Appendices — United Transportation Union v. Slater

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 97-1630

UNITED TRANSPORTATION UNION,

Petitioner,

v.

HONORABLE RODNEY SLATER, Secretary of Transporta-

tion; UNITED STATES DEPARTMENT OF TRANSPORTA-

TION; HONORABLE JOLENE MoOLiToris, Federal Rail-

road Administor; FEDERAL RAILROAD ADMINISTRATION,

Respondents.

NORFOLK AND WESTERN RAILWAY Co.,

Intervenor on Appeal.

Petition for Review of an Order of the

Federal Railroad Administration

Submitted: November 19, 1997

Filed: July 16, 1998

Before McMILLIAN and WOLLMAN, Circuit Judges,

and STEVENS,! District J udge.

1The Honorable Joseph E. Stevens, Jr., United States District

Judge for the Western District of Missouri, sitting by designation.

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McMILLIAN, Circuit Judge.

United Transportation Union (the union) petitions for

review of a final order of the Federal Railroad Adminis-

tration (the FRA), an agency within the Department of

Transportation, holding that plans being carried out by

Norfolk Southern Corporation (Norfolk) to renovate

sleeping quarters at a switching yard in Moberly, Mis-

souri, do not violate the Hours of Service Act (HSA),

as amended in 1976, 49 U.S.C. § 21106. Norfolk and

Western Railway Company ? intervenes in support of the

FRA’s decision. The union filed its petition for review

pursuant to 28 U.S.C. § 2344, and we have jurisdiction

to review the FRA’s decision pursuant to 28 U.S.C.

§ 2342. The union asks us to (1) order the FRA to

stop the renovations of Norfolk’s sleeping quarters at the

Moberly site on the ground that they violate 49 U.S.C.

§ 21106(2) and (2) order the FRA to rule that the

facility is not clean, safe, sanitary, and adequately free

from noise, in violation of § 21106(1). Brief for Peti-

tioner at 18-19. For the reasons stated below, we deny

the relief requested in the petition for review.

Background

The sleeping and eating facilities for railroad workers

at the Moberly, Missouri, switching yard were originally

constructed over thirty years ago. It is undisputed in the

present case that these living quarters are in the immedi-

ate vicinity of an area in which railroad switching opera-

tions are performed. It is also essentially undisputed that,

in recent years, health and safety conditions at the

Moberly site had reached intolerable levels, workers and

the union complained regularly, and violations were re-

ported by inspectors for the county and the FRA.

2 According to the affidavit of Eileen Meyers, a transportation

analyst employed by Norfolk, Norfolk and Western Railway Com-

pany is a wholly-owned subsidiary of Norfolk. Addendum to Brief

for Intervenor (Norfolk and Western Railway Company) at 1.

3a

In or about the spring of 1996, Norfolk developed

plans to renovate the sleeping and eating facilities at the

Moberly site to address these problems. Upon learning

of Norfolk’s plans, the union complained to Norfolk that

renovating the existing facilities would volate the HSA 3

because they were located too close to the switching op-

erations. In response, Norfolk assured the union that the

proposed renovations would address all past health and

safety problems, including the noise problem. The union

still opposed the plans, however, citing other safety con-

cerns resulting from the facilities’ proximity to the rail

lines. Norfolk proceeded with the renovations as

planned.

3 The Hours of Service Act provides in relevant part:

A railroad carrier and its officers and agents—

(1) may provide sleeping quarters (including crew quarters,

camp or bunk cars, and trailers) for employees, and any in-

dividuals employed to maintain the right of way of a railroad

carrier, only if the sleeping quarters are clean, safe, and sani-

tary and give those employees and individuals an opportunity

for rest free from the interruptions caused by noise under the

control of the carrier; and

(2) may not begin, after July 7, 1976, construction or recon-

struction of sleping quarters referred to in clause (1) of this

section in an area or in the immediate vicinity of an area, as

determined under regulations prescribed by the Secretary of

Transportation, in which railroad switching or humping opera-

tions are performed.

