Brotherhood of Ry. Carmen v. I.C.C., Nos. 88-1724

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD, Chief Judge, and EDWARDS and D.H. GINSBURG; D.H. GINSBURG
Citation880 F.2d 562,279 U.S.App.D.C. 239
Parties131 L.R.R.M. (BNA) 3228, 279 U.S.App.D.C. 239, 58 USLW 2105, 112 Lab.Cas. P 11,425 BROTHERHOOD OF RAILWAY CARMEN, et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, CSX Transportation, Inc., Intervenor. AMERICAN TRAIN DISPATCHERS' ASSOCIATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and the United States of America, Respondents, Norfolk & Western Railway Co. and Southern Railway Co., Intervenors.
Docket Number88-1694,Nos. 88-1724
Decision Date29 September 1989

Page 562

880 F.2d 562
131 L.R.R.M. (BNA) 3228, 279 U.S.App.D.C.
239, 58 USLW 2105,
112 Lab.Cas. P 11,425
BROTHERHOOD OF RAILWAY CARMEN, et al., Petitioners,
v.
INTERSTATE COMMERCE COMMISSION and United States of America,
Respondents,
CSX Transportation, Inc., Intervenor.
AMERICAN TRAIN DISPATCHERS' ASSOCIATION, Petitioner,
v.
INTERSTATE COMMERCE COMMISSION and the United States of
America, Respondents,
Norfolk & Western Railway Co. and Southern Railway Co., Intervenors.
Nos. 88-1724, 88-1694.
United States Court of Appeals,
District of Columbia Circuit.
Argued April 25, 1989.
Decided July 25, 1989.
As Amended Sept. 29, 1989.

William G. Mahoney, with whom John O'B. Clarke, Jr., Washington, D.C., was on the brief, for petitioners.

John J. McCarthy, Jr., General Counsel, I.C.C., with whom Robert S. Burk, Gen. Counsel, and Henri F. Rush, Deputy Gen. Counsel, I.C.C., Washington, D.C., were on the brief, for respondents. Robert J. Wiggers and John J. Powers, III, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondents.

James S. Whitehead, Chicago, Ill., for intervenor in No. 88-1724.

Jeffrey S. Berlin, with whom Mark E. Martin, Amy R. Doberman, Washington, D.C., and William P. Stallsmith, Jr., Atlanta, Ga., were on the brief, for intervenors in No. 88-1694.

Before WALD, Chief Judge, and EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

The Brotherhood of Railway Carmen and the American Train Dispatchers' Association petition for review of orders of the Interstate Commerce Commission issued in separate proceedings before that agency. We dispose of the two cases together because

Page 563

they raise common issues with respect to the ICC's authority to exempt a party to a merger between railway carriers subject to approval under Sec. 11344 of the Interstate Commerce Act, 49 U.S.C. Sec. 10101, et seq. (the Act), from the provisions of (1) a Collective Bargaining Agreement (CBA); and (2) the Railway Labor Act, 45 U.S.C. Sec. 151, et seq.

Because we conclude that the ICC has misperceived, in one important respect, the scope of its exemptive power, we grant each petition for review in part, and remand the records to the ICC for further proceedings.

I. FACTUAL BACKGROUND

The operative facts of the two transactions here at issue, and the background of the respective administrative proceedings, are as follows:

A. The Carmen's Case

In 1980, the ICC approved a proposal under which CSX Corporation, a newly-formed holding company, would acquire control of two other holding companies: (1) the Chessie System, Inc., the principal railroad subsidiaries of which were the Chesapeake and Ohio Railway Company (C & O) and the Baltimore and Ohio Railroad Company; and (2) Seaboard Coast Line Industries, Inc., the parent of the Seaboard Coast Line Railroad (Seaboard) (later to become CSX Transportation, Inc., or CSX). CSX Corporation--Control--Chessie System, Inc., and Seaboard Coast Line Industries, Inc., 363 I.C.C. 521 (1980) (CSX Control ).

In its order approving the transaction, the ICC imposed upon the parties a standard set of labor-protective conditions, as required by Sec. 11347 of the Act, 49 U.S.C. Sec. 11347. CSX Control, 363 I.C.C. at 588-92, 604. As usual in merger cases, the applicable conditions were transplanted from the ICC's decision in New York Dock, 360 I.C.C. 60, 84-90 (1979), aff'd, New York Dock Ry. v. United States, 609 F.2d 83 (2d Cir.1979). Section 4 of the New York Dock conditions establishes procedures for the resolution--by means of negotiation and, failing that, binding arbitration--of any labor dispute arising from an ICC-approved railroad consolidation. Accordingly, Sec. 4 requires a "railroad contemplating a transaction which ... may cause the dismissal or displacement of any employees, or rearrangement of forces [to] give at least ninety ... days written notice...." Section 2 is a status quo provision:

The rates of pay, rules, working conditions and all collective bargaining and other rights, privileges and benefits ... under applicable laws and/or existing collective bargaining agreements or otherwise shall be preserved unless changed by future collective bargaining agreements.

