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STATE OF ILLINOIS ILLINOIS COMMERCE COMMISSION

INTERNATIONAL ASSOCIATION OF ) SHEET METAL, AIR, RAIL, AND ) TRANSPORATION WORKERS, ) TRANSPORTATION DIVISION – ) ILLINOIS LEGISLATIVE BOARD; and ) BROTHERHOOD OF LOCOMOTIVE ) ENGINEERS AND TRAINMENT – ) ILLINOIS STATE LEGISLATIVE BOARD, ) Docket No. T20-0082 ) Complainants, ) ) UNIOIN PACIFIC RAILROAD COMPANY, ) ) Respondent. )

UNION PACIFIC’S MOTION TO DISMISS THE FIRST AMENDED FORMAL COMPLAINT AND REQUEST FOR DECLARATORY RELIEF

Union Pacific Railroad Company moves to dismiss in its entirety the First Amended

Formal Complaint and Request for Declaratory Relief of the International Association of Sheet

Metal, Air, Rail, and Transportation Workers Transportation Division – Illinois Legislative

Board, and Brotherhood of Locomotive Engineers and Trainmen – Illinois State Legislative

Board (collectively, the “Unions”), pursuant to Section 200.190(a) of the Illinois Commerce

Commission’s Rules of Practice, 83 Ill. Admin. Code § 200.190(a), and Section 2-619 of the

Code of Civil Procedure, 735 ILCS 5/2-619(a)(1), (9).

The Amended Complaint seeks relief based on the use of vehicles operated by

transportation network company drivers1 – specifically, vehicles operated by TNC drivers using

technology systems under license to Uber Technologies, Inc. – to transport Union Pacific

workers to and from work locations. (Amended Complaint, ¶¶ 6–8). In the case of Counts I and

II, the Amended Complaint fails to cure the substantive and jurisdictional defects that Union

 1 See 625 ILCS 57/5 (defining “’Transportation network company driver’ or ‘TNC Driver’”).

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Pacific identified in the original Complaint. The new Counts III and IV defy the plain language

of Part 1550.10(d) by calling upon the Commission to prescribe new “higher safety standards” in

the context of a contested case and in a manner that conflicts with fundamental principles of

administrative and constitutional law. Union Pacific summarizes the changes to the Amended

Complaint below and outlines the legal defects that require dismissal.

First, the Amended Complaint alleges violations of the Commission’s Part 1550

regulations (Count I, ¶¶ 6–17), which the Unions assert “apply to any motor vehicle used to

transport railroad employees in the course of their employment, including specifically any

vehicle operated by Uber or an Uber driver.” (Id., ¶ 14). The only change to Count I in the

Amended Complaint was a new allegation that the use of vehicles operated by TNC drivers for

Union Pacific’s employees takes place “pursuant to a private contract or contracts between UP

and Uber governing the terms and conditions of transportation of UP’s railroad employees.” (Id.,

¶ 8). To ensure that the Commission has complete information to evaluate the viability of the

Amended Complaint, Union Pacific has attached to this motion a copy of the Dashboard Terms

and Conditions agreement (“Dashboard Contract”) between Uber and Union Pacific.2

The Amended Complaint again fails to state the scope of Part 1550 accurately by

omitting the express language exempting “taxicabs or other vehicles licensed by competent

authority to transport the public, and used by a railroad to transport its employees” from

regulation by the Commission. 92 Ill. Admin. Code 1550.10(b) (emphasis added). This

exemption – which has applied for decades to taxicabs and other vehicles licensed to transport

the public – precisely describes the vehicles used in “TNC services”3 and operated by TNC

drivers, which Union Pacific employees have begun using for on-the-job transportation. The

 2 See “Affidavit of Maribeth Stock,” with Dashboard Contract, attached as Exhibit 1. 3 See 625 ICLS 57/5 (defining “’Transportation network company services’ or ‘TNC services’”).

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express exemption from regulation for these vehicles requires dismissal of the Amended

Complaint’s Part 1550 allegations.

To the extent the Unions ask the Commission in Count I to order Union Pacific “to cease

and desist from utilizing … Uber and/or Uber drivers, for the transportation of [Union Pacific’s]

employees” (Amended Complaint at 7–8), the relief sought is preempted by federal law.

Congress vested “exclusive” jurisdiction over the regulation of rail transportation with the

Surface Transportation Board under the ICC Termination Act of 1995 (“ICCTA”). 49 U.S.C.

