Public Law Number 102-29 does not violate the Commerce Clause.
C. 102-29 As a Taking Under the Fifth Amendment
UTU next argues that because the effect of 102-29 was to undo the moratoria agreements on the crew consist issue, the government has taken its property without compensation in violation of the Fifth Amendment.
The Court begins by considering the factors fashioned by the Supreme Court in determining whether a government action constitutes a taking.
The Court in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124, 57 L. Ed. 2d 631, 98 S. Ct. 2646 (1978) considered (1) the economic impact of the regulation on the plaintiff; (2) the extent to which the regulations interfered with distinct investment-backed expectations; and (3) the character of the governmental action. In considering these factors it should be noted that economic legislation that affects private contracts to which the United States is not a party has not been considered a taking. See e.g., Connolly v. Pension Ben. Guar. Corp., 475 U.S. 211, 222-28, 89 L. Ed. 2d 166, 106 S. Ct. 1018 (1986); Consolidated Rail Corp. v. Metro-North Commuter R.R., 638 F. Supp. 350, 355-57 (Regional Rail Reorg. Ct. 1986).
First. The complex interrelationship of costs and benefits that constitutes 102-29, mitigates its economic impact. In United Transp. Union v. Consolidated Rail Corporation, 535 F. Supp. 697 (Regional Rail Reorg. Ct. 1982), the court rejected a takings claim by UTU regarding the terms of the Northeast Rail Service Act of 1981. In that case Judge Friendly found that there was an insubstantial economic impact because the law did not abrogate all of the union's rights under the crew consist agreements, rather it created an array of benefits such as voluntary furloughs, severance allowances and the transfer of seniority status to other locations. Id. at 707.
Similarly, under 102-29 the door is merely opened to decreased staffing, the law does not guarantee any decrease or specify what it might be ultimately.
In addition, 102-29 includes wage increases and lump-sum payments as part of a package that included removal of the crew consist moratoria. Thus, the effect of 102-29 is indeterminate in itself because it simply makes negotiation of changes possible and it is not an isolated change but part of a regulatory package.
Second. It cannot be said that UTU had a reasonable expectation that the moratoria agreements were beyond the pale of Congressional action. As a general matter, in an area as heavily regulated as the railroads and in which Congress has repeatedly demonstrated its willingness to legislate solutions to labor disputes, any expectancy would seem unreasonable if not naive.
UTU argues, however, that despite the breadth of congressional regulation, the crew consist issue has traditionally been handled at the local level, making it reasonable to expect that national legislation would not involve the crew consist matter. But this argument is specious. Simply because an issue has traditionally been treated at the local level does not at all imply that Congress will not one day take it up. The law books are filled with such examples. Thus it is difficult to imagine that those involved with this small island of local handling could not have foreseen or anticipated that the sea of federal regulations that surrounds it would never touch its shore.
Third. The character of the government action in this case hardly resembles a taking within the meaning of the Fifth Amendment. The nature of the governmental action is critical. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 488, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987). UTU attempts to portray 102-29 as the equivalent of a "total, physical, permanent occupation of private land by the government." UTU Motion for Partial Summary Judgment (September 9, 1991) at 27. In fact, the act may be more accurately described as a regulatory matter that adjusts the benefits and burdens of private parties in the interests of public policy goals.
The law cannot be characterized, as UTU portrays it, as a complete appropriation. The government has not physically invaded or permanently appropriated any of the union's or worker's assets for its own use. See Connolly, supra, 475 U.S. at 211. Congress typically creates burdens for some that benefit others whenever it regulates commercial or human affairs. Id. at 223. Price controls, minimum wage laws, any economic regulation invariably requires one party to use its assets in a manner that it was not required to previously. Id.
As discussed supra, 102-29 is related to the public policy goal of ending the rail strike and stabilizing the industry. The law opens the crew consist issue to a negotiating process. And again it must be noted that the change as to the crew consist issue is interwoven in a fabric of other changes in wages and benefits. As Judge Friendly found, where Congress readjusts rights and burdens within its broad power under the Commerce Clause, private arrangements will not stand in the way. Conrail, 535 F. Supp. at 708. There is no violation of the Fifth Amendment.
