# Opposition Brief — CSX Transportation, Inc. v. Rastall

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3298%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1109

## Text

No. 90-993

In the '
Supreme Court of the United States
October Term, 1990

CSX TRANSPORTATION, INC.,
Petitioner,

VS.

STEPHEN RASTALL and TIMOTHY GOWDEY,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF OF RESPONDENTS IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

Richard A. Allen
Counsel of Record
Richard P. Schweitzer
ZUCKERT, SCOUTT &
RASENBERGER
888 Seventeenth Street, NW
Suite 600
Washington, DC 20006-3959
202/298-8660

Attorneys for Respondents
Stephen Rastall and
Timothy Gowdey

January 17, 1991

Balmar Legal Publishing Division, Washington, D.C. 20005, (202) 659-3610

QUESTIONS PRESENTED

Respondents submit that the decision below presents the follow-
ing questions:

1. Whether the Railway Labor Act applies to and requires
arbitration of breach of contract claims by Canadian employees of a
U.S.-based railroad who are employed outside the United States.

2. Whether the collective bargaining agreements between
petitioner and respondents’ unions preclude respondents from pursu-
ing their breach of contract claims in a court action.

Fr

il
TABLE OF CONTENTS
pp iy ee. Ge
WRPUUETE SP SUP ww tt ee
SUMMARY OF ARGUMENT ..............

ee ee ee

I. The Decision Below Does Not Conflict With
the Decisions of Any Other State or Federal
Court or With the Decisions of This Court

II. The Decision Below Is Not In Conflict With
Federal Labor Policy or Canadian Labor Law
and Presents No Issue of General Importance . .

III. The Decision Below Is Essentially Interlocutory
and There Is No Reason for this Court’s Review
At This Time In Any Event ...........

Co ae ee ee

12
13

ili
TABLE OF AUTHORITIES

CASES:

Air Line Dispatchers Ass’n v. National Mediation Board,
189 F.2d 685 (D.C. Cir.), cert. denied, 342 U.S. 849
EN er erg oe at al ake ane a era a

Air Line Stewards and Stewardesses Ass’n v. Northwest
Airlines, 267 F.2d 170 (8th Cir.), cert. denied, 361
Sa IEEE Ob Sale 5 as GI ee

Air Line Stewards and Stewardesses Ass’n v. Trans World
Airlines, Inc., 173 F. Supp. 369 (S.D.N.Y.), aff'd,
273 F.2d 69 (2d Cir. 1959), cert. denied, 362 U.S.
SR ah tg AG ES SIO KR e's

Allen, et al. v. CSX Transportation, Inc. and National
Railroad Adjustment Board, No. 90-3045
(D.D.C., filed December 14,1990) ........

American Radio Ass’n v. Mobile Steamship Ass’n, Inc.,
Co

Benz v. Compania Naviera Hidalgo, S.A..,
a ks ek ek ee

Boureslan v. Arabian American Oil Co.,
ek se be

Brotherhood of Locomotive Firemen v. Bangor &
Aroostock R. Co., 389 U.S. 327 (1967) ......

Cox Broadcasting Corp. v. Cohn,
EE ee

Equal Employment Opportunity Commission v. Arabian
American Oil Co., No. 89-1838 ..........

Foley Bros., Inc. v. Filardo, 336 U.S. 281 (1949) ....

General Comm. of Adjustment v. United States,
102 L.R.R.M. (CCH) 2869 (D. Minn. 1979),
aff'd sub nom. General Committee of Adjustment v.
Burlington Northern Ry. Co., 620 F.2d 161
(8th Cir.), cert. denied, 449 U.S. 826 (1980) ....

