Reply Brief — United Transportation Union v. Norfolk & Western Railway Co.

EILED

DEC 28 W87

‘sg

7 WOSEPH F. SPANIOL, JR.

No. 87-689 i CLERK 7

\paheenrgrersemmeen

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1987

UNITED TRANSPORTATION UNION,

Petitioner,

NORFOLK & WESTERN RAILWAY COMPANY,

SOUTHERN RAILWAY COMPANY and

INTERSTATE RAILROAD COMPANY,

Resp ndents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONER

Of Counsel: JOHN O’B. CLARKE, JR.

ROBERT L. HART

General Counsel

UNITED TRANSPORTATION UNION

14600 Detroit Avenue

Cleveland, Ohio 44107

(Counsel of Record )

RICHARD S. EDELMAN

HIGHSAW & MAHONEY, P.C.

Suite 210

1050 17th Street, N.W.

Washington, D.C. 20036

(202) 296-8500

Date: December 28, 1987 Attorneys for Petitioner

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

@ ES «0

_

‘ie

1

i

pm «fe

i

de fe

¥

=> 7.

oa |

eee ie

ee le

ree

2

- -

eae

ae

fa -

- ‘ 5 27

an Ae Ss ae

) 7 a. : - a "

hi iL eS We mae ae reririond

- ee ae icars

TABLE OF CONTENTS

Page

I. Respondents’ Arguments, Contrary To Their

Assertions, Show That This Case Presents Im-

portant Issues Of Statutory Construction Which

Were Before This Court In ICC v. BLE, 482

U.S. —-, 96 L.Ed.2d 222 (1987), But Which

FF | RN A eae ee apt Rneee 2

A. This Case Does Not Present A Straight-

forward Or Correct Application Of The Col-

lateral Attack Doctrine ................................... 3

B. Respondents Have Glossed Over The Need

For An Expeditious Resolution Of The Un-

derlying Dispute Between Rail Labor And

The Raiiroads Over The Relationship Be-

tween The Railway Labor Act And The In-

terstate Commerce Act ......... ease ces 7

SINT oka e2sivnsshscncsdsherasaciais cashioecnssdessbonbstodcaabioniaics 10

li

TABLE OF AUTHORITIES

CASES RELIED UPON: Page

Brotherhood of Locomotive Engineers v. Chicago

& North Western Ry., 314 F.2d 424 (8th Cir.),

cert. denied, 375 U.S. 819 (1963) ......................... 9

Brotherhood of Locomotive Engineers v. Interstate

Commerce Commission, 761 F.2d 714 (D.C.

Cir. 1985), vacated, 482 U.S. ——, 96 L.Ed.2d

Ge, ES RRA RGA ieee rea Mared Rhee begin User tere apes 5

Burlington Northern, Inc. v. ARSA, 503 F.2d 58

(7th Cir. 1974), cert. denied, 421 U.S. 975

2 |S eR ees ele ae ARON CRED Siete RNA A) rene TEESE re 8-9

Chicago, St. Paul, Minneapolis & Omaha Ry.—

pees, Bee T555). Ge (Ieee one. 8

Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S.

Es ieee ca ae 4

Interstate Commerce Commission v. Brotherhood

of Locomotive Engineers, 482 US. , 96

L.Ed.2d 222 (1987) (Sup. Ct. No. 85-792) _....... passim

Maine Central R.R.—Exemption, Finance Docket

No. 30532, served September 13, 1985, aff’d sub

nom., RLEA v. ICC, 812 F.2d 1443 (D.C. Cir.

