Full opinion text
LEVENTHAL, Circuit Judge: In 1974 the United Transportation Union petitioned the Interstate Commerce Commission pursuant to § 5(9) of the Interstate Commerce Act to reopen the proceeding which had previously culminated in an order of December 31,1962, 317 I.C.C. 261, by which the Commission authorized the Chesapeake & Ohio Railway Company to acquire control of the Baltimore & Ohio Railway Company. At first the Commission denied the petition to reopen. Subsequently after its order was challenged in the three-judge district court for Northern Ohio, the Commission sua sponte reconsidered, and issued an Order on June 20, 1975, in which the Commission clarified its intent in the 1962 order in regard to the provisions imposed on the merger for the protection of employees under § 5(2)(f) of the Act. The petitioners say that this so-called clarification was really a disguised modification of the 1962 order. There is much to be said for the petitioner’s view that the 1962 order provided protection only for those employees adversely affected within four years of the Commission’s order. That is the language of Articles I and II of Appendix VIII (“Conditions for the benefit of employees of carriers”), 317 I.C.C. at 346, 348-49. On the other hand, the Commission is not without a predicate for the ruling now protested, in the text of the 1962 report preceding the Appendix. While the language of the Appendix is cast in terms of cutting off the protective scheme at the end of four years from the date of the order, the text of its order — really an opinion or report — indicated that the ICC intended to impose the “New Orleans conditions” (slightly modified to require arbitration). These conditions, as appears below, had the basic characteristic, in effect, of giving protection to the employee for a period calculated from the time of adverse impact (subject to a limit of five years from the date of coordination). In ascertaining the intention of the 1962 order, as incorporating the New Orleans conditions, it is not irrelevant that at that time the C & O-B & 0 themselves urged the New Orleans conditions. While we do not refer to this in the sense put forward in the government’s brief as constituting waiver or estoppel as to the railroads, we think it material as to the legitimacy of the ICC’s current effort to ascertain its intent in its 1962 order. The history of conditions protective of employees goes back to the Washington Agreement of May 21, 1936, worked out by the Federal Coordinator of Transportation, pursuant to the Emergency Railroad Transportation Act of 1933. The Washington Agreement protected both those employees immediately affected by the coordination, and those not adversely affected until later, by providing that as to the latter, protection would begin as of the time of the adverse effect, and would continue for a total period not exceeding five years from the effective date of the coordination. Subsequent to the lapse of the 1933 Act, the enactment in 1940 of § 5(2)(f) required that in all merger cases the Commission “require a fair and equitable arrangement to protect the interests of the railroad employees affected.” The second sentence provided that this arrangement must accord full financial protection for four years from the effective date of the order if an affected employee had been employed for four years. At first the ICC considered this the maximum protection authorized. Accordingly, the Commission devised the so-called Oklahoma conditions, which afforded protection only to those employees affected within the first four years after the effective date of the Commission’s order. The Supreme Court held, however, that this was a minimum protection and remanded for further consideration by the Commission. On remand, the Commission determined that the protection of the Oklahoma conditions — four years from the effective date of the order — would not be sufficient to discharge its duty to provide fair and equitable conditions. Consequently, it established what are now normally called the New Orleans conditions, which incorporated by reference both the Washington Agreement and the Oklahoma conditions. With the order now before us the Commission, in establishing the conditions set by its New Orleans, order, reaffirmed and applied the reasoning of that order. The Commission perceived that the protection of the Oklahoma conditions was inadequate to provide a fair and equitable arrangement, and so determined that, in addition, employees should be protected from the time they are adversely affected (subject to a maximum of five years from the effective date of coordination), as was true under the Washington Agreement. Petitioners say it is obvious that the language in the 1962 Appendix only provides the Oklahoma protection — four years from the date of the order. But the same language which is before us today was used by the Commission in its 1962 Southern-Central of Georgia case. That order came to the Commission for clarification, on remand by the Supreme Court. It was another issue that had been brought to the Supreme Court, but when the Commission came to take a full look at the situation, as it had both the occasion and authority to do on the remand, the Commission stated that its intent in the. Southern-Central of Georgia conditions was to impose the New Orleans conditions with only one modification, a compulsory arbitration procedure. Southern Railway — Control—Central of Georgia Railway, 331 I.C.C. 151, 164 (1967). The Supreme Court’s remand to the agency did not require the agency to limit itself to the issue previously before the Court, but gave the agency authority to clarify its intention and make revisions in any respect that was within its statutory authority. In sum, while petitioners stress the language of the 1962 Appendix, the construction now stated by the Commission is supported by (a) its 1962 opinion, accompanying that Appendix, which set forth its approach (the New Orleans conditions); (b) the fact that the approach was accepted by both C&O-B&O and the unions; and (c) the fact that its construction of identical language in a contemporaneous 1962 order, as embodying the New Orleans conditions, was made clear in a 1967 action, when its intentions and recollections were fresh, and before any contrary possibilities could have frozen. The action of the Commission was hardly tidy. We have had occasion to be concerned previously regarding ICC clarifications and interpretations that are really substantial changes, and we agree with petitioners that the courts are not to rubber stamp the label put on this matter by the Commission. But while we are not entirely comfortable with the record before us, we think that on balance we must say that the Commission has not acted beyond the range of its authority. We find a basis for the ICC’s actions in the discernment of an ambiguity that needed clarification. ^ s{s 4s # s}s Receipt of the dissenting opinion’s extended presentation of the wording of the 1962 Appendix, and the contrast with language used in other orders, prompts us to acknowledge that if all we had before us were the language of the Appendix there would indeed be a strong case for the petitioners. But even in the construction of statutes, the “plain meaning rule” is only a primary source of understanding, not conclusive, and it must yield on occasion to an intention otherwise discerned in terms of