manda-

tory bargaining is premised.” First National Mainte-

nance Corp. V. NLRB, 452 U.S. 666, 678 (1981). Thus,

the term “working conditions” in the RLA is narrower

on its face than the “terms and conditions of employ-

ment” made mandatorily bargainable by the National

Labor Relations Act (“NLRA”), and is less susceptible

to an interpretation that extends beyond the physical

conditions under which employees work to the terms and

conditions under which employee status is conferred or

withdrawn.

Hence, the conclusions by this Court that the NLRA

does not restrict an employer's right to go completely out

of business or mandate bargaining over a partial-closure

decision have substantially stronger support under the

RLA: while the view of the National Labor Relations

Board (“NLRB”) that the NLRA nonetheless mandates

bargaining over the effects of such actions upon em-

ployees clearly is untenable under the RLA. A holding

that effects bargaining is mandatory could give rise to

9

“almost interminable” delay before the sale could be

consummated, and thus in itself torpedo a sale authorized

by the ICC as has occurred in regard to the P&LE. Al-

though much less, the delay normally incurred under the

NLRA was an important factor in this Court’s conclu-

sion in First National Maintenance that decision bargain-

ing is not mandated, and that factor deserves much

greater weight under the RLA.

ARGUMENT

This case involves the interaction of potentially con-

flicting provisions in three federal statutes. It thus pre-

eminently calls for an exercise of the “classic judicial

task of reconciling many laws enacted over time, and

getting them to ‘make sense’ in combinacion....” United

States v. Fausto, supra, 56 U.S.L.W. at 4132. The court

below failed that task, and indeed erroneously felt itself

constrained from undertaking it.’

It does not make sense to hold that Congress, which

entrusted the ICC with exclusive jurisdiction over rail-

road line sales and to condition approvals of such sales

5 Although “not happy” with the result in P&LE //, the court

felt “constrained to reach it, because the Supreme Court has appro-

priately admonished the judiciary not to apply its own brand of

‘common sense’ in the face of a contrary statutory mandate” (Pet.

at 57a; 845 F.2d at 446), citing TVA v. Hill, 437 U.S. 153, 193-195

(1978). But in Hill the losing party relied upon Appropriations

Acts, and the “doctrine disfavoring repeals by implication ... .

applies with even greater force when the claimed repeal rests soiely

on an Appropriations Act.” 437 U.S. at 190 (emphasis by the

Court). Moreover, that doctrine is not applicable at all where the

“repeal” pertains to a judicial interpretation of general statutory

language rather than to an express statutory provision. United

States v. Fausto, supra, 56 U.S.L.W. at 4132. Any duty to bargain

under the RLA involves an interpretation of general statutory lan-

guage. See pp. 20-29 infra. Yet, one reason asserted in P&LE 1]

for holding that any such duty to bargain has not been superseded

by the ICA was the doctrine that “repeals by implication are heavily

disfavored.” Pet. at 45a; 845 F.2d at 440.

10

upon employee protections when in the public interest,

nonetheless authorized unions to frustrate consummation

of approved sales by invoking the major-dispute pro-

cedures of the RLA, and barred the courts from enjoin-

ing strikes intended to prevent the sales. That is par-

ticularly so since the unions may present their views as

to appropriate employee protections to the ICC and, on

appeal therefrom, to the courts, as the RLEA did in

Ex Parte 392. See Missouri Pacific R. Co. v. United

Transp. Union, 782 F.2d 107, 111-112 (8th Cir. 1986),

cert. denied, 55 U.S.L.W. 3837 (1987).

The most fundamental error below is the conclusion

in P&LE I that § 10901 of the ICA is not a “labor stat-

ute” to which the NLGA need be accommodated. That

error fatally infected the ruling in P&LE II that the

ICA does not supersede any duty to bargain under the

RLA in regard to line sales authorized by the ICC. We

thus first demonstrate that the jurisdiction of the ICC

over labor protections is an integral and important part

of the statutory scheme under the ICA in regard to line

sales and to various other railroad transactions as to

which ICC approval is required—thereby permitting an

administrative agency to weigh the interests of labor

with other factors affecting the public interest and as-

suring that consummation of approved transactions can-

not be prevented by labor. It then becomes obvious that

the RLA and the NLGA should be accommodated to that

statutory scheme, as a matter of law and of common

sense. We then demonstrate that neither the decision to

make a line sale nor its effects upon employees are man-

datorily bargainable under the RLA.*

* The court below also erred in rejecting the contention that the

injunction in P&LE IJ] constituted an improper collateral attack

upon the ICC’s order. We noted the fundamental errors in that

ruling in our amicus brief in support of the petition in P&LE I]

at 13-15. Since the page limit on amicus briefs does not permit a

fuller discussion now, we respectfully refer the Court thereto. See

also n.12, pp. 18-19 infra.

11

I. The Railway Labor Act and the Norris-LaGuardia Act

Should Be Accommodated to the Exclusive Jurisdic-

tion of the Interstate Commerce Commission Over Line

Sales.

The RLA governs collective bargaining in the railroad

and airline industries. 45 U.S.C. §§ 151 et seg. Its “major

purpose ... was ‘to provide a machinery to prevent

strikes.” Texas & N.O. R. Co. v. Ry. Clerks, 281 U.S.