| _: ROSRESENE Rareemepeueeney meters Nu RE ores yn ery toe ee ee oe 9

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

ee Ne cs, A een oe ene 5-6

Railway Labor Executives’ Association v. Guilford

Transportation Industries, Inc., 667 F. Supp. 29

(D. Me. 1987), appeal pending, 1st Cir. No. 87-

Oe ae seen ka kas pedal eat 9

Railway Labor Executives’ Association v. Pitts-

burgh & Lake Erie R.R., 831 F.2d 1231 (3rd

i I fs Sieg 0 esate deena eee en eae 9

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

RNIN nia. sash scdcececctytsee neoseuncis tated watt mane 5

Seahoard Air Line R.R. v. Daniel, 333 U.S. 118

3, ARIES ie neal RES Were egies ee ene se Ea 4, 6-7

Southern Ry.—Control—Central of Georgia Ry.,

$31 I.C.C. 151 (1967) .. Ann 8

United States v. Citizens per Southern National

BN. SR Er. Se CRIP ccscsncnccnatecdebiecsecmatices 1

ili

TABLE OF AUTHORITIES—Continued

Page

Whitney National Bank v. Bank of New Orleans,

I eG occ ccndeccacsennccncsacccccnseces 4

STATUTES AND OTHER MATERIALS:

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

isu i anisaddevcdsaracecandssueens passim

Section 10505, 49 U.S.C. § 10505... 1

Section 11341 (a), 49 U.S.C. § 11341(a) 5

Section 11347, 49 U.S.C. § 11347... ee ee 8

Railway Labor Act, 45 U.S.C. §§ 151, et seq. ........ passim

Section 7 First, 45 U.S.C. § 157 First _............ 4,7

fees 7 8). © £57 <................................... 8

pene Se 4)00., © 1G8..............................-...... 8

mecton S, 45 U.S.C. $ 159......................00............. 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-689

UNITED TRANSPORTATION UNION,

Petitioner,

V.

NORFOLK & WESTERN RAILWAY COMPANY,

SOUTHERN RAILWAY COMPANY and

INTERSTATE RAILROAD COMPANY,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONER

On November 25, 1987, respondents Norfolk & West-

ern Railway Company, Southern Railway Company and

Interstate Railroad Company [hereinafter, “N&W,”

“Southern” and “Interstate,” respectively] served a brief

in opposition to the petition by the United Transporta-

tion Union [hereinafter, “UTU”] for a writ of certio-

rari to the United States Court of Appeals for the Dis-

trict of Columbia Circuit. By its petition, the UTU is

asking this Court to review the decision of the court of

appeals in UTU v. N&W, 822 F.2d 1114 (D.C. Cir.

1987), in which the appellate court concluded that the

Interstate Commerce Commission [hereinafter, “ICC”

or “Commission’’], and not the district courts, has juris-

_diction to determine whether an ICC rail-exemption

order under 49 U.S.C. § 10505 relieves a railroad of its

obligations under the Railway Labor Act, 45 U.S.C.

§ 151, et seg. Petitioner UTU submits that respondents’

brief in opposition raises certain arguments and makes

:

certain statements to which a response should be made;

therefore, this reply brief is respectfully submitted in

response to the railroads’ brief.

I. Respondents’ Arguments, Contrary To Their Asser-

tions, Show That This Case Presents Important Issues

Of Statutory Construction Which Were Before This

Court In ICC v. BLE, 482 U.S. ——, 96 L.Ed.2d 222

(1987), But Which Are Still In Dispvte

In its petition, the UTU asserted that this case pre-

sents a recurring jurisdictional question, the resolution

of which is important to the orderly administration of

both the Railway Labor Act and the Interstate Com-

merce Act, 49 U.S.C. § 10101, et seg. Pet. at 7. Re-

spondents, as may be expected, disagree and assert fur-

ther that, in their opinion, ‘this case presents no occa-

sion for any interpretation of the provisions of the Inter-

state Commerce Act.” Resp. Brief at 13. However, re-

spondents support their position by contending, as if

the accuracy of their contentions were a matter of- ac-

cepted dogma, that ICC orders supersede the Railway

Labor Act and that the Interstate Commerce -Act has for

decades provided for the compulsory arbitration of major

disputes which arise out of the implementation of finan-

cial transactions approved by the ICC. Resp. Brief. at

14-15. Moreover, when the bare surface of respondents’

arguments is scratched, it becomes cleaw that respond-

ents’ argument that the UTU’s suit to enforce the Rail-

way Labor Act is nothing more than a collateral attack

on an ICC order, is implicitly premised on two critical

assumptions. First, respondents assume that Congress

has in fact given the ICC the power to override the Rail-

way Labor Act, and second, they assume that Congress

has further given that agency jurisdiction to determine

whether such a supremacy is necessary in a particular

case. What respondents obfuscate, however, is that the

validity of those assumptions is at issue in this case and

presents questions which are crucial to the entire rail

industry today.

