MENDOCINO COAST RAILWAY, INC: LEASE AND
OPERATE'--CALIFORNIA WESTERN RAILROAD
Division I hod prcvloutly determined that the appropriate labor protective provisions to M Imposed Is F. D. No. 21717 and other ordinary trackage rights ester were those established in Oregon Short Line R. Ca-Abwwlonmewr-Owbew, 731 LC.C. 311 (19711 (battle retained to o Orcyow I!). wish a modification of the definition of "transaction" in article 1. Section I(Q of the appendix ro Owl" Il. TM term "transaction." In the east of trackage rights, win redefined to mesa acquisition by a railroad of trackage rights over. Mae ownership In. or joint on of. any railroad line or limes oweed or operated by any *that railroad, sed terminals Incident IMnte.
Division I had previously determined that the appropriate labor protection provisions to M Imposed In F. D. No. 21136 and other bees trees involving certain railtoads wen thou established In the loos 21. 1971. decision In f. D. No. 21117. w111 a modification of the de0ehlw of "Instruction" In ankle 1. notion I(m). of the ppeedia to the decision In F. D. No. 21717. TM term "uenssetlon; in IM ease of Icons. we redefined to include and mean lean or operation by one nil carrier of the properties. or peel otlhe properties. of another ell carrier.
Oar rcopenlnp of then proceedings were prompted by the reconsideration and modifications of the employee protective conditions epproprbn for Imposition in various types of nil trelwetlont. &e oar decisions served February 27, 1979, In AB-M (Sub-No. 21. Oregon Short Line R. Cu-.Ilsndonmenr--Owhen (Oregon l1ll. 760 LC.C. 91 (1979), and in F. D. No. 21250, New York D«R Ry.-Cewfroh-1rooRlyw Eastern Door. (New York D«R IlL 760 LC.C. 60 (19791. Oregon III established the minimum provision f« the protection of employees to apply In see The usual mail aboadommene proceedings. New York Dock H, established the mldmem provisions for the protection of employee to apply In ell the ewd ell proeeedlnp under 19 U.·.C. 11343 et era.. (except trackage rights and hose eases). TM rcopenlnp were especially designated to permit IM peeks to comment on the "changing law" b the me of employee protection a It Telerate to the geese and torricksge rights situation.
Prior to entertaining then comments. a preliminary matter requires disposition. On April 7, 1979, RLEA petitioned to emwIIWete disposition of F. D. Not. 21717 and 21236. The seine Issues arc Involved la tub docket to wit: the Interpretation of 49 U.f.C. 11717 (former section f(2N0 of the Interstate Commerce Act) In the light of IM developments in New York Dock II and 360 LC.C.
Orcfew Ill. Also the comments collie served pulls have been filed V If consolidation had been effected. Accordingly. RLEA's petition shell be granted.
The Association of American Railroads (AAR) also petitioned on April 70, 1979, for leave to Intervene and to file tendered comments. Its participation m this stele of the proceedings will not unduly bromides the Issues. Accordingly, the petition shell be granted and Its comments shell be accepted for filing and con. eldsnlkw.
TM lent 21, 1971 decision In F. D. No. 21787 affirmed prior decisions of Review Board Number 3 in the trackage rights proceeding which had imposed the condmons for the protection of setpMytee discussed in Oregon Short Line R. Co.-Abenlenmeel--0«Arn (Oregon ll. 73· LC.C. 76 (1977), but a modified by Orcpw II.
The Oregon I and Oregon Il decisions incorporated the provisions elf the arrangements for the protection of employee negotiated between EM National Railroad Passenger Corporation and various railway employee representatives and approved by the Secretary of Labor an April 17, 1971 (commonly known a the appendix GI eowdltkea4 Ankle I.sectimi,it,ol'appenclixC-1 requires the giving d 10 de)e' notice of a transaction but d«t not preclude conammetlon of a tnnuction prior to the entry Into a negotiated ynemsel for 1M protection of employees. Such provisions are lea Journal" of the interests of employee and inconsistent with homeless I and 3 of The Washington Job Protection Agreement of 1916 (WJPA) customarily Imptfrcd In merger or control type tact. See New Orleans Union Passenger Terminal Case. 282 I.C.C. 271 (1937) TM linger provides for 90 days' notice of a coordination and requires that any reassignment of employees be bead on s prior yreemeel between the cortices and the organization of affected employees.
