United Transp. Union v. Norfolk and Western Ry. Co., No. 86-5003

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore WALD, Chief Judge, and SILBERMAN and D.H. GINSBURG; D.H. GINSBURG
Citation822 F.2d 1114
Parties125 L.R.R.M. (BNA) 3080, 262 U.S.App.D.C. 52, 56 USLW 2023, 106 Lab.Cas. P 12,427 UNITED TRANSPORTATION UNION, Appellant v. NORFOLK AND WESTERN RAILWAY CO., et al.
Decision Date30 June 1987
Docket NumberNo. 86-5003

Page 1114

822 F.2d 1114
125 L.R.R.M. (BNA) 3080, 262 U.S.App.D.C.
52, 56 USLW 2023,
106 Lab.Cas. P 12,427
UNITED TRANSPORTATION UNION, Appellant
v.
NORFOLK AND WESTERN RAILWAY CO., et al.
No. 86-5003.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 13, 1987.
Decided June 30, 1987.

John O'B. Clarke, Jr., with whom John J. Delaney, Washington, D.C., was on the brief, for appellant.

Jeffrey S. Berlin, with whom Russell E. Pommer, Washington, D.C., and William P. Stallsmith, Jr., Atlanta, Ga., were on the brief, for appellees.

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

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

Page 1115

D.H. GINSBURG, Circuit Judge:

The Interstate Commerce Commission ("Commission") imposes various labor protective conditions when it approves, or exempts from prior approval, proposals by railroads to consolidate their operations. In this case, an arbitration panel resolved a dispute arising under such conditions, and the United Transportation Union ("UTU" or "the Union") brought a suit to challenge the award under the Railway Labor Act ("RLA"). 1 The sole issue before us is whether the district court had subject matter jurisdiction over the Union's challenge. The district court dismissed the Union's action, reasoning that the arbitration award was either a final decision of the Commission, reviewable only by the court of appeals, or not final administrative action ripe for review, 627 F.Supp. 1008. We hold that the arbitration panel's award was an order of the Commission, and conclude that therefore, regardless of whether it was final or nonfinal, the order is ultimately subject to the exclusive jurisdiction of the court of appeals. 28 U.S.C. Secs. 2321(a), 2 2342(5). 3 We therefore affirm the district court.

I. LABOR PROTECTIVE CONDITIONS

Before turning to the facts of this case, we briefly describe the operation of labor protective conditions imposed by the Commission in railroad consolidations. When two or more railroads wish to consolidate certain aspects of their operations, they must first satisfy various requirements imposed by the Interstate Commerce Act, as amended. 4 Carriers may, however, petition the Commission to exempt a proposed transaction from such requirements, pursuant to 49 U.S.C. Sec. 10505. Subsection 10505(a) requires the Commission to grant an exemption when the application of such a provision:

(1) is not necessary to carry out the transportation policy of section 10101a of this title; and

(2) either (A) the transaction or service is of limited scope, or (B) the application of a provision of this subtitle is not needed to protect shippers from the abuse of market power.

Section 10505(g)(2), however, prohibits the Commission from exercising this exemption authority "to relieve a carrier of its obligation to protect the interests of employees as required by [the same] subtitle." 5

In carrying out its statutory mandate to prescribe employee protective conditions, the Commission customarily imposes one or another of several sets of conditions, commonly referred to by the name of the case in which they were first adopted. In the case under review, the Commission applied the so-called Mendocino Coast and Norfolk and Western conditions. 6 Mendocino

Page 1116

Coast provides for full wages and benefits for dismissed employees for up to six years, and, for employees transferred to lower paying jobs, a displacement allowance equal to the difference between their prior and subsequent earnings. The Norfolk and Western conditions contain similar provisions.