3

As the briefs in connection with the petition by the

ICC for a writ of certiorari in JCC v. BLE, 482 U.S.

, 96 L. Ed.2d 222 (1987) (Sup. Ct. No. 85-792)

show, the assumptions upon which respondents rely so

heavily were very much in dispute in 1985 and, accord-

ing to the National Railway Labor Conference,’ pre-

sented the most “important labor relations issue in the

railroad industry” at that time. Brief for NRLC in sup-

port of Petition in Sup. Ct. Nos. 85-792 and 85-793 at 2,

served December 6, 1985. This Court granted the writ

in the JCC v. BLE case, but unfortunately, because the

ICC v. BLE case was decided on a jurisdictional basis

which did not touch upon the merits of the question for

which the writ of certiorari was granted, this Court

did not resolve the crucial dispute between rail labor and

the railroads over the impact of ICC orders on employee

rights under the Railway Labor Act. Nevertheless, re-

spondents act as if this dispute never existed, or if it

existed, was of recent invention by rail labor.

A. This Case Does Not Present A Straightforward Or

Correct Application Of The Collateral Attack Doc-

trine

Respondents’ main justification for opposing the writ

in this case is that, in their opinion, the court of ap-

peals’ decision “represents the straightforward and cor-

rect application of a familiar principle of administrative

law prohibiting collateral attacks on administrative

agency orders, and presents no important issues for re-

view in this Court.” Resp. Brief at 7-8. However, re-

spondents’ collateral attack argument rests upon their

assumption that the ICC has the power to decide the

central issue presented by the UTU’s suit—i.ec., whether

the ICC exemption order overrides the Railway Labor

Act—since, before a district court suit can be considered

as being a collateral attack on an agency order which is

‘The National Railway Labor Conference is the bargaining arm

for most of our nation’s railroads, including respondents, on many

collective bargaining subjects such as rates of pay, some rules, and

many fringe benefits.

+

reviewable in another judicial forum, the agency has to

have jurisdiction to consider the issues presented in the

district court suit. Compare, Whitney National Bank v.

Bank of New Orleans, 379 U.S. 411, 419 (1965), with,

United States v. Citizens And Southern National Bank,

422 U.S. 86, 102-03 (1975).

V’hat respondents fail to recognize in confidently con-

cluding that this case involves a collateral attack on an

ICC order, is that the disputed issue in this case is not

whether the ICC or the courts of appeals have exclusive

jurisdiction to review the arbitrator’s interpretation of

the ICC’s employee protective conditions, but rather,

whether the ICC (‘or even an arbitrator acting under

that order) has jurisdiction to make the determination

as to the effect of its order on other laws.*? If the Com-

mission does not have jurisdiction to determine whether

its orders override other laws, the district Court suit

cannot be viewed as being a collateral attack. Seaboard

Air Line R.R. v. Daniel, 333 U.S. 118, 122-23 (1948).

On the other hand, if the ICC does have the power to

determine if its orders supersede Railway Labor Act

rights, this case may then present a collateral attack.