equity, legislative history, or other sources. Here the “plain meaning” of the words in the Appendix is different from the “plain meaning” of the order setting forth the Commission’s contention. We have no clue as to why the wording in the Appendix was not conformed at the time — perhaps ineptitude; perhaps lack of concern on a point where the carriers were not in disagreement; perhaps laziness in using the handy language of the statute, without insertion to carry forward the manifested intention to provide more than the minimal statutory protection; perhaps a combination of these. In any event, we find the kind of ambiguity in the ICC 1962 action that provided a basis for the current clarification. In the last analysis, our result is dictated by our function. Our task is not the same as that of a court that construes a contract between parties, with freedom to decide for itself what is the proper construction without any deference to other sources. Here the pertinent doctrine bids us sustain the agency’s interpretation of its own order unless it is arbitrary or capricious. As we said before, the ICC’s handling of this issue was not tidy, but it was not arbitrary or capricious. Affirmed. . 49 U.S.C. § 5(9). . Article I(l)(e) defines “protective period” as that period of time from the date on which an employee is displaced or dismissed to the expiration of 4 years from the effective date of the order authorizing the transaction; provided, however, that the protective period for any particular employee shall not continue for a longer period following the effective date of said order than the period during which such employee was in the employ of the carrier prior to the effective date of the order. Article 1(2) provides, in pertinent part: Displacement allowances. — (a) So long after his displacement as he is unable, in the exercise of his seniority rights under existing agreements, rules and practices, to obtain a position producing compensation equal to or exceeding the compensation he received in the position from which he was displaced, during the protective period a displaced employee shall be paid a monthly displacement allowance. . Article 1(3) provides, in pertinent part: Dismissal allowances. — (a) A dismissed employee shall be paid a monthly dismissal allowance, from the date he is deprived of employment and continuing during the protective period. . Article 11(1) provides: Any employee adversely affected as a result of the transaction, within 4 years from the effective date of the order approving the transaction, shall receive as a minimum the protection afforded by article I hereof for the period he is adversely affected prior to the expiration of 4 years from the effective date of the order of approval, and any such employee so adversely affected who has received under such conditions total dismissal or displacement compensation less than that which he would receive by applying the Washington Agreement of May 21, 1936, as limited by paragraph 2 of this article, for the full protective period therein provided from the time he is first adversely affected, shall continue to receive benefits under the terms of the Washington Agreement, as limited, until the total compensatory benefits provided therein for the particular period of service have been paid. . In the text of the 1962 order, the Commission stated: It is our opinion that the protection afforded by the New Orleans conditions, as modified in the Southern Control case [to require arbitration] will more than meet the minimum requirements of section 5(2)(f). In effect, the New Orleans conditions superimpose upon the Oklahoma conditions (Oklahoma Ry. Co. Trustees Abandonment, 257 I.C.C. 177) the provisions of the Washington Agreement, the protection of the Oklahoma conditions to be applied as a minimum. As we stated in the Southern Control case, the New Orleans conditions “were imposed for the specific purpose of giving protection to those employees who knowingly were not to be adversely affected in their employment until a substantial period elapsed after the date of the order authorizing the transaction and who otherwise would have received little or no protection under the Oklahoma conditions.” As modified in the Southern Control case, the New Orleans conditions will be fair to the affected employees and to the carriers involved in the transaction. In the past, these conditions have been acceptable to employees as well as carriers. It is observed that many of the provisions specifically requested by the association are similar to, or based upon language used in the Washington Agreement. Of course, to the extent that the Washington Agreement becomes applicable, the terms and conditions thereof will apply. . The C&O and B&O urge that, in lieu of the conditions recommended by the examiner, we impose the conditions prescribed in New Orleans Union Passenger Terminal case, 282 I.C.C. 271, with some modifications which would provide a workable arbitration clause. 317 I.C.C. at 286-87. . Both the Chesapeake & Ohio and the Baltimore & Ohio were parties to the Washington Job Protection Agreement of May, 1936. . The Oklahoma conditions were set in Oklahoma Ry. Trustees-Abandonment of Operations, 257 I.C.C. 177 (1944). . Railway Labor Executives Assn. v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721 (1950). . The New Orleans conditions were established in New Orleans Union Passenger Terminal Case, 282 I.C.C. 271 (1952). . It is clear that the Commission, in its New Orleans order, determined that protection extending beyond the provisions of the Oklahoma conditions was required to meet the “fair and equitable” standard under the facts of that case: The problem now presented is to determine what, if any, protective conditions in addition to those prescribed in the previous report are necessary to provide a fair and equitable arrangement for the employees who have been or will be adversely affected by the transaction . 282 I.C.C. at 274. [A] finding herein that the Oklahoma conditions alone with the time limit therein prescribed, having in mind not only the 4-year maximum but also the limitation as to time worked prior to the effective date of our order [another limitation of the Oklahoma conditions] would provide a fair and equitable arrangement, would not be consistent with the circumstances in this case nor in conformity with the decision of the Supreme Court of the United States. It then is necessary to decide what type of conditions are necessary to meet the requirements of the statute. Id. at 280. By referring to the “New Orleans conditions” in its 1962 order, the Commission obviously expressed a similar determination that protection beyond that provided by the Oklahoma conditions was required by the case before it. . Southern Ry.—Control—Central of Ga. Ry., 317 I.C.C. 557 (1962). . RLEA had challenged the failure of the ICC to include Sections 4, 5 and 9 of the Washington Agreement in its codified provisions, and the Supreme Court’s remand referred to those provisions only. . FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 141-44, 60 S.Ct. 437, 84 L.Ed. 656 (1940). . See note 12 supra. . Southern Railway Company v. U.S. & ICC, 412 F.Supp. 1122 (D.D.C.1976).