In the loot 21, 1978 decision In F. D. No. 28717, the division noted oboe In the put the Commission imposed different employee protective provisions in different type of cues under 49 U.S.C. 11717. The conditions which were ordinarily imposed in trackage rights caret arc shoo contained in OelaAome Ry. Go. Trustees Abandonment. 237 LC.C. 177 (191111which excluded sections 4 and S edition W1PA). The conditions which were ordinarily imposed IW ICC.
656 INTERSTATE COMMERCE COMMISSION aE10eTiIN eelter or control type cans are these contained In New O'lesm Union Ieoengrr Trnnlnel Cue, 282 LC.C. 171 (1932) (which Included Sections I end 3 of the W1PA).
The division declined to impose sections I and 3 of she WJPA to The Involved trackage rights care. It Noted that Congress in enacting the Railroad Revitalization and Regulatory Reform Act of 1976 (the IR Act), which encoded former seethe 3(2)1Q d the Interstate Commerce Act (the predecessor to current section i 1117). end which added seethe Is (the predecessor to current section 1f1907). was Rivers of The fats that different employee protective conditions had bees used In different types of Commlulrmepprovsd enneaetlwa Division I aim noted that nothing In The 4R Act expresses any disapproval of the application of different conditions h diRercel saes. In Imposing a modifud version of the provisions for the protection of employee found In Oregon 11 the Iii" In offset, Imposed the appendix C-1 provisions established prrwum to If U.f.C. 363. which in turn Substantially include eel the provisions contained In the ORkhome sate.
As previously Noted. the prior decision In F. D. No. 21236 adopted the provisions found to be applicable in F. D. No. 28387. Thsu the employee protective provisions imposed in Oregon II (In turn bunt a liens modification of the appendix C·1 provisions ealeblbhed petwaet to 13 U3.C. 363) became the Source for the provisions for the protectbn of employees emended In then trackage rights cad leas teas.
M previously awed. F. D Nor. 21236 and 21717 were reopened for the limned purposes ofiserroolithill comment on the changing law Y 16e light of the Oregon /if and New York Dock II decisions. The coaditbas for the protection of employees Imposed in New Yon1 Dock It am Instrumentally similar to the conditions Imposed in she Orogew III case. Accordingly. In considering the "changing few," we shall limit nor discussion to then modifications of Oregon It sRecud by Oregon III.
of In prior definition a "en abandonment or discontinuance pursuant to section It of the Interstate Commerce Act-:
2. Rephrased the proviws to union ) to permit concur«m entitlement to nonsimiler employee protective benrfils extended punwat to (e) O«ton III end (b) a Preexisting arrangement, end, upoe eaplrnbn of she period for which the employee is entitled to protection under the arrangement elected by him. to his consecutive entitlement to all employee benefits under the arrangement not previously elected. If Then unexpired;'
1. Rewrote section I to direct 90 days'. in lieu of 20 days'. advance notice of transaction which may effect employees and to compel en agreement between a terrier and employees in advance of any changes In operations. services, facilities or equipment:
I. Modified section 9 (inadvertently referred to as scclion a in Oregon f!I) by delellnt the express exclusion from reimbursable movies Expenses, (host expenses which are incurred in connection wish a change In residence made subsequent so she initial change or which grow out of the normal Exercise of seniority right;
3. Changed section 12(e)(Iq so l2(e)(iiil end inserted union 12(eXll) a originally contained in Oregon I expressly to protect en employee who not only own his or her home, but who is under e control so purchase his or her home where ht or she is required to change The polo( of his or her employment as a result of the transaction; end
6. Modified section 1I(b), which under Oregon U expressly had excluded from application under Section 12. (hose changes in places of residence made Subsequent to the initial changes caused by the transaction end growing out of the normal exercise of seniority rights, Limply to exclude from application under section 17. Those changes In place oI residencc which ere not the result of «snn<lion.
