Swonger v. Surface Transportation Board

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 19 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk

LYN SWONGER and JAMES
SPAULDING, individually, and on behalf
of all other similarly situated former Rock
Island and St. Louis Southwestern
Railway Company Trainmen and
Members of the United Transportation
Union; DOYLE BOYD; RICHARD
HITZ; DAVE BODENHAMER; DENNIS
SWIANTEK; RONNIE KESSLER;
RICHARD HELSEL; CURTIS
RANDOLPH; RICK HOLLAND;
PHILLIP BRUNOW; CHARLES No. 00-9518
KIZZIRE; KENNETH ALDRICH;
RANDALL BROWN; JIM CROWDER;
RICHARD HUMBLE; LOREN
BETTLES; GARY POLK; F.A.
CALLAWAY; T.E. LEATHERMAN,
individually,

Petitioners,
v.

SURFACE TRANSPORTATION
BOARD and UNITED STATES OF
AMERICA,

Respondents,

UNITED TRANSPORTATION UNION
("UTU"); WAYNE A. DAY; JOHN S.
HOFFMAN; CLAYTON MILLS;
UNION PACIFIC RAILROAD
 COMPANY,

Intervenors.

ON PETITION FOR REVIEW OF A DECISION OF
THE SURFACE TRANSPORTATION BOARD
(STB Finance Docket No. 32760 (Sub-No. 33))

Bruce H. Stoltze, Brick, Gentry, Bowers, Swartz, Stoltze, Schuling & Levis, P.C.,
Des Moines, Iowa, for Petitioners.

Marilyn R. Levitt, Attorney, (Ellen D. Hanson, General Counsel, Craig M. Yeats, Deputy
General Counsel, and Louis Mackall, V, Attorney, with her on the brief), Washington,
D.C., for Respondent Surface Transportation Board.

Brenda J. Council, Kutak Rock LLP, Omaha, Nebraska, for Respondent-Intervenor Union
Pacific Railroad Company.

Joseph A. Guerrieri, Jr. and John A. Edmond, Guerrieri, Edmond & Clayman, P.C.,
Washington, D.C., filed a brief on behalf of Respondent-Intervenor United Transportation
Union.

Before EBEL, MCKAY, and CUDAHY*, Circuit Judges.

CUDAHY, Circuit Judge.

The petitioners appeal a ruling of the Surface Transportation Board (STB) refusing

to review an arbitrator’s decision to approve certain changes in the seniority status of the

*
The Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh
Circuit, sitting by designation.

2
petitioners and in the relocation of their home terminal. The changes were included in an

agreement negotiated between the Union Pacific Railroad Company and the United

Transportation Union (UTU). This agreement implemented the consolidation of

operations and workforces of the Union Pacific and its affiliates with the Southern Pacific

Transportation Company and its affiliates, including the St. Louis Southwestern Railway

(SSW). In addition to the STB, the Union Pacific and the UTU have filed briefs as

intervenors in support of the ruling. For the reasons set forth below, we affirm the

decision of the STB declining to overturn the arbitrator’s decision.

I.

Congress has enacted laws to encourage the consolidation of railroad operations,

including 49 U.S.C. § 11321. Part (a) of that section exempts those participating in a

transaction consolidating railroad operations from “antitrust laws and from all other law .

. . as necessary to let that [carrier, corporation, or person] carry out the transaction.” With

that exemption comes a limitation: 49 U.S.C. § 11326 requires carriers participating in

such a transaction to provide a “fair arrangement” for their employees. See Railway

Labor Executives’ Ass’n v. United States, 987 F.2d 806, 813 (D.C. Cir. 1993) (RLEA).

Section 11326 incorporates the protections of the Rail Passenger Service Act. 45 U.S.C. §

565, which provides that, in transactions approved by the Interstate Commerce

3
Commission (ICC) (now transmogrified into the STB),1 “protective arrangements shall

include . . . such provisions as may be necessary for . . . the preservation of rights,

privileges, and benefits . . . under existing collective bargaining agreements . . . .”