In other words, respondents and the court of appeals

have decided the collateral attack question by assuming

without any discussion that the ICC has jurisdiction to

determine the impact of its orders on the non-Interstate

Commerce Act statutory rights of rail employees. How-

2In this case, respondents relied upon the ICC’s employee pro-

tective provisions to submit to an arbitrator the unresolved ques-

tion of whether, as respondents proposed, the UTU-Interstate

trainmen should be transferred over their objections to the UTU-

N&W rules agreement. This dispute is a “major dispute” under

the Railway Labor Act (e.g., Elgin, Joliet & Eastern Ry. v. Burley,

325 U.S. 711, 722-23 (1945)), and may not be resolved by an arbi-

trator unless both labor and management agree to arbitrate. 45

U.S.C. § 157 First. Thus, the crucial question posed by the UTU’s

complaint is whether the ICC’s exemption order overrode Section 7

First of the Railway Labor Act, 45 U.S.C. § 157 First, and not

whether the arbitrator properly balanced the equities in discharg-

ing his dutieS under the ICC’s employee protective provisions.

v

ever, it is the validity of the court of appeals’ and re-

spondents’ implicit assumption that the ICC has jurisdic-

tion to determine this conflict of laws issue which pre-

sents the crucial and disputed question for review in

this case.

The appellate court’s assumption that the ICC has

jurisdiction to decide the conflict of laws question is

entirely consistent with that court’s earlier decision in

ICC v. BLE, supra. In that case, the court of appeals

concluded that the immunity granted ‘by 49 U.S.C.

§ 11341(a) is not self-executing and that the ICC “must

supply a reasoned basis for that exercise of its statutory

authority.” BLE v. ICC, 761 F.2d 714, 723 (D.C. Cir.

1985) (footnote omitted), vacated, ICC v. BLE, supra.

That view of the ICC’s, and a fortiori its arbitrator’s,

authority is relevant here for Section 11341(a) is an

explicit expression of an intent to override other laws

which respondents have argued is either applicable or

implicit in this case. But, as the four concurring Jus-

tices showed in JCC v. BLE, supra, 96 L. Ed.2d at 246

(Stevens, J., concurring), such a view of the Interstate

Commerce Act is “based on a misunderstanding of

§ 11341” and, petitioner submits, the ICC’s authority

over conflicting laws.

This Court has previously held that the ICC does not

have the authority to construe or to enforce other laws

which may touch upon transactions approved under the

Interstate Commerce Act. Schwabacher v. United States,

334 U.S. 182, 190 (1948) ; McLean Trucking Co. v. United

States, 321 U.S. 67, 79-88 (1944). As this Court ob-

served in McLean Trucking:

The Commission’s task is to enforce the Interstate

Commerce Act and other legislation which deals spe-

cifically with transportation facilities and problems.

That legislation constitutes the immediate frame of

reference within which the Commission operates;

and the policies expressed in it must be the basic

determinants of its action.

6

321 U.S. at 79-80. Since the ICC does not have the

authority to enforce non-Interstate Commerce Act laws,

such as the Railway Labor Act, it logically follows that

the tribunal which is called upon to enforce the other

law, and not the ICC, is the proper forum to determine

whether the other law survives an ICC order. JCC v.

BLE, supra, 96 L. Ed.2d at 247n.13 (Stevens, J., con-

curring). Consequently, a suit to enforce the other law

is not a collateral attack on the ICC’s order.

This conclusion flows from this Court’s decision in

Seaboard Air Line R.R. v. Daniel, supra, where the

Court raised swa sponte the question of whether a state

court, as contrasted with the federal courts which had

the exclusive jurisdiction to review an ICC decision, had

jurisdiction to consider both a suit to enjoin a state

from enforcing a law from which the railroad claimed it

was immunized by an ICC consolidation order, and an

answer which “questioned the validity and scope of that

(ICC] order ... .” 333 U.S. at 122. According to this

Court, the state court had jurisdiction:

So far as the [railroad’s] . . . complaint is con-

cerned, this is not the kind of action to “set aside”

a Commission order of which the federal district

courts [and now, the courts of. appeals] have ex-

clusive jurisdiction. While the «ction coes involve

the scope and validity of a Commission order, the

relief requested in the complaint was the removal

of an obstruction to the railroad’s obedience to the

order, not its suspension or annulment. Nor did

the answer seek to have the enforcement of the

order enjoined, although it did question its validity

as a basis for the relief sought in the complaint.

