Subject:  NORFOLK & W. R. CO. v. TRAIN DISPATCHERS, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



NORFOLK & WESTERN RAILWAY CO. et al. v.
AMERICAN TRAIN DISPATCHERS
ASSOCIATION et al.


certiorari to the united states court of appeals for the district of
columbia circuit

No. 89-1027.  Argued December 3, 1990 -- Decided March 19, 1991 {1}

Once the Interstate Commerce Commission (ICC) has approved a rail carrier
consolidation under the conditions set forth in Chapter 13 of the
Interstate Commerce Act (Act), 49 U. S. C. MDRV 11301 et seq., a carrier in
such a consolidation "is exempt from the antitrust laws and from all other
law, including State and municipal law, as necessary to let [it] carry out
the transaction . . . ," MDRV 11341(a).  In these cases, the ICC issued
orders exempting parties to approved railway mergers from the provisions of
collective-bargaining agreements.  The Court of Appeals reversed and
remanded, holding that MDRV 11341(a) does not authorize the ICC to relieve
a party of collectively bargained obligations that impede implementation of
an approved transaction.  Reasoning, inter alia, that the legislative
history demonstrates a congressional intent that MDRV 11341(a) apply to
specific types of positive laws and not to common-law rules of liability,
such as those governing contracts, the court declined to decide whether the
section could operate to override provisions of the Railway Labor Act (RLA)
governing the formation, construction, and enforcement of the
collective-bargaining agreements at issue.

Held: The MDRV 11341(a) exemption "from all other law" includes a carrier's
legal obligations under a collective-bargaining agreement when necessary to
carry out an ICC-approved transaction.  The exemption's language, as
correctly interpreted by the ICC, is clear, broad, and unqualified,
bespeaking an unambiguous congressional intent to include any obstacle
imposed by law.  That language neither admits of a distinction between
positive enactments and common-law liability rules nor supports the
exclusion of contractual obligations.  Thus, the exemption effects an
override of such obligations by superseding the law -- here, the RLA --
which makes the contract binding.  Cf. Schwabacher v. United States, 334 U.
S. 182, 194-195, 200-201.  This determination makes sense of the Act's
consolidation provisions, which were designed to promote economy and
efficiency in interstate transportation by removing the burdens of
excessive expenditure.  Whereas MDRV 11343(a)(1) requires the ICC to
approve consolidations in the public interest, and MDRV 11347 conditions
such approval on satisfaction of certain labor-protective conditions, the
MDRV 11341(a) exemption guarantees that once employee interests are
accounted for and the consolidation is approved, the RLA -- whose major
disputes resolution process is virtually interminable -- will not prevent
the efficiencies of consolidation from being achieved.  Moreover, this
reading will not, as the lower court feared, lead to bizarre results, since
MDRV 11341(a) does not exempt carriers from all law, but rather from all
law necessary to carry out an approved transaction.  Although it might be
true that MDRV 11341(a)'s scope is limited by MDRV 11347, and that the
breadth of the exemption is defined by the scope of the approved
transaction, the conditions of approval and the standard for necessity are
not at issue because the lower court did not pass on them and the parties
do not challenge them here.  Pp. 9-17.

279 U. S. App. D. C. 239, 880 F. 2d 562, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J.,
and White, Blackmun, O'Connor, Scalia, and Souter, JJ., joined.  Stevens,
J., filed a dissenting opinion, in which Marshall, J., joined.

------------------------------------------------------------------------------
1
    Together with No. 89-1028, CSX Transportation, Inc. v. Brotherhood of
Railway Carmen et al., also on certiorari to the same court.





Subject: 89-1027 & 89-1028 -- OPINION, NORFOLK & W. R. CO. v. TRAIN DISPATCHERS

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


Nos. 89-1027 and 89-1028




NORFOLK AND WESTERN RAILWAY COMPANY,
et al., PETITIONERS
v.
89-1027
AMERICAN TRAIN DISPATCHERS
ASSOCIATION et al.



CSX TRANSPORTATION, INC., PETITIONER
v.
89-1028
BROTHERHOOD OF RAILWAY CARMEN et al.


on writs of certiorari to the united states court of appeals for the
district of columbia circuit

[March 19, 1991]



    Justice Kennedy delivered the opinion of the Court.
    The Interstate Commerce Commission has the authority to approve rail
carrier consolidations under certain conditions.  49 U. S. C. MDRV 11031 et
seq.  A carrier in an approved consolidation "is exempt from the antitrust
laws and from all other law, including State and municipal law, as
necessary to let [it] carry out the transaction . . . ."  49 U. S. C. MDRV
11341(a).  These cases require us to decide whether the carrier's exemption
under MDRV 11341(a) "from all other law" extends to its legal obligations
under a collective-bargaining agreement.  We hold that it does.