§ 10501(b). While ICCTA does not displace all localized health and safety regulations, state

action that targets or discriminates against railroads is preempted. See Adrian & Blissfield R. Co.

v. Vill. of Blissfield, 550 F.3d 533, 541 (6th Cir. 2008) (“[A] state regulation ‘must address state

concerns generally, without targeting the railroad industry.’”) (quoting N. Y. Susquehanna & W.

Ry. Corp. v. Jackson, 500 F.3d 238, 254 (3d Cir. 2007). Here, the relief sought would impose

impermissible restrictions on Union Pacific’s use of TNC services, which would not apply to the

public or other employers, including Union Pacific’s competitors.

Second, the Commission should dismiss the remainder of Count I (at ¶¶ 18–22) and all of

Count II for lack of jurisdiction. Count II, as amended, contains new allegations seeking a

declaration that “each time UP uses or hires Uber or an Uber driver to transport its railroad

employees in the course of their employment, Uber and/or the Uber driver are subject to the

safety requirements established under [Part 1550].” (Amended Complaint at 10). The

Commission should deny this relief for the same reasons that require dismissal of the Amended

Complaint’s alleged violations of Part 1550. (See id., ¶¶ 6-17).

Otherwise, as with the original Complaint, the statutory provisions asserted as the basis

for Count II are either jurisdictional to other state agencies or would require the Commission to

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deem Uber and/or Uber drivers to be “contract carriers.” (Id., ¶ 19). The Illinois General

Assembly has prohibited any such construction in the Transportation Network Providers Act

(“TNPA”), which regulates the provision of TNC services in Illinois. See 625 ILCS 57/25(e)

(stating “TNCs or TNC drivers are not … contract carriers”) (emphasis added).4 The Unions’

alternative claims based on Union Pacific’s alleged general “duty to ensure that the vehicles used

to transport railroad employees comply with these contract carrier requirements” (Id., ¶¶ 20, 26)

or violation of the “spirit of these statues and regulations” (id., ¶ 27) have no foundation in law.

The Commission “is a creature of the legislature, deriv[ing] its power and authority solely from

the statute creating it, and its acts or orders which are beyond the purview of the statute are

void.” City of Chicago v. Illinois Com. Comm’n, 79 Ill. 2d 213, 217–18 (1980).

Third, the Amended Complaint’s new Counts III and IV seek alternative relief through a

misreading of Part 1550.10(d), under which the Unions ask the Commission to prescribe and

impose on Union Pacific “higher safety standards” for its use of TNC services and/or in response

to the COVID-19 pandemic. (Id., Counts III & IV). The plain language of Part 1550.10(d),

however, does not permit the Commission to convert this contested case into a rulemaking

proceeding applicable only to Union Pacific – nor could it. The Commission’s rules properly

distinguish between adjudicatory and quasi-legislative rulemaking. Compare 83 Ill. Admin.

Code § 200.170 (formal complaints), with § 200.210 (petitions for rulemaking). In this respect,

the Amended Complaint is not only inconsistent with basic principles of administrative law, it

invites constitutional error.

Finally, the Amended Complaint includes new allegations that, by utilizing TNC

services, Union Pacific is “exploiting a loophole in order to sidestep safety statues and

 4 Uber is a TNC. See 625 ICLS 57/5 (defining “’Transportation network company’ or ‘TNC’”).

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regulations.” (Id., ¶ 38). The same kind of unsupported allegations remain from the original

Complaint. (See id., ¶ 28) (Union Pacific allegedly is “attempt[ing] to sidestep … safety statutes

and regulations by having its employees use Uber, rather than company-owned vehicles or

contract carriers.”). This position is both factually incorrect and based on a false premise. Union

Pacific always has had the option to use taxicabs or other vehicles licensed to transport the public

for its employees. Vehicles providing TNC services are the modern equivalent. See 625 ILCS

57/5.5 TNC services are separately regulated under the TNPA and that statute’s safety standards.

To suggest that the Illinois General Assembly did not consider safety in enabling the public and

businesses operating in Illinois, including Union Pacific, to connect to and utilize TNC services

is contrary to the plain language of the TNPA and common sense.

LEGAL STANDARD 

Section 200.190(a) of the Commission’s Rules of Practice provides that “[m]otions may

be presented requesting … the dismissal of the proceeding for want of jurisdiction” or for “such

other relief or order as may be appropriate.” 83 Ill. Admin Code 200.190(a). Dismissal is proper

under Section 2-619(a)(1) of the Code of Civil Procedure if the tribunal “does not have

jurisdiction of the subject matter of the action.” 735 ILCS 5/2-619(a)(1). Dismissal is proper

under Section 2-619(a)(9) if “the claim asserted against defendant is barred by other affirmative

matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9). “Affirmative

matter ‘is something in the nature of a defense which negates the cause of action completely or

refutes crucial conclusions of law … contained in or inferred from the complaint.’” Chandler v.