In 1986, CSX, invoking Sec. 4 of the New York Dock conditions, notified the labor organizations representing its employees that it intended to close its freight car repair shop at Waycross, Georgia, and to transfer the work performed there to the C & O repair shop at Raceland, Kentucky, and that the transfer would result in a net decrease in available jobs at the two shops. The Brotherhood then attempted, on behalf of certain CSX employees who would be affected by the transfer, to negotiate an agreement governing the labor-related changes that the Waycross-Raceland consolidation would require.

Relations between the Brotherhood (and other unions) and CSX were governed by a CBA--known as the "Orange Book"--that they had negotiated in connection with the 1967 merger that created Seaboard; CSX and the Brotherhood continued to observe these terms after the 1980 CSX Control transaction. The Orange Book provides, with exceptions not here relevant, that the carrier will employ each covered employee for the remainder of his working life, and that no covered employee "shall be deprived of employment or placed in a worse position with respect to compensation, rules, working conditions, fringe benefits or rights and privileges pertaining thereto at any time during such employment." In consideration for this job protection, the Orange Book gives the carrier the right "to transfer the work of the employees protected

Page 564

[t]hereunder throughout the merged or consolidated [i.e., Seaboard] system...."

The negotiations between CSX and the Brotherhood failed due to disagreements as to (1) whether displaced Waycross employees would retain their Orange Book right to lifetime income; and (2) whether (a) the Waycross-Raceland consolidation would result in a change in working conditions, and, if so, (b) CSX would be required to comply with the terms of Sec. 6 of the RLA, 45 U.S.C. Sec. 156, and thus to bargain before effecting the change. The Brotherhood then invoked the mandatory arbitration provision of the New York Dock conditions, but shortly thereafter, reversed its position and claimed that because the shop consolidation was not contemplated by the CSX Control transaction, the New York Dock conditions were not applicable at all. By then, however, CSX had invoked arbitration under the New York Dock conditions, and the matter came before a three-member arbitration panel (the Carmen Committee), with the Brotherhood participating under protest.

In the proceedings before the Committee, it became clear that CSX sought not only to transfer work from Waycross to Raceland and to reduce the total number of positions, but also (1) to transfer certain Waycross employees to employment by the C & O in Raceland and (2) to remove them from the protection of the Orange Book to coverage under the CBA between the C & O and the Union, which apparently does not contain a lifetime income clause. The Committee held that the Orange Book prohibited CSX from transferring either work or employees outside the Seaboard system created by the 1967 merger. The ICC did not pass upon that determination, but CSX, which has intervened in this appeal, does not dispute it.

The Committee then held, however, that (1) it had the power, "[a]s a quasi-judicial extension of the ICC" to abrogate provisions of a CBA, and to relieve CSX from any requirement of the RLA, that stood in the way of an operational change, such as the shop transfer, that was "authorized or required" by--though not specifically referenced in--the CSX Control decision approving the 1980 merger; and (2) it would (a) abrogate the Orange Book prohibition on the transfer of work, but not on the transfer of employees, outside the old Seaboard system, and (b) exempt CSX from the RLA insofar as it might require the carrier to bargain before unilaterally changing the Orange Book with respect to the work transfer.

The ICC upheld the Committee in other respects, but reversed the Committee's decision not to abrogate the Orange Book prohibition on the transfer of employees as well as work. The ICC further held that, to the extent that switching CSX employees from the Orange Book to the CBA at Raceland would deprive them of their right to income for life, that right would be abrogated. It did not pass upon the question whether the Orange Book did in fact prohibit the transfer of either work or employees but assumed as much.

In its petition for review, the Brotherhood challenges the ICC's authority under the Act to override provisions of the Orange Book and of the RLA. It also claims that the ICC's decision, insofar as it overrides the Orange Book, violates the Compensation Clause of the Fifth Amendment to the Constitution. Finally, it challenges the standard of review that the ICC applied in reversing the Committee's ruling against employee transfers.

B. The Dispatchers' Case

In March 1982, the ICC approved the application of NWS Enterprises, Inc. (now Norfolk Southern, or NS), a holding company, to acquire control of two previously separate carriers--the Norfolk and Western Railway Company (N & W) and the Southern Railway Company (Southern). Norfolk Southern Corp.--Control--Norfolk & Western Ry. Co., 366 I.C.C. 173 (1982) (NS Control ). As in The Carmen's Case, the ICC imposed upon the parties to the transaction the standard New York Dock conditions. Id. at 231.