49 U.S.C. § 21106.

4The impetus for Congress’s enactment of § 21106(2), barring

“construction or reconstruction” of sleeping quarters in or near

switching or humping operations, was an accident in 1974, in

Decatur, Illinois, in which seven railroad employees were killed

and over 100 were injured when an explosion occurred while hazard-

ous substances were being switched in the yard near sleeping and

eating quarters. See Brief for Petitioner at 4-5 (citing legislative

history) ; Brief for Respondent at 6-7 & n6. Therefore, § 21106(2)

resulted in part from Congress’s desire to minimize the dangers to

workers resulting from potential accidents or explosions in switch-

ing yards, not merely its desire to address the noise issue. See

4a

The union next complained to the FRA in September

1996. The union’s complaint to the FRA was lodged by

way of a telephone call and a letter confirming that tele-

phone call. See Addendum to Brief for Petitioner at 4

(letter dated Sept. 24, 1996, from the union to the FRA).

The union’s claims before the FRA were that (1) the

proposed renovations violated 49 U.S.C. § 21106(2) be-

cause they would constitute “reconstruction” of the sleep-

ing quarters in an area or in the immediate vicinity of an

area where railroad switching or humping operations are

performed arid (2) the sleeping quarters would violate

§ 21106(1) because they would not be safe, clean, sani-

tary, and would not give residents an opportunity for rest

free from interruptions caused by noise under Norfolk’s

control.

In a letter dated February 27, 1997, the FRA informed

the union that it had conducted an investigation and had

decided not to take any action against Norfolk at that

time. Jd. at 1-3 (letter dated Feb. 27, 1997, from the

FRA to the union). The FRA explained that, although

its inspector had discovered sewage problems with the

underground piping system beneath the Moberly facility,

the FRA was giving Norfolk a reasonable amount of time

to correct the problem before it would conduct a follow-up

inspection. Furthermore, the FRA stated, Norfolk’s plans

to renovate the Moberly site did not violate § 21106(2)

because “[t]he estimated cost for remodeling the facility

is approximately $200,000, . . . about 25 percent of the

cost to construct a new facility,” which did not meet the

FRA’s own regulatory definition of “reconstruction” as set

forth in 49 C.F.R. § 228.101.5 Finally, the FRA ex-

United Transp. Union v. Dole, 797 F.2d 823, 832 (10th Cir. 1986)

(Logan, J., concurring) (“I read Congress’ broader intention to

mean that a railroad should make no significant additional invest-

ment in sleeping quarters near hazardous railroad switching or

humping operations after July 1976.”) (emphasis added).

5 Pursuant to the HSA ametidments, the FRA has promulgated

a rule defining the term “reconstruction” to include:

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plained, two separate tests conducted by the FRA showed

that noise levels in the sleeping quarters were below the

maximum level permitted under 40 C.F.R. § 201.1 (rail-

road noise emissions standards) and therefore did not

violate § 21106(1). Thereafter, the union timely filed

the instant petition for review.

Discussion

The FRA’s decision to permit Norfolk’s planned reno-

vations of the sleeping quarters at the Moberly site was

based upon a determination that the renovations did not

constitute “reconstruction” under 49 U.S.C. § 21106(2),

as that term is defined by regulation in 49 C.F.R.

§ 228.101. The union argues, however, that the FRA

lacked authority to promulgate that regulation because

Congress intended to delegate to the FRA only limited

authority to interpret terms within § 21106(2). More

specifically, the union contends that the FRA had statu-

tory authority to interpret only the term “immediate

vicinity” because the statute provides: “A railroad carrier

and its officers and agents . . . may not begin, after July

7, 1976, construction or reconstruction of sleeping quar-

ters referred to in clause (1) of this section in an area

or in the immediate vicinity of an area, as determined

under regulations prescribed by the Secretary of Trans-

portation, in which railroad switching or humping opera-

tions are performed.” 49 U.S.C. § 21106(2) (emphasis

added). In support of this narrow interpretation of the

statutory language, the union compares the fact that “fo]n

various occasions the FRA has sought authority to issue

(rjehabilitation or improvement of an existing facility (normal

periodic maintenance excepted) involving the expenditure of

an amount representing more than 50 percent of the cost of

replacing such facility on the same site at the time the work

of rehabilitation or improvement began, the replacement cost

to be estimated on the basis of contemporary construction

methods and materials.

49 C.F.R. § 228.101.

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regulations covering hours of service, and Congress has

refused to grant such power.” Brief for Petitioner at 16

(emphasis added). The union further argues that the

FRA exceeded its authority in promulgating 49 C.F.R.

§ 228.101 because its definition of “reconstruction” con-

tradicts the plain and ordinary meaning of the word and

therefore is arbitrary, capricious, and contrary to the law.