Illinois Cent. R. Co., 207 Ill. 2d 331, 340, 343 (2003) (construing statute regarding railroad

 5 TNC Services “means transportation of a passenger between points chosen by the passenger and prearranged with a TNC driver through the use of a TNC digital network or software application.” 625 ILCS 57/5.  

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warning sign and affirming dismissal where “conclusive legal presumption” was affirmative

matter barring claim). Federal preemption is such an “affirmative matter.” Chicago Hous. Auth.

v. DeStefano & Partners, Ltd., 2015 IL App (1st) 142870, ¶¶ 14–15.

The Illinois General Assembly has granted the Commission “exclusive” jurisdiction over

“rail carrier operations within [Illinois], except to the extent that its jurisdiction is preempted” by

federal law. 625 ILCS 5/18c-7101. “The power and authority of the Commission comes strictly

from [its enabling statute], and the Commission cannot by its own actions extend its

jurisdiction.” Harrisonville Tel. Co. v. Illinois Com. Comm’n, 343 Ill. App. 3d 517, 523 (5th

Dist. 2003), aff’d, 212 Ill. 2d 237 (2004). “Furthermore, the Commission can only determine

facts and enact orders concerning the matters specified” in its enabling statute. Id. at 524 (citing

Lowden v. Illinois Commerce Comm’n, 376 Ill. 225, 230 (1941)).

ARGUMENT

I. THE CLAIMS IN COUNT I (¶¶ 6–17) ARE BARRED BY PART 1550(b) AND THE RELIEF SOUGHT IS PREEMPTED BY FEDERAL LAW

A. Part 1550(b) Exempts TNC Drivers’ Vehicles from Commission Regulation

The Amended Complaint cites to Part 1550 of the Commission’s Rules and alleges that

Union Pacific has “failed to comply with [these] minimum safety standards … and failed to

ensure that the motor vehicles used to transport its employees are safe and compliant.” (Id.,

¶ 16).6 The plain language of Part 1550, however, exempts TNC drivers’ vehicles from

Commission regulation, requiring dismissal of these claims.

 6 The provisions of Part 1550 that Union Pacific is alleged to have violated include Part 1550.10(c) (safety orders), Part 1550.30 (rear compartments and seating), Part 1550.40 (inspections and testing), Part 1550.50 (safety equipment), and Part 1550.60 (vehicle operation). (Id., ¶ 13). The Amended Complaint misquotes Part 1550.10(c). The language here is correct: “All owners of such motor vehicles, and their duly appointed agents, and the drivers of such vehicles shall abide by all safety orders issued to them by the Commission.” (emphasis added).

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The Amended Complaint, like the original, fails to acknowledge Part 1550.10(b)’s

express exemption of certain vehicles from Commission regulation. Part 1550.10(b) specifies

that these regulations shall apply to motor vehicles “purchased, leased or otherwise acquired”

after the effective date and “used to transport employees.” 92 Ill. Admin. Code 1550.10(b). At

the same time, it expressly excludes “taxicabs or other vehicles licensed by competent authority

to transport the public, and used by a railroad to transport its employees” from regulation by the

Commission. 92 Ill. Admin. Code 1550.10(b) (emphasis added).

Commission authority under the Illinois Commercial Transportation Law (“ICTL”) is

limited to “activities specifically enumerated” in that statute. 625 ILCS 5/18c-1201. The Part

1550 regulations were authorized under the ICTL and the Commission’s authority to enforce

them is limited by their terms. See 625 ILCS 5/18c-1202(9). The terms used in Part 1550, unless

specifically defined, are to be interpreted “in the most commonly accepted sense.” 92 Ill. Admin.

Code 1550.10(f). They also should be interpreted in harmony with other law and to avoid

constitutional conflicts. Knolls Condo. Ass’n v. Harms, 202 Ill. 2d 450, 458–59 (2002) (“A court

presumes that the legislature intended” for statutes concerning the same subject to “be read

harmoniously so that no provisions are rendered inoperative.”); Villegas v. Bd. of Fire & Police

Comm’rs of Vill. of Downers Grove, 167 Ill. 2d 108, 124 (1995) (“[C]ourts are to interpret

statutes and ordinances … to avoid raising serious constitutional questions.”).