I


A
    "Prior to 1920, competition was the desideratum of our railroad
economy."  St. Joe Paper Co. v. Atlantic Coast Line R. Co., 347 U. S. 298,
315 (1954).  Following a period of government ownership during World War I,
however, "many of the railroads were in very weak condition and their
continued survival was in jeopardy."  Id., at 315.  At that time, the
Nation made a commitment to railroad carrier con solidation as a means of
promoting the health and efficiency of the railroad industry.  Beginning
with the Transportation Act, 1920, ch. 91, 41 Stat. 456, "consolidation of
the railroads of the country, in the interest of economy and efficiency,
became an established national policy . . . so intimately related to the
maintenance of an adequate and efficient rail trans portation system that
the `public interest' in the one cannot be dissociated from that in the
other."  United States v. Lowden, 308 U. S. 225, 232 (1939).  See generally
St. Joe Paper v. Atlantic Coast Line R. Co., supra, at 315-321.
    Chapter 13 of the Interstate Commerce Act, recodified in 1978 at 49 U.
S. C. MDRV 11301 et seq., contains the current statement of this national
policy.  The Act grants the Interstate Commerce Commission exclusive
authority to examine, condition, and approve proposed mergers and
consolidations of transportation carriers within its jurisdiction.  MDRV
11343(a)(1).  The Act requires the Commission to "approve and authorize"
the transactions when they are "consistent with the public interest."  MDRV
11344(c).  Among the factors the Commission must consider in making its
public interest determination are "the interests of carrier employees
affected by the proposed transaction."  MDRV 11344(b)(1)(D). {1}  In
authorizing a merger or consolidation, the Commission "may impose
conditions governing the transaction."  MDRV 11344(c).  Once the Commission
approves a transaction, a carrier is "exempt from the antitrust laws and
from all other law, including State and municipal law, as necessary to let
[it] carry out the transaction."  MDRV 11341(a).
    When a proposed merger involves rail carriers, the Act requires the
Commission to impose labor-protective conditions on the transaction to
safeguard the interests of adversely affected railroad employees.  MDRV
11347.  In New York Dock Railway -- Control -- Brooklyn Eastern Dist.
Terminal, 360 I. C. C. 60, 84-90, aff'd sub nom. New York Dock Railway v.
United States, 609 F. 2d 83 (CA2 1979), the Commission announced a
comprehensive set of conditions and pro cedures designed to meet its
obligations under MDRV 11347.  Section 2 of the New York Dock conditions
provides that the "rates of pay, rules, working conditions and all
collective bargaining and other rights, privileges and benefits . . . under
applicable laws and/or existing collective bargaining agreements . . .
shall be preserved unless changed by future collective bargaining
agreements."  360 I. C. C., at 84.  Section 4 sets forth negotiation and
arbitration procedures for resolution of labor disputes arising from an
approved railroad merger.  Id., at 85.  Under MDRV 4, a merged or
consolidated railroad which plans an operational change that may cause
dismissal or displacement of any employee must provide the employee and his
union 90 days written notice.  Ibid.  If the carrier and union cannot agree
on terms and conditions within 30 days, each party may submit the dispute
for an expedited "final, binding and conclusive" determination by a neutral
arbitrator.  Ibid.  Finally, the New York Dock conditions provide affected
employees with up to six years of income protection, as well as
reimbursements for moving costs and losses from the sale of a home.  See
id., at 86-89 (15 5-9, 12).
B
    The two cases before us today involve separate ICC orders exempting
parties to approved railway mergers from the provisions of
collective-bargaining agreements.
    1. In No. 89-1027, the Commission approved an application by NWS
Enterprises, Inc. to acquire control of two previously separate rail
carriers, petitioners Norfolk and Western Railway Company (N&W) and
Southern Railway Company (Southern).  See Norfolk Southern Corp. -- Control
-- Norfolk & W. R. Co. and Southern R. Co., 366 I. C. C. 173 (1982).  In
its order approving control, the Commission imposed the standard New York
Dock labor-protective conditions and noted the possibility that "further
displacement [of employees] may arise as additional coordinations occur."
366 I. C. C., at 230-231.
    In September 1986, this possibility became a reality.  The carriers
notified the American Train Dispatchers' Association, the bargaining
representative for certain N&W employees, that they proposed to consolidate
all "power distribution" -- the assignment of locomotives to particular
trains and facilities -- for the Norfolk-Southern operation.  To effect the
efficiency move, the carriers informed the union that they would transfer
work performed at the N&W power distribution center in Roanoke, Virginia,
to the Southern center in Atlanta, Georgia.  The carriers proposed an
implementing agreement in which affected N&W employees would be made
management supervisors in Atlanta, and would receive increases in wages and
benefits in addition to the relocation expenses and wage protections
guaranteed by the New York Dock conditions.  The union contended that this
proposal involved a change in the existing collective-bargaining agreement
that was subject to mandatory bargaining under the Railway Labor Act (RLA),
44 Stat. 577, as amended, 45 U. S. C. MDRV 151 et seq.  The union also
maintained that the carriers were required to preserve the affected
employees' collective-bargaining rights, as well as their right to union
representation under the RLA.
    Pursuant to MDRV 4 of the New York Dock procedures, the parties
negotiated concerning the terms of the implementing agreement, but they
failed to resolve their differences.  As a result, the carriers invoked the
New York Dock arbitration procedures.  After a hearing, the arbitration
committee ruled in the carriers' favor.  The committee noted that the
transfer of work to Atlanta was an incident of the control transaction
approved by the ICC, and that it formed part of the "additional
coordinations" the ICC predicted would be necessary to achieve "greater
efficiencies."  The committee also held it had the authority to abrogate
the provisions of the collective-bargaining agreement and of the RLA as
necessary to implement the merger.  Finally, it held that because the
application of the N&W bargaining agreement would impede the transfer, the
transferred employees did not retain their collective-bargaining rights.
    The union appealed to the Commission, which affirmed by a divided vote.
It explained that "[i]t has long been the Commission's view that private
collective bargaining agreements and [Railway Labor Act] provisions must
give way to the Commission-mandated procedures of section 4 [of the New
York Dock conditions] when parties are unable to agree on changes in
working conditions required to implement a transaction authorized by the
Commission."  App. to Pet. for Cert. in No. 89-1027, p. 33a.  Accordingly,
the Commission upheld the arbitration committee's determination that the
"compulsory, binding arbitration required by Article I, section 4 of New
York Dock took precedence over RLA procedures whether asserted
independently or based on existing collective bargaining agreements."  Id.,
at 35a.  The Commission also held that because the work transfer was
incident to the approved merger, it was "immunized from conflicting laws by
section 11341(a)."  Ibid.  Noting that "[i]mposition of the
collective-bargaining agreement would jeopardize the transaction because
the work rules it mandates are inconsistent with the carriers' underlying
purpose of integrating the power distribution function," the Commission
upheld the decision to override the collective-bargaining agreement and RLA
provisions.  Id., at 37a.
    2. In No. 89-1028, the Commission approved an application by CSX
Corporation to acquire control of the Chessie System, Inc., and Seaboard
Coastline Industries, Inc.  CSX Corp. -- Control -- Chessie System, Inc.,
and Seaboard Coastline Industries, Inc., 363 I. C. C. 521 (1980).  Chessie
was the parent of the Chesapeake and Ohio Railway Company and the Baltimore
and Ohio Railway Company; Seaboard was the parent of the Seaboard Coast
Line Railroad Company.  In approving the control acquisition, the
Commission imposed the New York Dock conditions and recognized that
"additional coordinations may occur that could lead to further employee
displacements."  363 I. C. C., at 589.
    In August 1986, the consolidated carrier notified respondent
Brotherhood of Railway Carmen that it planned to close Seaboard's heavy
freight car repair shop at Waycross, Georgia, and transfer the Waycross
employees to Chessie's similar shop in Raceland, Kentucky.  The carrier
informed the Brotherhood that the proposed transfer would result in a net
decrease of jobs at the two shops.  Pursuant to New York Dock, the carrier
and the union negotiated concerning the terms of an agreement to implement
the transfer.  The sticking point in the negotiations involved a 1966
collectivebargaining agreement between the union and Seaboard known as the
"Orange Book."  The Orange Book provided that the carrier would employ each
covered employee and maintain each employee's work conditions and benefits
for the remainder of the employee's working life.  The Brotherhood
contended that the Orange Book prevented CSX from moving work or covered
employees from Waycross to Raceland.
    When negotiations broke down, both the union and the carrier invoked
the arbitration procedures under MDRV 4 of New York Dock.  The arbitration
committee ruled for the carrier.  It agreed with the union that the Orange
Book prohibited the proposed transfer of work and employees.  It
determined, however, that it could override any Orange Book or RLA
provision that impeded an operational change authorized or required by the
ICC's decision approving the original merger.  The panel then held that the
carrier could transfer the heavy repair work, which it found necessary to
the original control aquisition, but could not transfer employees protected
by the Orange Book, which it found would only slightly impair the original
control aquisition.  Both parties appealed the award to the Commission.
    A divided Commission affirmed in part and reversed in part.  The
Commission agreed the panel possessed authority to override
collective-bargaining rights and RLA rights that prevent implementation of
a proposed transaction.  It reasoned, however, that "[i]mposition of an
Orange Book employee exception would effectively prevent implementation of
the proposed transaction."  CSX Corp. -- Control -- Chessie System, Inc.
and Seaboard Coast Line Industries, Inc., 4 I. C. C. 2d 641, 650 (1988).
The agency thus affirmed the arbitration committee's order permitting the
transfer of work but reversed the holding that the carriers could not
transfer Orange Book employees.
    3. The unions appealed both cases to the United States Court of Appeals
for the District of Columbia Circuit.  The Court of Appeals considered the
cases together and reversed and remanded to the agency.  Brotherhood of
Railway Car men v. ICC, 279 U. S. App. D. C. 239, 880 F. 2d 562 (1989).
The court held that MDRV 11341(a) does not authorize the Commission to
relieve a party of collective-bargaining agreement obligations that impede
implementation of an approved transaction.  The court stated various
grounds for its conclusion.  First, because the court did not read the
phrase "all other law" in MDRV 11341(a) to include "all legal obstacles,"
it found "no support in the language of the statute" to apply the statute
to obligations imposed by collective-bargaining agreements.  Id., at 567.
Second, the court analyzed the Transportation Act, 1920, ch. 91, MDRV 407,
41 Stat. 482, which contained a predecessor to MDRV 11341(a), and found
that Congress "did not intend, when it enacted the immunity provision, to
override contracts."  Id., at 570.  The court noted that Congress had
"focused nearly exclusively . . . on specific types of laws it intended to
eliminate -- all of which were positive enactments, not common law rules of
liability, as on a contract."  Ibid.  The court further noted that Congress
had often revisited the immunity provision without making it clear that it
included contracts or collective-bargaining agreements.  Ibid.  Finally,
the court did not defer to the ICC's interpretation of the Act, presumably
because it determined that the Commission's interpretation was belied by
the contrary " `unambiguously expressed intent of Congress,' " id., at 567
(quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U. S. 837, 843 (1984)).
    In ruling that MDRV 11341(a) did not apply to collective-bargaining
agreements, the court "decline[d] to address the question" whether the
section could operate to override provisions of the RLA.  Brotherhood of
Railway Carmen, supra, at 247-250, 880 F. 2d, at 570-573.  It also declined
to consider whether the labor protective conditions required by MDRV 11347
are exclusive, or whether MDRV 4 of the New York Dock conditions gives an
arbitration committee the right to override provisions of a
collective-bargaining agreement.  279 U. S. App. D. C., at 250, 880 F. 2d,
at 573.  The court remanded the case to the agency for a determination on
these issues.
    After the Court of Appeals denied the carriers' petitions for
rehearing, the carriers in the consolidated cases filed petitions for
certiorari, which we granted on March 26, 1990.  494 U. S. --- (1990). {2}
We now reverse.
II
    Title 49 U. S. C. MDRV 11341(a) provides:
    ". . .  A carrier, corporation, or person participating in that
approved or exempted transaction is exempt from the antitrust laws and from
all other law, including State and municipal law, as necessary to let that
person carry out the transaction, hold, maintain, and operate property, and
exercise control or franchises acquired through the transaction. . . ."