548, 565 (1930). Among other things, it mandates bar-

gaining in regard to proposals for a “change in agree-

ments affecting rates of pay, rules, or working condi-

tions” (45 U.S.C. §§ 152 First, 156). Although the RLA

requires the parties to such a “major” dispute to main-

tain the status quo while the procedures of the Act are

being exhausted, the unions thereafter may seek to co-

erce acceptance of their demands by self help including

strikes. See pp. 5-6 supra.

Section 4 of the NLGA deprives the federal courts of

jurisdiction to issue injunctive relief as to labor disputes

regardless of the industry involved. 29 U.S.C. § 104. It

was enacted “to remedy the growing tendency of federal

courts to enjoin strikes by narrowly construing the Clay-

ton Act’s labor exemption from the Sherman Act’s pro-

hibition against conspiracies to restrain trade... .”

Jacksonville Bulk Terminals vy. Longshoremen, 457 U.S.

702, 708 (1982). Although this Court “has consistently

given the anti-injunction provisions of the . . . Act a

broad interpretation,” the Court also has held those pro-

visions to be inapplicable “where necessary to accommo-

date the Act to specific federal legislation or paramount

congressional policy.” /bid.

The ICA regulates railroads, motor carriers, inland

water carriers and freight forwarders. 49 U.S.C. $$ 10101

et seq. The ICC’s jurisdiction thereunder is “exclusive

and plenary,” and that “is critical to the congressional

scheme,” as this Court stated in regard to the predeces-

sor of § 10901. Chicago & N.W. Tr. Co. v. Kalo Brick

12

& Tile Co., 450 U.S. 311, 321 (1981). That jurisdiction

does not extend to the labor-management relations of the

regulated carriers generally, but does include one limited

aspect of railroad labor-management relations. The ICC

has jurisdiction to impose labor protections deemed io be

in the public interest in line sales under § 10901, and in

certain other railroad transactions such as abandonments

under § 10903 and mergers, consolidations and other ac-

quisitions involving two or more existing railroads under

$$ 11343-11347 of the ICA. Hence, the Court appropri-

ately could apply the doctrine that, where “there is no

clear intet.tion otherwise, a specific statute will not be

controlled or nullified by a general one, regardless of the

priority of enactment,” in reversing the decisions below.

Radzanower Vv. Touche Ross & Co., 426 U.S. 148, 153

(1976); Morton v. Mancouri, 417 U.S. 535, 550-551

(1974).

But however that may be, this Court has recognized

“the need to accommodate two statutes when both were

adopted as a part of a pattern of labor legislation.”

Trainmen Vv. Chicago R. & I.R. Co., 353 U.S. 30, 42

(1957). The Court there accommodated the NLGA to

$3 of the RLA (45 U.S.C. § 153), under which adjust-

ment boards have exclusive jurisdiction to decide

“minor” disputes over the interpretation or application

of collective agreements, so as to permit strikes over

such disputes to be enjoined. 353 U.S. at 39-42. This

“accommodation” doctrine is a leading example of what

the Court in Fausto referred to as the “classic judicial

task” of reconciling separately enacted statutes relating

to the same matter so that they “ ‘make sense’ in com-

bination.” See p. 9 supra. While “congressional em-

phasis” in regard to the rights of labor has shifted,

“this shift in emphasis was accomplished . . . without

extensive revision of many of the older enactments,” so

that in accommodating them “consideration must be

given to the total corpus of pertinent law and the poli-

13

cies that inspired ostensibly inconsistent provisions.”

Roys Markets v. Clerks Union, 398 U.S. 235, 250-251

(1970).?

Among other things, the NLGA is accommodated so

as not to prevent effectuation of statutes in which “con-

gressional emphasis shifted from protection of the nas-

cent labor movement . . . to administrative techniques

for the peaceful resolution of labor disputes.” Id. at 251

(emphasis added). The ICA in § 10901 establishes ad-

ministrative techniques for peacefully resolving disputes

over lalber protections in connection with authorized line

sales. Yet, the court below in P&LE I concluded that

$ 10901 is not a “labor statute’ to which the NLGA

should be accommodated since labor protection is only

one of “fifteen policies relevant to the regulation of the

railroad industry” comprising the national rail trans-

portation policy set forth in § 1010la of the ICA. See

p. 3 supra.*

That ruling was instrumental to the further ruling in

P&LE II that any duty to bargain in regard to line

sales under the RLA has not been superseded by, and

7 Boys Markets accommodated the NLGA so as to permit the

federal courts to enjoin strikes over arbitrable disputes between

unions and employers subject to the NLRA.

’ The Third Circuit also erred in relying upon Telegraphers Vv.

Chicago & N.W. R. Co., 362 U.S. 330 (1960), as having rejected

arguments “comperable to those made by P&LE ....” Pet. at A-9;

831 F.2d at 1236. Some of the station closings involved in that case

were approved by state regulatory agencies, but that was done

pursuant to state law rather than to the ICA as the Third Circuit

erroneously stated. See 362 U.S. at 332-333, 347-348, 353 n.18.

Telegraphers did reject an “argument that the operation of unneces-

sary statiens ... runs counter to the congressional policy .. . to

foster an efficient national railroad system,” 362 U.S. at 342, but

that argument had no basis in a specific statutory provision, such

as § 10901, under which the ICC has jurisdiction to condition its

approval of a transaction upon employee protections when in the

public interest.

14

thus need not be accommodated to, § 10901 of the ICA.

