If the NC General Assembly abolishes the Ports Railway Commission and lets the State Ports Authority lease port switching operations directly to private operators, would the State Ports Authority become subject to the federal Railway Labor Act?

Plain-English summary

The State Ports Authority asked the Attorney General to revisit a 1994 opinion about a proposal to abolish the Ports Railway Commission. The new question was whether the Authority would be subject to the federal Railway Labor Act if it leased port switching operations directly to private operators without the Commission in between. The Attorney General concluded that this outcome was highly unlikely, and that the Authority likely would not become subject to the Act under the proposed arrangement.

Two 1999 developments informed the answer. On June 7, the National Mediation Board ruled that the Ports Railway Commission was no longer a railway "carrier" under the Act. That made moot the pending question whether the Commission and Authority were under common control. The opinion says the International Longshoreman's Association did not intend to appeal the Board's decision.

Later that month, the U.S. Supreme Court decided College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S.Ct. 2219 (1999). The Court overruled the constructive-waiver holding in Parden v. Terminal Ry. of Alabama State Docks Department, 337 U.S. 184 (1964). The opinion says Parden was one of two decisions on which federal courts had relied when treating the Authority as subject to the Railway Labor Act. The Attorney General viewed the new decision as further support for its analysis.

The opinion assesses a proposed lease of switching operations to private operators. It does not declare that the Authority could never be covered by the Railway Labor Act under any arrangement. It also expressly declines to recommend whether the legislature should abolish the Commission or transfer its assets.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

A current assessment would require the Authority's present operating arrangement and current federal law.

Common questions

Q: Did the Attorney General say the Ports Authority definitely would be outside the Railway Labor Act?
A: No. It said the National Mediation Board or federal courts would be highly unlikely to find the Authority a carrier under the proposed lease, and that the Authority likely would not become subject to the Act.

Q: What changed after the 1994 advisory opinion?
A: The National Mediation Board ruled that the Ports Railway Commission was no longer a carrier, and the U.S. Supreme Court overruled Parden's constructive-waiver holding. The opinion says both developments weakened the earlier concern.

Q: Did the Attorney General endorse abolishing the Ports Railway Commission?
A: No. It said the wisdom of that legislation was for the General Assembly and expressly declined to recommend abolition or an asset transfer.

Background and statutory framework

The 1994 opinion identified pending litigation involving the Authority, the Commission, and the International Longshoreman's Association as the most likely negative consequence of abolishing the Commission. The 1999 request asked for a fresh assessment after the National Mediation Board ruling and College Savings Bank. The Attorney General limited its conclusion to a lease of port switching operations directly to private operators.

Source

• Landing page: https://ncdoj.gov/opinions/applicability-of-railway-labor-act-to-state-ports-authority/

Citations

• Railway Labor Act, 45 U.S.C. § 155
• In re North Carolina State Ports Authority v. International Longshoreman's Association, AFL-CIO, 26 NMB No. 60, File No. CJ-6209
• College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S.Ct. 2219 (1999)
• Parden v. Terminal Ry. of Alabama State Docks Department, 337 U.S. 184 (1964)
• International Longshoreman's Association v. North Carolina Ports Authority, 332 F. Supp. 95 (E.D.N.C. 1971), vacated and remanded, 462 F.2d 1 (4th Cir. 1972)
• International Longshoreman's Association v. North Carolina Ports Authority, 370 F. Supp. (E.D.N.C. 1974), affirmed 511 F.2d 1007 (4th Cir. 1975)
• D&W, Inc. v. Charlotte, 268 N.C. 577 (1966)

Original opinion text

REPLY TO:
Victoria L. Voight
Labor Section
919/716-6680

October 11, 1999

Erik Stromberg
Executive Director
North Carolina State Ports Authority
P.O. Box 9002
Wilmington, N.C. 28402

Re: Advisory Opinion re Applicability of Railway Labor Act to State Ports Authority

Dear Mr. Stromberg:

This letter responds to your recent request that our office revisit its June 13, 1994 Advisory Opinion concerning "any negative legal consequences" associated with a then pending legislative proposal to abolish the Ports Railway Commission (PRC) and provide a current opinion as to "whether the State Ports Authority (SPA) would be subject to the Railway Labor Act if it leased the port switching operations directly to private operators without the 'buffer' of the Ports Railway Commission." Considering the well established principle that the wisdom of legislation is a matter for the General Assembly, D&W, Inc. v. Charlotte, 268 NC 577, 591 (1966), comments expressed herein should not be interpreted as a recommendation either to abolish the PRC or to transfer its assets to the SPA.

The June 13, 1994 Advisory Opinion stated that "[t]he most likely 'negative consequence' of abolishing PRC and transferring its assets to SPA would be in connection with the litigation involving SPA, PRC, and the ILA which is pending before the National Mediation Board." The litigation referred to was In re North Carolina State Ports Authority v. International Longshoreman's Association, AFL-CIO, 26 NMB No. 60, File No. CJ-6209. The action was brought by the International Longshoreman's Association (ILA) against the State Ports Authority (SPA) under the Railway Labor Act (RLA), 45 U.S.C. § 155. At the time the 1994 opinion was issued, the case had been pending in one form or another since 1969, had been to the federal circuit court twice, and was then was currently before the National Mediation Board (NMB) for a determination as to whether the SPA and the PRC were "under common control." On June 7, 1999, the NMB ruled that the PRC was no longer a "carrier" within the meaning of the RLA and thus the question of "whether the SPA and PRC are under common control is moot." The ILA has stated that it does not intend to appeal the NMB decision.

Given the holding of the NMB, it is our opinion that it is highly unlikely that either the NMB or the federal courts would find the SPA to be a "carrier" for purposes of the RLA if it leased the port switching operations directly to private operators "without the buffer of the PRC". Further, a recent decision of the United State Supreme Court has provided new support for our office's original position that RLA does not apply to State-owned railroads. In College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S.Ct. 2219 (June 23, 1999), the United States Supreme Court specifically overruled its earlier holding in Parden v. Terminal Ry. Of Alabama State Docks Department, 337 U.S. 184 (1964) that a state could be subjected to a private cause of action in federal court for damages under the Federal Employers' Liability Act (FELA) under the theory of "constructive waiver." The Parden decision was one of two decisions relied upon by the federal district and circuit courts in their determinations that the SPA, a State agency, was subject to the requirements of the RLA. International Longshoreman's Association v. North Carolina Ports Authority, 332 F. Supp. 95 (EDNC 1971), vacated and remanded, 462 F.2d 1 (4th Cir. 1972); International Longshoreman's Association v. North Carolina Ports Authority, 370 F. Supp. (EDNC 1974), affirmed 511 F. 2d 1007 (4th Cir. 1975). In light of the recent NMB and United States Supreme Court decisions, it is our opinion that the SPA would likely not become subject to the RLA if it leased the port switching operations directly to private operators.

Sincerely,

Reginald L. Watkins
Senior Deputy Attorney General

Victoria L. Voight
Special Deputy Attorney General