Under both Mendocino Coast and Norfolk and Western, either the carrier or the union may ultimately call for arbitration if the two sides fail to conclude what is commonly termed an "implementing agreement." Article I, Section 4 of Mendocino Coast prescribes the procedure that must be followed before either party invokes arbitration. Under Mendocino Coast, a railroad must first give at least 20 days notice of its intention to lease or operate the properties of another rail carrier, 354 I.C.C. 732, 733; under Norfolk and Western, the same notice must be given when a railroad plans to acquire "trackage rights over, joint ownership in, or joint use of" lines operated by another railroad. 7 354 I.C.C. 605, 610. Either side may then call for negotiations, which may last no more than 20 days. The conditions state:

Each transaction which will result in a dismissal or displacement of employees or rearrangement of forces, shall provide for the selection of forces from all employees involved on basis [sic] accepted as appropriate for application in the particular case and any assignment of employees made necessary by the transaction shall be made on the basis of an agreement or decision under this section 4.

If there is a failure to reach an implementing agreement at the end of the negotiation period, the parties must select a neutral referee, or, if they cannot even agree on that, ask the National Mediation Board to appoint one. The referee must hold a hearing, and thereafter issue a "final, binding, and conclusive" decision.

II. BACKGROUND

The appellees in this case are three railroads, all of which are direct or indirect subsidiaries of Norfolk Southern Corporation ("Norfolk Southern"). They are the Southern Railway Company ("Southern"), the Interstate Railroad Company ("Interstate"), a wholly owned subsidiary of Southern, and the Norfolk and Western Railway Company ("N & W"). Interstate is a small railroad, having less than 40 miles of main line and operating in the coal fields of southwestern Virginia. Its lines lie in between those of the Southern and the N & W, and serve to connect the other two railroads. The Interstate originates substantial amounts of coal traffic.

Because the carriers planned to integrate certain aspects of their operations, they petitioned the Commission for three exemptions--as more fully described below--from the prior review requirements normally applicable to railroad consolidations. Their intention was for the N & W and the Southern jointly to operate the Interstate's properties, with the N & W assuming responsibility for all of the Interstate's train operations. (The Southern's intended role is not entirely clear to us, but it is of no moment to our disposition of the case). The new arrangement would permit the carriers to take advantage of better grades and operating routes for traffic moving from Interstate origins to points on the N & W and Southern lines. The carriers also agreed to send future coal shipments originating on the eastern portion of the Interstate over N & W lines, rather than over Southern lines, in order to accommodate the intensive use of the Southern's lines that they anticipated as a result of an exchange of trackage rights between the Southern and an unaffiliated railroad.

All three exemptions were ultimately granted. 8 First, on February 19, 1985, the Commission exempted from the prior review requirements of 49 U.S.C. Sec. 11343 the

Page 1117

contract that allows the N & W and the Southern jointly to operate the Interstate's properties. 9 Second, the Commission at the same time exempted from the prior review requirements of section 10901 the N & W's proposal to conduct operations over an additional 2.3 miles of the Southern's line. Finally, several weeks later, the Commission granted the Interstate an exemption from the same provision, enabling that railroad to construct connecting tracks to the N & W's lines at both Norton and Tacoma, Virginia.

Pursuant to section 10505(g)(2), the Commission subjected the first exemption, for the N & W and the Southern to operate the Interstate's properties, to the Mendocino Coast conditions. It made the Norfolk and Western conditions applicable to employees affected by the N & W's acquisition of trackage rights over the Southern, as permitted under the second exemption. The Commission determined that employee protective conditions were not necessary, however, in connection with the third exemption, for the Interstate's track construction proposal.

In order to carry out these integrative transactions, the carriers deemed it necessary to reassign certain employees. Thus, for purposes of work assignments, they planned to integrate the Interstate's train and engine service employees with those performing similar duties on the N & W Pocahontas Division. A change of the employees' reporting site was also planned. Because of the operational difficulties that adherence to their existing collective bargaining agreements would entail, they also anticipated that the Interstate's 27 trainmen and conductors would become subject to the collective bargaining agreements between the N & W and the UTU.

Therefore, even before the Commission granted the exemptions and imposed employee protective conditions, the carriers notified the Union that the Norfolk Southern intended to "coordinate and/or consolidate track and engine service, forces and seniority rosters on the Interstate and Norfolk and Western" lines, and called for the negotiation of an implementing agreement. Joint Appendix ("J.A.") at 59. Appellant railroads served this notice in accordance with Article I, Section 4 of the "New York Dock " labor protective conditions, anticipating that the Commission would grant the exemptions and impose those conditions. 10 There followed several days of negotiations between the Union and the carriers, which led to a tentative agreement. It was rejected by the 27 Interstate trainmen and conductors who would be affected, however, because they objected to being transferred to the N & W/UTU bargaining agreement, as provided for in the tentative agreement.