The petitioners here were hired originally by the Rock Island and Pacific Railroad

Company to work on its Tucumcari line. In 1980, after the Rock Island went bankrupt,2

SSW purchased part of that railroad, including the Tucumcari line.3 The SSW and

several other railroads that had purchased parts of the Rock Island entered into an

agreement with certain relevant labor unions providing for the preferential hiring of

former Rock Island employees. This agreement, however, did not give these employees

full carryover seniority,4 and the former Rock Island employees brought a class action

Section 204 of the ICC Termination Act of 1995, Pub. L. No. 104-88, 109 Stat.
1

803 (1995), transferred the ICC’s railroad-related functions to the STB and directed that
the STB apply ICC precedent.
2
The Rock Island sought to reorganize in 1975 under the Bankruptcy Act. The
plan for reorganization was rejected in 1980 by the bankruptcy court, and the court
recommended that the trustee assigned to the matter commence liquidation. See In re
Rock Island, No. 75 B 2697, Order No. 232 (N.D. Ill. 1980).
3
The ICC approved that acquisition in SSW-Purchase-Rock Island, 363 I.C.C. 320
(1980).

When two seniority systems are dovetailed with one another in a railroad
4

combination, employees of the acquired line receive “carryover” seniority rights. This
means that these employees may carry over in full their seniority rights from their old
employer to their new one. However, it is sometimes necessary that “acquired
employees” carry over only a part of their seniority rights. See Volkman v. UTU, 724
F.Supp. 1282, 1288 (D. Kan. 1989), rev’d on other grounds, 73 F.3d 1047 (10th Cir.
1996).

4
lawsuit against the SSW and the UTU raising the carryover issue. See Volkman v. UTU,

724 F.Supp. 1282 (D. Kan. 1989), rev’d on other grounds, 73 F.3d 1047 (10th Cir. 1996).

The Volkman court held that the former Rock Island employees were not entitled to full

carryover seniority, and instead, that their seniority date was established as their date of

hire by the SSW. The court also held that the former Rock Island employees were

entitled to “prior rights,” which gave them preference over other SSW employees at the

location where they were first hired by the SSW.

The present litigation arises out of a merger that again affected the petitioners’

rights. In August 1996, the STB approved the merger of the Union Pacific and the

Southern Pacific, with the Union Pacific as the surviving rail carrier. See Union

Pacific/Southern Pacific Merger, 1 S.T.B. 233 (1996), aff’d sub nom. Western Coal

Traffic League v. STB, 169 F.3d 775 (D.C. Cir. 1999).5 When the STB first approved this

transaction, it imposed on the merger certain employee protective provisions. Earlier, in

New York Dock Ry.-Control-Brooklyn E. Dist., 360 I.C.C. 60, 84, 90 (1979), aff’d sub

nom. New York Dock Ry. v. United States, 609 F.2d 83 (2d Cir. 1979), the ICC had

imposed a set of conditions and procedures on merging railroads to allow them to meet

their obligations under § 11347 (now § 11326). Those conditions require the negotiation,

In order for railroads to merge their operations, they must first obtain regulatory
5

approval from the STB. 49 U.S.C. § 11323-26. The STB will approve a proposed
merger or consolidation only if it finds that the transaction is in the public interest. See 49
U.S.C. § 11324(c); see also Norfolk & W. Ry. Co. v. American Train Dispatchers’ Ass’n,
499 U.S. 117, 132 (1991).

5
and, if necessary, arbitration of agreements with labor organizations representing

employees affected by a consolidation, merger or acquisition for the purpose of

implementing operational changes.6 In accordance with Article I, Section 4 of the New

York Dock conditions, which provides that railroads must negotiate with employees over

any proposed rearrangement or displacement of personnel, the Union Pacific negotiated

with the UTU over its plan to change contractual seniority policies and place the

employees of the merged railroads under a single collective bargaining agreement.7

Under the negotiated operating plan for the merger, the Union Pacific announced its

intention to use a so-called “hub and spoke” system. Pursuant to that plan, the Union

Pacific decided to create a “Salina hub” and, in that connection, to move petitioners’

home terminal from Pratt, Kansas to Herington, Kansas.8 Employees of the merged

railroads were to be dovetailed into the seniority list based on their date of hire at the

property at which they were last employed. Thus, all names on the previously separate

seniority rosters would be listed on a single roster in order of seniority. See Volkman, 724

6
New York Dock also requires the payment of certain “displacement allowances” to
employees who are placed in a worse position with respect to compensation and rules
governing their working conditions, see art. I, sections 1, 5, as well as “dismissal
allowances” to employees who are deprived of employment as a result of a railroad
transaction, see art. I, sections 1, 6. These benefits are available during a “protective
period,” which lasts for six years following displacement or dismissal. See art. I.