Consolidated comments were filed in both proceedings by RLEA, the Brotherhood of Locompllve Engineer (TILE), end the AAR, Comments in F. D. No. 21236 were filed jointly by Mendocino
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Cast Railway. Inc. (MCR) and California Western Railroad (CWR). Comments in F. D. No. 11)17 wore filed separately by the Norfolk and Weuen Railway Company (N!W) and by the Burlington Northern Inc. (JIM
AICR and COMM jointly, and NIiW and BN separately. replied to BL6s and RLFr11 comments, and RLEA replied to the comments d MCR. CWR. MON. BN, and the AAR.
BLE and RLEA believe the Commission should modify she provisions for the protection of employees in the same manner as Oregon 1/I modified Oregon II. Their position Is predicated on the awe pnmYe previously advanced in these proceedings a well a in the Oregon Short Line and New York Dock H can&. They contend tot the provisions previously established In the Involved proceedings a well n In Oregon Il bit to provide the minimum prolyetkne required under 19 U.S.C. 1090)(6)(11 end 11347. Their position h 1M1 else sections require leech of protection at least as protective to the interests of employees a those connived In New Orbgwr Union Pguenger Terminal Case. 111 LC.C. 171 (1931), which Is ism applied applicable provisions of the WJPA. They ape that tie Commission conceded o much by undertaking so affect flux modifications to Oregon ll In Oregon 111. They funAcr claim that the New Orleans cue contains benefit* which an neither contained In appendix C-t nor New York Dock lI and therefore New York Dock It itself require further modifications.
The position of the carriers Is largely represented In the communist of the AAR except as noted below.
The AAR believes slat Incorporation into article 1. section 4. of 11s requirements of secllons 1 and 3 of the W1PA (which require extended 90 dap advance notice and preconsummation finalized neptWloesJ undermines the congressional purpose in enacting she 1R Act. This h SO. AAR argues, In light of the absence of such equivalent provisions in appendix C.I. as established pursuant so 45 U3.C. 363. AAR believes that the Commission In New York D"k 1I god Oregon Ill lax already disregarded the legislative history of the IR Act.
Specifically. agues AAR, Congress simply intended to require a fair god equitable arrangement for the protection of employees containing lieneffis no less then those established pursuant to 49 U3.C. 11117 and 105(6) of the Rail Passenger Service Act (43 U3.C. 365(6)1. However, labor protection under action 103(6) Involves only substantive provbtonr. This section dots not involve Procedural protections lice thou involved In Sections I and S of WJPA.
AAR points to the recent recodifi<uion of the Interstate Commerce Act by Public Law 93-17) (effective October 17, 1976) k particular to section 1090)(DNl) which provides that the 'provhldu shell be a lean n beneficial to those interests n the Provisions established under 11717 of this title Ihrrmer union J(Il(fll end section J61f6/ of Title 15 frrcrlon IO3fbl o/ RPSA/.According to the AAR, the Preamble to the Revised Act indicated tAel the art h being revised without substantive change. Accordingly. 11 follow: that all references to section 563 of tine 13 V contained In the all An of 1916. specifically in favour action IOM and SIM of she Interstate Commerce Act. a well n in current action 11717, must mean action 365(6) of title I3.'
Ateordlng to the AAR a requirement of a prcconwmmued implemented employee protective arrangement is also inconsistent with The put practices of she Commission. Such arrangement would unduly Interfere with the issuance of temporary service orders allowing the curler to caerciu trackage rights pending Commission action upon a section 11)11 application because of an emergency need for servlee.
AAR afro elate that the more specific definition of transaction of pertains to trackage rights and lease casts, need not and should not be changed. This h to because (here If no need to implement other chanter In the employee protective provisions. Specifically, AAR argues shot the reason for broadening the definition of transaction in New York DxR If and Oregon fit was to mate it more compatible with the notice and preconwmmuion negotiation provisions hlCOrponrcd Into article I, action 1. However. These provisions have no application to trackage rights and Jesse transactions. Finally. AAR afro objects to the unions' proposed modificaiion to article 1, section ).
