LOCATION: Bay Marchand Area
DOCKET NO.: 70-97
DECIDED BY: Burger Court (1971-1972)
LOWER COURT: United States Court of Appeals for the Sixth Circuit
CITATION: 404 US 37 (1971)
ARGUED: Oct 21, 1971
DECIDED: Nov 15, 1971
Martin M. Lucente - for petitioner
Thomas J. Murray, Jr. - for respondents
Facts of the case
Media for Norfolk & Western R. Company v. Nemitz
Audio Transcription for Oral Argument - October 21, 1971 in Norfolk & Western R. Company v. Nemitz
Warren E. Burger:
Number 97, Norfolk and Western Railroad against Nemitz.
I will just give the bar, time to disperse.
Martin M. Lucente:
This is not in anticipation of the argument in fact.
Warren E. Burger:
You must not feel that you are not as good at drawing cards.
I think you may proceed now Mr. Lucente.
Martin M. Lucente:
Mr. Chief Justice and may it please the Court.
The primary question presented by this case involves Section 5 (2) (f) in the Interstate Commerce Act.
Initial provisions of that Section required Interstate Commerce Commission as a prerequisite, the approval of a merger to impose protective conditions for the benefit of employees affected by the transaction.
That last sentence as an alternative to the imposition of conditions by the Commission, provide that not withstanding any other provisions of the act, in agreement pertaining to the protection of employees maybe entered into by any carrier and a duly authorize representative that with its employees.
At issue here, the relationship between the Commission’s authority to impose protective conditions and the right of representatives, their carriers and their employees to enter into agreements concerning that subject.
The claims asserted by the respondents in this case arise out of the 1964 merger of the Nickel Plate, Norfolk and Western and several other carriers.
As a part of that transaction, the Norfolk and Western required the Sandusky Line from the Pennsylvania Railroad.
The respondents were employed by the Pennsylvania and worked on the Sandusky Line prior to its sale to the Norfolk and Western.
His employees seek certain payments which they contend they are entitled to under the Commission’s order approving the merger.
When the N and W sought Commission approval of the merger approximately 20 railroad unions intervened in opposition and asked the Commission to impose protective conditions by the benefit of employees who might be affected.
Following extensive negotiations however, the brotherhood of railroad trainmen which representative respondents and the other unions entered in to an employee protection agreement with the Norfolk and Western dated January 10, 1962.
This agreement which we cited that it was made pursuant to the last sentence of Section 5(2)(f) provided a type of employee protection which differed significantly from that which Section 5(2)(f) requires when the Commission imposes protective conditions.
And protective benefits are prescribed by the Commission and employees pre-merger compensation must be protected for a period of four years or for the number of years of employment prior to the merger whichever is less.
There is no guarantee of continued employment and the protection flows only from the employing carrier.
When the protective benefits are prescribed with the 1962 agreement however when far beyond this type of protection and constituted in effect a lifetime guarantee of employment and compensation.
Initial paragraph, the agreement provided that with respect to Nickel Plate employees, N and W would take such employees into his employment would guarantee that they would not be adversely affected with respect to employment or compensation subsequent to the merger.
Paragraph 2 of the agreement provided the same thing for Wabash employees.
Section 3 of the agreement covered the Pennsylvania employees on the Sandusky Line, They were given an option first to remain with the Pennsylvania or to become employees of the N and W.
Section 3 provided that those electing N and W employment would not be deprived of employment or placing the worst position with respect to compensation except and I quote “that Norfolk and Western shall not be required to provided employment to any such employee of greater duration than such employee and joined under Sandusky Line in the year prior to merger.”
The written record of the negotiations with respect to this agreement shows that the parties by this proviso intended to make the guarantee for Pennsylvania employees, co-extensive with there pre-merger employment experience on the Sandusky Line.
In this respect, the protection provided by Section 3 differed somewhat from that provided by Sections 1 and 2, under Sections 1 and 2 the employees were protected on the basis of their full pre-merger earnings, by protection for Pennsylvania employees was limited to their earnings from the Sandusky Line.
The reason for this difference lies in the nature of the transaction.
With respect to the Nickel Plate and Wabash employees who were covered by Sections 1 and 2, the Pennsylvania or the N and W rather required the entire working territory that these employees held seniority rights over.
The protection which the N and W provided was accordingly based on their pre-merger employment without limitation.