Citing its P&LE I ruling that § 10901 is not a labor

law, and referring to the “fifteen distinct policies upon

which the ICC must focus,” of which “only one directs

the ICC’s attention to the interests of labor,” the court

below concluded that “the interests of labor are, at best,

only a relatively small concern of the ICC,” and thus

thought “it highly unlikely that Congress intended that

rail labor look to the ICC as its sole source of protec-

tion.” See p. 4 supra.*

The purpose of the accommodation doctrine is the

reconciliation of statutes dealing in diverse ways with

the same subject matter so that they carry out the con-

gressional intent in a way that makes sense, regardless

of the label that might be attached to a particular stat-

ute. Moreover, the ICA is a “labor statute” in any

normal sense of that term to the extent that it is con-

cerned with labor protection, whatever else it also may

be. The Transportation Act of 1920 (41 Stat. 456)

amended the ICA to enact the predecessor of the cur-

rent § 10901 in regard to line sales and § 10903 in re

gard to abandonments ($$ 1(18) and (20), 41 Stat. 477-

478), and of $§ 11343-11347 in regard to mergers and

other multicarrier transactions (§ 5(2), 41 Stat. 481),

and also enacted the predecessor of the RLA (41 Stat.

469-474). In United States v. Lowden, supra, 308 U.S.

® Moreover, the Third Circuit cited its P&LE / ruling for the

proposition that “the ICC has no power to prevent a strike,” so that

“a bargaining order under the RLA” is more consonant with the

policy of both acts “to keep the rails running” by “ensur[ing | that

labor will ne? engage in a work stoppage.” Pet. at 5la-52a; 845

F.2d at 442-444. But if P&@LE I was wrongly decided, any strike

over a line sale authorized by the [CC may be enjoined, while an

RLA “bargaining order” only prevents a strike until the major-

dispute procedures of the RLA have been exhausted in regard to

proposed labor protections. Hence, accommodation of both the

NLGA and the RLA to § 10901 of the ICA would go further than

the RLA itself in carrying out its major purpose of preventing

strikes.

15

at 235, this Court described all those aspects of the

1920 Act as part of the “now extensive history of legis-

lation regulating the relations of railroad employees and

employers.”

Lowden affirmed the ICC’s discretionary authority to

condition approval of a railroad merger upon protec-

tion for employees when in the public interest. That

authority may “promote the public interest in its stat-

utory meaning” by, among other things, “prevent[ing]

interruption of interstate commerce through labor dis-

putes growing out of labor grievances... .” 308 U.S.

at 238. In ICC v. Railway Labor Assn., 315 U.S. 373

(1942), the Court similarly held that the ICC had dis-

eretionary authority to condition its approval of aban-

donments, under the predecessor of § 10901 as well as

of § 10903, upon protection for employees. That author-

ity also served the public interest as the “possible un-

stabilizing effects on the national railroad system” of

labor disputes “are no smaller in the case of an abandon-

ment like the one before us than in a consolidation like

that involved in the Lowden case.” 315 U.S. at 377.°

10 Lowden was decided just before and Railwa_ Labor Assn. was

decided after the Transportation Act of 1940 (54 Stat. 898)

amended former § 5(2) of the ICA to mandate the imposition of

employee protections as a condition upon the ICC’s approval of

mergers and other covered transactions. Since that provision

merely gave “legislative emphasis to a policy and a practice already

recognized . . . by making the practice mandatory instead of dis-

cretionary,” it neither implied that the ICC did not have such

discretionary authority as to approved mergers, etc., prior to the

1940 amendment, Lowden, 308 U.S. at 239, or in regard to its

approval of abandonments, etc., under the predecessor to § 10901

which had not been similarly amended by the 1940 Act, Railway

Labor Assn., 215 U.S. at 379. Those decisions point up the error

below in P&LE I when the court distinguished the holding in

Missouri Pacific R. Co. v. United Transp. Union, supra, that the

NLGA must be accommodated to the ICC’s jurisdiction under

§$§ 11343-11347, because § 11347 requires “the ICC to impose em-

ployee protective conditions” while “there is no such requirement”

16

As does $ 11347, its predecessor authorized the rail-

roads involved in a covered transaction and unions rep-

resenting their employees to agree upon the protections

to be imposed by the ICC as a condition of its approval.

Norfolk & Western R. Co. v. Nemitz, 404 U.S. 37

(1971), held that such a “pre-consolidation agreement”

constituted a “protective order of the Commission” (id.

at 45) so that rights thereunder could not be “substan-

tially abrogate|d|” by a subsequent agreement between

the consolidated railroad and a union (id. at 44). Al-

though the Court did not explicitly discuss the applicabil-

ity of the RLA, it affirmed a decision by the Sixth Cir-

cuit which concluded, among other things, that the RLA

“should not be applied” as its “application would

threaten to prevent many consolidations” approved by

the ICC. 436 F.2d 841, 845. That is equally true of ap-

proved line sales.

Those cases illustrate that the ICC’s § 10901 jurisdic-

tion over labor protection is not an unimportant aberra-

tion, but rather is an aspect of a jurisdiction that ex-

tends over a variety of railroad transactions for which

ICC approval is required. Since 1920, that jurisdiction

has been extended or modified not only in the Transpor-

tation Act of 1940, but also in the Railroad Revitaliza-

tion and Regulatory Reform Act of 1976 (90 Stat. 31)

and the Staggers Act of 1980 (94 Stat. 1985). We have

summarized that course of statutory development in the

NRLC’s amicus brief in support of the petition in

in regard to $ 10901 line sales. Pet. at A-12 and 13 n.&; 831 F.2d

at 1237 n.&. To hold that unions may strike because the ICC has

been given discretion is in effect to negate the decision of Congress

to give the ICC such discretion rather than to require protections.