We address the narrow question whether the exemption in MDRV 11341(a) from
"all other law" includes a carrier's legal obligations under a
collective-bargaining agreement.
    By its terms, the exemption applies only when necessary to carry out an
approved transaction.  These predicates, however, are not at issue here,
for the Court of Appeals did not pass on them and the parties do not
challenge them.  For purposes of this decision, we assume, without
deciding, that the Commission properly considered the public interest
factors of MDRV 11343(b)(1) in approving the original transaction, that its
decision to override the carriers' obligations is consistent with the labor
protective requirements of MDRV 11347, and that the override was necessary
to the implementation of the transaction within the meaning of MDRV
11341(a).  Under these assumptions, we hold that the exemption from "all
other law" in MDRV 11341(a) includes the obligations imposed by the terms
of a collective-bargaining agreement. {3}
    As always, we begin with the language of the statute and ask whether
Congress has spoken on the subject before us.  "If the intent of Congress
is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress."  Chevron, supra, at 842-843.  The contested language in MDRV
11341(a), exempting carriers from "the antitrust laws and all other law,
including State and municipal law," is clear, broad, and unqualified.  It
does not admit of the distinction the Court of Appeals drew, based on its
analysis of legislative history, between positive enactments and common-law
rules of liability.  Nor does it support the Court of Appeals' conclusion
that Congress did not intend the immunity clause to apply to contractual
obligations.
    By itself, the phrase "all other law" indicates no limitation.  The
circumstance that the phrase "all other law" is in addition to coverage for
"the antitrust laws" does not detract from this breadth.  There is a canon
of statutory construction which, on first impression, might seem to dictate
a different result.  Under the principle of ejusdem generis, when a general
term follows a specific one, the general term should be understood as a
reference to subjects akin to the one with specific enumeration.  See
Arcadia v. Ohio Power Co., --- U. S. ---, --- (1990).  The canon does not
control, however, when the whole context dictates a different conclusion.
Here, there are several reasons the immunity provision cannot be
interpreted to apply only to antitrust laws and similar statutes.  First,
because "[r]epeals of the antitrust laws by implication from a regulatory
statute are strongly disfavored," United States v. Philadelphia Nat. Bank,
374 U. S. 321, 350 (1963), Congress may have determined that it should make
a clear and separate statement to include antitrust laws within the general
exemption of MDRV 11341(a).  Second, the otherwise general term "all other
law" "includ[es]" (but is not limited to) "State and municipal law."  This
shows that "all other law" refers to more than laws related to antitrust.
Also, the fact that "all other law" entails more than "the antitrust laws,"
but is not limited to "State and municipal law," reinforces the conclusion,
inherent in the word "all," that the phrase "all other law" includes
federal law other than the antitrust laws.  In short, the immunity
provision in MDRV 11341 means what it says: a carrier is exempt from all
law as necessary to carry out an ICC-approved transaction.
    The exemption is broad enough to include laws that govern the
obligations imposed by contract.  "The obligation of a contract is ` the
law which binds the parties to perform their agreement.' "  Home Building &
Loan Assn. v. Blaisdell, 290 U. S. 398, 429 (1934) (quoting Sturges v.
Crowninshield, 4 Wheat. 122, 197 (1819)).  A contract depends on a regime
of common and statutory law for its effectiveness and enforcement.