In support of this argument, the union cites several dic-

tionary definitions of “reconstruct,” which generally in-

clude terms such as “repair” and “rehabilitate.” The

union also suggests that the FRA’s regulatory definition

of “reconstruction” too readily permits, if not encourages,

circumvention of the statute’s intent. For this point, the

union quotes from the concurring opinion in United

Transp. Jnion v. Dole, 797 F.2d 823, 832 (10th Cir.

1986) (Logan, J., concurring), stating that Congress, in

enacting § 21106(2), was frustrated with the FRA’s

“earlier inaction on safety matters” and, consequently, in-

tended “that a railroad should make no significant addi-

tional investment in sleeping quarters near hazardous

railroad switching or humping operations after July

1976.”

While we agree with the union that the renovations of

the sleeping quarters at the Moberly site probably violate

the spirit of § 21106(2), through which Congress indi-

cated its desire to phase out facilities that are located in

or near switching yards, we hold that the union is bound,

under the circumstances of this case, by the agency’s

actions. In Chevron U.S.A., Inc. v. Natural Resources

Defense, Council, Inc., 467 U.S. 837, 842-45 (1984)

(Chevron), the Supreme Court explained that, unless

Congress has expressly spoken to the precise question at

issue and its intent is clear and unambiguous, the courts

must defer to the administering agency’s interpretation

of the statute as set forth in the agency’s regulations.

Where the statute is silent or ambiguous, such legislative

regulations interpreting the statute “are given controlling

weight unless they are arbitrary, capricious, or manifestly

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contrary to the statute... . [A] court may not substitute

its own construction of a statutory provision for a reason-

able interpretation made by the administrator of an

agency.” Id. at 844 (footnotes omitted).

The term “reconstruction,” as used in § 21106(2), is

imprecise and unclear. Therefore, under Chevron, the

question of its precise meaning is just the kind of ques-

tion for which we should defer to the administering agency

for a regulatory answer. Moreover, we do not agree with

the union’s reading of the statute, construing § 21106(2)’s

express reference to the Secretary of Transportation’s rule-

making authority as a limitation on that authority. Nor

are we persuaded by the union’s analogy of the unrelated

hours of service issue to the present “reconstruction”

issue. We therefore defer to the administrator of the

FRA, as the delegate of the Secretary of Transportation,

in providing the pertinent regulatory interpretation. We

conclude that the FRA’s regulatory definition of “recon-

struction” is not arbitrary, capricious, or contrary to law

when considered in light of the HSA as a whole. The

HSA has a goal of promoting “clean, safe, and sanitary”

living conditions for railroad workers. 49 U.S.C. § 21106

(1). The HSA also contemplates some degree of renova-

tion or improvement of grandfathered faciliites; otherwise,

the statute would read: “A railroad carrier and its officers

and agents . . . may not begin, after July 7, 1976, con-

Struction, reconstruction, or renovation of sleeping quar-

ters” or something to that effect, Accordingly, we con-

clude that the FRA acted within its authority in promul-

gating 49 C.F.R. § 228.101, and we defer to the FRA’s

construction and application of that regulation in the

present case. See Ford Motor Credit Co. y. Milhollin,

444 U.S. 555, 566 (1980) (“The [Supreme] Court has

often repeated the general proposition that considerable

respect is due the interpretation given [a] statute by the

Officers or agency charged with its administration.”) (in-

ternal quotation marks omitted) (citing cases).

On the separate issue of whether the sleeping quarters

are so noisy, unsafe, and insanitary as to violate § 21106

(1), the union maintains that, in light of the conclusions

reached by the FRA upon inspecting the premises and

its failure to take any action against Norfolk, the FRA

has “close[d] its eyes to the obvious.” Brief for Petitioner

at 18. Therefore, the union urges this court to overturn

the agency’s “arbitrary action” and order the FRA to

“find that the facility is not clean, safe, and sanitary, and

not free fron noise under the control of [Norfolk].” Jd.

at 18-19. The union, in other words, asks this court to

order the FRA to find Norfolk in violation of § 21106(1)

based entirely upon evidence of living conditions that no

longer exist. However, the union has not identified any

statutory remedy for past violations of § 21106(1). We

therefore consider Norfolk’s past violations, although ap-

parently quite egregious, to be moot.® In sum, we hold

that the union has failed to present this court with a

justiciable claim under § 21106(1).

