Petition for Writ of Certiorari — Atchison, Topeka & Santa Fe Railway Co. v. United States

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MAK

IN THE

SUPREME COURT OF THE UNITED STATES

Octoser TERM 1975

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THE ATCHISON, TOPEKA AND SANTA FE

RAILWAY COMPANY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

March 8, 1976

Davi E. Parry

JouHN P. FRestet, JR.

C. Georce Nrepank, JR.

80 East Jackson Boulevard

Chicago, Illinois 60604

(312) 427-4900

Counsel for Petitioner,

THe Atcuison, TOPEKA AND

Santa Fr Ramway Company

La Saile Street Press — Chicago

Printed in U.S.A.

INDEX

a UNE vb ck ok dy cice acer ndaveessevens

Ps ee Pe ee ne peer ee

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STATUTORY PROVISION INVOLVED ..........

SEAT a Ee CO BEER COAIS 6 icc ceetccccessveses

POC MMENE Kein ya bed Whe esanncvasesaneendeu reds

1. The Question Presented is Important to Administra-

tion of the Hours of Service Act. ................

2. The Court of Appeals May Have Decided the Impor-

tant Question Presented Incorrectly .............

ee Fi eee hy ere rep n a nee

CERTIFICATE OF GERVICE. ....c. sees ccvexsevuss

Appendix A—Opinion of the United States Court of

Appeals for the Ninth Circuit of November 10, 1975 . A-1

Appendix B—Opinion of the United States District

Court for the Northern District of California of

August 22, 1973, as amended October 23, 1973 ......

2

trict of California is reported at 363 F. Supp. 644 (1973).

For convenience, a copy of it appears as Appendix “B”

hereto.

JURISDICTION

The judgment of the United States Court of Appeals for

the Ninth Cireuit was entered on November 10, 1975. The

time for filing this petition for Writ of Certiorari was ex-

tended by Mr. Justice Rehnquist on January 26, 1976, to

and including March 8, 1976. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Under the facts of this case was the release of the

Santa Fe crew involved at Stockton, California, which

is admittedly a “terminal” where adequate facilities for

food and lodging are available, and which is an his-

torical release point for such a crew, a release at a

“designated terminal” within the meaning of Section

1(b)(3)(B) of the Hours of Service Act, 45 U.S.C.

§ 61(b) (3) (B)?

STATUTORY PROVISION INVOLVED

Section 1(b)(3)(B) of the Hours of Service Act, 45 U.S.C.

§ 61(b)(3)(B), limiting the “on duty” time of railroad

operating employees, provides:

“(3) Time on duty shall commence when an employee

reports for duty and terminate when the employee is

finally released from duty, and shall include:

(A) Interim periods available for rest at other

than a designated terminal;

(B) Interim periods available for less than four

hours rest at a designated terminal ... .”

RLEED THROUGH

masseter seems.

3

STATEMENT OF THE CASE

In preparation for filing of this test suit, counsel for

Santa Fe negotiated with counsel for the Federal Railroad

Administration (hereafter “FRA”), the agency charged by

Congress and the Secretary of Transportation with the

duty of carrying out the provisions of the Hours of Ser-

vice Act, 45 U.S.C. §§ 64a(a), (b), 64b, 49 C.F.R. § 149(d),

a carefully drawn “Stipulation of Facts” upon which the

case was to be submitted to the courts. Referred to through-

out the proceedings below—and herein—as the “FRA

Stipulation,” it was signed by counsel for Santa Fe and

the Chief Counsel, Department of Transportation, Federal

Railroad Administration, and the Assistant Chief Counsel,

Enforcement Division, Department of Transportation,

Federal Railroad Adm‘nistration. Insofar as Santa Fe is

concerned, this is the Stipulation which must control this

ease. Since the government's leading attorneys involved in

administration of the Hours of Service Act also signed this

Stipulation, we can only conclude that the United States,

acting through the FRA, also believes that this is the Stipu-

lation.

The FRA Stipulation, in its entirety, presents the best

possible Statement of this case. It reads:

“STIPULATION OF FACTS

“Tt has been agreed and is hereby stipulated by and

between the United States of America (hereafter ‘Gov-

ernment’) and Defendant, The Atchison, Topeka and

Santa Fe Railway Company (hereafter ‘Santa Fe’),

that the following is a statement of the facts and the

issue involved in this proceeding, that this statement

constitutes all of the relevant facts, and that no addi-

tional facts or departure from those recited herein will

be considered in the determination of this case:

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“1. This action is brought under the Act of Congress

known as the ‘Hours of Service Act’ (U.S. Code, Title

45, Sections 61 to 64b, inclusive) against Santa Fe, a

Delaware corporation which has offices and places of

business in Richmond and San Francisco, California,

within the jurisdiction of this Honorable Court. Santa

Fe operates an extensive interstate railroad system

which extends from Chicago to the Gulf Coast and to

California, A map of that system is attached. Santa Fe

was and is a common carrier by railroad engaged in

interstate commerce in the State of California and

elsewhere, and, as such, subject to the restrictions of

the Hours of Service Act.

“2. At 4:30 a.m. on February 14, 1971—the calendar

day to which all hourly references herein apply—the

crew of Santa Fe train ‘xtra 3427 East’ went on duty

at their home terminal, Richmond, California. There

were four men in the crew: W. A. Ward, Conductor ;

A. B. Kerr and W. C. Byington, Brakemen; and R. C.

Moulton, Engineer. Prior to going on duty the day and

the hour here involved, these men had been off duty as

follows: Mr. Ward—35 hours, 5 minutes; Mr. Kerr—

97 hours, 15 minutes; Mr. Byington—28 hours, 20 min-

utes; and Mr. Moulton—386 hours, 55 minutes.

“3. ‘extra 3427 East’ departed Richmond at 4:55

a.m. It arrived at Mormon Yard, Stockton, California

(hereafter ‘Stockton’), at 8:50 a.m. All four crew mem-

bers were there released at 9:05 a.m. on an interim

period available for rest. For the purposes of this case,

the Government concedes that suitable facilities for

food and lodging were available to the crew. This re-

lease period extended from 9:05 a.m. until the crew

was recalled at 2:40 p.m.—a total period of five hours

and 35 minutes. Continuing as the crew of ‘Extra 3427

Kast’, these same four men departed Stockton at 4:05

p-m. and arrived at their away-from-home terminal,

Riverbank, California, at 4:55 p.m. They departed Riv-

erbank on their return or reverse trip at 5:45 p.m.,

operating train ‘Extra 3354 West’ back to Richmond,

RLEED THROUGH

ERIE eae | SE ate a

5

their home terminal. Mr. Ward (Conductor) and

Messrs. Kerr and Byington (Brakemen) were relieved

from duty at Richmond at 8:20 p.m. Before their next

tours of duty, Mr. Ward and Mr. Kerr were each off

26 hours, 25 minutes, while Mr. Byington was off 20

hours and 40 minutes. Mr. Moulton (Engineer) was

relieved at 8:25 p.m. He was off 26 hours, 20 minutes,

before he next went on duty.

“4, Richmond is the recognized ‘home terminal’ and

Riverbank the ‘away-from-home’ terminal for the crew

assignment in this case.

“5. Stockton is a recognized ‘home’ or ‘away-from-

home’ terminal for at least some Santa Fe train crew

assignments, but is not, nor was not, the recognized

‘home’ or ‘away-from-home’ terminal for this or other

crews assigned to trains operating from Richmond to

Riverbank and return.

“6. Some Santa Fe trains do originate or terminate

at Stockton—that is, it is the ‘home’ or ‘away-from-

home’ terminal for some crews. Switch crews are em-

ployed there because cars are added to and/or removed

from trains at that point. A substantial number of cars

are delivered to and received from connecting carriers

—namely, Southern Pacific and Western Pacific—at

Stockton. Therefore, it is a ‘terminal’ within the par-

lance commonly understood in the railroad industry.