"Laws which subsist at the time and place of the making of a contract, and
where it is to be performed, enter into and form a part of it, as fully as
if they had been expressly referred to or incorporated in its terms. This
principle embraces alike those laws which affect its construction and those
which affect its enforcement or discharge."  Farmers and Merchants Bank of
Monroe, N. C. v. Federal Reserve Bank of Richmond, Va., 262 U. S. 649, 660
(1923).


A contract has no legal force apart from the law that acknowledges its
binding character.  As a result, the exemption in MDRV 11341(a) from "all
other law" effects an override of contractual obligations, as necessary to
carry out an approved transaction, by suspending application of the law
which makes the contract binding.
    Schwabacher v. United States, 334 U. S. 182 (1948), which construed the
immediate precursor of MDRV 11341(a), MDRV 5(11) of the Transportation Act
of 1940, ch. 722, MDRV 7, 54 Stat. 908-909, {4} supports this conclusion.
In Schwabacher, minority stockholders in a carrier involved in an
ICC-approved merger complained that the the terms of the merger diminished
the value of their shares as guaranteed by the corporate charter and thus
"deprived [them] of contract rights under Michigan law. . . ."  334 U. S.,
at 188.  We explained that the Commission was charged under the Act with
passing upon and approving all capital liabilities assumed or discharged by
the merged company, and that once the Commission approved a merger in the
public interest and on just and reasonable terms, the immunity provision
relieved the parties to the merger of "restraints, limitations, and
prohibitions of law, Federal, State, or municipal," as necessary to carry
out the transaction.  Id., at 194-195, 198.  We noted that before approving
the merger, the Commission had a duty "to see that minority interests are
protected," and emphasized that any such minority rights were, "as a matter
of federal law, accorded recognition in the obligation of the Commission
not to approve any plan which is not just and reasonable."  Id., at 201.
Once these interests were accounted for, however, "[i]t would be
inconsistent to allow state law to apply a liquidation basis [for
valuation] to what federal law designates as a basis for continued public
service."  Id., at 200.  Relying in part on the immunity provision, we held
the contract rights protected by state law did not survive the merger
agreement found by the Commission to be in the public interest.  Id., at
194-195, 200-201.  Because the Commission had disclaimed jurisdiction to
settle the shareholders' complaints, we remanded the case to the agency to
ensure that the terms of the merger were just and reasonable.  Id., at
202.
    Just as the obligations imposed by state contract law did not survive
the merger at issue in Schwabacher, the obligations imposed by the law that
gives force to the carriers' collective-bargaining agreements, the RLA,
does not survive the merger in this case.  The RLA governs the formation,
construction, and enforcement of the labor-management contracts in issue
here.  It requires carriers and employees to make reasonable efforts "to
make and maintain" collectivebargaining agreements, 45 U. S. C. MDRV 152
First, and to refrain from making changes in existing agreements except in
accordance with RLA procedures, 45 U. S. C. 15 152 Seventh, 156.  The Act
"extends both to disputes concerning the making of collective agreements
and to grievances arising under existing agreements."  Slocum v. Delaware,
L. & W. R. Co., 339 U. S. 239, 242 (1950).  As the law which gives "legal
and binding effect to collective agreements," Detroit & Toledo Shore Line
R. Co. v. United Transportation Union, 396 U. S. 142, 156 (1969), the RLA
is the law that, under MDRV 11341(a), is superseded when an ICC-approved
transaction requires abrogation of collective-bargaining obligations.  See
ICC v. Locomotive Engineers, 482 U. S. 270, 287 (1987) (Stevens, J.,
concurring in judgment); Brotherhood of Locomotive Engineers v. Boston &
Maine Corp., 788 F. 2d 794, 801 (CA1 1986); Missouri Pacific R. Co. v.
United Transportation Union, 782 F. 2d 107, 111 (CA8 1986); Burlington
Northern, Inc. v. American Railway Supervisors Assn., 503 F. 2d 58, 62-63
(CA7 1974); Bundy v. Penn Central Co., 455 F. 2d 277, 279-280 (CA6 1972);
Nemitz v. Norfolk & Western R. Co., 436 F. 2d 841, 845 (CA6, 1971), aff'd,
404 U. S. 37 (1971); Brotherhood of Locomotive Engineers v. Chicago & North
Western R. Co., 314 F. 2d 424 (CA8 1963); Texas & N. O. R. Co. v.
Brotherhood of Railroad Trainmen, 307 F. 2d 151, 161-162 (CA5 1962);
Railway Labor Executives Assn. v. Guilford Transp. Industries, Inc., 667 F.
Supp. 29, 35 (Me. 1987), aff'd, 843 F. 2d 1383 (CA1 1988).
    Our determination that MDRV 11341(a) supersedes collectivebargaining
obligations via the RLA as necessary to carry out an ICC-approved
transaction makes sense of the consolidation provisions of the Act, which
were designed to promote "economy and efficiency in interstate
transportation by the removal of the burdens of excessive expenditure."
Texas v. United States, 292 U. S. 522, 534-535 (1934).  The Act requires
the Commission to approve consolidations in the public interest.  49 U. S.
C. MDRV 11343(a)(1).  Recognizing that con solidations in the public
interest will "result in wholesale dismissals and extensive transfers,
involving expense to transferred employees" as well as "the loss of
seniority rights," United States v. Lowden, 308 U. S. 225, 233 (1939), the
Act imposes a number of labor-protecting requirements to ensure that the
Commission accommodates the interests of affected parties to the greatest
extent possible.  49 U. S. C. 15 11344(b)(1)(D), 11347; see also New York
Dock Railway -- Control -- Brooklyn Eastern District Terminal, 360 I. C. C.
60 (1979).  Section 11341(a) guarantees that once these interests are
accounted for and once the consolidation is approved, obligations imposed
by laws such as the RLA will not prevent the efficiencies of consolidation
from being achieved.  If MDRV 11341(a) did not apply to bargaining
agreements enforceable under the RLA, rail carrier consolidations would be
difficult, if not impossible, to achieve.  The resolution process for major
disputes under the RLA would so delay the proposed transfer of operations
that any efficiencies the carriers sought would be defeated.  See, e. g.,
Burlington Northern R. Co. v. Maintenance Employees, 481 U. S. 429, 444
(1987) (resolution procedures for major disputes "virtually endless");
Detroit & T. S. L. R. Co. v. Transportation Union, 396 U. S. 142, 149
(1969) (dispute resolution under RLA involves "an almost interminable
process"); Railway Clerks v. Florida East Coast R. Co., 384 U. S. 238, 246
(1966) (RLA procedures are "purposely long and drawn out").  The immunity
provision of MDRV 11341(a) is designed to avoid this result.
    We hold that, as necessary to carry out a transaction approved by the
Commission, the term "all other law" in MDRV 11341(a) includes any obstacle
imposed by law.  In this case, the term "all other law" in MDRV 11341(a)
applies to the substantive and remedial laws respecting enforcement of
collective-bargaining agreements.  Our construction of the clear statutory
command confirms the interpretation of the agency charged with its
administration and expert in the field of railroad mergers.  We affirm the
Commission's interpretation of MDRV 11341(a), not out of deference in the
face of an ambiguous statute, but rather because the Commission's
interpretation is the correct one.
    This reading of MDRV 11341(a) will not, as the Court of Appeals feared,
lead to bizarre results.  Brotherhood of Railway Carmen v. ICC, 279 U. S.
App. D. C., at 244, 880 F. 2d, at 567.  The immunity provision does not
exempt carriers from all law, but rather from all law necessary to carry
out an approved transaction.  We reiterate that neither the conditions of
approval, nor the standard for necessity, is before us today.  It may be,
as the Commission held on remand from the Court of Appeals, that the scope
of the immunity provision is limited by MDRV 11347, which conditions
approval of a transaction on satisfaction of certain labor-protective
conditions.  See n. 2, supra.  It also might be true that "[t]he breadth of
the exemption [in MDRV 11341(a)] is defined by the scope of the approved
transaction . . . ."  ICC v. Locomotive Engineers, 422 U. S., at 298
(Stevens, J., concurring in judgment).  We express no view on these
matters, as they are not before us here.
    The judgment of the Court of Appeals is reversed, and the case is
remanded for proceedings consistent with this opinion.