Groves v. Ring Screw Works, 111 S. Ct. 498 (1990)

4,5

12

12

a 19
10

iv
Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
eG kee blk aw SNe

Incres S.S. Co. v. International Maritime Workers Union,
LR eee ee

Independent Union of Flight Attendants v. Pan American
World Airways, Av. L. Rep. (CCH) 4 18,452
ae ae

McCullouch v. Sociedad Nacional de Marineros de
Frome, S72 US. TOES SS) «ww ee

Oil Chemical Atomic Workers Int’. Union,
11 NMB No. 56 (Fed. 3, 1964) ...........

Rastall v. CSX Corp., 696 F. Supp. 683
EE

St. Anne Nackawic Pulp & Paper Co., Ltd. v.
Canadian Paper Workers Union Local 219
Co je ke a

Vollmar v. CSX Transportation, Inc., 705 F. Supp. 1154
(E.D. Va. 1989), aff'd on other grounds, 898 F.2d
I ea Sa 9 bcs § ha ee ke 8 es

Windward Shipping (London) Ltd. v. American Radio
Asan, 495 US. WOOGIE) . ww we wee

STATUTES:

NS as owe Se ae ED
ee ee eee
Ce eee eres
Be ae ee eee
Railway Labor Act, 45 U.S.C. § I5letseq. .......

OTHER AUTHORITIES:

Sen. Doc. No. 163, 83d Cong., 2d Sess. Aviation Study
PN ec oa We ee ee ene eS

12

10

y

12
8
5,8
8

passim

No. 90-993

In the
Supreme Court of the United States
October Term, 1990

CSX TRANSPORTATION, INC.,

Petitioner,
VS. \
STEPHEN RASTALL and TIMOTHY GOWDEY,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF OF RESPONDENTS IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondents are two citizens of Canada who reside in the
Province of Ontario and who work entirely in that Province as hourly
employees for petitioner CSX Transportation, Inc. Beginning in 1986
respondents and other employees began submitting grievances to
petitioner complaining of petitioner’s practice of paying its Canadian
employees in Canadian dollars without adjustment for differences in
the exchange rate which, by 1986, had brought the value of the
Canadian dollar down to 72 cents in U.S. currency.!_ Respondents
believed that they were entitled under their collective bargaining
agreements to the same wages, in real terms, as their fellow American
employees. This belief was based on the facts, among others, that the
agreements, which specify wages only in “$”, were all negotiated and

' Uniil recent years the value of U.S. and Canadian dollars had been substantially

equal, fluctuating within a range of a few percentage points. Since 1978 the value of
the Canadian dollar has declined dramatically relative to the United States dollar.

2

executed in the United States by an employer and unions based in the
United States on behalf of employees 99.4 percent of whom live and
work in the United States, and that nothing in the agreements sug-
gested that employees performing the same work would be compen-
sated differently.

After officials of petitioner denied respondents’ grievances and
appeals, respondents filed this action in February 1988 in the District
of Columbia Superior Court for breach of contract. They filed the suit
as a Class action on behalf of themselves and their fellow Canadian
employees of petitioner. They have been trying for two years, so far
without success, to obtain an adjudication of the merits of their claim
by that court.

Respondents filed their suit in the superior court rather than
pursue their claims through the arbitration procedures established by
the Railway Labor Act, 45 U.S.C. § 151 et seq., for two reasons. First,
as the court of appeals noted (Pet. App. A-5), judicial decisions going
back almost 40 years — which petitioner conspicuously ignores —
have consistently held that the Railway Labor Act has no application
to non-U.S. employees of U.S. carriers performing service entirely
outside the United States.* Second, as the court of appeals held, (Pet.
App. A-9 to A-17), the twelve collective bargaining agreements
covering respondents and their fellow Canadian employees* contain

2 On the contrary, respondents believe that the agreements contain a number of

provisions strongly refuting any such suggestion.