The UTU is the labor union that represented the petitioners in the negotiations
7

leading to the agreement, as well as other affected employees.

Locating the “home terminal” at Herington meant that crews would be based in
8

Herington.

6
F.Supp. at 1288.

Following the principle of the Volkman litigation, under the present agreement, the

petitioners’ seniority would continue to be determined by their dates of hire by the SSW.

However, the prior rights that they had previously exercised with respect to other SSW

employees would be eliminated. There was, however, objection to this elimination of

prior rights. Exercising prerogatives under the UTU Constitution, a designated union

officer voiced dissatisfaction with the loss of prior rights and thereby torpedoed the

agreement.9 If parties to New York Dock negotiations cannot reach an agreement

voluntarily, the matter in dispute must be submitted to mandatory binding arbitration. See

New York Dock, 360 I.C.C. at 85. This procedure was followed and the arbitrator found

the tentative agreement to be fair, and approved it. The petitioners then sought review of

the arbitral award by the STB. That body examines arbitration decisions under a rather

lenient standard of review. See Chicago & N.W. Transp. Co.—Abandonment—Near

Dubuque & Oelwein, Ia., 3 I.C.C.2d 729, 735-36 (1987) (Lace Curtain), aff’d sub nom.

IBEW, now codified at 49 C.F.R. § 1115.8 (1999). In this case, the STB declined to

review the arbitrator’s decision, noting that the decision turned on the arbitrator’s factual

findings, which, according to the STB, deserved deference absent some egregious error.

9
Under the UTU Constitution, the agreement could not be ratified without approval
of all general chairpersons in the affected jurisdictions. The officer who objected to the
agreement was the UTU associate general chairperson representing the former SSW
employees.

7
See Lace Curtain, 3 I.C.C.2d at 735.10 The petitioners appeal that decision as a final

order of the STB pursuant to 28 U.S.C. §§ 2321(a), 2342(5), 2343 and 2344.

As indicated, under the Lace Curtain standard, the STB declined to upset the

arbitrator’s decision. Under Lace Curtain, the agency’s (then the ICC’s) review was

limited: it inquired whether an award was “procedurally fair and impartial,” and would

not vacate awards on substantive grounds “unless there is egregious error, the award fails

to draw its essence from the collective bargaining agreement, or the arbitrator exceeds the

specific contract limits on his authority.” Lace Curtain, 3 I.C.C.2d at 735. Moreover, the

agency (now the STB) limits its more detailed review of arbitrators’ decisions to

“recurring or otherwise significant issues of general importance regarding the

interpretation of [its] labor protection conditions.” Id. at 736. If the STB declines to

review an arbitrator’s decision, that action may not be set aside unless it is arbitrary,

capricious, an abuse of discretion or otherwise not in accordance with the law. See 5

U.S.C. § 706(2)(a); Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 42-44 (1983). The STB’s interpretation of labor protective conditions (e.g., the

New York Dock conditions ensuring railroad compliance with § 11326) is entitled to

deference. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

10
The language used in the STB decision and the briefs filed by the parties refers to
the STB’s action as “declin[ing] to review” the arbitrator’s decision. This is equivalent to
accepting, in the absence of a showing of egregious error, the arbitrator’s findings of fact
and related conclusions. “Review” is used interchangeably with “overturn” in all the
parties’ pleadings. We will treat it similarly.

8
842-43 (1984). Under Chevron, we are generally required to defer to the agency’s

determination if “it is based on a permissible construction of the statute.” Id. at 843.

More specifically, if we find “an express delegation of authority to the agency to elucidate

a specific provision of the statute by regulation,” we must accept the agency’s

interpretation unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id.

at 843-44. And the D.C. Circuit has observed that “courts owe even greater deference to

agency interpretations of agency rules than . . . to agency interpretations of ambiguous

statutory terms.” Consolidated Rail Corp. v. ICC, 43 F.3d 1528, 1532 (D.C. Cir. 1995)

(internal quotations and citations omitted).

II.

Under article I, section 2 of the New York Dock conditions, certain employee

privileges may not be abrogated by the STB. 360 I.C.C. at 84. Section 2 mandates 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.” Id. The petitioners argue that, under section 2, the arbitrator here was

without authority to approve a settlement that modified their seniority rights because, they

argue, seniority rights are “rights, privileges, and benefits.”