It should be noted, moreover, that where Congress mandated em-

ployee protections, it established a minimum, so that the ICC

retains discretion to require more. L’.g., Railway Labor Assn. V.

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

17

P&LE I, at 13-15."" After covering much the same

ground, the ICC noted that:

“Congress has routinely affirmed and expanded the

importance of the [ICA] as a part of the complex

of laws governing labor relations in the rail indus-

try.... For more than fifty years the Commission

has exercised its authority in this field, frequently

at the request and with the support of labor, and our

decisions have had enormous impact on the shape of

rail labor relations throughout this period.”

FRVR Corporation, Etc., App. B supra at 14a-1bda.

The fact that the national rail transportation policy

lists fifteen policies to guide the ICC in exercising its

manifold functions does not mean that each such policy

is relevant to every ICC decision. Jilinois Commerce

Commission v. 1.C.C., 787 F.2d 616, 627 (D.C. Cir.

1986). But in exercising its jurisdiction over line sales,

the ICC certainly is entitled to give weight to the policy

“to reduce regulatory barriers to entry into and exit

from the industry” (§ 10101la‘7)), for example, as well

11 As also noted in that brief, at 16 n.9, the Congress has dealt

with the issue of protection for labor employees in a number of

statutes relating to the creation of Amtrak or to certain railroad

bankruptcies, in addition to the ICA. None of those statutes and

none of the other relevant provisions of the ICA contain an express

equivalent of the “exempt{ion|,” in 11341a, “from the antitrust

laws, and from ali other law, including State and municipal law, as

necessary” to the carrying out of a merger or other transaction

approved under §§ 11343-11347. The court below in P&LE | also

distinguished the Missouri Pacifie case (see n.10, p. 15, supra),

because the ICA does not include a similar express exemption in

regard to approved line sales under § 10901. However, none of the

statutory provisions to which the NLGA has been accommodated

by this Court contained an express exemption from the application

of the NLGA. And, the express exemption in the predecessor of

$11341la from “State and municipal law” did not prevent the Court,

in Chicago & N.W. Tr. Co. Vv. Kalo Brick & Tile Co., supra, from

holding that the ICC’s jurisdiction under the predecessor to § 10901

supersedes inconsistent State laws.

18

as to the policy “to encourage fair wages and safe and

suitable working conditions in the railroad industry”

($ 10101la(12)). However, this is the most important

reason in our opinion why the RLA and the NLGA

should be accommodated to the ICC’s jurisdiction under

§ 10901. As the ICC stated in FRVR Corporation, Etc.,

App. B supra at 17a:

“That the concern for labor equity is only one of

many conflicting aspects of National Transportation

Policy should not be seen as a derogation of the

agency’s authority—rather it is precisely the reason

why the [ICA] must be recognized to have pre-

eminence. . . .” In the discharge of our responsi-

bilities, we are charged with the expert resolution of

many-sided confiicts between disputants, public and

private. The recitation above of the factors leading

to our [Ex Parte 392) policy illustrates the com-

plexity of the process and information that led to

our present policy.”

A principal reason why “Congress has vested expert ad-

ministrative bodies such as the Interstate Commerce

Commission with broad discretion and has charged them

with the duty to execute stated and specific statutory

policies” is that resolving the various revelant “consid-

erations is a complex task which requires extensive fa-

cilities, expert judgment and considerable knowledge of

the transportation industry. Congress left that task to

the Commission ... .” McLean Trucking Co. v. United

States, 321 U.S. 67, 79, 87 (1944) ."

12 See, generally, 321 U.S. at 79-88, and with specific reference to

the national transportation policy as it then read, at 80-83. Among

other things, the ICC does not have “the duty or authority to

execute ... other laws,” as such, but “in executing those policies

[of the ICA] the Commission may be faced with overlapping and

at times inconsistent policies embodied in other legislation enacted

at different times and with different problems in view. When this

is true, it cannot, without more, ignore” them. 321 U.S. at 79-80.

“The precise adjustments which [the ICC] must make,” by reason

19

The belief below that “the interests of labor are, at

best, only a relatively small concern of the ICC,” has no

support other than the fact that the interests of labor

are not the ICC’s only concern; and, as shown above,

that fact makes it likely, rather than “highly unlikely

that Congress intended that rail labor look to the ICC

as its sole source of protection.” Certainly, the fact that

the ICC <'timately concluded in Ex Parte 392 that its

authorization of line sales should not be conditioned upon

employee protections, except in extraordinary circum-

stances, does not mean that the ICC’s concern for the

interests of labor was small, but only that those interests

to the extent adverse to ICC’s decision were overridden

by other considerations relevant to the ICC’s determina-

tion of the public interest."

Moreover, the interests of labor are not necessarily

congruent with the views of the RLEA, and the ICC has

found that its Ex Parte 392 ‘policy of encouraging the

formation of new short line and regional railroads has

of such other laws, “will vary from instance to instance,” but con-

sideration of such other laws “is significant chiefly as it aids in the

attainment of the objectives of the national transportation policy”

and the ICC “is not bound . . . to accede to the policies [in that case ]

of the antitrust laws” as “their dictates” can “be overborne by ‘the

public interest’” expressed in the national transportation policy.