MacKINNON, Circuit Judge, dissenting: On December 17, 1962, in approving the application of the Chesapeake and Ohio Railroad Company (C & 0) to acquire stock control of the Baltimore and Ohio Railroad Company (B & O), the Interstate Commerce Commission (ICC) imposed conditions to protect the interests of the employees of the railroads from adverse effects resulting from the acquisition of such control. I. THE APPLICABLE STATUTE In imposing these protective conditions, the Commission acted pursuant to section 5(2)(f) of the Interstate Commerce Act, which provides: As a condition of its approval, under this paragraph, of any transaction involving a carrier or carriers by railroad subject to the provisions of this chapter, the Commission shall require a fair and equitable arrangement to protect the interests of the railroad employees affected. In its order of approval the Commission shall include terms and conditions providing that during the period of four years from the effective date of such order such transaction will not result in employees of the carrier or carriers by railroad affected by such order being in a worse position with respect to their employment, except that the protection afforded to any employee pursuant to this sentence shall not be required to continue for a longer period, following the effective date of such order, than the period during which such employee was in the employ of such carrier or carriers prior to the effective date of such order. Notwithstanding any other provisions of this Chapter and Chapters 8 and 12 of this title, an agreement pertaining to the protection of the interests of said employees may hereafter be entered into by any carrier or carriers by railroad and the duly authorized representative or representatives of its or their employees. 49 U.S.C. § 5(2)(f) (1970) (emphasis added). The ICC now contends that it had the right, over eleven years after its 1962 opinion was filed, to clarify its 1962 opinion. II. THE POSITION OF THE INTERSTATE COMMERCE COMMISSION The ICC’s present position is that it was the intent of the Commission in the 1962 order to extend protection to a railroad employee beginning at any indefinite date in the future whenever he is “first adversely affected” by the particular approved transaction, notwithstanding irreconcilable language in the original order. The Commission’s reasoning is set forth in its opinion in this case decided June 10, 1975: In imposing the New Orleans conditions, the Commission, as has long been recognized, in effect extends the period of protection beyond the basic four years provided by section 5(2)(f) and the so-called “Oklahoma conditions.” See New Orleans Union Passenger Terminal Case, 282 I.C.C. 271 [,] 275, 281-282 (1952). This is achieved through incorporation of the New Orleans conditions of the Washington Job Agreement of 1936 which protects an employee from the time he is first adversely affected. See section 6(a) of the Washington Agreement which provides as follows: No employee of any of the carriers involved in a particular coordination who is continued in service shall, for a period not exceeding five years following the effective date of such coordination, be placed, as a result of such coordination in a worse position with respect to compensation and rules governing working conditions than he occupied at the time of such coordination so long as he is unable in the normal exercise of his seniority rights under existing agreements, rules and practices to obtain a position producing compensation equal to or exceeding the compensation of the position held by him at the time of the particular coordination, except however, that if he fails to exercise his seniority rights to secure another available position, which does not require a change in residence, to which he is entitled under the working agreement and which carries a rate of pay and compensation exceeding those of the position which he elects to retain, he shall thereafter be treated for the purposes of this section as occupying the position which he elects to decline. It should be noted that coordination is defined at section 2(a) as follows: The term “coordination” as used herein means joint action by two or more carriers whereby they unify, consolidate, merge or pool in whole or in part their separate railroad facilities or any of the operations or services previously performed by them through such separate facilities. Consequently, when an employee is first adversely affected as a result of the approved transaction after four years from the effective date of the Commission’s order, that employee is entitled to protection from the time of the adverse effect. Any other conclusion, as has been shown, would be contrary to our original report in this matter and to the interpretation given to the identical protective conditions in the Southern control case. Chesapeake & Ohio Ry. Co.—Control—Baltimore & Ohio R. Co., - I.C.C. - (June 10, 1975) (J.A. 59-60) (emphasis added). Therefore, the issue before this court is whether the Commission acted properly when in 1975, on its own motion, it reopened the 1962 decision by claiming a right to “clarify” the labor protective conditions imposed in 1962. The associated issue is whether the Commission’s order was a clarification. III. THE HISTORY OF SECTION 5(2)(f) OF THE INTERSTATE COMMERCE ACT In order to appreciate fully the context in which this case comes before this court, one needs to review certain aspects of the history of section 5(2)(f) and of this litigation. The history of section 5(2)(f) was reviewed at length in Railway Labor Executives’ Association v. United States, 339 U.S. 142, 70 S.Ct. 530, 94 L.Ed. 721 (1950), which held in 1950 that under the statute, the four-year protective period was a minimum (as required by the second sentence of the statute) and not the maximum protective period that the Commission (pursuant to the first sentence of the statute) could impose. 339 U.S. at 155, 70 S.Ct. 530; Norfolk & Western Ry. Co. v. Nemitz, 404 U.S. 37, 42, 92 S.Ct. 185, 30 L.Ed.2d 198 (1971). Prior to the Supreme Court’s decision in Railway Labor Executives’ Association, the Commission believed it did not possess authority under section 5(2)(f) to prescribe protective provisions for any period greater than four years. This belief was epitomized in Oklahoma Railway Co. Trustees Abandonment, 257 I.C.C. 177, 197-201 (1944), where the Commission imposed a four-year protective period extending “from the date on which the employee was displaced to the expiration of 4 years from the effective date of our order herein. . . 