“7, Stockton is an historical release point for crews

assigned to trains operating from Richmond to River-

bank or the reverse, but is not designated or specified

as such by name in any working agreement, bulletin

instruction or formal notice. Conversely, nothing in

any working agreement, bulletin instruction, or formal

notice purported to restrict Santa Fe’s right to release

the crew involved here at Stockton as it did under the

circumstances in question. Trains such as ‘Extra 3427

East’ being operated from Richmond to Riverbank by

a single crew are frequently delayed in transit at

Stockton because there are delays in deliveries from

§

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other railroads of cars to be added to the train’s con-

sist. Such was the cause of the delay at Stockton in-

volved here.

“8. Although the employees involved in this case

received their full hourly or mileage rate of compen-

sation for the duration of the period they were released

at Stockton, they were nonetheless free of all responsi-

bilities to and free from supervision by Santa Fe during

that period. In other words, their time was their own.

There was no way Santa Fe could require them to

utilize facilities available for rest. The fact that they

were paid during the period in question is not relevant

to the merits of the question in issue.

“9, Each member of the crew was and is a member

of or represented by a labor organization—the En-

gineer by the Brotherhood of Locomotive Engineers,

the others by the United Transportation Union. Accord-

ingly, the rates of pay, rules, and working conditions of

each were and are subject to the terms of a collective

bargaining agreement negotiated and administered by

and between Santa Fe and their representative labor

organizations pursuant to the Railway Labor Act, 45

U.S.C. §§ 151 et seq. If and when Santa Fe allegedly

violates the agreed rates of pay, rules, or working con-

ditions of any employee represented by a labor organi-

zation, including an employee in the position of any of

the men involved here, the prescribed avenue of relief

is the filing and processing of an appropriate claim or

grievance pursuant to the provisions of Section 3 of the

Railway Labor Act, 45 U.S.C. § 153. No claims or

grievances were filed on behalf of any men in the crew

involved here growing out of their tours of duty on

February 14, 1971. It is agreed that ‘designated term-

inal’ is an appropriate subject of bargaining under the

Railway Labor Act, but there are certain limits. For

example, the parties may not agree as to a terminal

which lacks adequate facilities for food and lodging.

“10. In this case the Government has charged Santa

Fe with violating the Hours of Service Act in that it

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7

permitted the employees involved to remain continu-

ously on duty in excess of fourteen hours contrary to

45 U.S.C. §62. There is no question that there would

have been no violation of the Act as it stood prior to

1969, when it was substantially amended by the Con-

gress. This case turns upon the interpretation and ap-

plication of certain new provisions added to the Act as

a part of the 1969 amendments. In its present form

applicable to these facts, the Act makes it unlawful

for a railroad ‘to require or permit an employee [ac-

tually engaged in ... the movement of any train], in

case such employee shall have been continuously on

duty for fourteen hours, to continue on duty or to go

on duty until he has had at least ten consecutive hours

off duty .. .’ 45 U.S.C. §62(a)(1). The meaning of

‘time on duty’ brings to bear this portion of 45 U.S.C.

§ 61:

(3) Time on duty shall commence when an em-

ployee reports for duty and terminates when the

employee is finally released from duty, and shall

include:

(A) Interim periods available for rest at

other than a designated terminal;

(B) Interim periods available for less than

four hours rest at a designated terminal ...

It is agreed that this necessarily means that ‘time on

duty’ does not include ‘interim periods available for

rest’ for four hours or more at a ‘designated terminal’.

In this case the Conductor and Brakemen went on duty

at Richmond at 4:30 a.m. and were finally released at

the same point at 8:20 p.m.—15 hours and 50 minutes

later. The Engineer went on duty at the same time but

was released 5 minutes later than the others, so total

elapsed time for him was 15 hours and 55 minutes. If

the 5 hours and 35 minutes the men were released at

Stockton is to be counted as ‘on duty’ time, Santa Fe

obviously violated the 14-hour limitation of the Hours

of Service Act. On the other hand, if that 5 hours and

as)

Se Ae ee ee ee ee

9 Pion

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35 minutes is not to be counted as ‘on duty’ time, it is

equally obvious that the Act was not violated, for the

men were ‘on duty’ about 10 hours—substantially less

than the 14-hour maximum. Whether the period of re-

lease at Stockton was ‘time on duty’ is, therefore, the

question which separates the Government and Santa Fe,

and it presents the ultimate issue here—was Stockton a

‘designated terminal’ within the proscription of the

Hours of Service Act? If it was, there was no violation

of the Act. If it was not, the Act was violated. None

of the exceptions stated in 45 U.S.C. § 64a(d) are ap-

plicable to the facts of this case.

“11. The phrase ‘designated terminal’ was not one of

art in common usage in the railroad industry when it

was used by Congress in 1969 in enacting 45 U.S.C.

§ 61. Nor has it become such in the interim inasmuch

as the railroad industry (railroad management), rail-

road labor and the Federal Railroad Administration

on behalf of the publie generaily do not agree as to its

meaning. A number of railroads inquired of the Gov-

ernment (i.e., the Federal Railroad Administration)

what it understood the phrase to mean. In a memo-

randum undated but released in December 1970 which

had been prepared by the staff of the Bureau of Rail-

road Safety of the Federal Railroad Administration ‘as

an aid to those who come under the jurisdiction of the

Hours of Service Act’, a number of potential problem

areas were discussed, ineluding, as follows, the defini-

tion of ‘designated terminal’:

The Washington offices of the FRA have received

numerous questions about the term ‘designated

terminal’. Please note the discussion of this term

by the Congress in the attached Committee Report.

In any event, any terminal at which the employee

is released must have available suitable facilities

for food and lodging. After numerous conferences

with many people interested in the Hours of Serv-

ice Act, we find that it is necessary to take any

‘definition’ of the term on a case-by-case basis.

RI CEN THE OLIGH

9

If after some experience along this line we find

that it is necessary to promulgate a rule setting

out the characteristics of a ‘designated terminal’,

the FRA will institute such a proceeding.

A copy of the Committee Report referred to will be

included in a packet of legislative history materials

furnished the Court. Particularly apropos are the fol-

lowing sentences from page 8 of the Senate Report,

which reads in pertinent part:

The phrase ‘designated terminal’ in section

1(b)(3)(A) and (B) is intended to have that mean-

ing commonly recognized in the railroad industry.

The committee is advised that collective bargain-

ing agreements provide a commonly understood

definition for this term. As a minimum the com-

mittee intends that the term should mean generally

a place where suitable food and lodging are avail-

able for employees.

“12. The collective bargaining agreements between

Santa Fe and each of the labor organizations repre-

senting those crafts or classes of employees whose work

involves them in the actual operations of trains use the

phrase ‘designated terminal’ in one instance in each of

the said agreements. Such agreements do, however,

contain a number of references to ‘designated home

terminal’ and ‘away-from-home terminal’. Members of

the Washington staff of the Federal Railroad Adminis-

tration, Office of Chief Counsel and Office of Safety,

have reviewed numerous collective bargaining agree-

ments. They have found in agreements in force on other

railroads some references to ‘designated terminal’ and

‘away-from-home terminal’, and many references to

‘designated home terminal’.

“13. The facts of this case are neither unique nor

unusual. There are a number of other points on Santa

Fe’s system where, due to operating conditions or cir-

cumstances and consistent with custom and practice,

crews might be and are released at other than their

10

home or away-from-home terminals for more than four

hours and where suitable facilities for food and lodg-

ing are available. The same is true to a greater or

lesser degree of the operations of most other major

railroads in the United States. However, the Federal

Railroad Administration has been for over a year, and

is presently, taking exception to such operations, and

has filed claims for alleged violations of this Act under

the provisions of the Federal Claims Collection Act of

1966. This case originally arose under the provisions

of the Federal Claims Collection Act. It is agreed,

however, that in these other claim cases those railroads

do not concur in the interpretation of the said FRA.