> Air Line Dispatchers Ass’n v. National Mediation Board, 189 F.2d 685 (D.C.
Cir.), cert. denied, 342 U.S. 849 (1951); Air Line Stewards and Stewardesses Ass’n
v. Northwest Airlines, 267 F.2d 170, 175 (8th Cir.), cert. denied, 361 U.S. 901 (1959);
Air Line Stewards and Stewardesses Ass'n v. Trans World Airlines, Inc., 173 F. Supp.
369, 374-78 (S.D.N.Y.), aff'd, 273 F.2d 69 (2d Cir. 1959), cert. denied, 362 U.S. 988
(1960); General Comm. of Adjustment v. United States, 102 L.R.R.M. (CCH) 2869,
2871 (D. Minn. 1979), aff'd sub nom. General Committee of Adjustment v. Burlington
Northern Ry. Co., 620 F.2d 161 (8th Cir.), cert. denied, 449 U.S. 826 (1980);
Independent Union of F light Attendants v. Pan American World Airways, Av. L. Rep.
(CCH) # 18,452 (N.D. Cal. 1989); Vollmar v. CSX Transportation, Inc., 705 F. Supp.
1154, 1164-65 (E.D. Va. 1989), aff'd on other grounds, 898 F.2d 413 (4th Cir. 1990).

Petitioner, like other U.S. railroads, is unionized on a craft-by-craft basis.
Respondents and their fellow Canadian employees are members of twelve different
crafts, each of which is covered by a separate collective bargaining agreement with
petitioner.

3

provisions expressly permitting employees to pursue their claims in
court after they have been rejected by petitioner.>

Petitioner, however, immediately removed the case to federal
court, claiming (despite the long line of consistent decisions to the
contrary) that the Railway Labor Act applied to the dispute. Petitioner
then moved the federal court to dismiss the suit on the grounds that
the Railway Labor Act and the collective bargaining agreements
required arbitration. United States District Judge Gesell, however,
held that the Railway Labor Act did not apply, denied the motion to
dismiss and remanded the case to the superior court. Rastall v. CSX
Corp., 696 F. Supp. 683 (D.D.C. 1988).

Back in the superior court petitioner renewed its arguments that
the Railway Labor Act and the agreements required arbitration. The
superior court made no ruling with respect to the Railway Labor Act,
but it held that the agreements required arbitration and therefore
dismissed the suit. Pet. App. A-19 to A-22. The superior court did
not base its decision on the relevant language of the agreements, but
on its conclusion that it would be anomalous to construe the agree-
ments to give Canadian employees a judicial forum for dispute resolu-
tion that the Railway Labor Act denies to U.S. employees.

Respondents appealed. Pending the appeal, and in view of the
superior court’s decision, respondents and some of their fellow
employees presented their currency claims in eleven separate submis-

> In support of its contrary contention (ie., that the agreements require arbitra-
tion) petitioner’s description of the dispute resolution provisions in the various
agreements (Pet. 4-5) is highly selective and seriously misleading. Thus, petitioner
quotes Rule 32(1)c) of the Carmen's agreement, which provides for the submission
of grievances to the National Railway Adjustment Board, but fails to note, until three
pages later, that Rule 32(4) of that Agreement goes on to provide that “[t}his Rule is
not intended to deny the right of the employees to use any other lawful ac.ion for the
settlernent of claims or grievances provided such action is instituted within 9 months
of the date of the decision of the highest designated officer of the carrier.” (Emphasis
supplied.) See Pet. App. A-9. Petitioner also completely ignores the dispute resolu-
tion provisions in five of the agreements, which make no reference whatever to
arbitration or the NRAB, but which broadly authorize each employee to institute
proceedings “before a tribunal having jurisdiction pursuant to law or agreement of
the claim or grievance involved.” Pet. App. A-10.