After the carriers' petitions for exemption were granted, the Norfolk Southern notified the UTU on March 27, 1985, of its desire to submit the matter to arbitration pursuant to Article I, Section 4 of the Mendocino...

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28 practice notes
  • Railway Labor Executives' Ass'n v. Pittsburgh & Lake Erie R. Co., No. 87-3797
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 8 Abril 1988
    ...judiciary has not tolerated collateral attacks on ICC-approved abandonments. 3 See United Transp. Union v. Norfolk and Western Ry. Co., 822 F.2d 1114 (D.C.Cir.1987) (union RLA-based attack on arbitral award was in reality challenge to ICC order), cert. denied, --- U.S. ----, 108 S.Ct. 700, ......
  • Bhd. of Maint. of Way Employes Div./Ibt v. Consol. Rail Corp.., Civil Action Nos. 10–925 (RMB/JS)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 6 Junio 2011
    ...under [§ 11323] and, thereby, avoid the jurisdictional bar of [§ 11321(a) ].”) (citing United Transp. Union v. Norfolk & W. Ry. Co., 822 F.2d 1114, 1120 (D.C.Cir.1987), cert. den'd, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988)). The NRAB, like this Court, must look beyond labels to t......
  • Waste Management of Illinois, Inc. v. USEPA, No. 88 C 2797.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 17 Abril 1989
    ...own description of its theory to determine the forum with jurisdiction." United Transportation Union v. Norfolk & Western Railway Co., 822 F.2d 1114, 1120 (D.C.Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988).6 Put another way, we must decide whether the actions c......
  • US v. Fleetwood Enterprises, Inc., Civ. A. No. 88-68-JLL.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 14 Diciembre 1988
    ...Co. v. Department of Transportation, 854 F.2d 1438, 1439 (D.C. Cir.1988); United Transportation Union v. Norfolk and Western R.R. Co., 822 F.2d 1114, 1119-20 (D.C.Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988). Moreover, where a special procedure for judicial re......
  • Request a trial to view additional results
28 cases
  • Railway Labor Executives' Ass'n v. Pittsburgh & Lake Erie R. Co., No. 87-3797
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 8 Abril 1988
    ...judiciary has not tolerated collateral attacks on ICC-approved abandonments. 3 See United Transp. Union v. Norfolk and Western Ry. Co., 822 F.2d 1114 (D.C.Cir.1987) (union RLA-based attack on arbitral award was in reality challenge to ICC order), cert. denied, --- U.S. ----, 108 S.Ct. 700, ......
  • Bhd. of Maint. of Way Employes Div./Ibt v. Consol. Rail Corp.., Civil Action Nos. 10–925 (RMB/JS)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • 6 Junio 2011
    ...under [§ 11323] and, thereby, avoid the jurisdictional bar of [§ 11321(a) ].”) (citing United Transp. Union v. Norfolk & W. Ry. Co., 822 F.2d 1114, 1120 (D.C.Cir.1987), cert. den'd, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988)). The NRAB, like this Court, must look beyond labels to t......
  • Waste Management of Illinois, Inc. v. USEPA, No. 88 C 2797.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • 17 Abril 1989
    ...own description of its theory to determine the forum with jurisdiction." United Transportation Union v. Norfolk & Western Railway Co., 822 F.2d 1114, 1120 (D.C.Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988).6 Put another way, we must decide whether the actions c......
  • US v. Fleetwood Enterprises, Inc., Civ. A. No. 88-68-JLL.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • 14 Diciembre 1988
    ...Co. v. Department of Transportation, 854 F.2d 1438, 1439 (D.C. Cir.1988); United Transportation Union v. Norfolk and Western R.R. Co., 822 F.2d 1114, 1119-20 (D.C.Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988). Moreover, where a special procedure for judicial re......
  • Request a trial to view additional results

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