257 I.C.C. at 198. Accord, New Orleans Union Passenger Terminal Case, 267 I.C.C. 763 (1948). Following the Supreme Court’s 1950 holding that the second sentence of section 5(2)(f) prescribed a minimum period of protection, the Commission subsequently devised the so-called New Orleans conditions, New Orleans Union Passenger Terminal Case, 282 I.C.C. 271 (1952), which the ICC states is the principal support for its action in this case. The protective conditions imposed by the Commission in New Orleans provided: [W]e find that a fair and equitable arrangement for protecting the interests of the employees adversely affected by the transaction herein will be provided by applying the terms of the Washington agreement of May 21,1936, subject to the following limitations or restrictions: (a) That employees adversely affected within 4 years from the effective date of the order approving the transaction shall receive as a minimum the protection afforded by conditions 4 to 9, inclusive, in Oklahoma Ry. Co. Trustees Abandonment, 257 I.C.C. 177 (197-201), as prescribed in the report and order approving the transaction, for the period they are adversely affected prior to May 17, 1952 (4 years from the effective date of the order of approval), and any such employee so adversely affected who has received under such conditions total dismissal or displacement compensation less than that which he would receive by applying the Washington agreement, as limited, for the full protective period therein provided from the time he is first adversely affected, shall continue to receive benefits under the terms of the Washington agreement, as limited, until the total compensatory benefits provided therein for his particular period of service have been paid. 282 I.C.C. at 281-82 (emphasis added). The intent of the Commission in the foregoing was discussed in a subsequent paragraph of its decision: The intent and effect of the foregoing findings are that all employees adversely affected by the transaction involved should receive the protection afforded by the Washington agreement, reduced as to dismissed employees to the extent that they receive compensation in other employment or under unemployment insurance laws; and that employees adversely affected prior to May 17, 1952 (4 years from the effective date of the order of approval) are to receive as a minimum the protection afforded by the Oklahoma conditions as prescribed in the previous report for the period they are adversely affected prior to May 17, 1952, but if the total amount of such compensation is less than they would receive under the Washington agreement, as limited, applied from the date of the adverse effect, then they are entitled to the remaining benefits they would have enjoyed under the latter. 282 I.C.C. at 282. In short, because the transaction approved in that case required several years for completion, and because it would be several years until its principal effect would take place, the Commission was concerned that some employees might need protection after the expiration of the first four-year period. In its order, the Commission required that a 11 employees be protected by the terms of the Washington Agreement, as limited. However, this did not mean that any employee would be entitled to protection indefinitely. The Washington Agreement in section 6(a) limited the protective period for employees “continued in service” to a “period not exceeding five years following the effective date of [the] coordination.” (Emphasis added.) In its order, the Commission also required that employees affected during the first four years from the effective date of the Commission order would receive the protection of the Oklahoma conditions, but if this protection was less than that afforded by the Washington Agreement, the employee would receive remaining benefits under the Washington Agreement. IV. THE COMMISSION’S ORIGINAL ORDER IN THIS CASE In 1962, in approving the C & O’s acquisition of control of the B & 0 in the present case, the Commission discussed the relevant facts and then in a separate Appendix VIII precisely articulated the “[cjonditions for the benefit of employees of carriers.” Included therein were the following: “Protective period” means that period of time from the date on which an employee is displaced or dismissed to the expiration of 4 years from the effective date of the order authorizing the transaction; provided, however, that the protective period for any particular employee shall not continue for a longer period following the effective date of said order than the period during which such employee was in the employ of the carrier prior to the effective date of the order. Article I, paragraph 1(e), 317 I.C.C. at 346 (emphasis added). The conditions further provided in Article II of Appendix VIII: 1. Any employee adversely affected as a result of the transaction, within 4 years from the effective date of the order approving the transaction, shall receive as a minimum the protection afforded by Article I hereof for the period he is adversely affected prior to the expiration of 4 years from the effective date of the order of approval, and any such employee so adversely affected who has received under such conditions total dismissal or displacement compensation less than that which he would receive by applying the Washington Agreement of May 21, 1936, as limited by paragraph 2 of this article, for the full protective period therein provided from the time he is first adversely affected, shall continue to receive benefits under the terms of the Washington Agreement, as limited, until the total compensatory benefits provided therein for the particular period of service have been paid. 2. In applying the Washington Agreement the coordination allowance provided therein for dismissed employees shall be reduced with respect to any employee who is otherwise employed to the extent that his combined monthly earnings in such other employment, any benefits received under any unemployment insurance law, and his coordination allowance, exceed the amount upon which his coordination allowance is based; such employee or his representative, and the carriers, to agree upon a procedure by which the carriers shall be currently informed of the wages earned by such employee in employment other than with the carriers, and the benefits received. Article II, 317 I.C.C. at 348-49 (emphasis added). It should be noted that the Commission made the above statement in 1962, long after the Supreme Court in its 1950 decision had held that the ICC could provide for a protective period extending beyond four years. In New Orleans, the ICC also knew it could impose a protective period to begin from the time an employee was first adversely affected by a deferred coordination. Knowing this, as above indicated, the Commission in this case nevertheless ordered a protective period limited to “employee[s] adversely affected as a result of the transaction, within 4 years from the effective date of the order” approving the transaction . . . (circa December 17, 1962). Id. (emphasis added). Thus, the protective period of the Washington Agreement, which would have run from the “effective date of the coordination,” was not imposed. Instead the■ Commission ordered the protective period to run from the “effective date of the [ICC] order authorizing the transaction.” This is not ambiguous and furnishes no basis for substituting the five-year protective period of the Washington Agreement or any unlimited protective period that would begin at any date in the future, beyond the four-year protective period, whenever an employee claims to be adversely affected. It should also be noted that the reference in the above extract from Article II which assures those adversely affected employees who receive “total dismissal or displacement compensation less than that which he would receive by applying the Washington Agreement of May 21, 1936, as limited by paragraph 2 of this article, for the full protective period therein provided from the time he is adversely affected . . . (etc.),” only applies by the terms of Article II, paragraph 1, to “any such employee so adversely affected . . . within 4 years from the effective date of the [Commission’s] order approving the transaction.” Id. The Washington Agreement was thus introduced to provide the extent of the benefits for “displacement or dismissal” and not to establish eligibility for benefits for any different period than the four years provided therein. The ICC’s 1962 order previously stated: “These conditions are the same as those imposed in the Southern Control case.” 317 I.C.C. at 289 (emphasis added). The mention of the Southern Control case referred, inter alia, to the “protective period” imposed by the Commission in Southern Railway Co.