AAR argues shat if Congress. by the IR Act amendments. had Intended generally to adopt appendix C-I (which by in express stems prohibited both the "duplication and pyremidinj' of separate employee benefits) a the Commission has previously concluded, stars It giro must have Intended to adopt the interpretation given to
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IM well" by The arbitrator In 'Arbilnlbn of Penn Central Transportation Company and BRAC," (197th by his award of lenaary 6, 1971. AAR also raises a point of ekrflknloa aoHng that W kkk 111 to appendix III In New York Dock !I contains Irrelevant nknsscn to employees of separately Incorporated terminal rawpuka. Although the Commission concluded In Oregon ll that Batch provision wn irrelevant end defied shat provision. It failed similarly to exclude the provision in New York Dock II without npknlion.
AAR time not question a proposed change In article 1, section 11(t)!li), to cover loon arising from a contract to purchase a resistance. 11 argues, however. IMt the changes effected In Oregon 111 and New York Dock 11 In sections 9 and I1(b) en not necessary If the Commission wen not to redefine The definition of 'tnapdfoe." AAR contends In particular that It Is reasonsetil to link 1M cartlefl obligation to one change of employee's reside: cc' Changes which grow me of the normal exercise of eenloHly rights, although allegedly unnecessary (inasmuch n They would not. In any count. M a remit of a lnnnetlonl. should not M ellmlnled a The language reach to discourage astfatifled claims.
BN submits a copy of to agreement between representatives of the railroads tad railroad brolMrhoodl transmitted to the Secretary of Labor under a latter o( Jelly 1. 1976. II b an arrangement prescribed 6y The Secretary d Labor which contains the language which BN ogee should M substituted for article I, section 1 (If indeed any eMyee arc to M effected k chat action). to be applicable to lean tad Irnctqe rights proceedings.
Thee language clearly establishes that an employee may not concurrently enjoy the benefits under Iwo arrangements. MI may upon expiration of the effective period of the arrangements fins elected. enjoy the protection under any uneleercd arrangement for the remainder, If any, of the unexpired term of protective period trader the amngeneet not tint elected.
HAW points wt that arbitration of disputes by rcfcrcn sometime exceeds I1 months In disregard of 1M stated schedule of uncle I, welYal 4. Implementation of the preconsturnmallon negotiation requirements in trackage rights authority may thus delay eonpsmmalion far beyond The 90-day period of advance notice nqutnarcnsa 11 urge the eJupslun of the employee Protective coWltions eel forth In Oklahoma Ry. Ca. Trustees Abandonment. 177 LC.C. 177. 197-101 (1911), with cereals, modifications to the lpptedia C-1 conditions.
MCR and CWR note shat the Commission held in in prior decision In the lane proceeding thus, it would be redundant to Impose both the Oklahoma protections and protections under section 107 of RPSA laic, the appendix C-I prorccliunsl. because IM appendix C·1 protections include and go beyond she Oklahoma protections. They believe, however. that they should be subjected only to the Oklahoma protections, as their proceeding involved only an extension of prcesisting lane. Therefore, no employees were displaced n e result.
The comments for the most part simply reiterate the prior positions advanced by the parties in these proceedings concerning kgH loan resolved by the prior decisions in the involved trackage rights and lease teats. As such. they largely fail to focus on the issue of why end to who extent the changes in the law advanced by the Oregon III decision should be Incorporated into the provisions for the protection of employers in trackage rights end lease cares.
