United Transp. Union v. Pa. Pub. Util. Comm'n
| Decision Date | 20 May 2013 |
| Citation | 68 A.3d 1026 |
| Parties | UNITED TRANSPORTATION UNION, PENNSYLVANIA STATE LEGISLATIVE BOARD, Petitioner v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. |
| Court | Pennsylvania Commonwealth Court |
OPINION TEXT STARTS HERE
Lawrence M. Mann, Bethesda, MD, for petitioner.
John E. Herzog, Assistant Counsel, Harrisburg, for respondent.
John F. Povilaitis, Harrisburg, and Joseph P. Sirbak, II, Philadelphia, for intervenor Norfolk Southern Railway Company.
BEFORE: PELLEGRINI, President Judge, and SIMPSON, Judge (P.), and COLINS, Senior Judge.
OPINION BY Judge SIMPSON.
This appeal involves a 1975 order issued by the Public Utility Commission (PUC) that requires Norfolk Southern Railway Corporation (Norfolk Southern) to employ two brakemen around the clock to prevent “run outs” 1 of rail cars. We are asked whether the 1975 order is preempted by the Federal Railroad Safety Act of 1970, 49 U.S.C. §§ 20101– 20167, (FRSA), and Federal Railroad Administration (FRA) regulations. The Pennsylvania State Legislative Board of the United Transportation Union (Union) contends the 1975 order does not cover the same subject as federal law and remains necessary to ensure safety. On cross motions for summary judgment, the PUC agreed with Norfolk Southern and concluded its 1975 order is preempted. The Union appealed, arguing preemption does not apply. Upon review, we affirm.
The PUC's order of June 12, 1975, is designed to prevent “run outs” in the 400 and 500 classification tracks of Conway Yard (Yard) in Beaver County (1975 Order). Norfolk Southern contends the 1975 Order is outdated because run outs are virtually eliminated by more modern methods, like hydraulic skates, which do not require designated brakemen to weave amongst rail cars placing and removing portable skates.2 That requirement poses a significant safety hazard.
The Yard is a “hump” classification yard containing 53 classification tracks of varied lengths, running in eastbound and westbound directions. Reproduced Record (R.R.) at 212a, 452a. The primary operation of the Yard is the classification of rail cars by shoving them to the apex of an incline (the hump), and separating the cars into a “cut” of one to four cars before their descent. R.R. at 18a. This allows the cars, propelled by gravity and controlled by a series of retarders, to travel down the hump and onto an assigned classification track. Then the rail cars are coupled with those already on the track and moved to ultimately create trains.
Railroads use different brake systems to control the rail cars' speed. Inert retarders are permanently installed on the rails after the hump to squeeze a rail car's wheels, causing it to stop. See R.R. at 19a, 49a. Railroads also use computer operated hydraulic skates. Norfolk Southern installed automated hydraulic brakes to eliminate the need for “skatemen” to apply and remove portable skates.
The 1975 Order required the railroad to assign two skatemen to monitor the west end of the classification tracks for the exclusive purpose of preventing run outs. The skatemen placed portable skates on the rails of the classification tracks beyond the inert retarders as back-up devices to slow and stop the rail cars.
The 1975 Order is the result of a complaint filed by a committee of unions which alleged the railroad's (then Penn Central) ineffective braking systems resulted in hazardous conditions for railroad employees by allowing run outs. The unions asserted that ineffective inert retarders and skates, combined with the railroad's failure to require application of hand brakes on individual rail cars, failed to adequately protect against run outs. Essentially, the 1975 Order memorializes the agreement between the parties to address the run out problem.
In response to an application of the Union regarding alleged noncompliance with the 1975 Order, the PUC issued another order dated May 6, 1998 (1998 Order) clarifying the requirements of the 1975 Order. After finding that skatemen spent five hours of their eight-hour shift sitting in the Yard Office, which is located a “considerable distance” from where the skates are placed, the PUC confirmed that the railroad may assign the two designated skatemen to other duties while not engaged in preventing run outs. See 1998 Order; R.R. at 148a.
In 2009, Norfolk Southern petitioned the PUC for rescission or amendment of the 1975 Order, arguing the relief it required is outdated and inappropriate given the conditions in the Yard. In its petition, Norfolk Southern asked the PUC to amend the 1975 Order to: (1) eliminate portable skates; and (2) eliminate the requirement to use skatemen for that job. Alternatively, Norfolk Southern asked the PUC to amend the 1975 Order so it may direct any employee to apply or remove portable skates, and reassign the skatemen to other positions.