—Control—Central of Georgia Railway Co., 317 I.C.C. 557 (1962). (Southern Control I). This earlier decision had imposed an identical “protective period” of “four years” and all other “conditions” on the two mergers were identical. The history of Southern Control figures importantly in this appeal. V. THE DECISION IN Railway Labor Executives’ Association v. ICC INVOLVING THE Southern Control CASE Following the final ICC order in Southern Control I on June 10, 1963, the Railway Labor Executives’ Association charged in a suit brought in the Eastern District of Virginia that the “Conditions for the benefit of employees” in the ICC Southern Control I decision should be set aside and annulled because they “fall short of the minimum requirements of the second sentence of section 5(2)(f) of the Interstate Commerce Act, and lack the ‘fairness and equity’ provided for in the first sentence of the [section].” Railway Labor Executives’ Ass’n. v. United States, 226 F.Supp. 521, 522 (E.D.Va.1964). The complaint failed to make any attack on the four-year protection period, as such. This case had been timely brought after the final ICC action on June 10, 1963, as is indicated by the December 4, 1963 argument date in the United States District Court of Virginia. The prompt decision on January 31, 1964 by a three-judge district court dismissed the complaint. On direct appeal, the Supreme Court vacated the court’s judgment insofar as it related to sections 4, 5, and 9 of the Washington Agreement, which were designed for employee protection. The per curiam opinion of the Supreme court in Railway Labor Executives’ Association v. United States, 379 U.S. 199, 85 S.Ct. 307, 13 L.Ed.2d 338 (1964), which involved Southern Control I, decreed: The judgment of the District Court is vacated insofar as it relates to §§ 4, 5, and 9 of the Washington [Job Protection] Agreement, and this case is remanded to that court with instructions to remand it to the Interstate Commerce Commission with instructions to amend its reports and orders as necessary to deal with appellants’ request that §§ 4, 5, and 9 be included as protective conditions, specifically indicating why each of these provisions is either omitted or included. See United States v. Chicago, M., St. P. & Pac. R. Co., 294 U.S. 499, 511, 55 S.Ct. 462, 79 L.Ed. 1023. 379 U.S. at 200, 85 S.Ct. at 308. Plaintiffs did not attack, and the Supreme Court stated no reason to clarify or alter, the duration of the protective period. On remand to the ICC, the Commission, in an opinion filed on November 15, 1967, clarified its prior order by adding that Southern must comply with sections 4, 5, and 9 of the Washington Agreement. Southern Ry. Co.—Control—Central of Georgia Ry. Co., 331 I.C.C. 151, 187 (1967) (Southern Control II). The Commission reasoned that “in framing the conditions to be imposed in this proceeding, we relied upon our holding in the New Orleans case that imposition of the provisions of the Washington Agreement, except for specifically rejected sections not relevant here, applied in full.” Id. This result was necessary, according to the Commission, to ensure that the minimum requirements of section 5(2)(f) would be complied with in the new situation created by its subsequent order. The Commission went on to note, however, that “compliance now [with sections 4, 5, and 9 of the Washington Agreement] will result in adverse affect [sic] to employees who, to date, have not been affected by the transaction, and requires the imposition of supplemental conditions to protect the interest of such newly affected employees.” 331 I.C.C. at 186 (emphasis added). In such event, if the four-year protective period controlled, no adjustment in employee benefits would be necessary because the four-year period prescribed as a condition to the merger in the 1962 ICC decision had expired. To correct this inequity to some employees, the Commission supplemented [its order] to provide to all employees who were employed on, or, by reason of seniority rank, were eligible for employment on, either of the applicant railroads on the date of consummation of the transaction which is the subject of this proceeding, and who have not heretofore been adversely affected by such transaction but who, as the result of the compliance by applicants with the provisions of sections 4 and 5 of the Washington Agreement, are adversely affected by such compliance, the full protections of the Washington Agreement, as specifically modified in the report of November 7, 1962 in respect to the provisions of sections 7(i) and 13 thereof, commencing on the date of execution by the parties of implementing agreements reached as a result of compliance by applicants with the provisions of sections 4 and 5 of the Washington Agreement, subject, however, to the condition that, for purposes of determining the right of claimants hereunder, the term “effective date of the coordination” contained in the Washington Agreement shall be deemed herein to refer to the date of execution of the aforementioned implementing agreement, and not the consummation date of the coordination which is the subject of the instant proceeding. 331 I.C.C. at 187 (emphasizing added). This supplementary provision created a new “protective period” in place of the protective conditions provided in the initial order. This new period would run from the date of the agreement implementing seniority and other rights under the Washington Agreement and not from the “consummation date” of the merger as provided in the 1962 order. Such authority to do equity was vested in the Commission by section 5(2)(f) and it is significant that the employment protective period was a set period of four years from the date of a specific agreement and not from the date of any adverse effect over an unlimited period in the future. Thus, because Southern had inequitably preferred its own employees in the reduced operations of the two railroads following the merger, and had not complied with the Washington Agreement, a new protective period was required during which previously benefitted employees who became adversely affected by the new conditions would be entitled to the protective conditions set forth in the prior order with the addition of those in sections 4, 5, and 9 of the Washington Agreement. From this, the respondents in the present case contend that: The Commission’s [compelled] reopening [in 1967] to clarify its prior [1962] opinion in “Southern Central of Georgia” and the apparent later uncertainty and controversy as to the meaning of the prior decision provided the rational basis for the reopening. Resp.Br. at 16. The difficulty with respondents’ contention, that the clarification of the Southern Control conditions to meet the novel situation that developed there also opens the conditions here to clarification, is that the Commission in this case has never entered any finding of any changed condition in the C & O-B & 0 affiliation that justifies the imposition of a new protective period. Thus, the decision in Southern Control II, where a new protective period was necessary because