Preliminarily wt agree with the conclusions of division I in F. D. No. 117·7, end former division J In F. D. No. 78736. The conditions for The protection of employees a imposed in Oklahoma Ry. Co. Trustees Abandonment. 137 LC.C. 177 (1971), were ordinarily Imposed In both trackage rights end lane coca under former me. lion J(1) of the Interstate Commerce Act, prior to enactment on Febnary S, 1976, of amendments so that section. See also Chicago. Ss. f., M. d O. Ry. Ca Lease, 195 LC.C. III 119561. Hence Imposition of the Oklahoma provision for the protection of employees, n supplemented by the applicable provisions established pursuant to section 105 of RPSA (t5 U.S.C. 363) (i.e.. the appendix C-I provisions, ergo. (hose imposed by Oregon Il) would satisfy the statutory mandate under section 11717.
However. II would be somewhat redundant to impost both the ORkheme provisions and she appendix C- I provisions. Appendix C1 In many respects is an asset copy of the standard working conditions contained in the ORlahoma Case. Sec the pour decision In F. D. No. 28387 and in Oregon It. 731 LC.C. 584 a 391. Hence the pilot dec111on In F. D. No. 11117 appropriately incorporated the Oregon lI provisions wish Highs modifications and the prior decision in P. D. No. 28256 appropriately referenced the decision in F. D. No. 28387. Me LC.C.
Wf INTERSTATE COMMERCE COMMISSION REPORTSThis rcewalng k not inconsistent wish the rationale in the Oregon Ill mad Nor Yor! Dock II decisions. Both decisions acknowledged IM taceqionel-type eases under section 11117 et seq.. represented by trackage rights end kale comes. In our recent decision In the Oregon Short Line care, Served February 11, 1979. we determined that the Oregon l11 provisions should not have retroactive application to abandonment proceeding finally determined prior to the Oregon Ill decbkn, an the buff, Interdk, IMI IM appendix C1 conditions adopted wish mine modifications in Oregon Il would appear to widely the mandate under well" 10901.
Nevertheless. In reaching the conclusion In Oregon Ill that the employee protective prevision to apply kesiceforth In abandonment /rcrpoeek should M similar to the minimum employee proleeHve provisions applying In merger me coutrol-type transactions under section 11343 of sq.. we elected to consider the previsions eranawily Imposed In want transactions rather than the atypical transaction order 11343 et arq.. to which section TIN) k applicable.
Hore4er. In respect so Specific types of transactions under section 11343 et selp. we may took to the differences between such transactions to determine whether Chow minimum protective provisions Imposed prior to February 1, 19)6 (the dart deneelmcnt d the IR Act). wry depending an the nature of the Instruction.
We shall now consider she "changing law" resulting from Ike Oregon fit decision in the light of she comments of the parties.
We disagree with the position advanced by the carriers that advanced prcconwmmuion miles end finalised negotiations would frustrate !M Commission's ability w enter entergcocy Service order. Section 1171) applies to matters arising in conjunction wish applications under section IINI, cud under section 10907. Our tervke order, however, wire under enter slim Sections 11121 ' 11111. 11111. end 11113. Section I I11J(e)(1) Simply requires that The directed carrier assume existing employment obIIpHons of the other carrier.
M e general matter, trackage rights and lose InnfecVons BeqrMly have knee employee disruptive impacts than those nwhlp from other types d transactions. e.g.. where the trackage rights for him irmasullon contemplates the shared use of facilities with so ear cervices Invoked. A transaction Involving the renewal d e preexisting Item b likely so have no employee impacH
The greatest impure ere likely to result from such transactions where They an related to abandonment, of service or to anticipated mlrgen requiring our approval. However. in such circumstances, then employees would be protected by the provision established in Oregon Ill and New York Dock lI which would be incorporated into easy tulhorlrallons In the related proceedings.
In (here circumstances we find lime justification for ascending e blanket imposition of provisions requiring substantially advanced pneonwmmellon notice end finalised preconsummetion negOllmIoM with "Interested- employees when possibly chart ere no substantial number of employees likely to be adversely affected by a treetegs rights or lean narration. Typically, most of these 1neltelioas arc not apposed by terriers or members of the shipping public end their eeptdhlous consummation would be in the public Internet.