Here, the TNC drivers’ vehicles being used to transport Union Pacific’s employees are

not taxicabs7 but they are “other vehicles licensed by competent authority to transport the public,

and used by a railroad to transport its employees.” 92 Ill. Admin. Code § 1550.10(b). Put another

way, railroads always have had the option to use taxicabs or other vehicles licensed to transport

 7 See 625 ILCS 57/5; 625 ILCS 57/25(e).

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the public for crew transportation under Part 1550.8 Such vehicles never have been subject to

regulation by the Commission – and neither should the TNC drivers’ vehicles being used for the

same purpose.

The Amended Complaint’s proposed reading of Part 1550 is incorrect, because it does

not give effect to Part 1550.10(b)’s express exemption. The Amended Complaint’s reading also

fails because it would create a conflict between Part 1550 and the TNPA, which separately

regulates TNC drivers’ vehicles and imposes its own safety standards. See 625 ILCS 57/25. In

addition, the Amended Complaint’s proposed interpretation would create an unavoidable conflict

with controlling federal law under ICCTA. 49 U.S.C. § 10501(b).

There also is no practical difference between the Uber service being used to transport

Union Pacific’s employees and the service available to the public – both of which are regulated

under the TNPA. Under the Dashboard Contract, d

d

d

d

d

d

d

 8 The effective date for Part 1550 was Jan. 1, 1969. See

https://www.ilga.gov/commission/jcar/admincode/092/09201550sections.html.

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B. Any Order Barring Union Pacific from Using TNC Services to Transport Railroad Employees Is Preempted by Federal Law

The Amended Complaint asks the Commission to order Union Pacific under authority of

state law “to cease and desist from utilizing … Uber and/or Uber drivers, for the transportation

of [Union Pacific’s] employees.” (Id., at pp. 7–8, 9–10). The Commission does not have

authority to grant the relief sought because any such prohibition would be federally preempted

under ICCTA. See 49 U.S.C. § 10501(b).

Congress passed ICCTA in 1995 and created the Surface Transportation Board to

administer the Act. 49 U.S.C. §§ 10101, 10102(1). Under ICCTA, Congress expressly conferred

on the Board “exclusive” jurisdiction over the regulation of railroad transportation:

The jurisdiction of the Board over—

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,

is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

49 U.S.C. § 10501(b). Congress defined “transportation” expansively to include “equipment of

any kind related to the movement of passengers or property, or both” and “services related to that

movement.” 49 U.S.C. § 10102(9). “Congress’s intent in the Act to preempt state and local

regulation of railroad transportation has been recognized as broad and sweeping.” Union Pac. R.

Co. v. Chicago Transit Auth., 647 F.3d 675, 678, n.1 (7th Cir. 2011).

ICCTA preempts state action in two ways: “(1) categorical, or per se, preemption, and

(2) ‘as applied’ preemption.” Id. at 679 (citing CSX Transp., Inc.—Petition for Declaratory

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Order, STB Finance Docket No. 34662, 2005 WL 1024490, at *2–3 (S.T.B. May 3, 2005)).

“Categorical preemption occurs when a state … action is preempted on its face despite its

context or rationale,” e.g., because the challenged action denies a railroad the ability to conduct

some part of its operations. Id.; see Wedemeyer v. CSX Transp., Inc., 850 F.3d 889, 894–95 (7th

Cir. 2017). “As-applied” preemption depends on “the degree of interference that the particular

action has on railroad transportation … [occurring] when the facts show that the action ‘would

have the effect of preventing or unreasonably interfering with railroad transportation.’” Chicago

Transit Auth., 647 F.3d at 679 (quoting CSX Transp., Inc., 2005 WL 1024490, at *3).

While ICCTA does not displace all generally applicable local health and safety

regulations, state action that targets or discriminates against railroads is preempted. See BNSF

Ry. Co. v. California Dep’t of Tax & Fee Admin., 904 F.3d 755, 761 (9th Cir. 2018) (preempting

hazardous materials fee that “target[ed]” the railroad industry); Adrian & Blissfield R. Co., 550

F.3d at 541–42 (finding against preemption where sidewalk program did not “require something

of the Railroad that it does not require of similarly situated entities”); see also Delaware v.