It is so ordered.


 
 
 
 
 


------------------------------------------------------------------------------
1
    Section MDRV 11344(b)(1) provides:
    "In a proceeding under this section which involves the merger or
control of at least two class I railroads, as defined by the Commission,
the Commission shall consider at least the following:

"(A) the effect of the proposed transaction on the adequacy of
transportation to the public.

"(B) the effect on the public interest of including, or failing to include,
other rail carriers in the area in the proposed transaction.

"(C) the total fixed charges that result from the proposed transaction.

"(D) the interests of carrier employees affected by the proposed trans
action.

"(E) whether the proposed transaction would have an adverse effect on
competition among rail carriers in the affected region."

2
    On September 9, 1989, the Commission also filed a petition for
rehearing, and requested the court to refrain from ruling on the petition
until it could issue a comprehensive decision on remand addressing issues
that the Court of Appeals left open for resolution.  On September 29, 1989,
the Court of Appeals issued an order stating that the Commission's petition
for rehearing would be "deferred pending release of the ICC's decision on
remand."  App. to Pet. for Cert. in No. 89-1027, p. 54a.
    On January 4, 1990, the Commission reopened proceedings in the case
remanded to it.  On May 21, 1990, two months after we granted the carriers'
petitions for certiorari, the Commission issued its remand decision.  CSX
Corp. -- Control -- Chessie System, Inc. and Seaboard Coast Line
Industries, Inc., 6 I. C. C. 2d 715 (1990).  In its decision, the
Commission adhered to the Court of Appeals' ruling that MDRV 11341(a) did
not authorize it to override provisions of a collective-bargaining
agreement.  The Commission held, however, that MDRV 11341(a) authorized it
to foreclose resort to RLA remedies for modification and enforcement of
collective-bargaining agreements "at least to the extent of [its]
authority" to impose labor-protective conditions under MDRV 11347.  Id., at
754.  The Commission explained that the MDRV 11347 limit on its MDRV
11341(a) authority "reflects the consistency of the overall statutory
scheme for dealing with CBA modifications required to implement
Commission-approved mergers and consolidations."  Id., at 722.  The
Commission remanded its decision to the parties for further negotiation or
arbitration.
    On December 4, 1990, the union respondents petitioned the Court of
Appeals for review of the Commission's remand decision.  The petition
raises three issues: (1) whether MDRV 11341(a) authorizes the ICC to
foreclose employee resort to the RLA; (2) whether MDRV 11347 authorizes the
ICC to compel employees to arbitrate changes in collective-bargaining
agreements; and (3) whether abrogation of employee contract rights effected
a taking in violation of the Due Process and Just Compensation Clauses of
the Fifth Amendment.

3
    On May 23, 1990, and again on September 19, 1990, the union respondents
filed motions to dismiss the case as moot.  They argued that in light of
the alternative ground for decision offered by the ICC on remand from the
Court of Appeals, see n. 2, supra, the meaning and scope of MDRV 11341(a)
was no longer material to the dispute.  Respondents reassert their mootness
argument in their brief on the merits.  Brief for Respondents 18.
    We disagree.  The Commission predicated the analysis in its remand
order on the correctness of the Court of Appeals' interpretation of MDRV
11341(a).  Thus, our definitive interpretation of MDRV 11341(a) may affect
the Commission's remand order.  Agency compliance with the Court of
Appeals' mandate does not moot the issue of the correctness of the court's
decision.  See, e. g., Cornelius v. NAACP Legal Defense Fund, 473 U. S.
788, 791, n. 1 (1985); Schweiker v. Gray Panthers, 453 U. S. 34, 42, n. 12
(1981); Maher v. Roe, 432 U. S. 464, 468-469, n. 4 (1977).  In addition,
the alternative basis offered by the Commission on remand does not end the
controversy between the parties.  The parties retain an interest in the
validity of the ICC's original order because the Court of Appeals may again
disagree with the Commission's interpretation of the Act in its review of
the remand order.

