NORFOLK AND WESTERN RAILWAY COMPANY, ET AL., PETITIONERS V.
AMERICAN TRAIN DISPATCHERS ASSOCIATION, ET AL.

   CSX TRANSPORTATION, INC., PETITIONER V. BROTHERHOOD OF RAILWAY
CARMEN, ET AL.

   No. 89-1027, No. 89-1028

   In The Supreme Court Of The United States

   October Term, 1989

   On Writs Of Certiorari To The United States Court Of Appeals For
The District Of Columbia Circuit

   Response For The Federal Respondents To The Motion By The Union
Respondents To Dismiss The Petitions

   In their motion filed May 25, 1990, respondents American Train
Dispatchers' Association and Brotherhood of Railway Carmen (the union
respondents) ask this Court to dismiss the petitions in this case on
the ground of mootness or, alternatively, on the ground that the
petitions no longer present an important question of federal law
warranting resolution by this Court.

   The union respondents base their motion on a press release issued
by the Interstate Commerce Commission on May 17, 1990.  In it, the
Commission noted that at a May 15 voting conference it had resolved
certain issues left open by the court of appeals' decision remanding
the present case to the agency.  In particular, the press release
advised, the Commission had "review(ed) the relationship between the
Interstate Commerce Act and the Railway Labor Act in connection with
the treatment of employees in mergers and consolidations over the past
50 years." On the basis of that review, the release added, the
Commission had determined that "collective bargaining agreements (may)
be modified under 49 U.S.C. 11347 and the ICC's employee-protective
conditions, but only with respect to the selection of work forces and
the assignment of employees -- with some qualifications -- and only to
the extent necessary to permit the carrying out of a merger or
consolidation.  Employees' contract rights are otherwise to be
preserved and their traditional right to bargain over their pay,
rules, and working conditions is not to be undermined." The release
concluded that "(i)n light of the new approach stated in its decision,
the Commission reversed and vacated the two arbitration awards under
review in these cases and remanded them for further negotiation by the
involved parties and for consideration by arbitrators if necessary in
accordance with the decision."

   The union respondents contend that, in light of the Commission
decision reported in the press release, the present controversy --
concerning the question whether 49 U.S.C. 11341(a) applies to legal
obligations arising from collective bargaining agreements -- is either
moot or of no continuing importance.  Whatever the merits of that
claim -- and, at this time, we take no position on that question -- it
can hardly be resolved on the basis of a press release.  We
anticipate, however, that a Commission decision will be issued in the
near future.  Accordingly, we respectfully suggest that the Court
either (1) deny the motion to dismiss, with leave for the union
respondents to refile (if they desire) when the decision ultimately
issues, or (2) hold the motion until the Commission's decision issues,
at which time the parties can address the appropriateness of the
relief sought by the union respondents.

   For the foregoing reasons, it is respectfully submitted that the
motion to dismiss the petitions should be denied, or, alternatively,
held until the issuance of the Commission's decision.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /*/

   ROBERT S. BURK

      General Counsel

   HENRI F. RUSH

      Deputy General Counsel

   JOHN J. MCCARTHY, JR.

      Deputy Associate General Counsel Interstate Commerce Commission

   MAY 1990

   /*/ The Solicitor General is disqualified in this case.