4

sions® to the National Railroad Adjustment Board ("NRAB"), the
arbitration board established by the Railway Labor Act. In doing so
they stated to the NRAB that they were not waiving or in any way
receding from their position that the NRAB had no jurisdiction over
the dispute and that they were submitting their claims only because
they were required to do so by a court decision they believed to be
wrong and were appealing. After the court of appeals reversed the
superior court, respondents and the other employees requested to
withdraw their submissions to the NRAB. The NRAB permitted the
withdrawal of ten of the submissions but refused to permit withdrawal
of one of the submissions because oral argument had been completed.
The same NRAB referee who had earlier decided the CSXT submis-
sions in CSXT’s favor (see n. 6, supra) subsequently rejected the
employees’ claims in that case for the same reasons. (Pet. Supp. App.
SA-167toSA-171).’ The affected employees have filed an action to

© In accordance with the NRAB’s practice, a separate submission was made for
all employees in each separate craft.

Several months earlier, on October 3, 1988 CSXT had submitted to the NRAB
the question whether the collective bargaining agreements required the currency
dispute to be arbitrated. Neither CSXT nor the NRAB gave any notice of the
submission to respondents or their counsel. Two unions, the United Transportation
Union ("UTU") and the Brotherhood of Locomotive Engineers ("BLE") responded
to this submission by addressing the merits of the currency dispute rather than the
arbitrability question that was submitted. CSXT then agreed to treat its submission
as a submission on the merits. Neither union challenged the jurisdiction of NRAB
and the UTU declined to present any oral argument. A neutral NRAB referee
ultimately ruled in favor of CSXT, finding that although “a strong case can be made”
for the employees’ contractual contentions, their claims were foreclosed by their past
practice of accepting wages in Canadian currency. (Pet. Supp. App. SA-175 to
SA-176). An action to set aside this decision on jurisdictional grounds has been filed
in the United States District Court for the District of Columbia. Allen, et al. v. CSX
Transportation, Inc. and National Railroad Adjustment Board, No. 90-3045 (D.D.C.,
filed December 14, 1990.)

7 Petitioner erroneously states that the attorney for the employees withdrew the

other submissions after the neutral referee rendered his decision in this one case (Pet.
6-7), as if to suggest that the employees waited to see what the decision was before
deciding whether to submit their claims to the NRAB for decision. The employees
sought to withdraw all of their submissions as soon as the court of appeals ruled that
the Railway Labor Act did not apply and that the agreements did not require
arbitration, and they consistently disputed the jurisdiction of the NRAB over these
disputes.

3

set aside that decision on jurisdictional grounds. Allen, et al. v. CSX
Transportation, Inc., and National Railroad Adjustment Board, No.
90-3045 (D.D.C., filed December 14, 1990).

On May 8, 1990 a panel of the District of Columbia Court of
Appeals unanimously reversed the superior court and remanded the
case for trial. In accordance with every other court decision which
has addressed the issue, including Judge Gesell’s earlier decision in
this case and the recent decision of United States District Judge Ellis
in another breach of contract suit brought by two of respondents’
fellow Canadian employees against CSXT,® the court of appeals held
that the Railway Labor Act “does not apply to foreign employees
performing services entirely outside the United States.” Pet. App.
A-4. The court noted that its reading of the Railway Labor Act was
in accord with “the consistent body of federal law elsewhere holding
that the Railway Labor Act has no extraterritorial effect.” (Pet. App.
A-4 to A-5, citing cases.)?

The court of appeals also held that neither the Labor Manage-
ment Relations Act, 29 U.S.C. §§ 185 et seq., nor the Canadian Labour
Code, assuming either of them applied, required arbitration of the
employees’ claims in this case (Pet. App. A-5 to A-6).

Finally, the court held that all of the collective bargaining agree-
ments permitted petitioner’s Canadian employees to pursue their
grievances through court action (Pet. App. A-8 to A-17). Unlike the
superior court, the court of appeals analyzed the language of the
pertinent contract provisions and concluded that “the agreements are
unambiguous in leaving the employees the choice of submitting their
grievances to arbitration or resolving them in court.” (Pet. App.
A-14). The court’s reasoning was in accord with the analysis and
conclusions of Judge Ellis in Vollmar v. CSX Transportation, Inc., on
the same issue and the same contract provisions. See 705 F. Supp. at
1168-1170.