Southern had not complied with the prior ICC order (Southern I) and the new order would cause additional employees to be adversely affected, does not support the respondents’ claim that whenever any employee is alleged to be adversely affected by an approved transaction after four years from the effective date of the order, the employee is entitled to protection from the time of the adverse effect. The Commission order here clearly did not so provide. The imposition of the supplemental order in Southern Control II prescribing a new protective period was necessary to guarantee the minimum protection required by section 5(2)(f), which Southern had failed to provide completely during the first protective period. This came about when it did not comply with the Commission’s order or its collective bargaining agreement. The second protective period was thus remedial to correct past wrongs. In the instant case, there is no showing that a similar change in the 1962 order is necessary to provide the employees with the required statutory level of protection. VI. Southern Control — SUPPLEMENTATION AND CLARIFICATION DISTINGUISHED Respondents, however, also urge that the Commission in 1962 in its C & O-B & 0 decision actually intended to measure the protective period from the time all employees were first adversely affected and that the Commission should therefore be allowed to impose such conditions through the 1975 order as a clarification of an ambiguity. Resp.Br. at 12-13. Specifically, respondents point to “the import of the ‘Southern-Central of Georgia’ litigation and the substance of the interpretation in the Commission’s Supplemental Report and Order (J.A. 56-57).” Resp.Br. at 12. The facts regarding the Southern Control II decision which clearly distinguish it from this case have been dealt with already. Southern Control II created an additional protective period because Southern had not complied with the original ICC order and had dealt inequitably with many employees following the merger, the correction of which situation would cause new serious effects on previously benefitted employees. The action of the Commission in Southern Control II, however, was never claimed to be a “clarification.” That action was supplementary and was' so declared; it was designed to ensure that the minimum statutory protection was afforded all employees including those of the Central of Georgia. Thus, the Commission in Southern Control II for its authority relied on its power, found in 49 U.S.C. § 5(9) (1970), to add conditions to provide the employee protection required. 331 I.C.C. at 184. No similar need for supplementation has been demonstrated here and the absence of any record here, of course, leaves the ICC action without any support. Respondents’ reference to the “Supplemental Report and Order” points to the June 10, 1975 action in which the Commission sua sponte reversed its prior 1962 decision in this case and “[reopened the] proceeding in order to clarify its prior intent which [conformed] to the relief requested by the Unions in [a pending] court action” (J.A. 56). This reference recites the following statement from the Commission’s 1962 opinion on the C & O-B & 0 affiliation: It is our opinion that the protection afforded by the New Orleans conditions, as modified in the Southern Control case, supra, will more than meet the minimum requirements of section 5(2)(f) . The conditions prescribed in the Southern Control case conform substantially to the New Orleans conditions, with a modification in the provision respecting arbitration of disputes. 317 I.C.C. at 288 (emphasis added). This indicates that in 1962, the ICC did not consider the New Orleans conditions in their entirety to be appropriate to the facts of the C & O-B & 0 merger. Indeed, the Commission should be free in any case that comes before it to devise conditions predicated on its evaluation of the circumstances of the particular transaction, so long as it satisfies the minimum statutory criteria of section 5(2)(f). That the Commission did not choose the New Orleans conditions for this transaction is clear: We find that a fair and equitable arrangement for protecting interests of the employees of the applicant and the B & 0 and any of their subsidiaries who may be adversely affected as a result of the transaction herein approved will be provided by imposing the conditions set forth in appendix VIII hereof. These conditions are the same as those imposed in the Southern Control case. 317 I.C.C. at 289. This indicates in no uncertain terms that the' Southern Control 1 conditions were being imposed, and the pri- or quoted statement indicated that the New Orleans conditions were modified in Southern Control I. Most significantly, the Commission spelled out the exact conditions in Appendix VIII, 317 I.C.C. 346-49, in the very precise definition of “protective period,” which, as described above, limited the conditions imposed by the Commission to “a period of time . . . [expiring] 4 years from the effective date of the order authorizing the [coordination].” 317 I.C.C. at 346. Irrespective of the scope of the New Orleans conditions, the scope of the conditions for this case are clear and unmistakable: the adverse effect must occur within four years after the Commission’s order. Indeed, the Commission in its opinion specifically took notice of the union’s request that the protective period not be limited to four years from the effective date of the order: Although the association [Railway Labor Executives’ Association] urges the imposition of the so-called attrition conditions, it apparently# would be willing to accept, as the statutory minimum, the conditions recommended by the hearing examiner, subject to modifications and additions set forth in its exceptions. Specifically, it excepts to the recommended conditions in limiting the protective period to 4 years from the effective date of our order . ... 317 I.C.C. at 286 (emphasis added). This pointed reference to the “protective period [of] 4 years” indicates that by drafting the language in Appendix VIII as it now appears, the Commission in effect rejected the union’s exceptions. Now, under the guise of “clarification,” the proposed conditions which the I.C.C. specifically rejected in 1962 are sought to be instituted as the-actual conditions. This bit of administrative history belies characterizing the Commission’s action as a “clarification.” The majority also seek to uphold the Commission’s 1975 action with the claim that both the railroads and the union agreed that the New Orleans conditions should be imposed. A reading of the 1962 order, however, does not support this conclusion. The hearing examiner recommended employee protection conditions; and the Commission observed that “there is a substantial difference of opinion between the carriers involved and the association as to the conditions which should be imposed.” 