321 U.S. at 80, 85-86. The fact that the RLEA and its member

unions thus could urge upon the ICC the policies of the RLA for

consideration in determining the extent to which authorized line

sales should be conditioned upon employee protections is all the more

reason for concluding, among other things, that the injunction in

P&LE II constitutes an impermissible collateral attack upon the

ICC’s authorization of the sale of P&LE’s lines. See n.6, p. 10 supra.

'S For many years continuing to date, the ICC almost invariably

conditioned its approvals of railroad transactions upon employee

protections, regardless of whether mandatory or discretionary.

The ICC’s Ex Parte 392 policy is by far the most important excep-

tion. At least from the rai!roads’ point of view, therefore, the be-

lief that the ICC has “only a relatively small concern” for “the

interests of labor” not only is wrong, it is ludicrous.

20

preserved railroad jobs as well as railroad service that

otherwise would be lost. See n.2, p. 2, and pp. 5-6 supra.

The ICC fully considered the arguments of the RLEA

in Ex Parte 392 and was upheld upon appeals by the

RLEA and others. Hence, it must be accepted for pur-

poses of this case that the ICC gave the interests of labor

all the concern that Congress intended.

We submit, therefore, that both the RLA and the

NLGA should be accommodated to the administrative

procedures provided in $ 10901 of the ICA for resolving

disputes over employee protections in regard to author-

ized line sales. The Court thereby can reconcile those

statutory provisions and policies in a way that makes

sense both as a matter of fact and as a matter of con-

trolling judicial doctrines.

II. Neither the Decision to Sell Nor the Effects of A Line

Sale Upon Employees Is A Mandatorily Bargainable

Issue Under the Railway Labor Act.

The argument above seems the simplest and most

clearcut basis for reversing both decisions below. There

is much to be said, however, for an alternative approach

reconciling the RLA and the ICA by holding that the

duty to bargain under the RLA does not include line sales

authorized by the ICC. In that event, the NLGA should

be accommodated to the administrative jurisdiction of

the ICC to resolve disputes over employee protections,

essentially for the reasons stated above; and in addition

should be accommodated to the restriction thus placed

upon mandatorily bargainable issues by the RLA."

1 Sections 8(a)(5) and (d) of the NLRA, 29 U.S.C. $§ 158(a) (5)

and (d)}, in imposing a duty to bargain in good faith with respect

to “wages, hours, and other terms and conditions of employment,”

thereby also limits that duty to those subjects. Labor Board v.

Borg-Warner Corp., 356 U.S. 342, 348-349 (1958). Thus, it “is

unlawful to insist upon” agreement respecting other matters even

though it is permissible to bargain and agree about them volun-

tarily. Jd. at 349. The same distinction between mandatory and

21

As the Court observed in regard to the duty to bar-

gain under the NLRA, “in establishing what issues must

be submitted to the process of bargaining, Congress had

no expectation that the elected union representative would

become an equal partner in the running of the business

.... First National Maintenance Corp. v. NLRB, 452

U.S. 666, 676 (1981). “Management must be free from

the constraints of the bargaining process to the extent

essential for the running of a profitable business,” and

“also must have some degree of certainty beforehand as

to when it may proceed to reach decisions without fear

of later evaluations ....” Jd. at 678-679. Hence, “in

view of an employer’s need for unencumbered decision-

making, bargaining over management decisions that have

a substantial impact on the continued availability of em-

ployment should be required only if the benefit, for labor-

management relations and the collective-bargaining proc-

ess, outweighs the burden placed on the conduct of the

business.” Jd. at 679.

permissible subjects of bargaining is made by §2 First of the

RLA which imposes a duty to exert every reasonable effort to make

and maintain agreements concerning “rates of pay, rules, and

working conditions.” 45 U.S.C. § 152 First. F.g., Japan Air Lines

Co. v. Intern. Ass'n of Machinists, 5388 F.2d 46, 51-52 (2d Cir.

1976). Hence, a strike over an issue that is not mandatorily bar-

gainable “is illegal as in violation of the [RLA] and subject to

injunction” despite § 4 of the NLGA. Bangor & Aroostook R. Co.

V. Brotherhood of Locomotive F. & E., 253 F. Supp. 682, 688 (D.D.C.

1966), aff'd in relevant part, 385 F.2d 581, 603-604, 613-614 (D.C.

Cir. 1967), cert. denied, 390 U.S. 923 (1968). See, also, /Ilinois

Central R. Co. v. Locomotive Engineers, 443 F.2d 136, 144 (7th Cir.

1971); Seaboard World Airlines, Inc. Vv. Transport Workers Union,

425 F.2d 1086, 1091-1092 (2d Cir. 1970), and 443 F.2d 437 (2d Cir.

1971); Chicago & North Western Ry. v. Order of Rail. Tel., 264

F.2d 254, 259-260 (7th Cir. 1959), rev'd on other grounds, 362 U.S.

330 (1960); Brotherhood of Rail. Train. v. New York Central R.

Co., 246 F.2d 114, 118 (6th Cir. 1957), cert. denied, 355 U.S. 877

(1957); Pullman Co. Vv. Railway Conductors, 49 L.R.R.M. 3162, 3165

(N.D. Ill. 1962), rev’d on other grounds, 316 F.2d 556 (7th Cir.