Conclusion

For the reasons stated, the relief sought by the union

in its petition for review is denied.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

6 We note, however, that the FRA has made the following repre-

sentations to this court:

Of course, FRA will not permit [Norfolk] to provide the

Moberly facility as sleeping quarters for covered employees if

it is not in compliance with the [HSA]. If [Norfolk] com-

pletes the renovation and the facility is still not in compliance,

then FRA will take whatever action is necessary to ensure

compliance. The agency will protect the health and safety of

the railroad workers to the full extent of the law.

Brief for Respondent at 35.

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APPENDIX B

UNITED STATES COURT OF APPEALS

. FOR THE EIGHTH CIRCUIT

No. 97-1630

UNITED TRANSPORTATION UNION,

os Petitioner,

HONORABLE RODNEY SLATER, Secretary of Transporta-

tion; UNITED STATES DEPARTMENT OF TRANSPORTA-

TION; HONORABLE JOLENE Motiroris, Federal Rail-

road Administor; FEDERAL RAILROAD ADMINISTRATION,

Respondents.

NORFOLK AND WESTERN RAILWAY Co.,

Intervenor on Appeal.

Petition for Review of an Order of the

Federal Railroad Administration

JUDGMENT

This cause was submitted on a petition for review of

an order from the Federal Railroad Administration, on

the original record, briefs of the parties and was argued

by counsel.

After consideration, it is hereby ordered and adjudged

that the petition for review is denied in accordance with

the opinion of this Court.

July 14, 1998

A true copy.

Attest: /s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit.

{Mandate Issued Sep. 11, 1998]

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APPENDIX C

{Logo]

UNITED TRANSPORTATION UNION

General Committee of Adjustment

Norfolk Southern - N&W - Wabash

11025-C Gravois Industrial Plaza

St. Louis, MO 63128

314-843-4554

150.12

November 13, 1996

Ms. Joline Molitoris, Administrator

Federal Railroad Administration

400 7th St. SW

Washington, DC 20590

Re: Employee Lodging, Moberly, Missouri

Dear Ms. Molitoris:

On September 23, 1996, we contacted FRA regional

Office in St. Louis, Missouri, challenging the proposed

reconstruction of Norfolk Southern owned employee lodg-

ing facility in Moberly, Missouri. We were advised that

FRA was aware of carrier’s plans and was investigating

immediately.

On October 28, 1996, FRA, Kansas City, advised that

construction plans by Norfolk Southern are estimated at

$220,000, but do not exceed one half the estimated re-

construction cost of $865,000. The final report would be

issued with this conclusion.

We do not agree with purported findings in this case.

However, we are unable to begin other action pending

receipt of FRA final report. Inasmuch as Norfolk South-

ern has proceeded with its reconstruction plans, it is im-

perative that the final report is issued without delay.

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Please initiate every possible action to expedite the re-

lease of the final report.

Thank you.

Yours truly,

/s/ K. N. Thompson

K. N. THOMPSON

General Chairman

KNT/kap

ce: C. L. Little, President, UTU

L. M. Mann, Attorney at Law

W. L. Foster, Missouri State Legislative Director

C. P. Floyd, LC, #768

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APPENDIX D

[Logo]

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL RAILROAD ADMINISTRATION

Office of the Administrator

400 7th St., S.W.

Washington, D.C. 20590

[Feb. 27, 1997]

Mr. K. N. Thompson

General Chairman

United Transportation Union

11025-C Gravois Industrial Plaza

St. Louis, Missouri 63128

Dear Mr. Thompson:

The Federal Railroad Administration (FRA) completed

the investigation you requested concerning the Norfolk

Southern Railroad’s (NS) lodging facility in Moberly,

Missouri.

The Federal hours of service laws (HSL), as amended

(49 U.S.C. Chapter 211), state that: “A railroad carrier

and its officers and agents (1) may provide sleeping

quarters (including crew quarters, camp or bunk cars,

and trailers) for employees, and any individuals employed

to maintain the right-of-way of a railroad carrier, only if

the sleeping quarters are clean, safe, and sanitary and

allows those employees and individuals an opportunity

for rest free from the interruptions caused by noise under

the control of the carrier; and (2) may not begin, after

July 7, 1976, construction or reconstruction of sleeping

quarters referred to in clause (1) of this section in an

area or in the immediate vicinity of an area, as deter-

mined under regulations prescribed by the Secretary of

Transportation, in which railroad switching or humping

operations are performed.” See 49 U.S.C. § 21106. The

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regulations promulgated by FRA set forth (1) a general

definition of “immediate vicinity” (49 CFR § 228.101

(b)), (2) procedures under which a railroad carrier may

request a determination by the FRA that a particular

proposed site is not within the “immediate vicinity” of

railroad switching or humping operations (49 CFR

§ 228.103 and 228.105), and (3) the basic criteria

utilized in evaluating proposed sites (49 CFR § 228.107).

