Railway Labor Executives' Ass'n v. U.S.

• Citation: 697 F.2d 285
• Decision Date: 11 January 1983
• Docket Number: No. 81-1355,81-1355
• Parties: 116 L.R.R.M. (BNA) 2935 RAILWAY LABOR EXECUTIVES' ASSOCIATION, Petitioner, v. UNITED STATES of America and the Interstate Commerce Commission, Respondents, The Durango & Silverton Narrow Gauge Railroad Company, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 285

697 F.2d 285

116 L.R.R.M. (BNA) 2935

RAILWAY LABOR EXECUTIVES' ASSOCIATION, Petitioner, v. UNITED STATES of America and the Interstate Commerce Commission, Respondents The Durango & Silverton Narrow Gauge Railroad Company, Intervenor.

No. 81-1355.

United States Court of Appeals Tenth Circuit.

Jan. 11, 1983.

John O'B. Clarke, Jr. of Highsaw & Mahoney, P.C., Washington, D.C. (William J. Donlon, Jr., Thornton, Colo., with him on the brief), for petitioner.

Evelyn G. Kitay, Atty., Interstate Commerce Commission, Washington, D.C. (Richard A. Allen, Gen. Counsel, Henri F. Rush, Associate Gen. Counsel, Interstate Commerce Commission, William F. Baxter, Asst. Atty. Gen., John J. Powers, III and James H. Laskey, Attys., Dept. of Justice, Washington, D.C., with her on the brief), for respondents.

Edward T. Lyons, Jr. of Jones, Meiklejohn, Kehl & Lyons, Denver, Colo., for intervenor.

Before SETH, Chief Judge, and McWILLIAMS and SEYMOUR, Circuit Judges.

PER CURIAM.

The Durango & Silverton Narrow Gauge Railroad Company, a newly formed corporation with no employees and not yet engaged in the railroad business (a "non-carrier"), entered into an agreement to buy the Silverton Branch from the D & RG Railroad. This purchase and sale was of the assets only--the tangibles--and was approved by the Interstate Commerce Commission in Finance Docket No. 29096, 363 I.C.C. 292 (1979) (the Acquisition Case), in proceedings under 49 U.S.C. Sec. 10901. This authorization became final and the sale was consummated. In this authorization the Commission imposed certain labor protective conditions but not under Sec. 10903. The D & RG Railroad had made no application to abandon.

In the case now before us a review is sought of a subsequent proceeding before the Commission in Finance Docket No. 29389 wherein the Railway Labor Executives' Association asserted that the Durango & Silverton, the purchaser, was violating the labor protective conditions imposed in the closed Acquisition Case. The Commission dismissed the complaint holding that under the order entered in the Acquisition Case the required labor protection conditions had been included and the obligations thereunder had been imposed on the D & RG alone and properly so. The Commission concluded that the provisions of 49 U.S.C. Sec. 10903 did not apply to the transaction. Durango & Silverton thus had no obligation to negotiate with the Railway Labor Executives' Association concerning its work force. The substance of the Commission's holding was that the protective provisions were directed to matters of compensation of the D & RG employees, and did not relate to their employment with the purchaser. This was consistent with the Commission's policy theretofore applied in such cases.

In substance this review concerns the interpretation by the Commission of its previous order entered in the Acquisition Case and the application of its long-standing policy to these circumstances.

In 1976 the statute as it related to pure abandonments and protective conditions was changed to insert a clause that such provisions were there mandatory. The change also separated abandonments from the certification of new carriers. The certification provisions were unchanged as to substance and in contrast no mandatory protective provisions were inserted. The Supreme Court had held that under the old combined section labor protective provisions were discretionary. I.C.C. v. Railway Labor Executives' Association, 315 U.S. 373, 62 S.Ct. 717, 86 L.Ed. 904. Thus it must be concluded...