4
    Section 5(11) of the Transportation Act of 1940 provided:
    "[A]ny carriers or other corporations, and their officers and employees
and any other persons, participating in a transaction approved or
authorized under the provisions of this section shall be and they are
hereby relieved from the operation of the antitrust laws and all other
restraints, limitations, and prohibitions of law, Federal, State, or
municipal, insofar as may be necessary to enable them to carry into effect
the transaction so approved or provided for in accordance with the terms
and conditions, if any, imposed by the Commission. . . ."
    The recodification of this language in MDRV 11341(a) effected no
substantive change.  See H. R. Rep. No. 95-1395, pp. 158-160 (1978).  See
also ICC v. Locomotive Engineers, 482 U. S. 270, 299, n. 12 (1987)
(Stevens, J., concurring in judgment).





Subject: 89-1027 & 89-1028 -- DISSENT, NORFOLK & W. R. CO. v. TRAIN DISPATCHERS

 
SUPREME COURT OF THE UNITED STATES


Nos. 89-1027 and 89-1028




NORFOLK AND WESTERN RAILWAY COMPANY,
et al., PETITIONERS
v.
89-1027
AMERICAN TRAIN DISPATCHERS
ASSOCIATION et al.



CSX TRANSPORTATION, INC., PETITIONER
v.
89-1028
BROTHERHOOD OF RAILWAY CARMEN et al.


on writs of certiorari to the united states court of appeals for the
district of columbia circuit

[March 19, 1991]



    Justice Stevens, with whom Justice Marshall joins, dissenting.

    The statutory exemption that the Court construes today had its source
in MDRV 407 of the Transportation Act, 1920 (1920 Act).  41 Stat. 482.  Its
wording was slightly changed in 1940, 54 Stat. 908-909, and again in 1978,
92 Stat. 1434.  There is, however, no claim that either of those amendments
modified the coverage of the exemption in any way.  It is therefore
appropriate to begin with a consideration of the purpose and the text of
the 1920 Act.
    Before the First World War, the railroad industry had been the prime
target of antitrust enforcement. {1}  In 1920, however, Congress adopted a
new national transportation policy that expressly favored the consolidation
of railroads.  The policy of consolidation embodied in the 1920 Act would
obviously have been frustrated by the federal antitrust laws had Congress
not chosen to exempt explicitly all approved mergers from these laws.
Section 407 of that Act provided, in part:

    "The carriers affected by any order made under the foregoing provisions
of this section . . . shall be, and they are hereby, relieved from the
operation of the `antitrust laws,' . . . and of all other restraints or
prohibitions by law, State, or Federal, in so far as may be necessary to
enable them to do anything authorized or required by an order made under
and pursuant to the foregoing provisions of this section."  41 Stat. 482.


    Both the background and the text of MDRV 407 make it absolutely clear
that its primary focus was on federal antitrust laws.  Sensibly, however,
Congress wrote that section using language broad enough to cover any other
federal or state law that might otherwise forbid the consummation of any
approved merger or prevent the immediate operation of its properties under
a new corporate owner.  Not a word in the statute, or in its legislative
history, contains any hint that the approval of a merger by the Interstate
Commerce Commission (ICC) would impair the obligations of valid and
otherwise enforceable private contracts.
    Given the present plight of our nation's railroads, it may be wise
policy to give the ICC a power akin to, albeit greater than, that of a
bankruptcy court's power to approve a trustee's rejection of a bankrupt's
executory private contracts. {2}  Through nothing short of a tour de force,
however, can one find any such power in 49 U. S. C. MDRV 11341, or in
either of its predecessors.  Obviously, consolidated carriers would find it
useful to have the ability to disavow disadvantageous longterm leases on
obsolete car repair facilities, employment contracts with high salaried
executives whose services are no longer needed, as well as
collective-bargaining agreements that provide costly job security to a
shrinking work force.  If Congress had intended to give the ICC such broad
ranging power to impair contracts, it would have done so in language much
clearer than anything that can be found in the present Act.
    The Court's contrary conclusion rests on its reading of the "plain
meaning" of the present statutory text and our decision in Schwabacher v.
United States, 334 U. S. 182 (1948).  Neither of these reasons is
sufficient.  Moreover, the Court's reading is inconsistent with other
unambiguous provisions in the statute.
I
    With or without the ejusdem generis canon, I believe that the normal
reader would assume that the text of MDRV 11341 encompasses the antitrust
laws, as well as other federal or state laws, that would otherwise prohibit
rail carriers from con summating approved mergers, and nothing more.  See
ante, at 11.  That text contains no suggestion that whenever a criminal
law, tort law, or any regulatory measure impedes the efficient operation of
a new merged carrier, the carrier can avoid such a restriction by virtue of
the ICC approval of that merger.  Nor does the text of MDRV 11341 contain
any suggestion that such an approval would impair the obligation of private
contracts. {3}  Rather, as both an application of the ejusdem generis canon
and an examination of the legislative history show, the purpose of the
exemption was to relieve the carriers "from the operation of the antitrust
and other restrictive or prohibitory laws."  H. R. Conf. Rep. No. 650, 66th
Cong., 2d Sess., 64 (1920) (emphasis added).
    The Court speculates that the reason the 1920 Congress explicitly
referred to the antitrust laws was simply to avoid the force of the rule,
that repeals of the antitrust laws by implication are not favored, citing
United States v. Philadelphia Nat. Bank, 374 U. S. 321, 350 (1963).  In
that case, however, the rule was announced in the context of the industry's
argument that federal regulatory approval of a transaction exempted the
transaction from the antitrust laws even though the regulatory statute was
entirely silent on the subject of exemption. Ibid.  The authority cited in
the Phila delphia decision to support this rule sheds no light on the
question whether a statute creating a broad exemption for mergers would
naturally be read to include all statutes that otherwise would have
prohibited the consummation of a merger of large rail carriers. {4}
    Of greater importance, however, is the Court's rather remarkable
assumption that an exemption "from all other law" should be read to
encompass the restraints created by private contract. {5}  Ante, at 12.
Even if the text of the present Act could bear that reading, it is flatly
inconsistent with the text of the 1920 Act, which relieved the
participating carriers "from the operation of the `antitrust laws' . . .
and of all other restraints, limitations, and prohibitions of law, Federal
and State . . . ."  41 Stat. 482.  Moreover, given the respect that our
legal system has always paid to the enforceability of private contracts --
a respect that is evidenced by express language in the Constitution itself
{6} -- there should be a powerful presumption against finding an implied
authority to impair contracts in a statute that was enacted to alleviate a
legitimate concern about the antitrust laws.  Had Congress intended to
convey the message the Court finds in MDRV 11341, it surely would have said
expressly that the exemption was from all restraints imposed by law or by
private contract. {7}
II
    In my opinion, the Court's reliance on the decision in Schwabacher v.
United States, 334 U. S. 182 (1948), is misplaced.  In that case, the
owners of two percent of the outstanding preferred stock of the Pere
Marquette Railway brought suit in the United States District Court to set
aside an ICC order approving a merger between that corporation and the
Chesapeake and Ohio Railway Corporation.  In approving the merger, the ICC
had found that the market value of plaintiffs' preferred shares ranged, at
different times, from $87 to $99 per share, and that the stock that they
received in exchange pursuant to the merger agreement would have realized
about $90 and $111 on the same dates.  Thus, the terms of the merger, as
applied to the plaintiffs' class, were just and reasonable.  Plaintiffs
contended, however, that the exchange value of their shares amounted to
$172.50 per share because the merger was a "liquidation" as a matter of
Michigan law, and the Pere Marquette charter provided that in the event of
liquidation or dissolution, the preferred shareholders were entitled to
recive full payment of par value plus all accrued unpaid dividends.
    The ICC order approving the merger did not resolve the Michigan law
question.  The ICC considered the issue too insignificant to affect the
validity of the entire transaction, and left the matter for resolution by
negotiation or later litigation.  On appeal from the District Court's
judgment sustaining the ICC order, this Court held that the ICC's finding
that the exchange value was just and reasonable foreclosed any other claim
that the dissenting shareholders might assert concerning the value of their
shares.  Whatever Michigan law might provide for the preferred shareholders
in the event of a winding-up or liquidation could not determine the just
and reasonable value of shares in the continuing enterprise.  The essence
of the Court's holding is set forth in this passage:

    "Since the federal law clearly contemplates merger as a step in
continuing the enterprise, it follows that what Michigan law might give
these dissenters on a windingup or liquidation is irrelevant, except
insofar as it may be reflected in current values for which they are
entitled to an equivalent.  It would be inconsistent to allow state law to
apply a liquidation basis to what federal law designates as a basis for
continued public service. . . .


    "We therefore hold that no rights alleged to have been granted to
dissenting stockholders by state law provision concerning liquidation
survive the merger agreement approved by the requisite number of
stockholders and approved by the Commission as just and reasonable.  Any
such rights are, as a matter of federal law, accorded recognition in the
obligation of the Commission not to approve any plan which is not just and
reasonable."  Id., at 200-201.


    It is true that the effect of the Schwabacher decision was to
extinguish whatever contractual rights the dissenting shareholders
possessed as a matter of Michigan law.  But the Court did require the ICC,
on remand, to consider whatever value the Michigan law claims might have in
connection with its final conclusion that the merger plan was "just and
reasonable."  A fair reading of the entire opinion makes it clear that the
holding was based more on the ICC's "complete control of the capital
structure to result from a merger" id., at 195, than on the exemption at
issue in this case.  Schwaba cher cannot fairly be read as authorizing
carriers to renounce private contracts that limit the benefits achievable
through the merger.
III
    There is tension between the Court's interpretation of the exemption
that is now codified in 49 U. S. C. MDRV 11341(a) and the labor protection
conditions set forth in 49 U. S. C. MDRV 11347.  The latter section
requires an ICC order approving a railroad merger to impose conditions that
are "no less protective" of the employees than those established pursuant
to the Rail Passenger Service Act, 84 Stat. 1337, as amended, 45 U. S. C.
MDRV 565.  One of the conditions established by the Secretary of Labor
under the Amtrak Act was essentially the same as MDRV 2 of the New York
Dock conditions described by the Court, ante, at 3.  As the Court notes,
that condition provides that the benefits protected " `under applicable
laws and/or existing collective bargaining agreements . . . shall be
preserved unless changed by future collective bargaining agreements.' "
ibid. (citation omitted).  This provision unambiguously indicates that
Congress intended and expected that collective bargaining agreements would
survive any ICC approved merger.
    As I noted in my separate opinion in ICC v. Locomotive Engineers, 482
U. S. 270, 298 (1987), the statutory immunity provision in MDRV 11341 is
self-executing and becomes effective at the time of the ICC approval.  "The
breadth of the exemption is defined by the scope of the approved
transaction, and no explicit announcement of exemption is required to make
the statute applicable."  Ibid. (footnote omitted).  In neither of the
cases before the Court today did the ICC approval of the merger purport to
modify or terminate any collective bargaining agreement.  The ICC approval
orders were entered in 1980 and 1982 and contained no mention of either of
the proposed transfers of personnel that are now at issue and about which
the union was first notified several years after the ICC orders were
entered. {8}
    I cannot subscribe to a late-blooming interpretation of a 71-year old
immunity statute that gives the Commission a roving power -- exercisable
years after a merger has been approved and consummated -- to impair the
obligations of private contracts that may "prevent the efficiencies of
consoli dation from being achieved."  Ante, at 15.  The Court's decision
may represent a "better" policy choice than the one Congress actually made
in 1920, cf. West Virginia University Hospitals, Inc. v. Casey, --- U. S.
--- (1991) (slip op., at 17), but it is neither an accurate reading of the
command that Congress issued in 1920, nor is it a just disposition of
claims based on valid private contracts.
    I respectfully dissent.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    See United States v. Trans-Missouri Freight Assn., 166 U. S. 290
(1897); United States v. Joint Traffic Assn., 171 U. S. 505 (1898);
Northern Securities Co. v. United States, 193 U. S. 197 (1904); United
States v. Terminal Railroad Assn. of St. Louis, 224 U. S. 383 (1912);
United States v. Union Pacific R. Co., 226 U. S. 61 (1912); United States
v. Pacific & Arctic R. & Nav. Co., 228 U. S. 87 (1913).

2
    Section 365 of the Bankruptcy Code, 11 U. S. C. MDRV 365, allows a
trustee to assume or reject a bankrupt's executory contracts and unexpired
leases subject to the subsequent approval of the bankruptcy court.
Collective-bargaining agreements can be rejected only if the additional
requirements of 11 U. S. C. MDRV 1113 are met.