The Representational Issue
Count II of UTU's counterclaim involves whether 102-29 extinguishes UTU's right to represent its engineer members in grievance procedures by naming another union, the Brotherhood of Locomotive Engineers (hereinafter BLE) as the exclusive union representative for grievance purposes. The Court finds that it does not have subject matter jurisdiction to entertain this claim.
Prior to 102-29 UTU represented engineer members in claims or on the property grievance procedures viz-a-viz many of the railroads in the instant case even where the UTU engineer members belonged to a craft or class represented by the BLE. This representation was based on collective bargaining agreements between UTU and the respective railroads. One of the Board's recommendations, adopted as law in 102-29, was to designate the BLE as the exclusive representative for its members, thus appearing to eliminate UTU representation for grievance procedures.
UTU's claim in this case, by which it seeks to "preserve its historic right to represent" its engineer members, is a representational issue. UTU argues, to the contrary, that this claim is not a representational dispute with the BLE because UTU is simply seeking a judgment as to whether the railroads may refuse to allow UTU to represent its engineer members. However UTU manages that conclusion, it is clear to this Court that the question presented by UTU is whether it or BLE can represent the engineers at issue.
Representational disputes such as this are within the exclusive jurisdiction of the National Mediation Board. 45 U.S.C. § 152, Third, Fourth and Ninth; American Train Dispatchers Ass'n v. Burlington Northern R.R. Co., No. 91-1743, slip. op. at 12 (D.D.C. Oct. 25, 1991). It has long been established that under the terms of the RLA, federal courts lack jurisdiction to decide issues of representation. Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 88 L. Ed. 61, 64 S. Ct. 95 (1943); General Committee of Adjustment v. Southern Pacific Co., 320 U.S. 338, 88 L. Ed. 85, 64 S. Ct. 142 (1943). The absence of federal jurisdiction has even been found, more recently, in unconventional representational settings such as competing union representation after a merger, Air Line Employees Ass'n, International v. Republic Airlines, Inc., 798 F.2d 967 (7th Cir. 1986); International Brotherhood of Teamsters v. Texas International Airlines, Inc., 717 F.2d 157 (5th Cir. 1983); and representational issues arising from restructuring when only one union was involved, Air Line Pilots Ass'n, Int'l v. Texas International Airlines, Inc., 656 F.2d 16 (2d Cir. 1981).
Although 102-29 does not, in itself, deprive the Court of jurisdiction, the UTU claim would require the Court to resolve a representational issue that involves the RLA. Despite the insistence of UTU that this is a mere case of statutory construction, the statutes in question are 102-29 and the RLA and the question presented is clearly one of representation. As the Court of Appeals has instructed the exercise of jurisdiction in such a case would contravene the teaching of the Supreme Court and the policy goals of the RLA. Association of Flight Attendants v. Delta Air Lines, 279 U.S. App. D.C. 60, 879 F.2d 906, 913 (D.C. Cir. 1989). The issue of representation by UTU and/or BLE effects the nature of negotiations between the railroads and the union and UTU's rights under the RLA. American Train Dispatchers Ass'n, supra, No. 91-1743, slip op. at 15. This claim falls outside the scope of federal court jurisdiction.
An order consistent with this Memorandum is being issued contemporaneously herewith.
December 20, 1991
HAROLD H. GREENE
United States District Judge
ORDER - December 20, 1991, Filed
Upon consideration of the parties' motions, oppositions, and replies, the entire record herein, and in accordance with the Memorandum issued contemporaneously herewith, it is this 20th day of December 1991
ORDERED that the motion for summary judgment of the plaintiff railroads be and it is hereby granted; and it is further
ORDERED that the motion to dismiss of the United States be and it is hereby granted; and it is further
ORDERED that the motion for partial summary judgment by the United Transportation Union be and it is hereby denied; and it is further
DECLARED that Pub.L. No. 102-29 does not violate the Commerce Clause or the Fifth Amendment of the Constitution; and it is further
DECLARED that Count II of the United Transportation Union is not within the jurisdiction of this Court.
HAROLD H. GREENE
United States District Judge