1963), cert. denied, 375 U.S. 820 (1963).

22

That surely is even more the case under the RLA,

particularly in the context of railroad transactions in-

voking the jurisdiction of the ICC to condition its ap-

proval upon protection for eniployees when in the public

interest. By so providing, Congress must have concluded

that those situations are not amenable to “the belief that

collective discussions backed by the parties’ economic

weapons will result in decisions that are better for both

management and labor and for society as a whole,” upon

which the “concept of mandatory bargaining is premised

.... Id. at 678. Perhaps the most fundamental defect

in the discussion below of the bargainability issue is

that the Third Circuit gave no apparent weight to the

jurisdiction and authority of the ICC in those regards.”

They did not disappear even if they did not supersede

any duty to bargain imposed by the RLA.

15 That court did not decide “whether First National Maintenance

actually applies to railway employees” as it concluded that in any

event “the railroad has a duty to bargain over the effects of the

transaction prior to implementing its unilateral decision to sell

its rail assets,” under the RLA as construed in Telegraphers v.

Chicago & N.W. R. Co., supra, without so much as noting that

Telegraphers did not involve a transaction over which the ICC had

jurisdiction and thus could be distinguished on that ground. See

Pet. in P&LE II at 21a-24a; 845 F.2a at 430-431. Moreover, con-

trary to the views below (ibid.), Telegraphers did not hold that

“when a decision affects the very existence of the workers’ jobs,

the RLA mandates bargaining,” and did not involve “in effect a

{management! decision to close down certain parts of its busi-

ness.” The railroad did not propose to dispose of any part of its

business, but only to abolish some of the many local stations at

which it did business while continuing to provide the same railroad

service through more centrally located stations. See 362 U.S. at

332. In holding that the union’s proposal in that case “to negotiate

about the job security of its members” did not “represent[] an

attempt to usurp legitimate managerial prerogative in the exercise

of business judgment,” 362 U.S. at 336, the Court did not hold that

any and all job security proposals are mandatorily bargainable

under the RLA. Cf. Fibreboard Corp. Vv. Labor Board, 379 U.S.

203, 223 (1964) (Stewart, J.).

23

It is not accidental that the most pertinent language in

the RLA describing the mandatory subjects of bargain-

ing—‘‘working conditions”—is narrower on its face than

its counterpart in the NLRA—“terms and conditions of

employment.” Justice Stewart, concurring in Fibreboard

Corp. Vv. Labor Board, supra at 221-222, observed that in

“common parlance, the conditions of a person’s employ-

ment are most obviously the various physical dimensions

of his working environment,” but that term is “suscepti-

ble of diverse interpretations” and had been more broadly

construed by the NLRB and the courts in reviewing its

decisions.’® In rejecting a contention that “the term ‘con-

ditions of employment’ has no broader meaning than...

the term ‘working conditions,’ and that it therefore re-

fers to the physical conditions under which employees are

compelled to work rather than to the terms or conditions

under which employment status is afforded or with-

drawn,” the NLRB noted that Senator Wagner (sponsor

of the NLRA) had stated in debates on amendments

thereto “that the term ‘condition of employment’ as used

in the original Act was intended to have a broader mean-

ing than ‘working conditions’ . . . (93 Congressional

Record 3427).” Inland Steel Company, 77 N.L.R.B. 1, 7

(1948), enforced, 170 F.2d 247 (7th Cir. 1948), aff'd,

339 U.S. 382 (1950) ."7

16The NLRA “assigned to the Board the primary task of con-

struing” the provisions regarding mandatory subjects of bargain-

ing; thus, “if its construction of the statute is reasonably defensi-

ble, it should not be rejected merely because the courts might

prefer another view of the statute.” Ford Motor Co. v. NLRB,

441 U.S. 488, 495, 497 (1979). The primary task of construing the

pertinent provisions of the RLA is for the courts, so they can

adopt the interpretation they believe to be most justifiable even if

some other interpretation is reasonably defensible.

17In enforcing that decision, the Seventh Circuit similarly noted

that: “A comparison of the language of the two Acts shows that

Congress in the instant legislation must have intended a bargaining

24

Textile Workers vy. Darlington Co., 380 U.S. 263, 273-

274 (1965), held “that when an employer closes his en-

tire business, even if the liquidation is motivated by

vindictiveness toward the union, such action is not an

unfair labor practice” under the NLRA. That decision

was premised upon the view that the “proposition that a

single businessman cannot choose to go out of business if

he wants to would represent such a startling innovation

that it should not be entertained without the clearest

manifestation of legislative intent or unequivocal judicial

precedent so construing the Labor Relations Act.” Id. at

270. Nonetheless, the NLRB has held that an employer

has a duty to bargain in regard to the effects of a total

closure upon employees.’* First National Maintenance,

supra, held (‘reversing the NLRB) that an employer’s

decision partially to close its business is not mandatorily

bargainable under the NLRA. 452 U.S. at 680-686. The

employer had “consented to enforcement of the Board’s

order concerning bargaining over the effects of the clos-

ing and hal[d] reached agreement with the union on

severance pay,” 452 U.S. at 677-678 n.15, and the Court

thus assumed that the Board correctly held that the em-

provision of broader scope than that contemplated in the [RLA]

, . Congress in the instant legislation used the phrase, ‘other

conditions of employment,’ instead of the phrase ‘working condi-

tions,’ which it had previously used in the [RLA]. We think it is

obvious that the phrase which it later used is more inclusive than

that which it had formerly used.” 170 F.2d at 254-255.