Surface Transp. Bd., 859 F.3d 16, 19 (D.C. Cir. 2017) (“This power to impose ‘rules of general

applicability,’ includes authority to issue and enforce regulations whose effect on railroads is

‘incidental,’ and which ‘address state concerns generally, without targeting the railroad

industry.’”) (internal citations omitted); Norfolk S. Ry Co. v. City of Alexandria, 608 F.3d 150,

160 (4th Cir. 2010) (“[T]he regulation must not (1) discriminate against rail carriers or

(2) unreasonably burden rail carriage.”); N. Y. Susquehanna, 500 F.3d at 253 (same).

Here, the relief sought under Part 1550 – to bar or impose special conditions on Union

Pacific’s use of TNC services – would trigger all three grounds for ICCTA preemption. Crew

transportation, as the Amended Complaint concedes, is an integral part of rail transportation. (Id.,

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¶ 6). The relief sought, thus, would be categorically preempted, because it would have the effect

of impermissibly managing or governing rail transportation. See Delaware, 859 F.3d at 22. The

relief sought also would be preempted as applied, because it would unreasonably interfere with

rail transportation by denying Union Pacific the ability to use Uber or the services of other TNCs

as an efficient alternative for employee transportation. Finally, the relief sought targets and

discriminates against railroads. By granting such relief, the Commission impermissibly would

impose restrictions on Union Pacific’s use of TNC services that are not placed on the public at

large or employers in other industries. Accordingly, the Amended Complaint’s claims at Count I,

¶¶ 6-17, should be dismissed.

II. THE COMMISSION LACKS JURISDICTION OVER THE CLAIMS IN COUNT I (¶¶ 18–22) AND COUNT II AND CANNOT ISSUE THE REQUESTED DECLARATORY RELIEF

A. The Commission Lacks Jurisdiction to Enforce Statutes Vested with Other State Agencies and to Impose “Contract Carrier” Requirements or Other Generalized Duties on TNC Services

The Amended Complaint cites to various provisions of the Illinois Vehicle Code9 and

alleges that “[e]ach time UP uses or hires Uber or an Uber driver to transport its railroad

employees in the course of their employment, Uber and/or the Uber driver is operating as a

contract carrier,” and is subject to these “and all other statutory and regulatory standards for

contract carriers transporting railroad employees.” (See id., ¶ 19). The Commission lacks

jurisdiction to adjudicate these claims.

Regarding alleged violations of Chapters 8 and 18b of the Vehicle Code, the Illinois

General Assembly has vested authority to enforce those statutes in agencies other than the

Commission – namely, the Secretary of State and the Department of Transportation. See 625

 9 Amended Complaint, ¶ 18, referencing 625 ILCS 5/8-101(c) (proof of financial responsibility); 625 ILCS 5/13-101, 109 (safety testing); 625 ILCS 5/18b-106.1 (hours of service); and 625 ILCS 5/18c-7401 (first aid kits).   

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ILCS 5/2-101 (“The Secretary of State is hereby vested with powers and duties and jurisdiction

of administering Chapters 2, 3, 4, 5, 6, 7, 8, and 9 of the Illinois Vehicle Code.”); 625 ILCS

5/18b-102 (the “Authority of Department [of Transportation]” includes the power to

“[a]dminister and enforce the provisions of this Chapter”). Likewise, the Chapter 13 safety

testing regime invoked by the Amended Complaint provides for the Department of

Transportation’s administration and enforcement, not the Commission’s. See, e.g., 625 ILCS

5/13-102 (mandating Department of Transportation tests and investigations), 13-105 (mandating

regular Department of Transportation inspections of testing stations).

The Amended Complaint also asks the Commission to adjudicate these claims based on

the premise that Uber and/or its drivers are “contract carriers” when transporting Union Pacific’s

employees. This position is incorrect as a matter of law. In the TNPA, the Illinois General

Assembly unambiguously determined that TNCs (like Uber) and TNC drivers, “are not common

carriers, contract carriers, or motor carriers, as defined by applicable State law.” 625 ILCS

57/25(e) (emphasis added). The TNPA imposes a separate regulatory regime for TNCs and TNC

drivers, which mandates liability insurance (Section 10), driver requirements including licensing

and criminal record checks (Section 15), and various safety requirements (Section 25).

The Unions plead that “even if Uber and/or Uber drivers do not constitute contract

carriers under these provisions, UP nonetheless has a duty to ensure that the vehicles used to

transport its railroad employees comply with these contract carrier requirements ….” (Amended

Complaint, ¶ 20). However, no authority exists for the proposition that the Commission should –

or could – enforce safety standards outside its statutory mandate. City of Chicago, 79 Ill. 2d at

217–18 (holding acts or orders beyond the purview of the Commission’s statutory authority are

void); see also Harrisonville Tel. Co. v. Illinois Com. Comm’n, 176 Ill. App. 3d 389, 392 (5th

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Dist. 1988) (“An administrative agency, such as the Commerce Commission, is created by

statute and has no general or common law powers ….”). Accordingly, the Amend Complaint’s

claim at Count I, ¶¶ 18-22, should be dismissed.

