Union Pacific has asked the Surface Transportation Board to overturn a ruling that would make public its recording of a March speech in which CEO Jim Vena allegedly threatened to hike rates for shippers who opposed the railroad’s merger with Norfolk Southern — remarks that rival Canadian Pacific Kansas City says “chilled” shipper participation in the proceeding.
UP filed its appeal and a request to delay the release Friday, Oct. 30, the day Administrative Law Judge Jenifer J. Soulikias had set for a public version of the video to be turned over. The recording was made at a Houston meeting of the Southwest Association of Rail Shippers. Sen. Tammy Baldwin (D-Wis.) and merger critics say Vena’s words amounted to a threat to punish shippers who did not publicly back the deal; UP insists it “did not threaten anyone,” and says the remarks were taken out of context.
The railroad argues that releasing the video would cause “irreparable harm” by letting anyone “edit, clip, manipulate, and distribute” it beyond the proceeding, and calls the judge’s reasoning “a clear error of judgment.” UP says parties to the case can already view the recording and use it in filings. As a fallback, it offered to post the video on its own website — but only if the board keeps it classified as confidential.
CPKC, which last week asked the board to throw out the merger application entirely, responded Monday that UP blew its deadline. Under the board’s prior direction, appeals were due within five calendar days of the judge’s Oct. 23 decision — Oct. 28. CPKC called UP’s silence on Oct. 30 “nothing short of contemptuous” and a “calculated strategy of running out the clock” before the Nov. 18 comment deadline. UP counters that its filing fell within the seven days STB rules allow.
BNSF, CSX and the Joint Shippers Association, representing five shipper groups, filed their own objections, calling the appeal a delaying tactic. BNSF said releasing a public speech cannot cause irreparable harm, and warned that letting UP host the video itself would give the railroad control over how it is used and let it track viewers. The shippers labeled the appeal “frivolous and blatantly untimely.” CPKC has promised a fuller response by Wednesday, Nov. 4.
— Nick Stewart