333 U.S. at 122-23. This Court then addressed the scope

-of the state court’s authority over the ICC’s order and

stated (Jd. at 123):

{T]he state court . .. had power, because of the is-

sues raised by the comn!aint and because of the re-

lief requested, to determine whether the [ICC]

order, properly interpreted, did exempt [the rail-

7

road] . .. from compliance with the state railroad

corporation laws and, if so, whether the Commission

had transcended its statutory authority in making

the order.

Respondents and the court of appeals viewed peti-

tioner UTU’s complaint very narrowly as being a suit

to set aside the arbitrator’s award which they assert is

“functionally” the same as an order of the ICC, thereby,

in their opinion, making this case a classic collateral at-

tack situation. Even if the UTU’s suit could be construed

so narrowly and not as a suit to enforce Section 7 First

of the labor statute, petitioner UTU respectfully submits

that the very notion that an arbitrator can he viewed

as being functionally equivalent to the ICC and may con-

clude that he and the ICC have been given the authority

to override the Railway Labor Act by compelling a union

to arbitrate a major dispute, clearly shows that at the

very least this case does not present a “straightforward”

application of a familiar principle of administrative law

prohibiting collateral attacks on agency orders.

B. Respondents Have Glossed Over The Need For An

Expeditious Resolution Of The Underlying Dis-

pute Between Rail Labor And The Railroads Over

The Relationship Between The Railway Labor Act

And The Interstate Commerce Act

After confidently asserting that this case does not pre-

sent an occasion to interpret any provision of the Inter-

state Commerce Act (Resp. Brief at 13), respondents go

on to state that the ICC’s employee protective provisions

give an arbitrator under those conditions the power both

to arbitrate “major disputes” (notwithstanding the clear

command of Section 7 First of the Railway Labor Act,

45 U.S.C. $157 First, and a congressional policy of al-

most one-hundred years against compulsory arbitration

of such disputes) and to abrogate existing collective bar-

gaining agreements. According to respondents, ‘“{m]an-

datory arbitration of labor disputes arising under pro-

tective conditions has been an integral requirement of

the conditions for decades.” Resp. Brief at 15. The va-

8

lidity of that assertion, which petitioner has consistently

challenged since it was first raised in the early 1980's

in so far as it pertains to “major disputes” under the

labor statute (see, Brief for UTU in Sup. Ct. Nos. 85-

792 and 85-793 at 33-50), clearly presents an important

issue of statutory construction, because rail labor main-

tains that since the 1976 Amendment to what it is now, 49

U.S.C. § 11347, no ICC order may override the Railway

Labor Act. See, Pet. at 13-14n.9. In view of respond-

ents’ assumptions that the ICC’s authority over rail fi-

nancial transactions overrides the Railway Labor Act,

the relationship between the two Acts and the issue of

whether the transportation law authorizes the compul-

sory arbitration of major disputes, is in fact presented

by this case as a necessary issue under the Question

Presented for Keview.

As petitioner explained in its petition (Pet. 19-21),

rail labor and the railroads must know as expeditiously

as possible whether the Interstate Commerce Act can

override the Railway Labor Act. This issue is at the

heart of the disputes which have erupted frequently

since late 1983 when the ICC, in the orders at issue in

ICC v. BLE, supra, declared for the first time in the

history of the Interstate Commerce Act that its orders

did in fact override the Railway Labor Act in a par-

ticular case. See, © uthern Ry.—Control, 331 1.C.C. 151,

169-71 (1967); Chicago, St. Paul, Minneapolis & Omaha

Ry.—Lease, 295 1.C.C. 696, 701-02 (1958).* In the four

* Although the ICC stated in those cases that if there were a

conflict between the two laws, its orders would prevail, the ICC

did not conclude that the Railway Labor Act posed a conflict in

those cases. In two appellate court decisions which addressed the

relationship between the two Acts, the courts opined that the In-

terstate Commerce Act superseded the labor statute, but in both

cases the courts enforced agreements and not ICC devised condi-

tions; this distinction is important because Sections 7 to 9 of the

Railway Labor Act authorize agreements to arbitrate major dis-

putes, and thus, an ICC order adopting such an agreement does

not conflict with the labor statute. Burlington Northern, Inc. v.