B. The Commission Cannot Issue the Requested Declaratory Relief

The declaratory relief sought in Count II is based on the same incorrect arguments,

seeking to create Commission jurisdiction where there is none. (See Amended Complaint, ¶¶ 23–

28).10 The Amended Complaint also contains a new request for a declaratory ruling that “each

time UP uses or hires Uber or an Uber driver to transport its railroad employees in the course of

their employment, Uber and/or the Uber driver are subject to the safety standards established

under [Part 1550].” (Id. at 10). As shown above, Part 1550.10(b), as drafted, appropriately

exempts vehicles operated by TNC drivers from regulation by the Commission (83 Ill. Admin.

Code 1551.10(b)), and the Commission cannot extend its statutory jurisdiction in a manner that

would be preempted by federal law. 625 ILCS 5/18c-7101.

III. THE UNIONS’ “APPLICATIONS FOR HIGHER SAFETY STANDARDS” MISREAD PART 1550.10(d) AND VIOLATE ADMINISTRATIVE PROCEDURE AND DUE PROCESS

Counts III and IV ask the Commission to prescribe “higher safety standards” applicable

to Union Pacific whenever “UP utilizes Uber or a comparable company or service to transport its

employees” (Count III at 13–14) and to “any and all vehicles being used to transport [Union

Pacific’s] railroad employees, including specifically Uber and/or Uber drivers” (Count IV at 15–

16). Counts III and IV are brought “in the alternative to Counts I and II” (Id., ¶38) in the event

 10 The Commission’s declaratory jurisdiction is limited to “the applicability of any statutory provision enforced by the Commission or of any Commission rule to the person(s) requesting declaratory ruling.” 83 Ill. Admin. Code 200.220(a)(1) (emphasis added). The Amended Complaint recites various procedural requirements from Section 200.220 (id., ¶ 24) but omits the jurisdictional limitation.  

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the Commission determines that Part 1550(b) exempts TNC drivers’ vehicles and the remaining

claims in Counts I and II are beyond the Commission’s jurisdiction. (Id., ¶¶ 33-34).

As conceived in the Amended Complaint, the Commission would use Part 1550.10(d) to

rewrite its regulations to apply to Union Pacific’s use of TNC services for employee

transportation as part of a Formal Complaint proceeding under Section 200.170. (Id., ¶¶ 32, 40).

Count III requests a “cease and desist” order prohibiting Union Pacific from using TNC services

that do not comply with those new “higher safety standards.” (Id. at 13). Count IV further seeks

an order that Union Pacific must require compliance with entirely new regulations related to the

COVID-19 pandemic, including by TNC drivers’ vehicles. (Id. at 16).

The Commission reasonably might ask how these proposed regulations, if promulgated,

could hope to withstand review due to direct conflicts with the TNPA, Illinois Vehicle Code and

federal law. (See above). The Commission does not have to reach these issues, however, to

dismiss Counts III and IV. The plain language of Part 1550.10(d) does not support the Amended

Complaint’s request for the Commission to prescribe and apply “higher safety standards” in the

context of this complaint proceeding – nor could it – because the relief requested is contrary to

basic administrative law principles and due process.

A. The Amended Complaint Misreads the Plain Language of Part 1550.10(d)

To understand the Amended Complaint’s error, the place to start is the language of Part

1550.10(d). The rule provides as follows:

“It is recognized that these regulations cannot cover all contingencies, and, accordingly, the Commission, upon written application or upon its own motion, may in a particular case, after notice and hearing, modify or grant exceptions to any of these regulations where their effect is unduly burdensome, or may prescribe higher standards than those herein prescribed where such higher standards are necessary for the safety of employees.”

92 Ill. Admin. Code 1550.10(d).

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Part 1550.10(d) recognizes that its regulations “cannot cover all contingencies” and,

“accordingly,” outlines a regulatory approach with two distinct paths. That is, the Commission:

(1) “may in a particular case, after notice and hearing, modify or grant exceptions to these

regulations where their effect is unduly burdensome,” or (2) “may prescribe higher standards that

those herein prescribed where such higher standards are necessary for the safety of employees.”