Whether seniority rights are “rights, privileges, and benefits” is a question of first

impression in the Tenth Circuit. However, the ICC and the D.C. Circuit have addressed

9
the issue—quite persuasively.

In CSX Corp.—Control—Chessie Sys., Inc. & Seaboard Coast Line Indus., Inc.

(Arbitration Review) Finance Docket No. 28905 (Sub-No. 27) (Nov. 22, 1995), the ICC

held that seniority provisions did not fall under the rubric of protected “rights, privileges,

and benefits.” Id. The ICC defined those “rights, privileges, and benefits” that are

absolutely protected from abrogation as constituting “the incidents of employment,

ancillary emoluments or fringe benefits . . . .” Id. (quoted in UTU v. STB, 108 F.3d 1425,

1430 (D.C. Cir. 1997). These included, for example, life insurance, medical care, sick

leave and vested and accrued benefits to which employees were entitled. The D.C.

Circuit, in reviewing the ICC decision, found that conclusion to be reasonable. See UTU,

108 F.3d at 1429-30. The court reasoned that the classification reflected congressional

intent:

Under the Commission’s interpretation, ‘rights, privileges and benefits’ are
protected absolutely, while other employee interests that are not inviolate are
protected by a test of ‘necessity,’ pursuant to which there must be a showing of a
nexus between the changes sought and the effectuation of an ICC-approved
transaction. Under this scheme, the public interest in effectuating approved
consolidations is ensured without any undue sacrifice of employee interests. In our
view, this is exactly what was intended by Congress.

108 F.3d at 1430. In justification of this distinction, the court accepted the ICC’s

assertion that a requirement of collective bargaining over seniority provisions would

frustrate railroad merger transactions. See id. The court approved the ICC’s reasoning

that seniority provisions “have consistently been modified in the past in connection within

10
[sic] consolidations. This may be due to the fact that almost all consolidations require

scope and seniority changes in order to effectuate the purpose of the transaction. Railway

Labor Act bargaining over these aspects of a consolidation would frustrate the

transactions.” See UTU, 108 F.23d at 1430 (quoting CSX Corp. at 15).

The Supreme Court explicitly recognized the possibility of adjusting collectively

bargained terms in Norfolk, 499 U.S. at 132-33. 49 U.S.C. § 11341(a) (now § 11321(a))

provides that, in railroad transactions, participants are “exempt from the antitrust laws and

from all other law, including State and municipal law, as necessary to let [them] carry out

the transaction . . . .” In Norfolk, the Court held that the exemption from “all other law”

includes the obligations under a collective bargaining agreement; thus, the ICC (now the

STB) may override such obligations if necessary to approve a transaction. See id. at 127-

28.

We agree that the STB’s interpretation of the statute is reasonable. It is not

manifestly arbitrary or capricious, and it carries out Congress’ intent. Congress enacted

laws to encourage railroad consolidations while imposing protective requirements to

ensure that affected employees’ interests be accommodated within reason. Without

abrogating some rights, railroad consolidations would be difficult to achieve; that is why

there are such extensive safeguards in place to accommodate employee interests. Specific

seniority rights are individual rights that necessarily must be modified in some manner in

most railroad consolidations; they stand in contrast to certain unmodifiable rights of

11
labor—rights of the employees as a whole, as to which there usually a uniform union

position—which require collective bargaining to be changed. For this reason, we find

that the STB’s interpretation is reasonable, and we conclude that seniority rights are not

“rights, privileges, and benefits” within the meaning of the New York Dock conditions.

Seniority rights could therefore properly be modified here by the arbitration award,

provided that modification was necessary to carry out the merger.

III.

As indicated, a showing of “necessity” is required for the modification of seniority

rights. See 49 U.S.C. §§ 11321(a) and 11326. The petitioners argue that there was no

necessity here, and that therefore STB erred in approving the seniority modifications by

concluding that they promoted transportation benefits associated with the merger. But the

petitioners’ assignment of error to the STB and to the arbitrator stems from a

misconception of what is required to show necessity. The STB argues that, to justify a

finding of necessity, one need only find 1) a nexus between the changes sought and the

effectuation of the transaction, see UTU, 108 F.3d at 1430, and 2) real transportation

benefits resulting from the underlying transaction, see RLEA, 987 F.2d at 815.

