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December 20, 1991


The opinion of the court was delivered by: HAROLD H. GREENE

 This case involves a dispute over the constitutionality and meaning of Public Law No. 102-29, 105 Stat. 169, which was signed into law by the President on April, 18, 1991. Ten railroads have filed suit against the United Transportation Union (UTU) seeking a declaratory judgment that the law is constitutional. UTU, in turn, counter-claimed that the law exceeded the scope of congressional power under the Commerce Clause and constituted a taking within the meaning of the Fifth Amendment. UTU has also sued the United States challenging the constitutionality of the Act. The ten railroads sought to intervene in the action against the United States and this Court consolidated the cases.

 The representational issue is presented by another counterclaim by UTU against the ten railroad plaintiffs and the Chicago and North Western Transportation Company who were joined as a counterclaim defendant on this issue. *fn1" In this claim UTU charges that Public Law Number 102-29, which appears to designate another union, the Brotherhood of Locomotive Engineers, as the exclusive representative of locomotive engineers as to claims and grievances, cannot deprive UTU of its representative capacity.

 For the reasons set forth below, the Court finds that 102-29 is (1) well within the wide scope of the Commerce Clause and (2) does not constitute a taking within the meaning of the Fifth Amendment. As to the representational claim by UTU, the Court finds that the issue is beyond the subject matter jurisdiction of this Court.


 The Constitutionality of 102-29

 A. Background

 The development of the railroad industry significantly parallels both the development of this nation, see Leo Sheep Co. v. United States, 440 U.S. 668, 59 L. Ed. 2d 677, 99 S. Ct. 1403 (1979), as well as this nation's labor law. The extensive briefing by the parties in this case is testimony to this point. Nonetheless, the Court will attempt to reduce the complicated web or events, laws and procedures to the minimum necessary for an analysis of its most recent addition, 102-29.

 After extended proceedings under the Railway Labor Act failed to produce a new collective bargaining agreement between most of the nation's railroads and their corresponding unions, eight unions, including UTU, struck on April 17, 1991. That day Congress passed 102-29 in an effort to end the nationwide rail strike. In the early morning hours the next day the President signed the bill into law. The legislation was based on the recommendations of Presidential Emergency Board 219 (hereinafter the Board). The legislation essentially imposed a settlement on the parties and established procedures by which they could resolve remaining difference.

 The constitutional challenge in this case focuses specifically on that portion of 102-29 referred to as the "crew consist procedures." Under these procedures the UTU and the relevant railroads must negotiate regarding proposed changes in the number of ground service personnel who must be employed on the trains of the various railroads, that is, the number of personnel making up each ground crew. The procedures establish that if agreement is not reached by October 31, 1991, any party may request binding arbitration to resolve any and all remaining crew consist issues. Subsequently, all but one of the railroads requested that UTU negotiate on this matter, specifically regarding reduction in the minimum number of ground service personnel required under their respective collective bargaining agreements with UTU. UTU, in turn, pointed to "moratorium" provisions in the collective bargaining agreements by which the railroads are prohibited from attempting to negotiate or arbitrate any changes regarding crew consist. Because 102-29 creates procedures by which UTU and the railroads must negotiate or arbitrate on the crew consist issue, UTU argues, the law is unconstitutional.

 To understand the context of this issue, it must be observed that railroad/labor negotiations have occurred on both the local and national levels. Local negotiations are typically those between a single railroad and one or more unions. On the national level there has been collective bargaining between several railroads and unions. This is referred to in industry parlance as "national handling."

 The Railway Labor Act (RLA) *fn2" regulates heavily the process of collective bargaining. The RLA creates a long, multi-stage process in which either party to a collective bargaining agreement may formally propose a change to a term or terms of an existing agreement by serving notice under the provisions of the law. The parties are then required to negotiate and, if no agreement is reached, may seek the mediation services of the National Mediation Board (NMB). If the NMB cannot foster an agreement the parties are afforded the opportunity to submit the dispute to binding arbitration. If arbitration is not pursued and the NMB finds that the lack of an agreement may threaten interstate commerce, the NMB must so notify the President. The President then may appoint a Presidential Emergency Board to investigate the matter and make its recommendations within 30 days.

 One potential problem with this process is that it allows parties to seek revisions to collective bargaining agreements in near perpetuity. To avoid infinite renegotiation and make the agreement more constant, railroads and unions have sometimes included so-called moratorium agreements in their collective bargaining agreements. The moratorium is simply an agreement that neither party will invoke the procedures of the RLA described above to reopen negotiations on a certain portion of the agreement for a fixed period of time. Each of the railroads in this case have entered into at least one crew consist agreement with UTU that contains a moratorium provision.

 In July 1988 UTU served notice under the RLA seeking changes in the collective bargaining agreements to which it was a party. A process of negotiations began. The railroads made proposals for wage cuts for its employees or, in the alternative, reduction in the number of ground crew personnel. Relying upon the moratoria agreements, the UTU did not consent to negotiate the crew consist issue.

 In accordance with the procedures described supra, when the negotiations failed to produce an agreement the NMB stepped in to mediate. The railroads, UTU, and other unions agreed to a procedure by which the President would appoint an emergency board to investigate the relevant issues.

 On May 3, 1990, the President created Presidential Emergency Board 219. *fn3" The Board conducted hearings in which all the parties participated and in which the crew consist issue was raised. *fn4" The Board issued several, inter-related recommendations, including that there be no wage reductions but instead a series of wage increases. In addition, the Board recommended that the crew consist issue should be opened for negotiation despite the moratorium.

 The President appointed a special board to which UTU appealed on the crew consist/moratorium issue. Although the special board made some modifications to 102-29, it left in tact the lifting of the crew consist moratoria. Subsequently, the railroads served notice that they wished to negotiate on the matter of crew consist. The railroads, UTU and the United States are now before this Court regarding the issue of whether the crew consist portion ...

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