92 Ill. Admin. Code 15501.10(d) (emphasis added). In short, the Commission may grant an

individual variance from burdensome regulation “in a particular case,” after notice and hearing

where the record warrants, or it may institute a rulemaking to impose higher standards. But the

Commission cannot prescribe higher standards to impose on an individual respondent in the

context of a Formal Complaint proceeding.

By way of comparison, the language of Part 1550.10(d) regarding “unduly burdensome”

standards is similar to other Illinois statutory language allowing for variances in the

environmental context. See, e.g., 415 ILCS 5/35(a) (allowing for a variance from environmental

regulation under the Illinois Environmental Protection Act where a petitioner shows “that

compliance with any rule or regulation, requirement or order of the Board would impose

arbitrary or unreasonable hardship”). Part 1550.10(d)’s individual variance option also permits

the Commission “in a particular case” to “grant exceptions to any of these regulations,” where

there is a showing of undue burden on the regulated entity. 11

The same “particular case” language does not carry over to Part 1550.10(d)’s second

clause to allow the Commission to prescribe higher standards on a case-by-case basis. Instead,

 11 Westlaw as of June 2021 included three citing references to Part 1550.10, and neither the court case nor the two administrative decisions/guidance materials construed subpart (d). Thus, this provision has not been construed by the Commission or any Illinois court, nor has the Commission used Part 1550.10(d) to impose “higher standards” in any proceeding, to Union Pacific’s knowledge.  

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the second clause has its own “may” verb setting off the Commission’s alternative path to

“prescribe higher standards” than those already in Part 1550 “where such higher standards are

necessary for the safety of employees,” which would not and could not take place as part of a

contested case. 92 Ill. Admin. Code 1550.10(d). It would be a rulemaking.

B. The Amended Complaint’s Incorrect Reading of Part 1550.10(d) Violates Administrative Procedure and Due Process

The division between adjudicatory and rulemaking proceedings is necessary to protect

the individual interests at stake in complaint proceedings. According to the Illinois Supreme

Court, “a distinction is drawn in the administrative law area on the type of hearing that is

necessary to meet due process requirements in determining legislative facts as opposed to

adjudicative facts.” Advanced Sys., Inc. v. Johnson, 126 Ill. 2d 484, 506 (1989). “[T]here is ‘a

recognized distinction in administrative law between proceedings for the purpose of

promulgating policy-type rules or standards, on the one hand, and proceedings designed to

adjudicate disputed facts in particular cases on the other.’” Id. (quoting United States v. Florida

East Coast Ry. Co., 410 U.S. 224, 245 (1973)).

“The Illinois Administrative Procedure Act … applies to proceedings before the

Commerce Commission” and “provides for ‘contested case’ adjudication,” (id.) defined as:

“‘Contested case’ means an adjudicatory proceeding, not including rate making, rule-making, quasi-legislative, informational or similar proceedings, in which the individual legal rights, duties or privileges of a party are required by law to be determined by an agency only after an opportunity for hearing.”

Harrisonville Tel. Co., 176 Ill. App. 3d at 392 (emphasis added) (quoting 5 ILCS 100/1-30). As

described in Harrisonville Telephone Co., a contested case does not involve an agency’s rule-

making function. Id. The regulations under which the Unions initiated this proceeding and

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submitted their Formal Complaints codify this very distinction.12 The same is true for the ICTL,

which authorized Part 1550 and distinguishes between the Commission’s power to “[a]djudicate

disputes, hear complaints or other petitions for relief” from its rulemaking power to “[a]dopt

appropriate regulations setting forth the standards and procedures by which” the Commission

enforces the statute. Compare 625 ILCS 5/18c-1202(11) (adjudicating disputes), with

18c-1202(9) (adopting regulations).

Thus, there is no mechanism under Part 1550.10(d) for the Commission to prescribe the

Amended Complaint’s “Applications for Higher Safety Standards” and then apply those

standards after-the-fact to Union Pacific, which would have had no notice of them or opportunity

to address the proposed rulemaking. Nor could the Commission do so without violating due

process. “Notice is a fundamental requirement of due process because a party must be aware of

the state action in order to effectively contest it.” Quantum Pipeline Co. v. Illinois Com.

Comm’n, 304 Ill. App. 3d 310, 320 (3d Dist. 1999). “Equally as fundamental is the opportunity

to be heard at a meaningful time and in a meaningful manner.” Id. (finding Commission violated

pipeline’s due process right to notice by failing to follow Public Utilities Act provision before

taking action to rescind certificate to operate).