8 Vollmar v. CSX Transportation, Inc., 705 F. Supp. 1154, 1164-65 (E.D. Va.
1989), aff'd on other grounds, 898 F.2d 413 (4th Cir. 1990).

9 In view of the cited decisions, petitioner’s characterization of the court of
appeals decision as “unprecedented in U.S. labor law” (Pet. 7) is preposterous.

6

Petitioner filed a petition for rehearing en banc. No judge on the
court of appeals requested a vote on the petition and it was denied on
October 10, 1990 (Pet. App. A-23).

SUMMARY OF ARGUMENT

There is no basis whatever for this Court’s review of any of the
issues presented by the court of appeals decision. There is no conflict
among the state courts or the federal courts of appeals on any of the
issues decided by the court below. On the contrary, that court followed
and applied a consistent line of court decisions going back to 1951
regarding the territorial scope of the Railway Labor Act.

Nor does the case present any issue of general importance.
Whether or not the court of appeals correctly decided that the par-
ticular collective bargaining agreements covering petitioner’s
employees permitted those employees to pursue their breach of con-
tract claims in court is an extremely narrow issue that has no sig-
nificance to anyone other than the parties to this case. It is an issue
that turns on the language and provisions of these particular agree-
ments, which are themselves subject to renegotiation by the parties at
any time.

Finally, the ruling is essentially interlocutory. The court of
appeals remanded the case for trial and petitioner may prevail on the
merits at trial. There is no reason whatever for this Court to review

any of the issues at this time even if they were otherwise worthy of
review.

%

ARGUMENT

THE DECISION OF THE COURT OF APPEALS DOES NOT
WARRANT THIS COURT’S REVIEW.

I. The Decision Below Does Not Conflict With the
Decisions of Any Other State or Federal Court or
With the Decisions of This Court.

Petitioner does not even contend that the decision of the court of
appeals confticts with the decisions of any other state court or any
federal court of appeals. Nor could it so contend in view of the fact

7

that the court’s ruling that the Railway Labor Act did not apply to
respondents’ claims is in accord with every other court decision that
has considered the issue. See n. 3, supra.10

Petitioner scarcely acknowledges these decisions and its efforts
to distinguish them (Pet. 16) are wholly insubstautial. ‘While
petitioner argues that most of the cases cited by the court of appeals
involved representational disputes rather than contract disputes, that
fact is completely irrelevant to the principle which they established
and to the issue in this case: whether the Railway Labor Act applies
to foreign employees of U.S. carriers performing service outside the
United States.!!__ Petitioner also argues that the one case that did
involve a contract dispute, General Comm. of Adjustment v. Bur-
lington Northern, Inc., 620 F.2d 161 (8th Cir.), cert. denied, 449 U.S.
826 (1980), is inapplicable because that case involved “no issue
whether the carrier and union, by agreement, could apply the [Railway
Labor Act’s arbitration] procedures to all grievances.” (Pet. 16). The
present case, however, also does not involve such issue. In this case
the court of appeals found that the agreements do not require the
employees to pursue their grievances through the RLA’s grievance
procedures. This case does not involve the issue whether the agree-
ments could have done so. Petitioner’s argument under the Railway
Labor Act is that that statute applies to this dispute and requires
arbitration regardless of what the agreements provide. General
Comm. of Adjustment v. Burlington Northern and all of the other cases
relied on by the court below are directly relevant to that argument and
have consistently rejected it.

10 Furthermore, as the Eighth Circuit noted in Air Line Stewards and Steward-
esses Ass’n v. Northwest Airlines, 267 F.2d at 174, a 1955 Senate committee report
acknowledged with approval the decision of the District of Columbia Circuit in Air
Line Dispatchers Ass'n v. National Mediation Board and the 1949 National Mediation
Board decision which it affirmed and declined to alter the “long-established doctrine
that the labor laws of [our] country should not be given extraterritorial affect...” Sen.
Doc. No. 163, 83d Cong., 2d Sess. Aviation Study 69-70 (1955).