Except as determined in accordance with the provisions

of 49 CFR Part 228, Subpart C, “the immediate vicinity”

shall mean the area within one-half mile (2,640 feet)

(804 meters) of switching or humping operations as

measured from the nearest rail of the nearest trackage

where switching or humping operations are performed to

the point on the site where the carrier proposes to con-

Struct or reconstruct the exterior wall of the structure, or

portion of such wall, which is closest to such operations

(49 CFR § 228.101(b)). Construction refers to the crea-

tion of a new facility, expansion of an existing facility,

placement of a mobile or modular facility, or acquisition

and use of an existing building (49 CFR § 228.101(c)

(1)). Reconstruction refers to the replacement of an

existing facility with a new facility on the same site, or

rehabilitation or improvement of an existing facility

(normal periodic maintenance excepted) involving the

expenditure of an amount representing more than 50

percent of the cost of replacing such facility on the same

site at the time the work of rehabilitation or improvement

began, the replacement cost is to be estimated on the

basis of contemporary construction methods and materials

(49 CFR § 228.101(c)(2)). In addition, the term Leg

(8) shall mean the equivalent steady state sound level

which in 8 hours would contain the same acoustic energy

as the time-varying sound level during the same time

period (49 CFR § 228.101(c)(5)).

FRA conducted an inspection of the subject lodging fa-

cility on September 24 and discovered that the railroad

was experiencing sewage problems with the underground

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piping system beneath the facility. This matter was

brought to the attention of the railroad for corrective ac-

tion. FRA will permit NS a reasonable amount of time

to correct the sewer problem before conducting a eecall

up inspection.

Our investigation also disclosed that the railroad antici-

pates remodeling the Moberly lodging facility and rail

labor representatives have been included in the remodel-

ing decisions. FRA confirmed that the railroad consulted

a noise specialist, who conducted noise level tests: the

tests indicate that the level of noise at the facility is

below the maximum FRA permitted levels.

In addition to the noise tests, the consultant recom-

mended several means of reducing the noise levels even

further, specifically installing double pane windows in all

20 rooms, replacing exterior walls and adding insulation

around the windows, installing individual heating and

air-conditioning units in each room, replacing all room

entrance doors with a solid door, carpeting hallways, and

soundproofing each room with acoustical ceiling tiles.

The estimated cost for remodeling the facility is approxi-

mately $200,000, which is about 25 percent of the cost

to construct a new facility. The railroad stipulated that

remodeling would be the most economical way to im-

prove the condition for the employees staying at the

Moberly lodging facility and anticipates the start of re-

modeling before the end of March.

On November 25, a second observation was conducted

by FRA at the Moberly, Missouri, lodging facility to

focus on noise level emissions. FRA inspectors placed

Metrologger Metrosonic Sound Analyzers in rooms 5, 9,

and 14. The sound analyzers were placed in each room

to collect noise emissions samples during a 14-hour period

beginning at 5:30 p.m. on November 25 and ending at

7:30 p.m. on November 26. Rooms 5 and 14 are located

at the opposite side of the main line, and room 14 was

recently remodled and soundproofed. Room 9 is located

.

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approximately 180 feet from the main line track and has

not been remodeled or soundproofed. The results of the

noise emission tests established that the noise levels in all

three rooms did not exceed the maximum level Leq (8)

value (55db) established by 40 CFR § 201.1 (Railroad

Noise Emissions Standards), indicating that the facility

meets the requirements of the Federal hours of service

laws relative to sleeping quarters being free from noise

under the control of the railroad carrier. See 49 U.S.C.

§ 21106(1).

I appreciate your interest in this matter and look forward

to working with you on other safety issues that are of im-

portance to you and your members.

Sincerely,

/s/ Jolene M. Molitoris

JOLENE M. MOLITORIS

Administrator