3
    As Judge D. H. Ginsburg, writing for the Court of Appeals noted:
    "We cannot sustain the ICC's position that this provision empowers it
to override a CBA.  First, and most important, the ICC's position finds no
support in the language of the statute.  By its terms, MDRV 11341(a)
contemplates exemption only from `the antitrust laws and from all other
law' to the extent necessary to carry out the transaction.  Nowhere does it
say that the ICC may also override contracts, nor has it ever, in any of
the various iterations since its initial enactment in 1920, included even a
general reference to `contracts,' much less any specific reference to CBAs.
Nor has the ICC explained how we can read the term `other law,' as it has
done, to mean `all legal obstacles.'  Dispatchers, J. A. 207.  None of the
Supreme Court decisions, discussed below, authorizing the ICC to abrogate
an `other law' even suggests that the term means `all legal obstacles.'
The ICC itself, prior to its 1983 decision in DRGW, recognized as much.
See Gulf, Mobile & Ohio R. R. Co. -- Abandonment, 282 I. C. C. 311, 335
(1952) (`None of the decisions in the [Supreme Court] cases . . . relates
to private contractual rights, but refers [sic] to State laws which
prohibit in some way the carrying out of the transaction authorized.')."
Brotherhood of Railway Carmen v. ICC, 279 U. S. App. D. C. 239, 244, 880 F.
2d 562, 567 (1989).

4
    All but two of the cases that the Court cited in the Philadelphia
decision to support the rule against implicit repeals of the antitrust
statutes arose under a regulatory framework in which there was no mention
of exemption.  United States v. Philadelphia Nat. Bank, 374 U. S. 321, 350,
n. 28 (1963).  See United States v. Trans-Missouri Freight Assn., 166 U.
S., at 314-315; United States v. Joint Traffic Assn., 171 U. S. 505 (1898);
Northern Securities Co. v. United States., 193 U. S., at 343, 374376
(plurality and dissenting opinions); United States v. Pacific & Arctic R. &
Nav. Co., 228 U. S., at 105, 107; Keogh v. Chicago & Northwestern R. Co.,
260 U. S. 156, 161-162 (1922); Central Transfer Co. v. Terminal Railway
Assn. of St. Louis, 288 U. S. 469, 474-475 (1933); Terminal Warehouse Co.
v. Pennsylvania R. Co., 297 U. S. 500, 513-515 (1936); United States v.
Borden Co., 308 U. S. 188, 197-206 (1939); United States v. Socony-Vacuum
Oil Co., 310 U. S. 150, 226-228 (1940); Georgia v. Pennsylvania R. Co., 324
U. S. 439, 456-457 (1945); United States Alkali Export Assn., Inc. v.
United States, 325 U. S. 196, 205-206 (1945); Allen Bradley Co., v.
Electrical Workers, 325 U. S. 797, 809-810 (1945); Northern Pacific R. Co.
v. United States, 356 U. S. 1, 9 (1958); United States v. Radio Corp. of
America, 358 U. S. 334 (1959); California v. FPC, 369 U. S. 482 (1962);
Silver v. New York Stock Exchange, 373 U. S. 341 (1963).  The other two
cases involve regulations with explicit exemptions from the antitrust laws,
but do not support the position taken by the Court in this case.  In
Maryland and Virginia Milk Producers Assn. v. United States, 362 U. S. 458
(1960), this Court held that MDRV 6 of the Clayton Act's exemption of
agricultural co-operatives from the antitrust law only protected the
formation of those associations; once formed they could not engage in any
further conduct that would violate the antitrust laws.  In Pan American
World Airways, Inc. v. United States, 371 U. S. 296 (1963), the Court held
that the exemption relieving airlines from the operation of the antitrust
laws when certain transactions were approved by the Civil Aeronautics Board
did not exempt the airlines from all antitrust violations, but only
exempted them from violations stemming from activity explicitly governed by
the regulatory scheme.

5
    Again Judge Ginsburg's observation is pertinent:
    "Moreover, the ICC's proposed insertion of `all legal obstacles' into
the statutory language would lead to most bizarre results.  Under the ICC's
reading, it could set to naught, in order to facilitate a merger, a
carrier's solemn undertaking, in a bond indenture or a bank loan, to
refrain from entering into any such transaction without the consent of its
creditors.  Cf. Gulf, Mobile & Ohio, 282 I. C. C. at 331-335 (declaring
itself without power, in an abandonment context, to relieve a carrier from
its `contractual obligations for the payment of rent').  We do not think it
likely that Congress would grant the ICC a power with so much potential to
destabilize the railroad industry; we are confident, however, that it would
not do so without so much as a word to that effect in the statute itself.
Never, either in its decisions here under review or in prior cases, has the
ICC offered any justification for this most unlikely reading of the Act."
279 U. S. App. D. C., at 244-245, 880 F. 2d, at 567-568.

6
    "No State shall . . . pass any . . . Law impairing the Obligation of
Contracts, . . . ."  U. S. Const., Art. I, MDRV 10.

7
    After reviewing the legislative history, Judge Ginsburg concluded:
    "From our review of this history, we are confident that Congress did
not intend, when it enacted the immunity provision, to override contracts.
First, Congress focused nearly exclusively, in the hearings and debates on
the 1920 Act, on specific types of laws it intended to eliminate -- all of
which were positive enactments, not common law rules of liability, as on a
contract.  Cf. Association of Flight Attendants v. Delta Air Lines, Inc.,
No. 87-7040, slip op. at 23 (D. C. Cir. July 18, 1989).  Indeed,
Commissioner Clark, who presented the immunity idea to the House and Senate
Commerce Committees in the hearings cited above, did not once suggest, over
the course of several days and several hundred pages, that the proposed
immunity might relieve a carrier of its obligations under negotiated
agreements with third parties."  279 U. S. App. D. C., at 247, 880 F. 2d,
at 570.

8
    In the ICC order approving the merger of Chessie System, Inc., and
Seaboard Coastline Industries, Inc., the ICC discussed how the coordination
of facilities would generate significant cost reductions and improved
economic efficiency.  CSX Corp.-Control-Chessie System, Inc., and Seaboard
Coast Line Industries, Inc., 363 I. C. C. 521, 556 (1980).  The ICC noted:

"These savings will spring from common-point coordination projects,
mechanical and engineering department coordinations, locomotive and car
utilization improvements, and internal rerouting efficiencies.  Each of
these projects is discussed separately below."  Ibid.

In the discussion that followed, the ICC did discuss plans to expand the
car production facilities at Raceland, Kentucky in order to make cars for a
member line that had been buying its cars from an independent manufacturer.
The ICC found that the applicants had failed to show that the public would
derive any benefit from this plan.  There was no discussion of the
consolidation of that facility by closing Seaboard's car repair shop in Way
cross, Georgia.  Nor did the ICC discuss the consolidation of locomotive
works in Norfolk Southern Corp.-Control-Norfolk & W. R. Co. and Southern R.
Co., 366 I. C. C. 173 (1982).