18 In Triplex Oil Refining Division, 194 N.L.R.B. 500, 504 (1971),

an Administrative Law Judge noted that a prior NLRB decision

had held that effects bargaining is mandatory, and concluded that

“the Board’s determination that the exclusionary language of

Darlington . . . does not apply” was “[{i]mplicit in” tat prior

decision. The NLRB in subsequent cases has mandated effects bar-

gaining in a complete closure situation, all without explaining how

the “exclusionary language” in Darlington can be distinguished

(insofar as we have discovered). E.q¢., P.J. Hammil Transfer Co.,

277 N.L.R.B. 462, 463 (1985); Eagle Express Co., 273 N.L.R.B. 501,

502 (1984). See Kirkwood Fabricators v. N.L.R.B., F.2d ——,

WestLaw slip op. at 3-5 (8th Cir., Dec. 5, 1988).

25

ployer had a mandatory duty to engage in such effects

bargaining.

A sale of part or all of a business, as well as a closure,

plainly involves “a change in the scope and direction of

the enterprise,” and thus “is akin to the decision whether

to be in business at all, ‘not in [itself] primarily about

conditions of employment, though the effect of the der

sion may be necessarily to terminate employment.’” /d.

at 677, quoting the concurrence in Fibreboard which fur-

ther described such decisions as being “at the core of

entrepreneurial control.” 379 U.S. at 223. Indeed, a sale

of an ongoing business is a closure from the point of

view of management, and from labor’s point of view may

provide an opportunity for employment by the purchaser

that would not exist in the event of a closure. Hence,

this difference provides an additional reason for holding

that a line sale does not give rise to bargainable issues.'”

But in assessing the applicability of those cases in an

RLA context, it also is necessary to heed the admonition

that the NLRA “cannot be imported wholesale into the

railway labor arena,” so that “analogies must be drawn

cireumspectly with due regard to the many differences

beween the statutory schemes.” Railroad Trainmen V.

Terminal Co., supra, 394 U.S. at 383.

The ICC’s jurisdiction and the more restrictive lan-

guage of the RLA in regard to mandatory subjects of

bargaining, discussed above, provide strong reasons not

available under the NLRA for holding that a decision

to close or sell all or part of a railroad is not mandatorily

19 A closure in the railroad context involves an abandonment of

railroad lines. The fact that a line sale offers a better prospect of

continued railroad employment (as well as providing contiiued

railroad service) was one of the factors that persuaded the «CC to

encourage line sales as an alternative to abandonments. See pp. 2,

5-6 supra. In FRVR Corporation, Ete., supra, App. B at 6a n.11,

a staff analysis had demonstrated “that employment on the new

lines, particularly the larger regional carriers, is typically drawn

from the work force of the selling carrier.”

26

bargainable, and for refusing to import into the RLA

the view of the NLRB that the effects on employees none-

theless are bargainable under the NLRA. Another im-

portant difference between the statutory schemes, which

also strongly supports those conclusions, is the vastly

greater delay before the transaction can be implemented

(and the consequences of that delay) that normally will

result under the RLA if either the decision or its effects

is mandatorily bargainable.

An “important difference . . . between permitted bar-

gaining and mandated bargaining” is that mandatory

bargaining “could afford a union a powerful tool for

achieving delay, a power that might be used to thwart

management’s intentions in a manner unrelated to any

feasible solution the union might propose.” First Na-

tional Maintenance, supra, 452 U.S. at 683.% That im-

portant difference was an important factor supporting

the Court’s conclusion that a decision to close part of a

business is not mandatorily bargainable under the

NLRA. The weight given to that factor surely must be

much greater under the RLA, in view of its provisions

requiring maintenance of the status quo in regard to

mandatory subjects of bargaining until the exhaustion of

procedures described by this Court as “long and drawn

out,” as “almost interminable,” and as “virtually end-

less.” See pp. 5-6, supra.*"

2° The RLEA apparently utilized the delay caused by the P&LE IJ]

injunction to attempt to negotiate a purchase of the P&LE lines

by the unions, either alone or in conjunction with another carrier,

rather than to bargain about employee protections. See Petitioner’s

Supplemental! Brief (Nov. 22, 1988).

21 Under the NLRA, ar employer need only await an impasse in

the bargaining before taking unilateral action in regard to a man-

datory subject of bargaining. Labor Board vy. Katz, 369 U.S. 736

(1962). In general, an impasse exists when “good faith negotia-

tions have exhausted the prospects of concluding an agreement”

which is a “matter of judgment” and depends upon the facts and

circumstances of the particular case. Taft Broadcasting Co., 163

27

Moreover, a violation of those status quo provisions

may be enjoined at the behest of the injured party, while

only the NLRB is authorized by the NLRA to seek in-

junctive relief against an unlawful refusal to bargain

(29 U.S.C. §160(j)) and the parties to the dispute

may not do so. See Bakery Drivers Union v. Wagshal,

333 U.S. 437, 442 (1948). In the usual case, therefore,

a contention that an employer violated the Act by refus-

ing to bargain about a mandatory subject of bargaining

is not decided by the NLRB until long after the alleged

violation occurred. If it finds that an employer unlaw-

fully failed to bargain about the effects of a transaction,

the NLRB’s standard remedy neither requires the trans-

action to be undone nor awards back pay to employees

deprived of employment by consummation of the trans-

action during the period prior to the Board’s order and

for five days thereafter.*”

N.L.R.B. 475, 478 (1967), enforced, 395 F.2d 622 (D.C. Cir. 1968).