Although Santa Fe and presumably other railroads

could, if necessary, so arrange their operations as to

accommodate an interpretation of ‘designated terminal’

limiting it to a crew’s ‘home’ or ‘away-from-home’

terminal, the economic burden of doing so would be

very substantial. The issue involved is vitally important

to the Department of Transportation’s Federal Rail-

road Administration, to the railroad industry generally,

to railroad labor, and to the general public. It involves

a novel question of law which is a product of the re-

cently amended Hours of Service Act.

“14. If this Honorable Court finds that under the

facts of this case Santa Fe violated the Hours of

Service Act, judgment should be entered for the Gov-

ernment in the amount of $500 for each of the four

employees involved, or a total of $2,000, as provided in

45 U.S.C. 4 64a(a). The Government should also have

its costs. If the Court finds that Stockton was a

‘designated terminal’ for the crew involved within the

meaning of the Hours of Service Act, it should dismiss

the complaint and award costs to Santa Fe.”

The office of the United States Attorney for the Northern

District of California, to which this case was referred, first

filed an appropriate Complaint against Santa Fe (R. 1-3).

It was not until a few weeks later that it questioned the

use of the FRA Stipulation. Although we continued to in-

se AR TE EE ELL EET

DIrocoen THe OLicHn

11

sist upon the binding effect of this Stipulation and ex-

pressly reserved our right to rely upon it, we agreed to ex-

ecute a second stipulation to satisfy the Assistant United

States Attorney to whom the matter had been assigned for

handling.

In the District Court proceedings, no one questioned the

binding effect of the FRA Stipulation, and the role of the

FRA therein is pointed up by the fact that the govern-

ment’s case was argued orally to the District Court by

the same Assistant Chief Counsel, Enforcement Division,

Department of Transportation, Federal Railroad Admin-

istration, who had signed the FRA Stipulation. It was not

until oral argument before the Court of Appeals that an

attorney from the office of the United States Attorney—

who had not played any prior role in the case—questioned

the binding effect of the FRA Stipulation, and not much

was made of the point even then.

The Court of Appeals seems to have assumed that the

FRA Stipulation is binding. For our part, we cannot con-

ceive otherwise.

REASON FOR GRANTING WRIT

The Writ of Certiorari herein sought should be granted

for one very good reason—the Court of Appeals has de-

cided an important question of federal law which has not

been, but should be, settled by this Court.

NE OTE LL ET LILI ISIE IED PLL EL INE IPE EES LIE LEIS PIO ILE ELLE IIE EEE IE IEE NE TET TE

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ARGUMENT

1. The Question Presented is Important to Administration

of the Hours of Service Act.

Although the basie Hours of Service Act has been in

effect since 1907, 34 Stat. 1415, the question here presented

is new because of substantial amendments to the Act in

1969 which, among other things, added the Section 1(b) (3)

(B) involved in the case at bar.

The importance and novelty of the question presented

are settled by the last two sentences of 913 of the FRA

Stipulation, p. 10, supra:

“The issue involved is vitally important to the Depart-

ment of Transportation’s Federal Railroad Adminis-

tration, to the railroad industry generally, to railroad

labor, and to the general public. It involves a novel

question of law which is a product of the recently

amended Hours of Service Act.”

2. The Court of Appeals May Have Decided the Important

Question Presented Incorrectly.

Although the purpose of this Petition makes an extended

argument on the merits inappropriate, we feel we must at

least outline our position and explain why we believe it

warrants consideration by this Court.

The basie purpose of the Hours of Service Act is “to

promote safety in operating trains by preventing the ex-

cessive mental and physical strain which usually results

from remaining too long at an exacting task.” Chicago &

Alton R.R. Co. v. United States, 247 U.S. 197, 199-200

(1918). The Santa Fe employees involved here were re-

leased for rest on the occasion presented at Stockton, Cali-

fornia, a point which is admittedly a “terminal” and at

which it is conceded “suitable facilities for food and lodging

RLEED THROUGH

13

were available.” FRA Stipulation, {[s 3, 6, supra, pp. 4-5. If

Stockton under these circumstances qualified as a “desig-

nated terminal” within the purview of new Section 1(b)

(3)(B) of the Act, the time during which this crew was

released there is not to be counted as “on duty” and Santa

Fe did not violate the Act. On the other hand, if Stockton

is not a “designated terminal,” the release time is to be

included as “on duty” and there was a violation of the Act.

FRA Stipulation, § 10, supra, at pp. 6-8.

Unfortunately, no one—including Congress—knew what

“designated terminal” meant when the phrase was injected

into the Act for the first time in 1969, and it is no better

understood today. FRA Stipulation, [ 11, supra, at pp. 8-9.

It has been left to the courts to devise a sensible construc-

tion consistent with the purpose of the Act.

We contend that a “designated terminal” is any “term-

inal” like Stockton, California, which is “designated” by

railroad management as a release point for a train crew

and which affords that crew adequate facilities for food

and lodging. This construction is supported by the per-

tinent legislative history considered in context, is practical

and makes sense, is consistent with custom and practice

as modified by Congress, and serves the cause of safety

without imposing substantial and unnecessary burdens on

Santa Fe and the rest of the nation’s railroads.

The government now presents a very simple and straight-

forward argument. It contends that “designated terminal”

plainly means only “home” or “away-from-home” terminal.

This position, however, is contradicted by concessions in

the FRA Stipulation, { 11, supra, at pp. 8-9. It also finds no

support in the legislative history, is wholly impractical, is

wanting in common sense, and would contribute nothing

to the cause of railroad safety.

CO RPE IO BF Cy amy ae 3 kn LOLOL BRP CABELL EN OEE

14

The FRA knows all too well that the problem is not as

simple as the government would have it appear. Apart

from its role in this litigation, the FRA has consistently

declined to go further with respect to the meaning of

“designated terminal” than to state that “suitable facilities

for food and lodging” must be available. Thus, it released

in December 1970 an undated document styled “FRA

MEMORANDUM 1-71”, the opening sentence of which

stated that, “This memorandum was prepared by the Staff

of the Bureau of Railroad Safety as an aid to those who

come under the jurisdiction of the Hours of Service Act.”

It thereafter proceeded to give advice as to the Act’s appli-

cation to different aspects of railroading. A separate sec-

tion was devoted to “DESIGNATED TERMINAL,” read-

ing as follows:

“The Washington offices of the FRA have received

numerous questions about the term ‘designated ter-

minal.’ Please note the discussion of this term by the

Congress in the attached Committee Report. In any

event, any terminal at which the employee is released

must have available suitable facilities for food and

lodging. After numerous conferences with many people

interested in the Hours of Service Act, we find that it

is necessary to take any ‘definition’ of the term on a

case-by-case basis. If after some experience along this

line we find that it is necessary to promulgate a rule

setting out the characteristics of a ‘designated ter-

minal’ the FRA will institute such a proceeding.” FRA

Stipulation, { 11, supra, pp. 8-9.

On January 9, 1973, the FRA issued an updated “MEMO-

RANDUM 1-73” on the same subject. (R. 106). Although

this included a number of changes from the one released

in December 1970, there was no change at all in the portion

directed to “DESIGNATED TERMINAL.” As of. this

writing, we are not aware that the FRA has ever gone

further to define “designated terminal” than it did in its

“FRA MEMORANDUM 1-71,” supra. Nor, to our knowl-

RLEED THROUGH

NATELY LLLE NELLIS 8

15

edge, has it ever instituted a proceeding to promulgate a

rule setting out the characteristics of a “designated ter-

minal,” as it said it might.

The majority of the Court of Appeals, ruling in favor

of the government, concluded that “designated terminal”

means a particular crew’s specified “home” or “away-from-

home” terminal. Legislative history provided the principal

source material for that opinion, the majority finding suf-

ficient support therein for its conclusion while conceding

that that history “is not so clear as the government asserts.”

(Page A-5, infra.)