'! Petitioner’s statement of this issue in its first “Questions Presented” is puz-

zling because it seems to suggest that in petitioner’s view the applicability of the
Railway Labor Act turns on whether “the Canadian employees are members of a craft
or class composed of predominantly U.S. employees.” Petitioner never contended to
the courts below that the applicability of the Railway Labor Act turns on whether or
not respondents’ unions have more U.S. members than non-U.S. members, and does
not make that argument in its petition.

8

Petitioner’s claim that the decision below conflicts with
decisions of this Court (Pet. 10-15) is completely baseless. None of
the cases cited by petitioner involved foreign employees working
outside the United States, and therefore none of them involved the
issue presented here. Those cases merely held that when the Railway
Labor Act applies, it requires arbitration of contract disputes. They
are in no way inconsistent with the court of appeals’ conclusion that
the Railway Labor Act does not apply to disputes involving foreign
employees employed outside the United States and therefore does not
require arbitration of those disputes. Furthermore, while this Court
has never directly addressed the territorial scope of the Railway Labor
Act, the substantial and uniform body of lower court opinions on that
issue is fully in accord with this Court’s decisions on the territorial
scope of other federal labor statutes such as the National Labor
Relations Act, 29 U.S.C. §§ 151 et seq., and the Labor Management
Relations Act, 29 U.S.C. §§ 185 etseq. See Benz v. Compania Naviera
Hidalgo, S.A., 353 U.S. 138 (1957) (holding that the LMRA applies
only to “the working men of our own country and its possessions”).
See also, American Radio Ass'n v. Mobile Steamship Ass’n, Inc., 419
U.S. 215 (1974); Windward Shipping (London) Ltd. v. American
Radio Ass’n, 415 U.S. 104 (1974); McCullouch v. Sociedad Nacional
de Marineros de Honduras, 372 U.S. 10 (1963); Incres $.S. Co. v.
International Maritime Workers Union, 372 U.S. 24 (1963).!2

12 The extraterritorial effect of statutes turns on the intent of Congress as
reflected in the words of the statute and the legislative history. As the Court said in
Foley Bros., Inc. v. Filardo, 336 U.S. 281, 286 (1949), “[a]n intention so to regulate
labor conditions which are the primary concern of a foreign country should not be
attributed to Congress in the absence of a clearly expressed purpose.” Petitioner has
pointed to nothing in the language or history of the Railway Labor Act to support its
claim that it applies here. Petitioner merely argues (Pet. 13-14) that the Railway Labor
Act is applicable because respondents elected to pursue their claims in U.S. courts.
Petitioner did not make this argument to the court of appeals and it is baseless. Under
the test established by the cases, the Railway Labor Act does not apply to dispute
involving “employees who are hired and who perform services completely outside
the United States and its territories.” Airline Stewards and Stewardesses Ass'n v.
Northwest Airlines, 267 F.2d at 175. The scope of the Act does not turn on where
those employees seek a remedy for their contract claims.

The issue in this case has little similarity to the issue regarding the scope of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 20006¢ et seq., which is before this
Court in Equal Employment Opportunity Commission v. Arabian American Oil Co.,