See Morris, The Developing Labor Law (2d ed. 1983), at 634-

636, and the Third Supplement thereto (1988) at 279-280. Al-

though that period thus may vary, neither “cases nor common-

sense teach that an impasse may not be reached at even a single

session” of bargaining. Presto Casting Co., 262 N.L.R.B. 346, 353

(1982), enforced in part, 708 F.2d 495 (9th Cir. 1983). And, if a

business emergency necessitates swift action, a sale may be con-

summated with little or no advance notice and bargaining, although

that does not obviate the duty to bargain about the effects of the

transaction thereafter. Yorke v. N.L.R.B., 709 F.2d 1138, 1144

(7th Cir. 1983), cert. denied, 465 U.S. 1023 (1984).

22 Transmarine Navigation Corporation, 170 N.L.R.B. 389, 390

(1968). Such employees are awarded an amount equivalent to two-

weeks pay, and (if greater) the amount they would have earned

during the period from five days after the date of the order until

an agreement is made or an impasse reached in the effects bargain-

ing ordered by the Board if requested by the union within five days

after the date of the Board’s order. See Yorke v. N.L.R.B., supra,

which held that the back-pay period should not commence until five

days after the NLRB’s order is enferced on appeal if the employer

had a “debateable” basis for its appeal. 709 F.2d at 1144-1146. If

an employer is held to have violated a duty to engage in decision

28

The extraordinarily powerful tool for delay created by

the decision below that effects bargaining is mandatory

under the RLA has torpedoed the sale which the ICC

authorized, as the Third Circuit conceded might well

occur. It seems to us self evident that to “allow the

Union to force a company to bargain about the effects

of its management decisions to the extent of forcing it

to forego the proposed change in operations would be in

effect to take away from it the freedom to make the de-

cision in the first place.” International Ass’n of M. &

A. W. vy. Northeast Airlines, Inc., 473 F.2d 549, 558

(Ist Cir. 1972), cert. denied, 409 U.S. 845 (1972).

bargaining, back pay is awarded from the date that the employer

consummated the transaction. If the employer also is found to have

been “discriminatorily motivated,” the employer is ordered “to re-

store the status quo ante by reestablishing the closed operation,

unless [it] can show that such a remedy would be unduly burden-

some.” National Family Opinion, Inc., 246 N.L.R.B. 521 (1979).

“The assumption underlying the more-limited remedy [for an

effects-bargaining violation] is that, inasmuch as the employer’s

operation would have closed regardless of good-faith bargaining

. , ordering a make-whole remedy would be punitive, rather than

compensatory.” Jd. at 522 n.5. This difference in remedies, and the

minimal nature of the remedy for violation of a duty to engage in

effects bargaining, goes far towards explaining the willingness of

the NLRB and the lower courts to conclude that effects bargaining

is mandated by the NLRB even if decision bargaining is not. Under

the RLA, on the other hand, a determination that either is mandated

may result in a status quo injunction preventing consummation of

the transaction, such as was entered in P&LE J].

* The First Circuit essentially applied, as to both decision and

effects bargaining under the RLA, the balancing analysis subse-

quently adopted by this Court in First National Maintenance Corp.,

see 473 F.2d 556-559, which cited the First Circuit with approval,

452 U.S. at 683 n.20. The First Circuit emphasized that some of

the union’s demands in that case could not be effectuated without

a renegotiation of the merger agreement. “Where it is clear...

that bargaining about some effects of the decision [to merge] would

be ineffectual unless the company could be required to renegotiate

the merger, we believe that the duty to bargain about those effects

does not arise at all.” 473 F.2d at 558-559. The unions in this case

29

That essentially would occur in regard to railroad line

sales (particularly if, as is usual, only a partial sale is

involved), even if the effects bargaining could take place

after the sale is consummated. The protections com-

monly demanded by the unions would make a sale eco-

nomically infeasible. If the seller refused to agree to the

unions’ proposals, its remaining lines could be struck

and other railroads secondarily picketed once the RLA’s

major-dispute procedures are exhausted. And, at best,

uncertainty about an important future cost factor would

make the desirability of consummating a line sale very

questionable. The chilling effect of such factors upon line

sales is easy to foresee.

Thus, if the Court reaches the issue, it should hold that

there is no duty under the RLA to bargain about either

the decision to sell or its effects upon employees.

demanded that P&LE require a purchaser to assume its employees

and collective agreements, which could not be done without re-

negotiating the sale. And, the First Circuit had “no doubt but that

an employer . . . could refuse to discuss as unreasonable any labor

protective terms” proposed by a union that would make effectuation

of the employer’s nonbargainable decision “prohibitively expensive

..” Id. at 558. That is true of the unions’ other demands for

job and compensation guarantees by P&LE plus treble damages for

any losses incurred by the employees as a result of the sale.

30

CONCLUSION

For the reasons stated above and in the Brief for

Petitioner, both decisions below should be reversed.

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

January 18, 1989 Railway Labor Conference