The majority erred. Its reliance on legislative history is

misplaced, for, as District Judge Schnacke and dissenting

Circuit Judge Wright noted—properly, we believe—that

history is “ambiguous.” (Pages A-15, B-5, infra.) In addi-

tion, the majority failed to consider adequately (1) the pur-

pose of the Act, including the 1969 amendments, (2) the

illogical, impractical, and unreasonable consequences of its

decision, and (3) the “very substantial” economic burden

on Santa Fe and other railroads which compliance with its

decision will entail (FRA Stipulation, J 13, supra, pp. 9-10).

These are matters with which we would deal at length in a

full brief on the merits.

Four federal judges have heard and ruled upon the case

at bar. At least in terms of numbers, the result to date has

been a stand-off. District Judge Schnacke ruled and dis-

senting Circuit Judge Wright would have ruled in our favor.

Clearly, therefore, there must be substance to our argu-

ments entitling them to consideration by this Court.

There is another recent decision to be considered—United

States v. Chesapeake and Ohio Ry. Co., 399 F.Supp. 480

(N.D. Ind., 1975). It also involved Section 1(b)(3)(B) of

the Hours of Service Act, but it arose from such unique

facts that it is of very limited value as precedent. However,

although District Judge Eschbach there declined to decide

< ars aa

Sag APNE ES PRI IERIE RNS NISL IN 6 A REESE PE AY NY RSLS RED

16

whether “designated terininal” is to be limited to the “home”

or “away-from-home” terminals of each railroad crew, he

did indicate that he was disposed to reject the government’s

argument and to hold that a point which is a “home” or

“away-from-home” terminal for any crew could be a “des-

ignated terminal” for it and any other crew. 399 F.Supp.

at 485-86.

This serves to illustrate just one of the ways the construc-

tion adopted by the majority below can be shown to be

unrealistic and unreasonable. It is stipulated that Stockton

is a “home” or “away-from-home” terminal for some Santa

Fe crews operating in the area but not for the particular

erew involved here. FRA Stipulation, Js 5, 6, supra, p. 5.

According to the government’s construction of the phrase

accepted by the majority below, Stockton must therefore

be a “designated terminal” for some Santa Fe crews. This

means that the time consumed in releases of some crews

at Stockton for four hours or more will not be counted as

“on duty” while releases of other crews at the same point

for the same periods cannot be excluded in determining

“on duty” times. Bearing in mind that safety is the ob-

jective of the Act, how could it be that the cause of safety

would be served for some crews by releases at Stockton

but would not be served by releases of other crews? Of

course, this cannot be, and we submit that no court should

attribute to Congress an intention to have such an imprac-

tical result. United States v. American Trucking Assns.,

310 U.S. 534, 543 (1940).

Several other impractical consequences of the decision

of the majority below come readily to mind. We shall refer

to but one more here.

It took the train involved in this case only 50 minutes to

go from Stockton, where the disputed release of the crew

had been effected, to Riverbank, which is admittedly this

BLEED THF OUGH

17

crew’s “away-from-home” terminal. FRA Stipulation, {[s

3, 4, swpra, pp. 4-5. Under the decision which we submit

should be reviewed by this Court, the release at Stockton,

which has been held not to satisfy the Act’s requirements

for exclusion from “on duty” time, would have satisfied

the Act if it had been accorded at Riverbank, less than an

hour’s running time away. We submit that Congress could

not have intended such an obviously artificial construction

of § 1(b) (3) (B).

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

David E. Parry

John P. Frestel, Jr.

C. George Niebank, Jr.

C. George Niebank, Jr.

80 East Jackson Boulevard

Chicago, Illinois 60604

(312) 427-4900

Counsel for Petitioner,

The Atchison, Topeka and

Santa Fe Railway Company

March 8, 1976

REGS DEEL LE IEE ELLEN IE IE LE SS ON EEL SS GI UAT SISE LS SOM ROR EE TET RO EL TT BLN NES TE MSE BIS IE ME |

18

CERTIFICATE OF SERVICE

I hereby certify that three true copies of the foregoing

Petition For Writ Of Certiorari were Air-Mailed, postage

prepaid, this 8th day of March, 1976 to:

Robert H. Bork, Esquire

Solicitor General of the United States

Department of Justice

Washington, D. C. 20530

James L. Browning, Jr., Esquire

United States Attorney

Paul Fitzpatrick, Esquire

Assistant United States Attorney

Civil Division

450 Golden Gate Avenue

San Francisco, California 94102

Lester P. Schoene, Esquire

Lawrence Mann, Esquire

818 18th Street, N.W.

Washington, D. C. 20006

Harold A. Ross, Esquire

Richard H. Kraushaar, Esquire

Ross & Kraushaar Co., L.P.A.

1548 Northern Ohio Bank Building

Cleveland, Ohio 44113

T. Furphy, Esquire

Assistant Chief Counsel

Enforcement Division

Federal Railroad Administration

Washington, D. C. 20590

eer ee eee eee eee eee ee eee eee ee eeeenee

C. George Niebank, Jr.

RLEED THF OUGH

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

+

Unitep States or AMERICA,

Plaintiff-A ppellant,

VS.

> No. 74-1061

Tue Atcuison, ToPpEKA AND SANTA FE

Raitway Co., OPINION

Defendant-A ppellee. |

{ November 10, 1975]

On Appeal from the United States District Court

for the Northern District of California

Before: DUNIWAY, ELY, and WRIGHT,

Circuit Judges

DUNIWAY, Circuit Judge

The United States sued the Santa Fe Railway under 45

U.S.C. § 64a(a) for statutory penalties for violations of the

railroad Hours of Service Act, 45 U.S.C. §§ 61-64b. The

only question is what Congress meant when it used the

term “designated terminal” in 45 U.S.C. §61(b)(3). On

cross-motions for summary judgment, the district court

refused to impose the penalties and entered judgment for

the Santa Fe. United States v. Atchison, Topeka & Santa

Fe Railway Co., N.D. Cal., 1973, 363 F. Supp. 644. The

government appeals, and we reverse.

I. The Facts.

The facts were stipulated. At 4:30 a.m. on February 14,

1971, the crew of Santa Fe’s “Extra 3427 East” train went

on duty at Richmond, California, the crew’s “home ter-

minal.” The four crew members—an engineer, two brake-

A-2

men, and a conductor—had all been off duty for at least

24 hours. At 4:55 a.m. “Extra 3427 East” and crew left

Richmond for Riverbank, California, the crew’s “away-from-

home” terminal. About four hours later, at 8:50 a.m., they

arrived at Mormon Yard, Stockton, California, a major

switching point, and stopped there to permit the inter-

change of cars with connecting carriers. At 9:05 a.m. all

four crewmen were released for rest at Stockton, where

suitable facilities for food and lodging were available. The

release period lasted 5 hours and 35 minutes, until the crew

was recalled at 2:40 p.m.

Continuing as the crew of “Extra 3427 East,” the same

four men left Stockton at 4:05 p.m. and reached Riverbank,

which is much smaller than Stockton, at 4:55 p.m. After a

brief stop, they left Riverbank at 5:45 p.m. to return to

Richmond as the crew of Santa Fe’s “Extra 3354 West.”

Upon returning to Richmond, the conductor and brakemen

were relieved from duty at 8:20 p.m., and the engineer was

relieved at 8:25 p.m. In all nearly sixteen hours had elapsed

from the time the crew first reported for duty in the early

morning until they were relieved that evening.

The crew members were represented by two labor organ-

izations—the engineer by the Brotherhood of Locomotive

Engineers, and the others by the United Transportation

Union—both of which are amici curiae in this case. The rates

of pay, rules and working conditions of the employees were

and are subject to the terms of collective bargaining agree-

ments negotiated between the Santa Fe and the unions.!

1Under those agreements, grievance procedures were available to

the employees for any alleged violations of agreed rates of pay,

rules, or working conditions. No claims or grievances arising out of

the February 14, 1971, Richmond-Riverbank-Richmond run were

filed by any of the crew members. They were paid their full hourly

or mileage rate of compensation for the duration of their service on

RLEED THROUGH

A-3

Under the pertinent collective bargaining agreements, Rich-

mond was the recognized “home” terminal and Riverbank

the ‘“away-from-home” terminal for the crew assignment in

this case. Stockton was a recognized “home” or “away-

from-home” terminal for some other Santa Fe crew assign-

ments but not for this or any other crew assigned to the

Richmond-Riverbank-Richmond run. Stockton is “an _his-

torical release point” for crews on this run, but was not

designated or specified as such in any collective bargaining

agreement, bulletin instruction, or formal notice.