9

There is also no merit to petitioner’s claim (Pet. 13) that the
decision below warrants this Court’s review because it conflicts with
many decisions of the NRAB. Contrary to petitioner’s implication,
decisions of the NRAB and its sister agency, the National Mediation
Board, are not consistent on this point; moreover, the clear weight of
those decisions is in fact against petitioner’s position. See, e.g.,
General Comm. of Adjustment, 102 L.R.R.M. at 2870 (citing five
NRAB cases “involv[ing] disputes on work performed in Canada
where the Board held it[self] to be without jurisdiction to entertain the
controversy”); NMB Case No. R-1150, slip op. at 2 (April 15, 1945)
(holding that railroad employees who worked exclusively in Canada
were not entitled to vote for their representatives under the Railway
Labor Act); see also Oil Chemical Atomic Workers Int’l. Union, 11
NMBNo. 56 at 151 (Feb. 3, 1984). In contrast, only two of the NRAB
decisions cited by CSXT specifically addressed the issue of the
Board’s jurisdiction; in the others, which involved disputes over fairly
insignificant matters, no party appears to have questioned it (see Pet.
Supp. App. SA-87 to SA-129). Moreover, the two decisions that did
address the issue are devoid of any coherent rationale for rejecting the
applicability of Air Line Dispatchers and other cases. See Pet. Supp.
App. SA-70 to SA-72, SA-168. In any event, these decisions, which
are generally non-appealable, do not constitute authoritative rulings
of law and provide no basis for questioning the consistent body of
judicial decisions on this issue.

II. The Decision Below Is Not In Conflict With Federal
Labor Policy or Canadian Labor Law and Presents
No Issue of General Importance.

Having determined that the Railway Labor Act does not apply
and therefore does not require arbitration of respondents’ claims, the
court of appeals then considered and rejected petitioner’s contention
that the collective bargaining agreements themselves required arbitra-
tion of the claims. Petitioner argues that this latter ruling somehow
violated federal labor policy and Canadian labor law and will have
important consequences for railroad labor relations. (Pet. 16-25.)
There is no merit to any of these contentions.

No. 89-1838, and Boureslan v. Arabian American Oil Co., No. 89-1845. The issue
in those cases involves a very different statute and its application to U.S. citizens
employed by U.S. companies in other countries.

10

As the court of appeals itself acknowledged (Pet. App. A-14),
federal labor law favors the arbitration of labor disputes, but it does
not compel arbitration or preclude parties from providing for non-ar-
bitral means of resolving contract disputes, as this Court recently
reaffirmed in Groves v. Ring Screw Works, 111 S. Ct. 498 (1990).
Petitioner seems to contend that the court of appeals violated federal
policy by the very act of examining and interpreting the provisions of
the collective bargaining agreements (Pet. 11-12, 16), but petitioner
does not explain how else the court was supposed to rule on
petitioner’sclaim that the agreements required arbitration.!3_ Further-
more, petitioner does not object to the superior court’s having inter-
preted the agreements; its real complaint is with the result reached by
the court of appeals.

Petitioner’s bald assertion that the Canadian Labour Code would
require arbitration of this dispute (Pet. 8) is simply wrong, and its
argument that the court of appeals violated principles of comity by
failing to apply Canadian law (Pet. 19-23) completely ignores the
court of appeals’ careful analysis of the Canadian Labour Code (Pet.
App. A-6 to A-8) and its clearly correct conclusion that that Code does
not require arbitration of disputes where, as the court found in this
case, the agreements permit other means of dispute resolution. As the
Canadian Supreme Court stated in St. Anne Nackawic Pulp & Paper
Co., Ltd. v. Canadian Paper Workers Union Local 219 [1986] 1S.C.R.
704, 723, the words of the Canadian statute “indicate that, if they so
choose, the parties may validly provide for a variety of other sorts of
settlement mechanisms, including recourse to the courts.” (Quoted by
the court of appeals at Pet. App. A-7.)!4

13 Nor does petitioner explain how or why interpreting these agreements accord-
ing to “federal principles” (Pet. 17) should have led the court of appeals to interpret
them differently.

14 Petitioner also argues that principles of comity should have impelled the courts

below to decline to exercise jurisdiction over respondents’ complaint and require them
to file suit in Canadian courts (Pet. 20). Respondents are unaware of any principle of
“comity” which would deny foreign citizens access to the courts of this country to
assert breach of contract claims against a U.S. company that is subject to the court’s
jurisdiction. In any event, this argument was never made to the courts below and
should not be considered here.