We agree that the necessity standard does not require a finding by the arbitrator

and the STB that the merger could not be effectuated without the specific changes that are

proposed for the petitioners’ seniority rights and for the designation of their home

12
terminal.11 First, as has been noted, seniority rights must almost always be adjusted to

implement any merger. The D.C. Circuit recognized this problem and has required only

that “the work transfer was ‘necessary’ for it yielded transportation efficiencies and was

not aimed solely at abrogating a CBA provision.” ATDA, 26 F.3d at 1165. As the D.C.

Circuit has observed:

[T]here is little point in consolidating railroads on paper if a consolidation of
operations cannot be achieved. It is obvious that separate and distinct parts,
operating separately and distinctly, will not generate the value of the consolidation
. . . . Improvements in efficiency generated by a consolidated seniority roster will
reduce . . . cost of service, resulting in reduced costs to shippers and ultimately
customers.

UTU, 108 F.3d at 1431.

The Supreme Court has also recognized the circumstances in which adjustments

need to be made. It has held that the ICC (now the STB) may abrogate some terms of

collective bargaining agreements affecting transactions if abrogation is necessary to

effectuate them. See Norfolk, 499 U.S. at 127-28. This principle has been interpreted to

mean that “the modification is necessary in order to secure to the public some

transportation benefit flowing from the underlying transaction . . . .” RLEA, 987 F.2d at

815. The D.C. Circuit has explained this requirement:

[T]he [agency] must find that the underlying transaction yields a transportation

Under the “hub and spoke” plan for implementation of the merger, the number of
11

home terminals was to be reduced. The negotiating parties reasoned that the location of
the home terminal in Herington, rather than Pratt, was the most efficient way of
implementing the plan.

13
 benefit to the public, “not merely [a] transfer [of] wealth from employees to their
employer.” [RLEA,] 987 F.2d at 815. In other words, the benefit cannot arise from
the CBA modification itself; considered independently of the CBA, the transaction
must yield enhanced efficiency, greater safety, or some other gain.

American Train Dispatchers Ass’n v. ICC, 26 F.3d 1157, 1164 (D.C. Cir. 1994) (ATDA),

abrogated on other grounds, Rio Grande Pipeline Co. v. Federal Energy Regulatory

Comm’n, 178 F.3d 533 (D.C. Cir. 1999). Further, there must be “a nexus between the

changes sought and the effectuation of an [agency-]approved transaction.” UTU, 108

F.3d at 1430.

In this case, the arbitrator, in determining whether there was a public transportation

benefit requiring the modification of seniority status, stated that he was “convinced that

the successful implementation of the ‘hub and spoke’ operation at Salina is an obvious

public transportation benefit and that considerations of efficiency of that operation

warrant the modification and elimination of existing seniority rights as set forth in the

proposed implementing agreement.” Arbitration at 5. The arbitrator further found that

the agreement “fairly and equitably blends the rights of the petitioners with those of other

affected employees.” Id. at 7. This was insufficient, the petitioners contend, either to

satisfy the requirement that the modifications are necessary or to constitute a factual

finding warranting deferential review by the STB.

The petitioners argue that the necessity requirement mandates that the STB and the

arbitrator set forth sufficient facts to disclose the basis on which the finding of necessity

was made. Thus, the petitioners argue that the case should be remanded for such specific

14
findings. But they cite no authority imposing a requirement of greater specificity than is

apparent here. The arbitrator explained the reason for his decision, and the STB does not

review an arbitrator’s factual determinations absent egregious error. To some extent, the

existence of necessity is bolstered by procedural factors: the arbitrator held a full hearing

and weighed the written and oral submissions of the parties. Absent clear error, the lack

of a more detailed articulation of reasons is not enough to warrant disapproval by the STB

under its lenient standard of review (although by so holding we do not intend to derogate

the importance of an adequate statement of reasons). Under the Lace Curtain standard of

review, fact-bound determinations such as the ones before us may not be overturned

without a showing of egregious error. See Lace Curtain, 3 I.C.C.2d at 735; see also

ATDA, 26 F.3d at 1163.