II. The Issue.

On the date in question, it was unlawful under 45 U.S.C.

§ 62(a)(1) for the Santa Fe to require or permit an em-

ployee to continue on duty for more than fourteen hours

(now the limit is twelve hours) until the employees had at

least ten consecutive hours off duty. With some indirection,

45 U.S.C. § 61(b) (3) excludes from the computation of time

on duty any period of four or more hours available for

rest at a “designated terminal”:

Time on duty shall commence when an employee re-

ports for duty and terminate when the employee is

finally released from duty and shall include:

(A) Interim period available for rest at other

than a designated terminal;

(B) Interim periods available for less than four

hours rest at a designated terminal ;

The statute does not define “designated terminal,” and we

must decide whether Stockton was a “designated terminal”

for the crew in this case.

that day, including the period of release at Stockton. That the

employees were fully paid and that they filed no grievances are

facts which do not bear directly on the merits of the issue in this

case. We recite them merely to place the dispute in context.

A-4

The government argues that “designated terminal” means

the “home” or “away-from-home” terminal for a particular

crew assignment as designated in a collective bargaining

agreement. Because Stockton was not so designated in this

case, the government contends that the time spent there,

though available for rest, must be included in computing

the time that the crew was on duty. Accordingly, the gov-

ernment says that the crew was on duty for nearly sixteen

hours in violation of the fourteen-hour limit and seeks to

impose on the Santa Fe a $2,000 penalty ($500 for each

employee) as prescribed by 45 U.S.C. § 64a(a).

The Santa Fe, on the other hand, argues that a “desig-

nated terminal” is “any ‘terminal’ like Stockton, California,

which is ‘designated’ by railroad management as a release

point for a train crew and which affords that crew adequate

facilities for food and lodging.” Appellee’s Brief at 8. The

railroad argues that, because Stockton has been established

as a release point by “custom and practice,” the 5 hours and

35 minutes spent there do not count.as time on duty. Thus

the Santa Fe’s position is that the crew was on duty for

only 10 hours and 20 minutes—well under the fourteen hour

limit.

The district court agreed with the Santa Fe and held that

the government had failed to “convince the Court that

Stockton is not a ‘designated terminal.’” 363 F. Supp. at

648 (emphasis by the district court). However, for the rea-

sons discussed below, the government has convinced us.

Ill. The Meaning of “Designated Terminal.”

A. The Legislative History.

The Congress introduced the term “designated terminal”

into section 1(b)(3) of the Hours of Service Act, 45 U.S.C.

§ 61(b)(3), by the Act of December 26, 1969, P.L. 91-169,

RLEED THF OUGH

meen BEAL

A-5

83 Stat. 463, which was designated to bring the safety pro-

visions of the Hours of Service Act, originally enacted in

1907, up to date. While these 1969 amendments to the Act

were under consideration, the Congress was amply fore-

warned that “designated terminal” would prove to be a

troublesome term unless it was specifically defined. Reginald

Whitman, then Administrator of the Federal Railroad Ad.

ministration, Department of Transportation, told a Senate

subcommittee :

Section 1(b) (3) is new. It defines “time on duty” but

in so doing adds new undefined terms to the Hours of

Service Law which could generate considerable litiga-

tion and result in conflicting court decisions.

The term “designated terminal” is one case in point.

The bill does not provide any standard for “designated

terminals” such gs a requirement that it provide ade-

quate facilities for meals, rest and relaxation nor does

it indicate how and by whom a terminal is to be desig-

nated. ...

Hearings on S. 1938 Before the Subcomm. on Sur-

face Transportation of the Comm. on Commerce, 91st

Cong., Ist Sess. 193 (1969) (emphasis in original).

Mr. Whitman’s testimony before a House committee con-

sidering a parallel bill was similar. Hearings on H.R. 8449

Before the House Comm. on Interstate and Foreign Com-

merce, 91st Cong., Ist Sess. 266 (1969). Had the Congress

heeded these warnings and provided its own lexicon, this

case would not be here. The Congress did not and so, as

happens all too often, we are the Congress’ lexicographers

by default.

While the legislative history is not so clear as the govern-

ment asserts, it does provide us with a crucial clue to the

etymology of the cryptic term. With respect to the “time

on duty” provisions of the 1969 legislation, the Senate Com-

mittee on Commerce reported:

A-6

The phrase “designated terminals” in section 1(b) (3)

(A) and (B) is intended to have that meaning com-

monly recognized in the railroad industry. The com-

mittee is advised that collective bargaining agreements

provide a commonly understood definition for this term.

As a minimum the committee intends that the term

should mean generally a place where suitable food and

lodging are available for employees.

S. Rep. No. 91-604, 91st Cong., 1st Sess., 1969 U.S. Code

Cong. & Ad. News 1636, 1640.

Thus we know at least that Congress used “designated

terminal” with the understanding that collective bargaining

agreements would give the term meaning.

it is apparent from the Senate hearings on the 1969 legis-

lation that Congress was so informed by R. R. Manion—

then Vice President, Operations and Maintenance Depart-

ment, Association of American Railroads, and chief spekes-

man for the railroads in opposition to the legislation—in a

statement presented to a Senate subcommittee:

The pending bills provide that interim periods avail-

able for rest shall be counted as time on duty except

those lasting 4 or more hours at what are referred to

as “designated terminals.” The term “interim period

available for rest” is not defined, nor is the term “desig-

nated terminal.”

The term “designated terminal” is used in the bills to

identify the kind of place at which interim periods of

appropriate length may be excluded from duty time

and is distinguished from “other than designated ter-

minals” where all interim periods for rest are counted

as time on duty.

The term has significance in relation to the provisions

of collective bargaining agreements and refers to ter-

minals that are “designated” in such agreements. It

does not determine the question whether a given place

is one at which suitable rest can be obtained.

Wie REGIE EIN ALLL ALLEL LSE LE LE LALE. DELLE. LIAL ELLE LED LEO AT

RLEED THROUGH

A-7

Our view is that any place where reasonable facilities

for food and rest are available to employees should

qualify as the kind of place at which interim rest per-

iods—of suitable length—should not count as time on

duty. This concept should be substituted for the tech-

nical term “designated terminal.” Food and rest are

essential physical requirements for a meaningful rest

period, and they may well be obtainable at places that

are not “designated” in collective bargaining agree-

ments.

Hearings on S. 1938, supra, at 122-23 and 138 (emphasis

supplied).

This testimony does much to illuminate the terse, and per-

haps somewhat misleading, explanation of “designated

terminals” in the Commerce Committee report.

First, we note that Mr. Manion said that certain terminals

are designated (i.¢., specified or identified—see note 2 infra)

in collective bargaining agreements—not, as the committee

report might be read to suggest, that such agreements con-

tain a universal description or dictionary-style definition of

a “designated terminal,” or that such agreements label cer-

tain places as “designated.” As the district court below

observed, 363 F. Supp. at 647, the terminals which collec-

tive bargaining agreements commonly designate are the

“home terminal” and the “away-from-home terminal” for

each crew assignment. Sometimes the terminals so desig-

nated are indeed labelled as “designated” terminals. Jd.

Indeed, the pertinent collective bargaining agreements of

the Santa Fe use these terms in this way. We think that

this designation process, effected by collective bargaining

agreement, must be the referent of the statutory shorthand

“designated terminal.”

Subsequent comments by Mr. Manion bolster our con-

clusion. Discussing other provisions of the proposed hours

of service legislation, he stated:

my rig PET OT

PERE IOLA ke POE SPOLETO LEI ALE ILE ITS

A8

In addition, the bills as drawn would apply the provi-

sions of section 1, which relate to interim rest periods

and deadhead transportation, to telegraphers and dis-

patchers as well as to railroad operating employees.