9

years since those 1983 ICC orders, as amplified by the

Commission’s dicta in Finance Docket No. 30532, Maine

Central R.R.—Exemption, served September 13, 1985,

aff'd sub nom., RLEA v. ICC, 812 F.2d 1443 (D.C. Cir.

1987) (table), the railroads have maintained that ICC

orders relieve them of their Railway Labor Act obliga-

tions, and that any suit by rail labor to enforce that

labor statute is a collateral attack on the ICC orders,

whether or not employee protective provisions are im-

posed. E.g., RLEA v. Guilford Transportation Indus-

tries, Inc., 667 F.Supp. 29 (D. Me. 1987), appeal pend-

ing, [st Cir. No. 87-1774.

This consistent refusal by the railroads to comply

with the Railway Labor Act in situations involving ICC

orders has led to at least seven suits in the past seven

months and to three strikes and the threat of one more

in the past four months. E.g., RLEA v. Pittsburgh &

Lake Erie R.R., 831 F.2d 1231 (3rd Cir. 1987). At

present, six courts of appeals have cases before them

which raise issues arising from the carriers refusal to

comply with the Railway Labor Act,* but it is very un-

ARSA, 503 F.2d 58 (7th Cir. 1974), cert. denied, 421 U.S. 975

(1975); BLE v. Chicago & North Western Ry., 314 F.2d 424 (8th

Cir.), cert. denied, 375 U.S. 819 (1963).

* The courts of appeals and the cases pending in those courts are

as follows:

First Circuit:

RLEA v. Guilford Transportation Industries, Inc., 1st

Cir. 87-1774 (to be argued-Jan. 8, 1988) ;

Third Circuit:

RLEA v. Pittsburgh & Lake Erie R.R., 3rd Cir. No. 87-

3797 (to be argued Jan. 6, 1988) ;

Fifth Circuit:

RLEA v. City of Galveston, Teras, et al., 5th Cir. No.

87-6169;

Eighth Circuit:

RLEA v. Chicago & North Western Transportation Co.,

8th Cir. No. 87-5071MN (argued December 18, 1987) ;

10

likely that any decision in those cases can be presented

to this Court for argument this term. Thus, the dispute

over the relationship between the two Acts will continue

to plague the rail industry until at least late 1988 or

early 1989, if the writ is not granted in this case. Un-

fortunately, because the railroads in the interim will

continue to look to labor as a means to reduce their costs

and will continue to use the ICC’s authority as an au-

thorization to cut their labor costs, rail labor will have

only one defense to such unfair cost cutting measures—

the strike—if they are denied access to the courts to en-

force the Railway Labor Act. Since this case squarely

presents the issue of whether rail labor has access to the

courts to enforce the labor statute which Congress en-

acted to eliminate the need for strikes—i.e., the Railway

Labor Act—this case, contrary to respondents’ belief,

presents important questions which desperately need to

be resolved.

CONCLUSION

For the reasons set forth in its petition and herein,

the UTU submits that the writ should be issued.

Respectfully submitted,

Of Counsel: JOHN O’B. CLARKE, JR.

ROBERT L. HART (Counsel of Record)

General Counsel RICHARD S. EDELMAN

UNITED TRANSPORTATION UNION HIGHSAW & MAHONEY, P.C.

14600 Detroit Avenue Suite 210

Cleveland, Ohio 44107 1050 17th Street, N.W.

Washington, D.C. 20036

(202) 296-8500

Date: December 28, 1987 Attorneys for Petitioner

Burlington Northern R.R. v. UTU, 8th Cir. Nos. 87-2600

and 87-2581 (briefs due December 29, 1987) ;

Ninth Circuit:

UTU v. Burlington Northern R.R., 9th Cir. No. 87-4386;

Eleventh Circuit:

BRAC v. CSX Transportation, Inc., 11th Cir. No. 87-8446.