Byron White

“ As the Court has said, we "are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." ”

“ Here, the ICC simply granted an exemption from the strictures of § 10901, which permitted, but did not order, the consummation of the sale. It made no finding that would prevent enforcement of § 156.↑ We address the duty to bargain about the effects of the sale only in the context of the facts existing when the unions' notices were served. We do not deal with a railroad employer's duty to bargain in response to a union's § 156 notice proposing labor protection provisions in the event that a sale, not yet contemplated, should take place. ”

“ Absent statutory direction to the contrary, the decision of a railroad employer to go out of business and consequently to reduce to zero the number of available jobs is not a change in the conditions of employment forbidden by the status quo provision of § 156. In these cases, P & LE concluded that it must sell its assets, and its agreement to sell to Railco, if implemented, would have removed it from the railroad business; no longer would it be a railroad employer. No longer would it need the services of members of the rail unions. ”

“ The unions advised that they stood ready to negotiate all aspects of the matter, including the decision to sell the railroad assets. P & LE responded that it was willing to discuss the matter but that § 156 notice and bargaining were not required since the transaction was subject to the jurisdiction of the Interstate Commerce Commission (ICC or Commission) under the ICA and since the requirements of §§ 155 and 156 would intrude on that regime as well as upon management's prerogatives to conduct the affairs of the company with respect to the sales transaction. ”

“ Most of the unions then responded by themselves filing § 156 notices proposing changes in existing agreements to ameliorate the adverse impacts of the proposed sale upon P & LE's employees. The unions sought guarantees that the sale would not cause any employee to be deprived of employment or to be placed in any worse position with respect to pay or working conditions and that P & LE would require that the purchaser of its rail line assume P & LE's collective-bargaining agreements. ”

“ Furthermore, labor protection provisions run against the acquiring railroad rather than the seller. Yet here it is with the seller, P & LE, that the unions wanted to bargain, seeking to ease the adverse consequences of the sale. To that end, the unions served § 156 notices, which at least to some extent obligated P & LE to bargain until its transaction was closed. We find nothing in the ICA that relieved P & LE of that duty, nor anything in that Act that empo ers the ICC to intrude into the relationship between the selling carrier and its railroad unions. ”

“ Petitioner contends that the NLGA must likewise be accommodated to the procedures mandated by Congress in 49 U.S.C. § 10901, specifically the authority of the ICC to impose labor protective provisions, the right of rail labor to seek such provisions from the ICC, and its right to judicial review if dissatisfied. It is urged that the ICA provides a comprehensive scheme for the resolution of labor protection issues arising out of ICC-regulated transactions and that rail labor must take advantage of those procedures rather than strike. ”

“ And absent a showing of exceptional circumstances, which rail labor was entitled to demonstrate, labor protection provisions would not be imposed. The Ex Parte 392 procedures, and the ICA, § 10505 exemption authority generally, like amendments to ICA in the last two decades, see, e.g., the Railroad Revitalization and Regulatory Reform Act of 1976, Pub.L. 94-210, 90 Stat. ”