C. Counts III and IV Should Be Dismissed

In Count III, the Amended Complaint alleges that “[t]here is no rational basis to conclude

that the vehicles driven by Uber and/or Uber drivers are inherently safer than the vehicles driven

by contract carrier companies, or that the Uber vehicles should be free from any safety

 12 Compare 83 Ill. Admin. Code 200.170 Formal Complaints (“A plain and concise statement of the nature of each complainant’s interest and the acts or things done or omitted to be done in violation, or claimed to be in violation, of any statute, or of any order or rule of the Commission.”) and 83 Ill. Admin. Code 200.210 Petition for Rulemaking (“Any interested person may petition the Commission requesting the promulgation, amendment or repeal of a rule.”).

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regulation.” Id., ¶ 37. The question is not whether TNC drivers’ vehicles are “safer” than any

others, but whether the Commission has authority to regulate them – and it does not. The second

point is simply a misstatement of Illinois law, which expressly regulates the safety of TNC

drivers’ vehicles. 625 ILCS 57/25(d).

Count IV alleges on information and belief that “Uber has not adopted any social

distancing or contact tracing policies or protocols that would apply to railroad employees being

transported in Uber vehicles,” and petitions the Commission to prescribe new pandemic-related

regulations and to order Union Pacific to require TNCs and TNC drivers’ to comply with them.

The Commission has no authority to prescribe new regulations in this proceeding or to order

Union Pacific to require compliance by third parties, who are separately regulated under the

TNPA. Both Counts III and Count IV should be dismissed as a matter of law.

CONCLUSION 

For these reasons, Union Pacific requests that the Commission dismiss the First Amended

Formal Complaint and Request for Declaratory Relief of the International Association of Sheet

Metal, Air, Rail, and Transportation Workers Transportation Division – Illinois Legislative

Board, and Brotherhood of Locomotive Engineers and Trainmen – Illinois State Legislative

Board, and provide such other relief as may be appropriate.

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Dated: June 18, 2021 Respectfully Submitted,

UNION PACIFIC RAILROAD COMPANY /s/ Thomas Andreoli Thomas Andreoli (#6242429) Brian Dodds (#6323824) RILEY SAFER HOLMES & CANCILA LLP 70 W. Madison Street, Suite 2900 Chicago, Illinois 60602 Telephone: (312) 471-8717 tandreoli@rshc-law.com bdodds@rshc-law.com

VERIFICATION

I, Thomas Andreoli, counsel for Union Pacific Railroad Company, certify that I have read

the foregoing Motion to Dismiss the First Amended Formal Complaint and Request for

Declaratory Relief and that, under penalties as provided by law pursuant to Section 1-109 of the

Code of Civil Procedure (735 ILCS 5/1-109) and to the best of my knowledge, the statements set

forth in this instrument are true and correct, except as to matters therein stated to be on

information and belief and as to such matters the I certify that I verily believe the same to be

true.

Executed this 18th day of June, 2021, at Chicago, Illinois.

Thomas Andreoli

CERTIFICATE OF SERVICE

I, Thomas Andreoli, an attorney, certify that on June 18, 2021, I caused a copy of the

foregoing Union Pacific’s Motion to Dismiss the First Amended Formal Complaint and Request

for Declaratory Relief to be served by electronic mail on the individuals identified below, who

appear on the Commission’s Service List for Docket T20-0082 as of the date of this filing.

/s/ Thomas Andreoli Attorney for Union Pacific Railroad Company

SERVICE LIST Jeremy M. Berman Josephine Jordan General Attorney In-House Counsel Union Pacific Railroad Union Pacific Railroad 1400 Douglas Street 1400 Douglas St. Omaha, NE 68179 Omaha, NE 68179 jmberman@up.com jjordan1@up.com Shawn D. Lanka Dennis Mogan Union Pacific Railroad Railroad Safety Specialist 140 Douglas St., STOP 1580 Illinois Commerce Commission Omaha, NE 68179 527 E. Capitol Avenue sdlanka@up.com Springfield, IL 62701 dennis.mogan@illinois.gov Matthew J. Pierce John A. Plebanek Asher Gittler & D’Alba, Ltd, Union Pacific Railroad 200 W. Jackson Blvd., Ste. 720 3811 17th Pl. Chicago, IL 60606 Kenosha, WI 53140 mjp@ulaw.com japleban@upcontractor.up.com Martin W. Burzawa Transportation Illinois Commerce Commission 160 N. LaSalle St., Ste. C-800 Chicago, IL 60601 martin.burzawa@illinois.gov 4815-2683-7231, v. 1