The Eighth Circuit has addressed this issue. In Cosby v. ICC, 741 F.2d 1077 (8th Cir. 1984), cert. denied, 471 U.S. 1110, 105 S.Ct. 2344, 85 L.Ed.2d 861 (1985), the court stated, "If Congress meant for section 11347 to apply only to employees who worked for rail carriers and not all the employees affected by the merger, the clearest way to express this restriction would have been to leave the relevant language in section 5(2)(f) as it was." Id. at 1080.

Id. at 240. The standard of scrutiny the ICC adopted for allegations of misrepresentation was borrowed from Cosby v. I.C.C., 741 F.2d 1077 (8th Cir. 1984). The ICC held that "the standard in rail cases for analyzing allegations of misrepresentation, such as here, is whether there has been a showing of an affirmative misrepresentation of a material element, followed by detrimental reliance by the employee."

Two other circuits have considered the issue with opposite results. In Cosby v. ICC, 741 F.2d 1077 (8th Cir. 1984), cert. denied, 471 U.S. 1110, 105 S.Ct. 2344, 85 L.Ed.2d 861 (1985), the court held that employees of an exclusive auxiliary-to-rail motor carrier were "employees" within the meaning of the Act because the motor carrier was "intimately tied to the railroad's main transportation function." Id. at 1081.

On appeal, this court reversed the ICC's decision, holding that the petitioners were entitled to receive benefits in accordance with the protective conditions under the ICC's merger order. Cosby v. ICC, 741 F.2d 1077 (8th Cir. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 2344-45, 88 L.Ed.2d 861 (1985). We remanded the case to the ICC "for a computation of benefits."