There is no reason to do this because telegraphers, train

dispatchers, and similar employees work at stationary

places and those provisions do not properly pertain to

them. Those employees do not have “designated ter-

minals” or work from a home terminal to any away-

from-home terminal, as operating employees do.

Hearing on S. 1938, supra, at 123.

Although “designated terminal,” “home terminal,” and

“away-from-home terminal” were all used loosely through-

out the hearings and debates in 1969, this comment ties them

together and indicates that the “home” and “away-from-

home” terminals were the “designated terminals” Congress

had in mind.

To dispute what seems to be the import of the Commerce

Committee report, read in light of Mr. Manion’s testimony,

the Santa Fe relies on what it claims is a supplementary set

of stipulated facts. Those facts were stipulated, before the

institution of this action, between the Santa Fe and attor-

neys of the Federal Railroad Administration (“FRA”), the

division of the Department of Transportation charged with

administration of the Hours of Service Act. See 45 U.S.C.

§§ 64a(b), 64b. However, the United States Attorney,

charged under 45 U.S.C. §§ 64a(a) with litigating Hours of

Service Act enforcement actions, never agreed to the sup-

plementary facts. Whether the United States Attorney is

bound by the “FRA stipulation” is a novel question which

troubles us, but it is one we need not decide.

Assuming arguendo that the “FRA stipulation” was

binding, we conclude that it does not help the Santa Fe.

Paragraph 11, on which the Santa Fe primarily relies,

states in part:

BLEED THROUGH

A-9

11. The phrase “designated terminal” was not one of

art in common usage in the railroad industry when it

was used by Congress in 1969 in enacting 45 U.S.C.

§ 61. Nor has it become such in the interim inasmuch as

the railroad industry (railroad management), railroad

labor and the Federal Railroad Administration on

behalf of the public generally do not agree as to its

meaning... .

That “designated terminal” was not a term of art in com-

mon usage in the railroad industry is not determinative,

however.

What matters in our view is what collective bargaining

agreements, which formed the backdrop against which the

legislation was enacted, say. In that connection, paragraph

12 of the “FRA stipulation” states:

12. The collective bargaining agreements between

Santa Fe and each of the labor organizations represent-

ing those crafts or classes of employees whose work

involves them in the actual operation of trains use the

phrase “designated terminal” in one instance in each

of the said agreements. Such agreements do, however,

contain a number of references to “designated home

terminal” and “away-from-home terminal.” Members

of the Washington staff of the Federal Railroad Ad-

ministration, Office of Chief Counsel and Office of

Safety, have reviewed numerous collective bargaining

agreements. They have found in agreements in force

on other railroads some references to “designated ter-

minal” and “away-from-home terminal,” and many

references to “designated home terminal.”

Thus, even the “FRA stipulation” recognizes that the ter-

minals designated, and sometimes expressly labelled as

“designated,” in collective bargaining agreements are the

“home” and “away-from-home” terminals.

Second, we note that Mr. Manion supplemented his com-

ments and criticisms by proposing on behalf of the railroads

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A-10

specific amendments to the then pending bill. Hearings on

S. 1938, supra, at 127-28. By one such amendment the rail-

roads would have substituted for the words “designated

terminal” that now appear in 45 U.S.C. §61(b)(3) the

words “place where reasonable facilities for food and rest

are available to employees.” Jd. at 153.2 That Congress did

not adopt this proposal indicates that Congress rejected

the notion that any place with a coffee shop and motel or

something similar would serve as a suitable rest stop.

The definition of “designated terminal” which the Santa

Fe now urges is virtually the same as that which Congress

rejected—except that the Santa Fe adds two new elements:

(1) that the place having adequate facilities also be a “ter-

minal” and (2) that it be “designated” in some way by rail-

road management. Neither additional element makes any

2The stated reasons for this proposed amendment echoed Mr.

Manion’s testimony:

There is need to define the kind of place at which a rest pe-

riod of proper duration will not be counted as time on duty.

Setting aside the question of how long a rest period should

last, it would seem that any place where the essential physical

requirements for a meaningful rest period are available will

meet the demands of the law. Those requirements are reason-

able facilities for food and rest for employees. Such facilities

should be adequate and genuine.

The term “designated terminal” has significance in relation

to the provisions of collective bargaining agreements. It refers

to certain terminals that are so identified in such agreements.

It does not determine the question whether a given place is

one at which suitable rest can be obtained. It is quite possible

that reasonable facilities for food and rest are obtainable at

places other than terminals that are “designated” in labor

agreements. If so, rest periods of appropriate length at those

places should be excluded from time on duty for hours of

service purposes.

Hearings on 8. 1938, supra, at 153 (emphasis supplied).

PRESS ON SEB EL NEN ELLE ELLA LEAL LEE LLLELDESLE LEBEL ALLELE PLIES ALR

RLEED THROUGH

A-11

difference. In railroad parlance, the word “terminal” has

reference to a particular crew and run. United States v.

Atchison, Topeka & Santa Fe Railway Co., D. Ariz., 1914,

212 F. 1000, 1007. See also Atchison, Topeka & Santa Fe

Railroad Co, v. United States, 1917, 244 U.S. 336, 341-42

(stipulated fact). We think, therefore, that 4 61(b) (3) re-

fers to the “terminals” which are designated for the par-

ticular crew and run involved. The Santa Fe has advanced

no reasons, and we can think of none, why a stop at any

place with minimum facilities would be any more conducive

to rest just because it happened to be a “terminal” for other

trains and other crews. And certainly to add that the place

must be unilaterally designated by management would be

to require a pointless formality. We think that Congress

must have intended to require a bilateral designation proc-

ess.

Moreover, it was not superfluous, as the Santa Fe seems

to argue, for the Senate committee to state the minimum

food and lodging requirements if it meant to require more.

It may be that some “home” and “away-from-home” termi-

nals designated in collective bargaining agreements do not

meet even those minimum requirements. It would therefore

be reasonable for Congress to require both that release

points be contractually established and that they have ade-

quate food and lodging facilities. We think that is what

Congress did.

B. Policy Considerations.

The Santa Fe argues that the government’s construction

of “designated terminal” will impose substantial costs on

railroad operations without significantly promoting safety.

But we note that the railroads made similar arguments to

Congress in generally opposing the 1969 amendments to

the Hours of Service Act. See, e.g., Hearings on S. 1938,

ii ae air

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A-12

supra, at 13, 109, 119-20, 123-25, 160, 211, 220; Hearings on

H.R. 8449, supra, at 128-35, 183-84, 201-05, 245; 115 Conc.

Rec. 29318-20 (1969). We can only conclude that Congress

weighed the railroads’ arguments and found them wanting.

We are guided here by the Supreme Court’s admonition

in Atchison, Topeka & Santa Fe Railway Co. v. United

States, supra, 244 U.S. at 343, that “[the Hours of Service

Act] is remedial and in the public interest, and should be

construed in light of its humane purpose.” Accordingly, we

think that Congress could sensibly have concluded that rest

periods best serve their function at a known location at the

midpoint of a run where the crew has its established “away-

from-home” terminal or at the end of a run where the crew

has its established “home” terminal.

The facts of this case are illustrative. The crewmen were

awakened at a very early hour; they were on duty for only

about four and one-half hours before they were released

for “rest”—if any they needed then. After being “off” for

about five and a half hours, they were “on” again for almost

six straight hours. It would not surprise us if at the end

of their sixteen hour day the crewmen were fatigued and

their abilities to perform their duties impaired. See id. at

342.

Worse, under the Santa Fe’s view, it could presumably

even reverse this run as follows: start from Riverbank

towards Richmond; stop at Stockton for switching; con-

tinue to Richmond; turn around; and immediately return

to Riverbank. Conceivably then the crew would be required

to work one pre-dawn hour (Riverbank to Stockton) ; rest

four hours at Stockton—if they could get meaningful rest

under those circumstances; and then work up to eleven®

hours straight (Stockton to Richmond to Riverbank). Such

potential for fatigue and the consequent safety hazard are

BLEED THROUGH

A-13

what the Hours of Service Act was intended to eliminate.