11

Petitioner’s contention that the decision below will have impor-
tant consequences for labor relations in the railroad industry (Pet.
23-25) is simply fanciful. In holding that the Railway Labor Act does
not apply to this dispute the court of appeals applied well-settled law,
which the courts have consistently followed for 40 years without any
discernable adverse effects on labor relations in the railroad industry.
The court’s further ruling that the particular agreements between
CSXT and its unions do not require the arbitration of disputes presents
no federal question, is limited to these agreements and has no impor-
tance to-anyone other than the parties to this case.!> Petitioner’s
suggestion (Pet. 24) that the ruling below could subject petitioner to
conflicting obligations toward its foreign and U.S. employees over-
looks the fact that the claim in this case is by its nature limited to
petitioner’s Canadian employees (as a result of petitioner’s choosing
to treat its Canadian employees differently from its U.S. employees.)!®
Furthermore, petitioner is free at any time to seek renegotiation and
revision of the dispute resolution provisions of its agreements to
require arbitration of all grievances, including those by its Canadian
employees.

1S The ruling was also clearly correct; indeed, petitioner does not even attempt
to demonstrate any flaws in the court’s analysis of the contractual provisions, but
merely asserts that its own position was “plausible” and “arguably justified.” (Pet.
15.) Moreover, the “explanation” of the contractual provisions it now offers (through
different counsel) (Pet. 15) was never suggested to the court of appeals and petitioner
did not cite to that court the case or the statutes cited at Pet. 15, n. 12. Furthermore,
contrary to petitioner’s claim, respondents’ Canadian law expert did not admit that
this so-called “explanation” was plausible (see Pet. Sup. App. SA-137 to SA-138).

16 Furthermore, petitioner’s contention that arbitration before the NRAB ensures

uniformity of contract interpretation is belied by a recent report on the railroad
arbitration system issued by the National Mediation Board and acommittee of railroad
and union representatives, entitled “Section 3 Report” (December 8, 1987) and set
forth in the record below at R. 654-677. In addition to finding the system overloaded,
unmanageable and unresponsive to the needs of parties and grievants, the report found
that inconsistency of decisions on the same issue by different arbitration panels, whose
decisions are largely unreviewable, was a significant problem. R. 661, 676-677.

12

III. The Decision Below Is Essentially Interlocutory and
There Is No Reason for this Court’s Review At This
Time In Any Event.

Even if the issues were otherwise worthy of this Court’s review,
which respondents submit they are not, there is no reason for this Court
to exercise its discretion to review any of those issues at this time. The
court of appeals remanded the case for a trial at which petitioner may
prevail on the merits and thereby moot the issues. The decision is
therefore essentially interlocutory and that circumstance is a further
reason why the petition for review should be denied. See Brotherhood
of Locomotive Firemen v. Bangor & Aroostock R. Co., 389 U.S. 327,
328 (1967) (denying certiorari “because the Court of Appeals
remanded the case [and thus] it is not yet ripe for review by this
Court”); Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,240 U.S. 251,
258 (1916).!7

'” Petitioner contends that the ruling of the court of appeals on the Railway Labor

Act is “final” as to that issue and that this Court therefore has jurisdiction to review
that ruling under 28 U.S.C. § 1257(a), citing Cox Broadcasting Corp. v. Cohn, 420
U.S. 469, 482 (1975). The fact that the Court may have jurisdiction to review that
ruling does not mean that the Court should in its discretion exercise that jurisdiction
when, as here, further proceedings may moot the issue and there are no special reasons
why it should be reviewed immediately.

13
CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted,

/s/

Richard A. Allen
Counsel of Record
Richard P. Schweitzer
ZUCKERT, SCOUTT &
RASENBERGER
888 Seventeenth Street, NW
Suite 600
Washington, DC 20006-3959
202/298-8660

Attomeys for Respondents
Stephen Rastall and
Timothy Gowdey

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3298%3A3. Public record. Not legal advice.