Video of the Vena Address Must Be Released

Published: November 5, 2026

WASHINGTON — The Surface Transportation Board on November 4 denied the Union Pacific appeal and ordered the railroad to take the confidential label off the recording of a March 17 address by chief executive James Vena. A copy must go to every party of record, with a verified certification filed by 5:00 p.m. Eastern Time on November 5. The case is Finance Docket No. FD 36873, the proposed control of Norfolk Southern.

Union Pacific ES44AC 5316 near Fingal CA in 2017

Union Pacific ES44AC #5316 leads an eastbound intermodal train across the desert near Fingal, California on May 5, 2017.

The appeal was two days late

Administrative Law Judge Jenifer Soulikias, in Decision No. 43 served October 23, had already ordered the recording redesignated as public by October 30. Union Pacific appealed that order on October 30, the same day, and asked for a stay. Decision No. 30, served August 18, requires any appeal of a judge order to be filed within five calendar days. October 30 was two days past that deadline. The appeal offered no excuse for the miss.

The October 23 order gave the railroad seven days to comply so it could appeal before the recording had to be released. The Board said that window did not extend the five-day appeal clock, and that a judge cannot extend a deadline the Board itself has set unless the Board delegates that power. A timeliness argument Union Pacific made on November 2, answering a motion to enforce, was itself too late. It had to be in the appeal.

The Board also rejected the claim that a late filing hurt no one. Comments on the revised application are due November 18. Each day the recording stays labeled confidential, the Board said, prejudices parties and other people who may want to comment. The appeal is denied as untimely. The stay motion is denied as moot. A motion by Canadian Pacific Kansas City to enforce the October 23 order is denied as moot for the same reason.

A speech to about 900 people

The Board would have denied the appeal on the merits even if the filing had been on time. Vena gave the keynote on March 17, 2026, at the annual conference of the Southwest Association of Rail Shippers. The association site, as the Board read it on November 4, listed about 900 attendees from across the rail industry, including competitors. The judge had already called the conference a public event. Nothing in the record showed that people in the room were barred from making their own recordings.

The protective order in the case covers traffic data, the identification of shippers and receivers together with shipper-specific traffic data, the confidential terms of shipper contracts, confidential financial and cost data, and other confidential or proprietary business information. It does not, the Board said, protect a recording merely because Union Pacific paid for it and owns the file. The words and the delivery were not confidential business information. Judge Soulikias put the point this way: “If there were any confidential or proprietary business information contained within Mr. Vena’s Railroad Executive Keynote Address, by sharing that information publicly, that confidentiality no longer exists. The information is now public.”

Union Pacific asked, in the alternative, that the Board order the railroad to post the recording on the company website and still keep the confidential label, so other parties could not use it. That request is denied. Letters opposing the appeal, or supporting the motion to enforce, came from Canadian Pacific Kansas City, the joint shipper associations, BNSF, CSX Transportation, and Ruth L. Tines.

What the recording is about

The Board, working from the recording, said that in answer to a question about whether the transaction would be approved, Vena discussed potential actions Union Pacific might take against shippers related to the views they express on the merger. Union Pacific has not challenged the authenticity of the recording. The decision does not reprint the remarks.

In a July 27 supplement the applicants said they “will treat all customers and stakeholders fairly, regardless of the views they express.” A letter from Vena filed the same day said: “We’re confident in our plan and its great public benefit. When we talk to our customers, they see the benefits too. We are not threatening them. We want their feedback, so we can better understand their business and help them win in the marketplace.”

The Board said it will not tolerate actual or threatened retaliation against a stakeholder for taking part in this case or any other case. Perceived or actual retaliation, it said, can undermine the process. Evidence of it may affect whether the case continues, how statements of support are weighed, and what to make of who does and does not take part. It may also bear on market power. The Board has not decided those questions. It said this order is not a ruling on whether the proceeding should go on.

Canadian Pacific Kansas City, in a letter filed October 30, asked the Board to dismiss the revised application. The applicants must answer that letter by November 19. The dismissal request itself will be decided later. The October 30 letter is already covered on this site.

Comments, documents, and a hard clock

Anyone who files and serves both a comment and a notice of intent by the November 18 comment deadline will be treated as a party, even if no notice was filed by the earlier September 30 date. Notices of intent filed before November 18 are accepted without a separate motion for leave. The Board granted leave for late notices from Atlantic Railways, William Boyle, CNJ Rail Corporation, and Eric Strohmeyer. Stakeholders, including trade associations, may tell the Board about alleged perceived, threatened, or actual retaliation. Those filings may be marked confidential or highly confidential under the protective order of August 5, 2025.

Separately, Union Pacific must file documents and verified statements answering the production requests and interrogatories in Appendix A by December 4, 2026. The period is July 28, 2025, through November 4, 2026. The search is limited, at least at the start, to a listed set of custodians, including the chief executive and people in marketing and sales, operations, and external relations. It is not an enterprise-wide search of every employee. The responses go to the Board and to the parties of record. They may be designated confidential or highly confidential.

The redesignation itself is on a shorter clock. By 5:00 p.m. Eastern Time on November 5, Union Pacific must certify that the confidential label is off the recording and that the redesignated copy has been given to all parties of record. If that certification is not filed by then, the Board anticipates a later decision that would hold the proceeding in abeyance. That later order would toll the schedule, including the November 18 comment date, until the railroad certifies compliance and the Board sets a new schedule. This report does not say whether the afternoon filing has been made.

No private meetings with Board members

In the same decision the Board denied an October 6 request from the applicants to allow Board members to initiate ex parte communications and technical conferences. The prohibition on those contacts in rail merger cases stays in place. The Board cited the complexity of the case and the load of writing up a large number of meetings. There are about 1,000 parties of record. If a particular issue later calls for a technical conference, the Board said it will tell all parties at that time. A staff liaison may still give informal opinions on the format of a responsive application. Those opinions do not bind the Board. The rules for those applications are in a companion decision served the same day.

Sources

Surface Transportation Board, Decision No. 45, Union Pacific Corporation and Union Pacific Railroad Company—Control—Norfolk Southern Corporation and Norfolk Southern Railway Company, Docket No. FD 36873, decided November 4, 2026, served November 4, 2026. The appeal of the October 23 redesignation order is denied as untimely and, separately, on the merits. The stay motion and the motion to enforce are denied as moot. Certification that the recording has been redesignated and served is due at 5:00 p.m. Eastern Time on November 5, 2026. A missing certification would be followed, the Board anticipates, by an abeyance order tolling the schedule. Applicants must respond to the October 30 Canadian Pacific Kansas City letter by November 19, 2026. Document production and interrogatories in Appendix A are due December 4, 2026, for July 28, 2025 through November 4, 2026. The October 6 request for Board-member-initiated ex parte communications is denied. Comments and a notice of intent filed by November 18, 2026, make the filer a party. Late notices filed before that date are accepted. By the Board, Board Members Fuchs, Hedlund, Kloster, and Schultz.
The March 17, 2026 address, the count of about 900 attendees, the July 27 supplement, and the July 27 letter from V. James Vena are as described in Decision No. 45. The decision does not reprint the remarks. This report does not reprint them.
Decision No. 43, served October 23, 2026, and Decision No. 30, served August 18, 2026, are cited in Decision No. 45 for the redesignation order and the five-day appeal rule. The earlier stay request is covered in the October 30 filings already reported on this site. This article does not replace that report.

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