The Surface Transportation Board ordered Union Pacific to publicly release a video of CEO Jim Vena's speech to shippers, finding that his remarks about potential actions against customers based on their merger views may be discouraging stakeholder participation in the regulatory review of Union Pacific's proposed acquisition of Norfolk Southern.
- The STB rejected Union Pacific's appeal and ordered the CEO video released publicly by Thursday at 5 p.m. ET
- CEO Vena's March 17 speech discussed potential actions Union Pacific might take against shippers based on their views of the merger deal
- The board is investigating possible retaliation against stakeholders, with documents due by December 4
- Union Pacific must produce communications referencing actions tied to customers' support, silence, or opposition to the merger, including rate and service changes
- The board opened comment filing to any interested person by November 18, regardless of prior notice of intent to participate
The Surface Transportation Board (STB) has ordered Union Pacific to make public a recording of CEO Jim Vena's speech to a shipper conference, saying the remarks may be discouraging stakeholders from weighing in on the railroad's proposed acquisition of Norfolk Southern.
In Decision No. 45, served Wednesday, the board denied Union Pacific's appeal of an Oct. 23 administrative law judge order that removed the "confidential" label from the video. The board gave Union Pacific until 5 p.m. ET Thursday to provide the unrestricted recording to all parties of record. It also ordered the railroad to file documents and sworn statements on possible retaliation against stakeholders by Dec. 4, and to respond by Nov. 19 to a request from Canadian Pacific Kansas City (CPKC) to dismiss the merger application.
"The Board will not tolerate actual or threatened retaliation against a stakeholder for participating in this or any other proceeding before the Board," the board said in the decision.
What prompted the order
Vena gave the keynote address March 17 at the Southwest Association of Rail Shippers (SWARS) annual conference, which drew about 900 attendees, according to the decision. Based on the recording, the board said, Vena responded to a question about whether the merger would be approved by discussing potential actions Union Pacific might take against shippers based on their views of the deal.
The board first flagged public reports of the remarks in July. In a July 27 letter to the board, Vena wrote: "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 has "serious concerns" about whether the statement "may be influencing certain stakeholders' willingness to participate in this proceeding or share their own views without fear of commercial repercussions."
Why the appeal failed
The board rejected the appeal on two independent grounds. First, it was late. Board rules in the case give parties five calendar days to appeal a judge's ruling, and Union Pacific filed Oct. 30, two days past the deadline.
Second, the board said the appeal lacked merit. Union Pacific argued the recording was proprietary because it paid for the video and owns it. The board said the case's protective order covers confidential business information, such as traffic data and shipper contract terms, and "does not protect the medium in which already-public information is contained." The speech was delivered at a public event with no indication that recording was prohibited.
The board also turned down Union Pacific's offer to post the video on its own website while keeping the confidential designation, which would have limited how other parties could use it. Had Union Pacific failed to certify compliance by the deadline, the board said it expected to put the entire proceeding on hold.
Retaliation inquiry targets sales and operations
The document order covers July 28, 2025, through Nov. 4, 2026. Union Pacific must produce communications with customers, other railroads or vendors that reference actions tied to a party's support for, silence on or opposition to the merger, including actions on rates, service, infrastructure investment and contract terms. It must also turn over internal customer maps, profiles, tracking documents and risk assessments that sort customers by their stance on the deal.
The search covers the CEO and president, marketing and sales staff down to account representatives, operations executives, and external relations, strategy and supply chain leaders.
The stakes for the merger review are direct. The board said evidence of actual or threatened retaliation could affect how much weight it gives statements of support for the deal, what it concludes from the level of stakeholder participation and how it assesses market power.
Door opened for shippers
For grain elevators, processors and other rail customers still deciding whether to weigh in, the board loosened the rules. It will accept comments from any interested person filed by the Nov. 18 comment deadline, whether or not that person filed an earlier notice of intent to participate. Anyone who files a comment and a notice by that date will be treated as a party.
Stakeholders, including trade associations, are invited to report any perceived, threatened or actual retaliation and may file that information as confidential or highly confidential. The board also denied the applicants' request to allow board member-initiated private meetings, known as ex parte communications.
BNSF, CSX and the Joint Shippers Associations filed letters opposing Union Pacific's appeal or supporting CPKC's motion to enforce the judge's order.
Union Pacific's response
Union Pacific has posted the video on its website alongside a statement saying the remarks should be viewed in the context of the full speech.
"Let us be clear: Union Pacific does not retaliate against customers. A customer's position on the merger will not determine its rates or how we deliver service," the railroad said.
The company said more than 500 of the more than 1,000 participants in the proceeding are customers who support the merger, representing more than 30% of Union Pacific's volume.
The board said its order does not decide whether the merger review will continue. It will rule on CPKC's dismissal request after Union Pacific's Nov. 19 response, and the retaliation documents are due Dec. 4.