Subsequently, in an amendment to its petition, Norfolk Southern advised it implemented engineering and safety improvements in the Yard that have virtually eliminated run outs since the PUC last reviewed the 1975 Order. Norfolk Southern began replacing inert retarders with automated hydraulic skates in Spring 2010, discontinuing the use of portable skates on tracks equipped with hydraulic skates. Norfolk Southern finished installing hydraulic skates on 500 classification tracks in June 2011. It maintains the use of portable skates creates a safety hazard because personnel walk between the tracks and under rail cars in order to place portable skates.
The Union filed comments opposing Norfolk Southern's petition, contending portable skates remain necessary to prevent run outs. The Union contends that Norfolk Southern's installation of hydraulic skates did not increase safety, and were not more effective for run out prevention. The matter was referred to an administrative law judge (ALJ) for hearing and issuance of a recommended decision.
In October 2011, the Union also filed a separate petition with the PUC seeking emergency relief (Emergency Petition). In its Emergency Petition, the Union alleged that a number of recent run out incidents in the Yard resulted in collisions between rail cars and in employee injuries. The Union asked the PUC to direct Norfolk Southern to do the following: (1) mandate the use of portable skates; (2) allow employees to mount moving equipment for safety purposes; (3) require retarders to be attended by retarder operators; (4) remove obstructions 3 in the walkways between tracks; (5) enjoin Norfolk Southern from violating PUC orders; (6) impose civil penalties; and, (7) award counsel fees and costs to the Union.
The ALJ held an emergency hearing on the Union's Emergency Petition, at which both Norfolk Southern and the Union presented testimony,4 before denying relief. The ALJ certified a material question of the correctness of denying interim emergency relief to the PUC. In an order dated December 1, 2011, the PUC upheld the ALJ's order and referred the matter for further proceedings.
Subsequently, on December 23, 2011, the PUC issued a Secretarial Letter advising that Norfolk Southern raised the issue of federal preemption, which would obviate the need for further proceedings. The Secretarial Letter directed the ALJ to address whether the 1975 Order is preempted by federal law. The PUC advised the ALJ to address the preemption issue preliminarily at the outset, and limited further proceedings to preemption in the interest of adjudicatory economy.
At the ALJ's direction, both Norfolk Southern and the Union filed motions for summary judgment. Norfolk Southern sought summary judgment holding the 1975 Order was preempted as a matter of law. The Union filed a motion for summary judgment seeking a determination that the 1975 Order was not preempted. The ALJ issued his Recommended Decision on Preemption of the 1975 Order, deciding to: (1) grant the Norfolk Southern motion for summary judgment; (2) deny the Union's motion; and, (3) rescind the 1975 Order.
Before the PUC, the Union filed exceptions to the ALJ's recommended decision, to which Norfolk Southern filed reply exceptions.
Based on the record developed as part of the Emergency Petition, and the exceptions, the PUC denied the Union's exceptions and issued its own decision, adopting the recommended decision to the extent consistent with its own. The PUC held the 1975 Order was preempted as a matter of law. The PUC analyzed the 1975 Order and whether it pertained to an area of railroad safety preempted by the FRSA and its regulations addressing brake implementation for unmanned equipment. The PUC then applied the savings clause to assess whether any local safety hazards in the Yard existed that were addressed by the 1975 Order and defied national uniform regulation. The PUC found the savings clause inapplicable.
The Union filed a petition for review with this Court from that order. Norfolk Southern intervened in the proceeding pursuant to Pa. R.A.P. 1531(a).
The party who prevailed before the PUC is entitled to the benefit of every inference which can be logically drawn from the evidence viewed in a light most favorable to that party. Wheeling & Lake Erie Ry. Co. v. Pa. Pub. Util. Comm'n, 778 A.2d 785 (Pa.Cmwlth.2001); Shenango Twp. Bd. of Supervisors v. Pa. Pub. Util. Comm'n, 686 A.2d 910 (Pa.Cmwlth.1996); see generally Balshy v. Pa. State Police, 988 A.2d 813 (Pa.Cmwlth.2010) ( en banc ). Our review is limited to determining whether the PUC violated constitutional rights, committed an error of law, rendered a decision that is not supported by substantial evidence, or violated its rules of practice. Regency Transp. Grp., Ltd. v. Pa. Pub. Util. Comm'n, 44 A.3d 107 (Pa.Cmwlth.2012); Norfolk S. Ry. Co. v. Pa. Pub. Util. Comm'n, 875 A.2d 1243 (Pa.Cmwlth.2005). Using this deferential standard, we evaluate the PUC's grant of summary judgment in Norfolk Southern's favor.
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