# Norfolk & Western Railway Company v. Nemitz/Dissent Blackmun

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United States Supreme Court
404 U.S. 37
Norfolk & Western Railway Company v. Nemitz
Argued: Oct. 21, 1971. --- Decided: Nov 15, 1971
Mr. Justice BLACKMUN, with whom THE CHIEF JUSTICE and Mr. Justice WHITE join, dissenting.
I am sympathetic with the respondents and with the unfortunate predicament in which, largely by their own acts, they find themselves. I feel, however, that the Court's decision to the effect that federal district court jurisdiction exists here and that the judgment of the Court of Appeals is to be affirmed amounts only to a sympathetically imposed judicial cure that is not authorized by the Interstate Commerce Act, that is violative of Congress' intent, and that ignores unusually clear legislative history.
In January 1962 the Norfolk & Western and the respondents' own Brotherhood, and others, entered into an agreement for the protection of employees in the event of approval of the anticipated merger. This agreement, by the express terms of its paragraph VIII, was directed to 'the last sentence of Section 5(2) (f) of the Interstate Commerce Act.' In October 1965 the railroad and the union, and others, entered into an Implementing Agreement. It then follows, it seems to me, that a number of factors demand a result opposite to that reached by the Court:
1. The very language of the statute. Section 5(2)(f) was added to the Interstate Commerce Act by the Transportation Act of 1940, 54 Stat. 906. It is the Act's only provision relating to employee benefits. The thrust of the subsection's third and last sentence, beginning with the exclusionary word 'notwithstanding,' is crucial here.
The first sentence directs the Interstate Commerce Commission, as a condition of its approval of any railroad merger, to 'require a fair and equitable arrangement to protect the interests of the railroad employees affected.' The second sentence states that in its order of approval the Commission shall include provisions protective for a four-year period. The third sentence then reads:
'Notwithstanding any other provisions of this Act, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees.'
This plain and unambiguous 'notwithstanding' language, obviously and necessarily directed to and affecting only the two preceding sentences, requires that an agreement entered into by the carrier and the collective-bargaining representative be controlling. The two preceding sentences have application, therefore, only when an agreement 'pertaining to the protection of the interests of said employees' is not executed. In the case before us the carrier and the Brotherhood did execute an agreement of the kind specified, and the 'notwithstanding' language should come into play. The Court today nullifies that sentence and reads it out of the Act.
2. The legislative history. This history is clearly antagonistic to respondents' position here. The Transportation Act of 1940 was no accident or floor-conceived legislation. Indeed, Senator Wheeler was led to 'venture the assertion that the bill was given more careful and more thoughtful consideration than any other bill which has ever come before the Senate in my time.' 86 Cong.Rec. 11270. It emerged from the economically distressed days of the 1930's, from the Washington Job Protection Agreement of 1936 (see Hearings on H.R. 2531 before the House Committee on Interstate and Foreign Commerce, 76th Cong., 1st Sess., vol. 1, p. 231), and from recommendations of President F. D. Roosevelt's Committee of Six (see Hearings, supra, at 259).
What is now § 5(2)(f) was not contained in the original House version (H.R. 4862, 76th Cong., 1st Sess.), or in the original Senate version (S. 2009, 76th Cong., 1st Sess.), or, indeed, in the draft contained in the initial H.R.Conf.Rep.No.2016 of April 26, 1940, 76th Cong., 3d Sess. It surfaced as § 7 of the revised draft submitted with the supplanting H.R.Conf.Rep.No.2832 of August 7, 1940, 76th Cong., 3d Sess.
The new language replaced the earlier Harrington Amendment to the House version. The reasons for the change effected by the conferees are set forth on pages 68-69 of H.R.Conf.Rep.No.2832. Although the comments there do not focus on the 'notwithstanding' sentence, its purpose and significance are apparent from the debates.
Representative Harrington had succeeded in amending the House bill to include a directive that the Commission approve no transaction resulting in unemployment or displacement of employees. 84 Cong.Rec. 9882, 9886, 10127. The conference committee, however, eliminated all employee-protection provisions. When the bill again reached the House floor, Mr. Wadsworth proposed the recommitment of the bill with instructions, among others, to include merger provisions and the 'notwithstanding' sentence, drafted by the railroad unions themselves. 86 Cong.Rec. 5886. As to that sentence, Congressman Harrington, an advocate of compulsory employee protection, had said:
'But this provision also contains a clause that permits the industry, through the processes of collective bargaining, to work out its problems in a democratic manner.' 86 Cong.Rec. 5871.
The motion to recommit passed. The conference committee in due course then reported § 5(2)(f) in its present form. Congressman Wolverton, a conferee, spoke in support of the revised bill:
'And, then there was also further uncertainty in the opinion of some representatives of railroad labor as to whether the language of the amendment might not preclude voluntary agreements, between management and men by collective bargaining, from being entered into.
'I want, however, to make it clear that no one who expressed the opinions I have mentioned thought for a moment that any of these possibilities were ever intended by the sponsors of the amendment.' 86 Cong.Rec. 10189.
And Congressman Lea referred to the 'notwithstanding' sentence as 'a provision confirming the right of employees to enter into agreements with railroads to take care of them in case of unemployment as a result of consolidations.' 86 Cong.Rec. 10178.