Id. at 343.

We think that the safety hazards would be mitigated by

requiring that stops which toll the runing of time on duty

be made only at a crew’s contractually established, i.e.,

“designated,” “home” or “away-from-home” terminals.

There the crewmen will presumably be in familiar surround-

ings and can establish regular accommodations for rest.

Moreover, rest stops will presumably be spaced more evenly

and effectively to break up monotonous long runs.

If, given established routes, this requirement is impracti-

cal, the railroads and unions are free to renegotiate “home”

and “away-from-home” terminal designations. Indeed, rail-

roads and unions may also be free to establish “designated

terminals” for purposes of the Hours of Service Act at

places other than the “home” and “away-from-home” ter-

minals designated for other collective bargaining purposes.

Cf. 45 U.S.C. § 64 (declaring that hours of service shorter

than the statutory maximum are proper subjects of collec-

tive bargaining). That question we need not decide here

because Stockton was neither the crew’s “home” nor its

“away-from-home” terminal nor was it otherwise desig-

nated by collective bargaining machinery as a release point

for this crew. On this record, we decline to go further than

necessary to decide this case.

IV. Conclusion.

We hold that the term “designated terminal” as used in

the Hours of Service Act, 45 U.S.C. § 61(b)(3), refers to

3By making it unlawful to require or permit an employee “to

continue on duty or to go on duty when he has not had at least

eight consecutive hours off duty during the preceding twenty-four

hours,” 45 U.S.C. § 62(a) (2) appears to limit the elapsed time from

going on duty to going off in this hypothetical example to sixteen

hours (one hour on, four off, plus eleven on).

5 ERA TAT 9 r fol Ro Pet

A-14

terminals designated in or under collective bargaining

agreements. Because Stockton was not so designated for

the instant crew, the layover at Stockton should have been

counted as time on duty. The Santa Fe therefore violated

the Hours of Service Act.

The judgment is reversed and the case is remanded with

directions to enter a judgment for the United States.

WRIGHT, Circuit Judge, dissenting:

With due respect, I dissent and would adopt the language

of the district court:

Here the Government is attempting to impose a seri-

ous sanction. It must therefore convince the Court that

Stockton is not a “designated terminal”. It suffices to

say that it has not done so. If Congress intended to pro-

vide that Stockton and similar cities are not “desig-

nated” terminals, i.e., not appropriate for the purposes

of the legislation, its message has not carried across to

this Court.

United States v. Atchison, Topeka & Santa Fe Railway Co.,

363 F. Supp. 644, 648 (N.D. Cal. 1973).

I would hold that any Santa Fe terminal as defined in the

collective bargaining agreement which meets the minimum

food and lodging standards is a designated terminal for the

purposes of this Act unless the relevant collective bargain-

ing agreement specifically excludes it.

The majority observes, Note 1, that grievance procedures

were available to the train crew, that they were paid for the

run in question and for the time spent in Stockton, and that

they made no complaint and filed no grievance. I disagree

with the conclusion that these “are facts which do not bear

directly on the merits of the issue in this case.” Rather, they

convince me that the interpretation of the term “designated

terminal,” as applied to a specific run, should be left to the

collective bargaining process.

BLEED THROUGH

A-15

There are times when a court should look to ways in which

persons have reacted in response to a statute as an aid to

interpreting the statute’s meaning. The analysis used by the

late Professor Henry Hart and Professor [now Dean]

Albert Sacks of Harvard Law School in interpreting the

terms “work,” “workweek,” and “working time” for pur-

poses of the Fair Labor Standards Act of 1938 [29 U.S.C.

§ 201 et seq.] can be applied to the case at bar.

Evidence of the common understanding of the terms

“work” or “working time” or “workweek” [or desig-

nated terminal”] might be thought to be relevant for

two reasons: first, as a showing, at the least, that the

words would bear the meaning reflected in the under-

standing; and second, as showing, on the basis of the

assumption that the legislature used the words in their

ordinary signification to the people affected, that this

meaning was the correct one.

H. M. Hart and A. Sacks, The Legal Process: Basie Prob-

lems in the Making and Application of Law, 1299 (tent. ed.

1958). The fact that no grievance was filed indicates that

those affected did not find Stockton unacceptable or a

breach of the collective bargaining agreement which regu-

lates the designated terminals.

The majority’s reliance on testimony before a Congres-

sional committee, in determining Congressional intent, is

misplaced. As noted by the district court, the testimony is

ambiguous. In the absence of a clear expression of legisla-

tive intent, I would look to the purpose of the statute to

find the meaning of “designated terminal.”

The plain language of § 64 demonstrates why a broad

definition of the term should be favored. It reads:

The requirements imposed by sections 61 to 64b of this

title with respect to time on duty of employees are

hereby declared to result in the maximum permissible

. a WRITS It MEE IPR OE “om

ORNL R EIEN TC INL PPT RE NE TS : ,

C2

A-16

hours of service consistent with safety. However,

shorter hours of service and time on duty of employees

for lesser periods of time are hereby declared to be

proper subjects for collective bargaining between any

common carrier subject to sections 61 to 64b of this

title and its employees.

45 U.S.C. § 64.

If Stockton could be considered as a designated terminal

for purposes of the Hours of Service Act,’ then Section 64

would seem to place the burden of bargaining on the unions

to determine that Stockton is not so designated.

The primary purpose of the Hours of Service Act is to

provide minimum standards to insure safety. Congress

appears also to have intended to encourage both railroads

and unions to bargain above these minimums. The majority

position interferes with the bargaining by setting a status

quo ante which is above the implied minimum standards.

I do not read the statute to go so far.

I would affirm the district court’s judgment on the basis

that Stockton was a designated terminal within the broad

definition.

1Using the majority’s definition it is possible for the railroad to

accomplish the dire result which the majority relates at page 11

without violating the Act. Riverbank would be the home terminal

and Stockton and Richmond would be away-from-home terminals

for this crew. It seems clear that the Hours of Service Act will per-

mit the railroad to take its employees away from their homes for up

to 16 hours per day, e.g., 12 hours on duty [45 U.S.C. § 62(1)], 4

hours off at a designated terminal [45 U.S.C. §§ 61(b) A, B], and

8 hours at home [45 U.S.C. § 62(2)].

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— - 8 AEE iG Raa INIT Sed ee ‘ hee ke ve | LE

wet ce A. 55 TEE REGIE IBIS >

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF CALIFORNIA

s

UNITED STATES OF AMERICA, :

Plaintiff, ;

vs. f

\ 0-73-0238 RHS

THE ATCHISON, TOPEKA &

SANTA FE RAILWAY CO., OPINION

Defendant. AND ORDER

[As Amended Oct. 23, 1973.]

SCHNACKE, District Judge. |

This is an action by the United States pursuant to 45

U.S.C. § 64a(a) to recover the statutory penalty for viola-

tion of 45 U.S.C. § 62(a)(1), a part of the federal Hours of

Service Act, 45 U.S.C. §§ 61-64b, infra. It is before the

Court on cross-motions for summary judgment. The United

Transportation Union and the Brotherhood of Locomotive

Engineer, have filed briefs amicus curiae in support of

plaintiff’s motion.

The facts are stipulated: Four employees of defendant

undertook a single run of defendant’s railroad on February

14, 1971; the run commenced at Richmond, California and

ended at Riverbank, California some sixteen hours later.

Without more, a run of this duration would clearly violate

§ 62(a)(1) and defendant would be liable for the statutory

penalty of $500 per violation, $2,000 in this case.

However, the run was interrupted for five hours and

thirty-five minutes at Stockton, California, where the four

men involved were released for this period and were free to

do as they pleased, while continuing to be paid pursuant to

collective bargaining agreement. Suitable facilities for food

and lodging were available at Stockton if the men chose to

avail themselves of them.