317 I.C.C. at 286. This denies the agreement that the majority assert. Thus, I would hold that absent some new jurisdictional event, such as a demonstrated failure to comply with the original order, that amounts to “good cause” within the meaning of 49 U.S.C. § 5(9) (1970), the Commission is not authorized by the statute to expand the literal requirements of the 1962 order under the false guise of clarification. To recapitulate, there is nothing ambiguous about the 1962 order in this case which justifies sua sponte clarification. Respondents’ reliance on Southern Control II is misplaced. As stated by the Supreme Court, [A] simple but fundamental rule of administrative law is that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action . . . Securities & Exchange Commission v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1577, 91 L.Ed. 1995 (1947); Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 169, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). VII. CLARIFICATION AND LACHES Finally, even if the 1975 order in this case constituted a mere clarification, the Commission’s action was not timely, and this, in my opinion, is an additional sufficient reason to set it aside. Any other result would extend the protective period indefinitely, when it was clearly intended to be limited in duration. Southern Control II can be distinguished even further on this ground. There the Commission took prompt action because the union had acted promptly; it commenced its suit and argued its case within six months of the ICC’s June 10, 1963 final order. Here the union was guilty of laches in that its challenge to the adequacy of the protective conditions for the employees of the two involved railroads was not brought with any degree of reasonable promptness. We are not, of course, deciding the union’s suit, but we are concerned with the Commission’s sua sponte order while the suit for the same relief was pending. Actually, the laches of the union is part and parcel of the unreasonable delay of the Commission. In a suit brought in the United States District Court in the Eastern District of Michigan, the unions here first challenged the original C & O-B & O order issued by the ICC. That case, entitled Brotherhood of Maintenance of Way Employees v. United States, 221 F.Supp. 19 (E.D.Mich.1963), was timely brought. In it the plaintiff and intervenor-Railway Labor Executives’ Association attacked numerous aspects of the approved affiliation of the C & O and the B & 0 but did not “specifically attack” the employee protective provisions of the order which the Commission had imposed upon the two railroads as required by section 5(2)(f). 221 F.Supp. at 28. The District Court dismissed plaintiff’s complaint on August 13, 1963, and the Supreme Court on direct appeal affirmed per curiam. Brotherhood of Maintenance of Way Employees v. United States, 375 U.S. 216, 84 S.Ct 341, 11 L.Ed.2d 270 (1963). In fact, the unions never attacked the protective provisions of the ICC order in this case until March 22, 1974 when the “United Transportation Union (UTU) filed with the Commission ... to reopen the C & O-B & 0 Case [of 1962] to correct what the UTU purported to be an error in the original decision relative to the employee protective conditions . . . pursuant to 49 U.S.C. § 5(2)(f).” Resp.Br. at 3. UTU contended that during the eleven intervening years, a “de facto” merger had occurred, which caused reroutings that amounted to changed circumstances which in turn justified a reopening of the prior order. (J.A. 5-6). The Commission on that request refused to reopen the prior order, finding “no arguments or issues that would warrant reopening of the above-entitled proceeding or imposing further employee protective conditions.” (J.A. 23). A petition for reconsideration was similarly denied. (J.A. 24 et seq.). Then on February 28, 1975, UTU filed suit in the United States District Court for the Northern District of Ohio (C.A. # C75-174) against the ICC and the United States to set aside the two Commission orders refusing to reopen the 1962 order. (J.A. 39 et seq.). While this action was pending, the Commission, acting sua sponte, “clarified” its 1962 order, as described above. In short, the issues raised in the 1974 petition for reopening, which later led to the 1975 action in Ohio, which culminated in the sua sponte order by the ICC, should have been raised in the 1963 suit in Michigan. When one claims equitable relief, one must act with reasonable promptness. Russell v. Todd, 309 U.S. 280, 287, 60 S.Ct. 527, 84 L.Ed. 754 (1940); Parker v. Dacres, 130 U.S. 43, 50, 9 S.Ct. 433, 32 L.Ed. 848 (1889); Major v. Shaver, 88. U.S.App.D.C. 148, 149, 187 F.2d 211, 212 (1951). “Equity aids the vigilant, not those who slumber in their rights.” 2 Pomeroy, Equity Jurisprudence § 418 (5th ed. Symons 1941). Perhaps the obvious eonclusiveness of that defense to respondent’s Ohio action was what prompted the Commission to act on its own, hoping that great laches would not vitiate their greatly delayed attempt, to impose new conditions. But the delay here which exceeded eleven years, and now amounts to fifteen years, is substantially in excess of a reasonable period. Further, the record and briefs in the 1963 Michigan suit indicate that the rerouting of traffic, which apparently led the unions in 1974 to request the greatly delayed “clarification” of the 1962 order, was perceived as a distinct possibility as early as 1962. This is the plain implication of the unions’ reference to the harms resulting to employees by the “availability of better routes.” Thus, the very substantial delay here in changing the 1962 order should be sufficient to set aside the Commission’s “clarification.” VIII. CONCLUSION The Commission has not shown that the terms of the 1962 order, or the factual situation to which it relates, involves any ambiguity justifying sua sponte clarification. Respondents’ reliance on Southern Control II is misplaced. In Southern Control II, the Commission found the existence of an entirely new situation. This resulted from its new order caused by the delinquency of Southern in not complying with the original order, and justified supplementing the prior order. No similar situation has been shown to exist here. The Commission’s change in the 1962 order thus amounted to an impermissible substantive alteration of the terms which the Commission thought appropriate in 1962. Pursuant to section 5(9) of the Interstate Commerce Act, the Commission has the power to supplement its prior order to meet the minimum statutory requirements of section 5(2)(f). However, to exercise this power, the Commission must act for good cause, which it has not demonstrated existed here. Finally, the Commission’s modification was unreasonably delayed. For all of these reasons, it is my opinion that the June 10, 1975 Supplemental Report and Order of the ICC purporting to “clarify” its 1962 order in this case should be vacated. I respectfully dissent. APPENDIX [WASHINGTON JOB PROTECTION AGREEMENT] [MAY 21, 1936] AGREEMENT OF MAY, 1936, WASHINGTON, D. C. This agreement is entered into between the carriers listed and defined in Appendices “A”, “B” and “C” attached hereto and made a part hereof, represented by the duly authorized Joint Conference Committee signatory hereto, as party of the first part, and the employes of said carriers, represented by the organizations signatory hereto by their respective duly authorized executives, as party of the second part, and, so far as necessary to carry out the provisions hereof, is also to be construed as a separate agreement by and between and in behalf of each of said carriers and its employes who are now or may hereafter be represented by any of said organizations which now has (or may hereafter have during the life of this agreement) an agreement with such carrier concerning rates of pay, rules or working conditions. The signatories hereto, having been respectively duly authorized