The American Train Dispatchers' Association was the bargaining representative of certain N & W employees responsible for

Page 565

power distribution. In September 1986, N & W and Southern informed the Association that they intended "to coordinate certain [N & W] work performed in the System Operations Center ... in Roanoke,...

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9 practice notes
  • RAILWAY LABOR EXEC. ASS'N v. CHESAPEAKE WESTERN, Civ. A. No. 89-1157-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • June 13, 1990
    ...September 13, 1985), aff'd mem. sub nom. RLEA v. ICC, 812 F.2d 1443 (D.C.Cir.1987). Brotherhood of Ry. Carmen v. I.C.C. ("Carmen"), 880 F.2d 562 (D.C.Cir.1989), cert. granted sub nom. Norfolk and Western Ry. Co. v. American Train Dispatchers Ass'n, ___ U.S. ___, 110 S.Ct. 1522, 108 L.Ed.2d ......
  • Norfolk and Western Railway Company v. American Train Dispatchers Association Csx Transportation, Inc v. Brotherhood of Railway Carmen, Nos. 89-1027
    • United States
    • United States Supreme Court
    • March 19, 1991
    ...for necessity are not at issue because the lower court did not pass on them and the parties do not challenge them here. Pp. 127-134. 279 U.S.App.D.C. 239, 880 F.2d 562, reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'C......
  • American Airlines v. Wolens, 931289
    • United States
    • United States Supreme Court
    • January 18, 1995
    ...ICC may also override contracts," and that it did not exempt the carrier from " 'all legal obstacles.' " Brotherhood of R. Carmen v. ICC, 880 F.2d 562, 567 (CADC 1989); see Norfolk & Western, supra, at 133-134, 111 S.Ct., at 1165-1166. The Court does not dispute this reading of Norfolk & We......
  • Brotherhood of. Eng., Trainmen v. Surface Transp., No. 05-1233.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 25, 2006
    ...the Union still has only the CBA to blame. 457 F.3d 30 At oral argument counsel also invoked Brotherhood of Railway Carmen v. ICC, 880 F.2d 562 (D.C.Cir.1989), reversed on appeal sub nom. Norfolk & Western Railway v. American Train Dispatchers' Ass'n, 499 U.S. 117, 111 S.Ct. 1156, 113 L.Ed.......
  • Request a trial to view additional results
8 cases
  • RAILWAY LABOR EXEC. ASS'N v. CHESAPEAKE WESTERN, Civ. A. No. 89-1157-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • June 13, 1990
    ...September 13, 1985), aff'd mem. sub nom. RLEA v. ICC, 812 F.2d 1443 (D.C.Cir.1987). Brotherhood of Ry. Carmen v. I.C.C. ("Carmen"), 880 F.2d 562 (D.C.Cir.1989), cert. granted sub nom. Norfolk and Western Ry. Co. v. American Train Dispatchers Ass'n, ___ U.S. ___, 110 S.Ct. 1522, 108 L.Ed.2d ......
  • Norfolk and Western Railway Company v. American Train Dispatchers Association Csx Transportation, Inc v. Brotherhood of Railway Carmen, Nos. 89-1027
    • United States
    • United States Supreme Court
    • March 19, 1991
    ...for necessity are not at issue because the lower court did not pass on them and the parties do not challenge them here. Pp. 127-134. 279 U.S.App.D.C. 239, 880 F.2d 562, reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'C......
  • American Airlines v. Wolens, 931289
    • United States
    • United States Supreme Court
    • January 18, 1995
    ...ICC may also override contracts," and that it did not exempt the carrier from " 'all legal obstacles.' " Brotherhood of R. Carmen v. ICC, 880 F.2d 562, 567 (CADC 1989); see Norfolk & Western, supra, at 133-134, 111 S.Ct., at 1165-1166. The Court does not dispute this reading of Norfolk & We......
  • Brotherhood of. Eng., Trainmen v. Surface Transp., No. 05-1233.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 25, 2006
    ...the Union still has only the CBA to blame. 457 F.3d 30 At oral argument counsel also invoked Brotherhood of Railway Carmen v. ICC, 880 F.2d 562 (D.C.Cir.1989), reversed on appeal sub nom. Norfolk & Western Railway v. American Train Dispatchers' Ass'n, 499 U.S. 117, 111 S.Ct. 1156, 113 L.Ed.......
  • Request a trial to view additional results
1 books & journal articles
  • Law, Fact, and the Threat of Reversal From Above
    • United States
    • American Politics Research Nbr. 42-2, March 2014
    • March 1, 2014
    ...factual basis for its decision. 7. State Corporation Commission v. Interstate Commerce Commission, 894 F.2d 1141 (10th Cir. 1989) 8. 880 F.2d 562 9. 49 U.S.C. Sec. 11341(a)10. The U.S. Courts of Appeals Database, Donald R. Songer (Principal Investigator), NSF# SES-89–12678 and The United St......

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