Finally, the STB concluded (and we agree) that Volkman supports the use of the

petitioners’ SSW hire date to determine their seniority status, because it was Volkman that

first set the petitioners’ hire date at the date of their hire by the SSW.12

The “prior rights” of which the petitioners in this case have been deprived—first
12

preference to jobs at the location where they were first hired by the SSW—were not
deemed inviolate by the Volkman court. The court noted that these “prior rights” were
“subject to modification through future collective bargaining the same as are prior rights
granted under existing labor contracts between the defendants SSW and UTU” and “[a]ny
disputes regarding [petitioners’] prior rights and seniority shall be handled by the SSW
and UTU through the grievance and arbitration procedures mandated by the Railway
Labor Act and/or the Interstate Commerce Act.” July 21, 1993 Final Judgment at 3,
reprinted in Petitioners’ App. at 95, 98.

15
 IV.

The petitioners also, for reasons similar to their seniority objections, challenge the

plan to change the location of their home terminal from Pratt, Kansas to Herington,

Kansas. They argue that the arbitrator and the STB failed to adequately consider the

consequences of siting the home terminal at Herington, and that these decision-makers

failed to explain why the employees’ living arrangements had to be disrupted to make the

merger possible. The petitioners concede that the STB stated that siting the home

terminal at Herington would produce public benefits—“efficiency gains, such as cost

reductions and service improvements.” As to the petitioners’ claim that the unavailability

of housing at the new site should be weighed against the public benefits of increased

efficiency, the arbitrator held that the alleged burden was properly compensated for by

moving allowances and other benefits provided to the petitioners under New York Dock.13

The petitioners argue that the general factors cited by the arbitrator—that the move

would improve “adequacy of transportation to the public,” “efficiency gains,” “cost

reductions,” and “service improvements”—are insufficient to show the benefits of the

move. They also point out the fact that the original plan was to retain Pratt as the home

terminal, and the STB now has failed to demonstrate why moving the terminal to

The New York Dock conditions provide that employees adversely affected by
13

operational changes following a merger or consolidation are entitled to certain benefits,
including up to six years of salary protection in the event of a dismissal or displacement
and relocation benefits if employees are required to change their place of employment.
See New York Dock, 360 I.C.C. 60, at art. I, secs. 5, 6 & 9.

16
Herington produces more efficiency gains. Again, they cite no authority requiring a more

detailed statement of reasons by the arbitrator or by the STB.

Further, the STB notes that the petitioners have failed to show the advantage of

siting the home terminal at Pratt in preference to moving it to Herington; and there is

nothing to undermine the arbitrator’s finding that transportation benefits would result

from the move. The arbitrator found that changing the location of the home terminal was

“part and parcel of the hub and spoke operation . . . at Salina.” And the record supports

this finding. For example, a declaration submitted by John M. Raaz, a Union Pacific

assistant vice president, indicates that the location of the terminal at Herington would

produce “additional flexibility gained by a single crew base protecting multiple

directional operations from Herington” and would “provide[] the option of avoiding the

major terminal of Kansas City in times of heavy congestion or flooding.” Flexibility was

made possible because the Herington base could support service in four directions:

toward Pratt (west), Wichita (south), Kansas City (east), and Marysville, Kansas (north).

The posture of the Herington base provided the flexibility to shift traffic from one route to

another.

The Union Pacific also notes that the change in the location of the home terminal

does not abrogate or modify any prior collective bargaining agreement, and, in fact, the

Union Pacific has the right to change unilaterally the location of a home terminal. Even if

the Union Pacific does not have such a right, the arbitrator’s finding that the move was

17
necessary for the merger is not erroneous.

Further, the petitioners argue, the arbitrator and STB failed to consider the lack of

proper facilities in Herington for the employees who would be forced to move there.

Specifically, they argue that Herington does not have adequate housing and other

facilities for transferred workers. This is challenged by the Union Pacific’s uncontested

assertion that the majority of employees that were required to move to Herington were

able to do so. In addition, the petitioners argue that the commuting distance from Pratt to

Herington, 135 miles away, would be unaccceptably long. Union Pacific notes that this

factor is not a consideration the arbitrator was required to take into account. Even so, the

petitioners do not deny that they continue to live and work in the Pratt area, and do not

commute to Herington. In fact, they indicate that the arbitrator “allowed the Union

Pacific to accommodate [trainmen who did not transfer to Herington] by allowing those

nine to ‘not be required to commute to Herington for their assignments.’” Petitioners’ Br.

at 49. And, even if a lengthy commute had required the petitioners’ relocation, the

petitioners would have been entitled to moving allowances and other benefits under New

York Dock.

V.

For the foregoing reasons, we AFFIRM.

18