In such circumstances. such a blanket requirement could encourage, IM rising end necessary resolution of matters having no M11tk1 relation to the particular trackage rights or taco proceeding involved, revelling in the abuse of the labor protection proees4 To delay possible improvements in preexisting Service tearing from trackage rights or lease transactions. because of the delayed negotiation of unrelated matters. would not be in furtherance of the public Interest. Of course. This does not preclude IM eonaldenllon in particular caste of grcster levels of protection to ensure the employees ere not Wvenly impacted as a result of the snnNelton where she need therefor has been specifically established.
Ws conclude that The modifications in critic I, section I. ellRtted by Oregon III should not M adopted In trackage right/ or Sam proceedings a the Dnk for the minimum protections fur employees.
For the mine reasons we find Is advisable so retain the more specific definition of "transaction" a relates so leases end trackage florin In lite of 16e general definition Imposed in Orrton III being "say sellers token pursuant to authorizations of this Commission on rA1e1 these previsions here been Imposed."
Nor do re believe It necessary or appropriate to rephrase the proviso to article I, reactor ). That section now provides that loathing In that appendix shell be construed a depriving an employee of any rights or benefits or eliminating any obligetionf Under an majoring job security or other protective conditions or arrangement. but preclude& !he duplication or pyramiding of 360 LC.C.
benefits. and cues 1M1 the benefits shell be construed as Including 1M candidates. responsibilities. end obligations sewmpenylnl loch benefits. This section Is susceptible to the resechassiblee Interpretation, Issued by eke JIM six having been expriesely agreed to between employee rcpresennUv« and 1M carriers: that a employee may not eoenrrently enjoy the Muslin mislat under am than one arrangement m any liven lime, but n employee may. upon expiration of IM benefit period of the arrangement elected by him. enjoy the benefits arising under the arrangement not initially elected by him. If the benefit period under this second arrangement has not yet expired.
We ban no doubt that ibis favored Interpretation will be adopted In the event of any firtarc dispute regarding The Interpretation of article 1. section 1. Such dispute would squire arbitration end resolution pursuant to article 1. section 11. which provides for seV. e(hetlly means of resolving interpretational connicis.
We also nod no rcnson to modify article I. reelion 9, and faction 11(b). TM current language in the Mendocino and Norfolk and Western cams k the language of appendix C-1 established pursuant to IS U3.C. 363. Any champs In residence subsequent to the Initial eke" aced by 1M transaction and/or which grow out of the normal exercise of seniority rights would not be The Immediate result of the particular trackage rights or lean imenctions.
We Red that article 1. section Ills). should M modified. The Oregon I case contained the tent of the appendix C-1 arrangement established pursuant to IS U.LC. 363. However. section IIU)(RI was Inadvertently deleted from the language of the text In Oregon It u cell a in the Involved proceedings, and the teat of section 11(allifl) appeared under section 120)(H) In Oregon U.
Accordingly, we find In F. D. No. 11717 that the section 12(aXii) to article 1 in Norfolk and Western Ry. Ca-TracReet Rfehrr-11N. 33· LC.C. 603 a 611 (19711, should be redesignated « section 17(s)(IiO, end that 1M following additional language should be inltned as sew section IIUN(q:
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We aim find that 1M modifications to the decision In F. D. No. 71117 should use M adopted in F. D. No. 21136, and that the deekloa in the latter proceeding. served September 15. 1971,
(I) The petition by the Railway Labor Executive$' Association, filed April 7. 1979. seeking cunfuhJmion of the disp,aiNOm in Finance Dockets Not. 78756 and 28387. each reopened for reconsideration by our decisions of February 77, 1979, if `ranted.
(I) TM petition with tendered comments by the American Association of Railroads. filed April l(7, 1979, seeking leave N, inlervrne If lusted, and the comments arc accepted for filing and consideration.
(7) Except as modified by this Decision. the Jecuuin m Finance Docket No. 18737, rcrv<J lone IR, 1978. reported al 354 LC.C. 603. (hall remain in lull force and effect.
(1) Except n modified by this decision. the decisstin in Finance Docket No. 18136, served September IS, 1978, reported as 731 LC.C. 731, shall remain in full force and effect
(3) This decision shall be effective (in the date it is servc&