For me, all this evinces a clear and positive intent on the part of the authors of this legislation to make appropriate provision for employee protection, but explicitly to withdraw Commission-dictated protection whenever the carrier and the union, before merger, voluntarily arrive at protective provisions satisfactory to them. This was the purpose of the 'notwithstanding' clause. Furthermore, it is in accord with the 'strong federal labor policy against governmental interference with the substantive terms of collective-bargaining agreements.' Chicago & North Western R. Co. v. United Transportation Union, 402 U.S. 570, 579 n. 11, 91 S.Ct. 1731, 1736, 29 L.Ed.2d 187 (1971). In my view, the Court's decision today, and the decisions of the District Court and the Court of Appeals, overlook or choose to ignore this purpose and this legislative history. Instead, a result is achieved that is the exact opposite of the congressional intent and policy.
Respondents urge that this Court in the past has recognized the Commission's responsibility to review the sufficiency of third-sentence voluntary agreements and to 'adopt' them as part of its orders, citing Railway Labor Executives' Assn. v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721 (1950), and Brotherhood of Maintenance of Way Employes v. United States, 366 U.S. 169, 81 S.Ct. 913, 6 L.Ed.2d 206 (1961). These are the only two decisions the Court produces to support its theory of jurisdiction. Neither is apposite. The former case presented the question whether under sentence two the Commission had the power to precribe protective provisions extending beyond the four-year period to which that sentence refers. The holding was in the affirmative. The Court now makes much of the language of 'mandatory protection' in that decision. But no premerger voluntary agreement had been made there, and the effect of sentence three did not enter the case. Nor had a pre-merger agreement been reached in the latter Maintenance of Way case, where the issue was whether, when the Commission formulates its own protective provisions under sentence two, it must require the carrier to retain employees for the four-year period or simply to guarantee them equivalent compensation. The disagreement between the parties there arose at the Commission hearing on what protective arrangements should be imposed by the Commission in fulfillment of its sentence two duty.
The Commission seems consistently to have taken a position in line with the legislative history noted above, and with the clear meaning of the 'notwithstanding' sentence. See, e.g., Great Northern Pacific & Burlington Lines-Merger-Great Northern R. Co., 331 I.C.C. 228, 278 (1967); Pennsylvania R. Co.-Merger-New York Central R. Co., 327 I.C.C. 475, 544 (1966); Norfolk & Western R. Co. and New York, Chicago & St. Louis R. Co.-Merger, 324 I.C.C. 1, 9, 90 (1964); Missouri Pacific R. Corp. in Nebraska Trustee Operation, 247 I.C.C. 653, 657 (1941).
Neither respondents nor the Court points to a single instance in which a pre-merger voluntary protective agreement directed at § 5(2)(f) was either reviewed and found wanting by the Commission, or was 'included' in the Commission's order in any sense except that recognition of the existence of such an order is necessary for the Commission to relieve itself of the duty that would otherwise be imposed on it by sentence two.
3. The effect on collective bargaining. The result reached by the Court appears to me to require the ICC and the courts always to intrude upon collective bargaining, by reviewing the sufficiency of its substantive product, and thereby to discourage and to downgrade the collective-bargaining process that has been so firmly established in this area and so steadfastly protected. See, for example, International Association of Machinists v. Street, 367 U.S. 740, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961). As this case makes only too clear, the general standard of sentence two of § 5(2)(f), namely, 'a worse position with respect to their employment,' permits of widely varying interpretations when applied to specific dilemmas such as that of the respondents here. The Court's holding implies for me that any agreement between the carrier and the Brotherhood pursuant to sentence three of § 5(2)(f), however protective, is nevertheless not to be regarded as controlling if it is subsequently deemed less protective than Commissioners or judges think it should have been. Neither the language nor the legislative history warrants our espousing such judicial overview.
4. The facts and the element of choice. Contrary to the impression one might receive from a quick appraisal of either the opinions below or that of the Court here, it is not at all clear that the Implementing Agreement took from respondents something they had a reasonable expectation of receiving when the merger was approved. On its face, the application to respondents of the 1962 agreement, the language of which ('placed in a worse position with respect to compensation') reflected the generality of § 5(2)(f), is ambiguous. Interpretation of this language necessarily requires an understanding of the parties' original intentions with respect to Sandusky Line employees. Respondents were not without a substantial measure of selection of their future work at the time of the transfer of the Sandusky Line. That choice was between continued employment with the Pennsylvania, with seniority on its Toledo division maintained, or abandoning a part of their working territory and casting their lot with Norfolk & Western as acquirer of the Sandusky Line. Had they chosen to stay with the Pennsylvania, as it appears the parties to the agreement expected they would, respondents would not have brought on their present plight. For personal reasons such as, perhaps, residence in Sandusky (a factor of less than ideal convenience in the off-season regardless of the choice they made), they chose the other course and incurred the risks both of new employment and of the application of the protective provisions to them under the unexpected circumstances. This situation highlights the wisdom of the policy of § 5(2)(f), namely, to leave the solution of their problem to their own Brotherhood (their bargaining representative with the Norfolk & Western as well as with the Pennsylvania), rather than to the benevolent hindsight of the Commission or of a court.
All this propels me to the conclusion that the Commission may not be held to have reviewed and incorporated the 1962 agreement into its 1964 order authorizing the merger. All it did was to state that its duty to see to the protection of employees under § 5(2)(f) was satisfied by the execution of the 1962 agreement. It follows that there was no district court jurisdiction and that the respondents' complaint should have been dismissed.

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