B-2

Thus the ultimate question is whether Stockton qualified

as a “designated terminal”, § 61(b)(3) (A); if so, by neces-

sary implication, it operated to interrupt the continuity

of the period of service for more than four hours, § 61(b) (3)

(B), the total thereby being less than fourteen hours, and

defendant did not violate § 62(a)(1) as charged.

The original Hours of Service Act was enacted in 1907,

Act of March 4, 1907, C. 2939, 34 Stat. 1415, and remained

without substantia! amendment until the present amend-

ments were adopted in 1969, P.L. 91-196, 83 Stat. 463. As

originally enacted, it prohibited service “continuously” by a

railroad employee for a period in excess of sixteen “con-

secutive’ hours. Act of March 4, 1907, supra, § 3. A con-

siderable body of case and administrative law had developed

around the meaning of the expressions “consecutive” and

“continuously”, particularly as it pertained to layovers of

the kind that occurred here at Stockton. Without going into

the numerous decisions on this point, the situation may be

summarized by saying that the courts and the Interstate

Commerce Commission had established a rule of thumb to

the effect that layovers of three hours or more at points

where food and lodging were available were sufficient to

interrupt the continuity of service and therefore should be

excluded in calculating the sixteen “consecutive” hours per-

missible under the statute. However, the courts had never

established a flat rule, but had emphasized that the problem

was one to be resolved on the case-by-case basis.!

1There is no dispute among the parties as to the pre-1969 situa-

tion. It likewise seems to be agreed that the instant case is one of

first impression, and that there are no court decisions either before

or after 1969 that go very far toward solving the problem pre-

sented here. For that reason, it is unnecessary to give any detailed

analysis or citations in connection with the situation before the

1969 amendments.

rmreoerrer wb ies AAP e's

B-3

By 1969, it was thought to be fairly obvious that, by the

mere passage of time and the changing attitudes toward

hours of work and conditions of employment, some revision

in the Hours of Service Act was in order. It seems apparent

that the principal purpose of the amendments considered

and adopted in 1969, insofar as they relate to the present

problem, was to reduce the previous sixteen-hour period,

initially to fourteen hours and then, after a two-year inter-

val, to twelve hours, as reflected in the amendment that is

now §62(a)(1). Incidentally, while they were at it, Con-

gress also saw fit to enact provisions on layoff periods dur-

ing a run which would override the rule just mentioned, and

this is where the present difficulties arose.

In this respect the Committees pursued a dual objective :

First, to lengthen the three-hour layover time to four hours

and, secondly, to prescribe the locations at which such inter-

rupting layovers would be recognized. Everyone, the courts

included, had agreed that a stop in the wilds without oppor-

tunity for food and lodging did not afford an adequate

opportunity for rest of train crews. The unions were not

satisfied, however, with a criterion based on facilities avail-

able for food and lodging or with one predicated upon prior

railroad practice, and therefore the draftsmen cast about

for some more specific term of reference. Faced with con-

flicting positions of management and the FRA (which, as

will be seen, sought some precise test) on one hand and the

unions on the other, the Committees recommended, and

Congress adopted, the expression “designated terminal”,

backing it into the present § 61(a)(3)(A) and (B).

Congress had been placed on notice by the Administrator

of the Federal Railroad Administration that the quoted

term, like others in the pending legislation, was vague and

indefinite and was likely to “generate considerable litigation

B-4

and result in conflicting court decisions.” See hearings of

Senate subcommittee on 8.1938, Serial No. 91-31, p. 193

(1969). Further emphasizing this point, the Administrator

stated “The bill does not provide any standard for ‘desig-

nated terminals’ such as a requirement that it provide

adequate facilities for meals, rest and relaxation nor does

it indicate how and by whom a terminal is to be designated.”

(Emphasis in original.)? Despite this, the Committee saw

fit to proclaim:

“The phrase ‘designated terminals’ in § 1(b)(3)(A)

& (B) is intended to have that meaning commonly

recognized in the railroad industry. The committee is

advised that collective bargaining agreements provide

a commonly understood definition for this term. As a

minimum the committee intends that the term should

mean generally a place where suitable food and lodging

are available for employees.” S.Rep. No. 91-604, p. 8

U.S. Code Cong. & Admin. News, 1969, p. 1640.

If the Committee was so advised, which is not at all clear

from the testimony, it was so advised in error, from all

that appears in its proceedings.

In support of the Committee’s contention that collective

bargaining agreements commonly employ the phrase, the

United States Attorney and the Union have submitted a

number of such agreements, as well as numerous references

to the testimony before the House and Senate Committees.

These almost conclusively establish that the accepted termi-

nology in the industry is “home terminal” and “away-from-

home terminal”. The expression “designated terminal”

2In view of what follows, we need not consider the interesting

Constitutional question of delegation of power that would arise

were we to follow the suggestion that the matter was left to be

defined in private agreements or the question of how such a conse-

quence could be squared with the oft-repeated proposition that the

Act is for the protection of public safety.

BET A LT LL LT a

BLEED THROUGH

B-45

occurs occasionally in these agreements, but in each in-

stance it clearly means those designated in the particular

agreement and not those commonly referred to as such in

the industry. In other words, the term is used as the virtual

equivalent of “terminals herein specified”, that is to say,

it is a cross-reference for purposes of a particular agree-

ment, but certainly the agreements submitted do not estab-

lish any common use of the term in the industry except

for the limited purpose just mentioned.

The various excerpts from the Committee hearings really

undercut plaintiff’s position. Faced with the term “desig-

nated terminals” at various points in the hearings, the

representatives of both management and labor almost

unconsciously, it would seem, lapsed away from this term

into the familiar terms “home terminal” and “away-from-

home terminal”. Be that as it may, the expression is in the

statute, and we must do the best we can with it. The FRA,

familiar as it is with the details of railroad terminology,

remains at a loss to expound the meaning of the expression,

although a member of its staff, arguing for plaintiff here,

assured the Court that its meaning was perfectly clear. In

a release dated January 9, 1973, the FRA refers to

numerous inquiries as to the meaning of the term and states

its present inability to do more than refer to the Com-

mittee report, pending possible adoption of a clarifying

rule, which has apparently never been done.

Since the legislative history is ambiguous, we heed Mr.

Justice Frankfurter’s advice and look to the statute. In so

doh @, we reject the unhappy tendency to treat commonly

used words as words of art.*

8 Likewise, the “canons” of statutory construction are of no help.

The present statute is both “remedial” and “penal”, as are the stat-

utes proscribing murder, rape and overtime parking. We also note

that the single word “terminal” appears in § 64a(d), with the ob-

servation that that does not get us anywhere either.

FRO I RR FT Ere PE CM) DB PERE ER Tal ORD OT PROP: ETRE Cer rw

OF NT RR NE ET ETD

B46

It is stipulated that Stockton is and has long been a rail-

road terminal. It is a sizeable and substantial community

and a center for land- and waterborne transportation.

Ample facilities for food, lodging and even recreation are

there. It satisfies every legitimate criterion founded upon

the undoubted need of railroad employees to rest from their

labors.

Since Stockton is clearly a “terminal”, we need not ex-

plore all the possible interpretations of the word “desig-

nated”, just as we need not consider the status of every

point on the map where a train may stop.

Here the Government is attempting to impose a serious

sanction. It must therefore convince the Court that Stock-

ton is not a “designated terminal”. It suffices to say that it

has not done so. If Congress intended to provide that

Stockton and similar cities are not “designated” terminals,

i.e., not appropriate for the purposes of the legislation, its

message has not carried across to this Court.

Plaintiff's motion for summary judgment is denied; de-

fendant’s motion for summary judgment is granted, and

judgment will be entered for defendant. Counsel for defen-

dant shall submit an appropriate form of judgment in

accordance with the procedures set forth in L.R. 123(d).

Dated: August 22, 1973

Rosert H. Scunacke

United States District Judge

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