as aforesaid to negotiate to a conclusion certain pending issues concerning the treatment of employes who may be affected by coordination as hereinafter defined, hereby agree: Section 1. That the fundamental scope and purpose of this agreement is to provide for allowances to defined employes affected by coordination as hereinafter defined, and it is the intent that the provisions of this agreement are to be restricted to those changes in employment in the Railroad Industry solely due to and resulting from such coordination. Therefore, the parties hereto understand and agree that fluctuations, rises and falls and changes in volume or character of employment brought about solely by other causes are not within the contemplation of the parties hereto, or covered by or intended to be covered by this agreement. Section 2(a). The term “coordination” as used herein means joint action by two or more carriers whereby they unify, consolidate, merge or pool in whole or in part their separate railroad facilities or any of the operations or services previously performed by them through such separate facilities. (b) The term “carrier” as used herein when it refers to other than parties to this agreement means any carrier subject to the provisions of Part I of the Interstate Commerce Act; when it refers to a party to this agreement it means any company or system listed and described in appendices A, B or C as a single carrier party to this agreement. (c) The term “time of coordination” as used herein includes the period following tjie effective date of a coordination during which changes consequent upon coordination are being made effective; as applying to a particular employee it means the date in said period when that employee is first adversely affected as a result of said coordination. Section 3(a). The provisions of this agreement shall be effective and shall be applied whenever two or more carriers parties hereto undertake a coordination; and it is understood that if a carrier or carriers parties hereto undertake a coordination with a carrier or carriers not parties hereto, such coordination will be made only upon the basis of an agreement approved by all of the carriers parties thereto and all of the organizations of employes involved (parties hereto) of all of the carriers concerned. No coordination involving classes of employes not represented by any of the organizations parties hereto shall be undertaken by the carriers parties hereto except in accord with the provisions of this agreement or agreements arising hereunder. (b) Each carrier listed and established as a separate carrier for the purposes of this agreement, as provided in Appendices “A”, “B” and “C”, shall be regarded as a separate carrier for the purposes hereof during the life of this agreement; provided, however, that in the case of any coordination involving two or more railroad carriers which also involves the Railway Express Agency, Inc., the latter company shall be treated as a separate carrier with respect to its operations on each of the railroads involved. (c) It is definitely understood that the action of the parties hereto in listing and establishing as a single carrier any system which comprises more than one operating company is taken solely for the purposes of this agreement and shall not be construed or used by either party hereto to limit or affect the rights of the other with respect to matters not falling within the scope and terms of this agreement. Section 4. Each carrier contemplating a coordination shall give at least ninety (90) days written notice of such intended coordination by posting a notice on bulletin boards convenient to the interested employes of each such carrier and by sending registered mail notice to the representatives of such interested employees. Such notice shall contain a full and adequate statement of the proposed changes to be effected by such coordination, including an estimate of the number of employes of each class affected by the intended changes. The date and place of a conference between representatives of all of the parties interested in such intended changes for the purpose of reaching agreements with respect to the application thereto of the terms and conditions of this agreement, shall be agreed upon within ten (10) days after the receipt of said notice, and conference shall commence within thirty (30) days from the date of such notice. Section 5. Each plan of coordination which results in the displacement of employes or rearrangement of forces shall provide for the selection of forces from the employes of all the carriers involved on bases accepted as appropriate for application in the particular case; and any assignment of employes made necessary by a coordination shall be made on the basis of an agreement between the carriers and the organizations of the employes affected, parties hereto. In the event of failure to agree, the dispute may be submitted by either party for adjustment in accordance with Section 13. Section 6(a). No employee of any of the carriers involved in a particular coordination who is continued in service shall, for a period not exceeding five years following the effective date of such coordination, be placed, as a result of such coordination, in a worse position with respect to compensation and rules governing working conditions that he occupied at the time of such coordination so long as he is unable in the normal exercise of his seniority rights under existing agreements, rules and practices to obtain a position producing compensation equal to or exceeding the compensation of the position held by him at the time of the particular coordination, except however, that if he fails to exercise his seniority rights to secure another available position, which does not require a change in residence, to which he is entitled under the working agreement and which carries a rate of pay and compensation exceeding those of the position which he elects to retain, he shall thereafter be treated for the purposes of this section as occupying the position which he elects to decline. (b) The protection afforded by the foregoing paragraph shall be made effective whenever appropriate through what is hereby designated as a “displacement allowance” which shall be determined in each instance in the manner hereinafter described. Any employee entitled to such an allowance is hereinafter referred to as a “displaced” employee. (c) Each displacement allowance shall be a monthly allowance determined by computing the total compensation received by the employee and his total time paid for during the last twelve (12) months in which he performed service immediately preceding the date of his displacement (such twelve (12) months being hereinafter referred to as the “test period”) and by dividing separately the total compensation and the total time paid for by twelve, thereby producing the average monthly compensation and average monthly time paid for, which shall be the minimum amounts used to guarantee the displaced employee, and if his compensation in his current position is less in any month in which he performs work than the aforesaid average compensation he shall be paid the difference, less compensation for any time lost on account of voluntary absences to the extent that he is not available for service equivalent to his average monthly time during the test period, but he shall be compensated in addition thereto at the rate of