The Surface Transportation Board on Wednesday rejected Union Pacific’s appeal to keep a recording of a March speech by CEO Jim Vena out of public view, saying the remarks may chill participation in its review of the proposed merger with Norfolk Southern. In the speech, Vena allegedly threatened to hike rates for shippers who opposed the merger. UP has denied threatening anyone and says the comments were taken out of context.

UP appealed administrative law judge Jenifer J. Soulikias’ ruling ordering the recording released, arguing that releasing it before the Southwest Association of Rail Shippers would cause “irreparable harm” and “undue prejudice.” The board rejected the appeal on two grounds: the filing arrived two days past a five-day deadline, and the arguments “wholly lack merit.” The protective order at issue, the board wrote, “does not require parties to safekeep information that UP itself disclosed in a public speech to 900 industry stakeholders.”

The railroad asserted that because it owns the recording, it should also have control over its release. The board disagreed, saying the order “exists to protect information,” not “the custodian’s ownership interest in the medium in which that information is contained.”

UP must certify by 5 p.m. Thursday that it has given all parties a public copy of the speech; otherwise the board will suspend the proceeding and reset its deadlines. The board also invited parties to report “any alleged instances of perceived, threatened, or actual retaliation,” which would be filed confidentially, and said it will accept comments from any interested party by the existing Nov. 18 deadline, even those that never filed a notice of intent to participate.

Rival railroad CPKC has asked the board to toss the merger application, arguing that Vena’s remarks have “irretrievably tainted” the proceeding. The board ordered UP and NS to respond by Nov. 19 and said it will rule on the dismissal request in a later decision. 

— Nick Stewart