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Mr. Moss. Then you would rotate him unless he was otherwise engaged?

Mr. CHESELDINE. Well, sir, it is a little bit more difficult. It is not quite that simple.

Mr. Moss. If he was not overloaded, you would rotate him?

Mr. CHESELDINE. Yes, sir. He would be eligible—if he is getting close to the end of his docket, he is then available, but not until then. Of course, sometimes that is a matter of judgment. That is why it can't be mechanical.

You see, all of our cases are not the same. Mr. Moss. We recognize that. That can be stipulated to very quickly, I think, that they are not all the same.

How close in time to the end of a case would it qualify him to go back on the list for rotation?

Mr. CHESELDINE. Normally we try to pick out the examiners to assign to itineraries on the basis of the fact that they will be available in about 30 days. That is about the time that we give notice to the parties that this itinerary will be on the books and be heard.

Mr. Moss. Within that framework, of being available within the 30-day period, you follow the policy of rotation?

Mr. CHESELDINE. We do, insofar as the itineraries are concerned. These are group cases which are grouped together for efficiency and saving travel money.

To actually rotate cases in the sense that some people talk about trould mean that you would have to give one examiner one case, let him go hear that, finish it, and come back and get another case.

Mr. Moss. Then you don't rotate on a case-by-case basis but on a block-by-block basis?

Mr. CHESELDINE. That is the majority. Where the itineraries are involved, which is usually 3 weeks, we rotate on blocks. Where there are cases that are going to take more than a week or 10 days, and even months or maybe a year, we have to give individual selection of examiners.

Mr. Moss. Mr. Lishman, does that clarify it?
Mr. LISHMAN. Yes, sir.

Mr. Cheseldine, is it correct that in 1966 a group of eight examiners were selected from among the more experienced and qualified exam. iners to handle train discontinuance matters?

Mr. CHESELDINE. Not to my knowledge, but I would like to explain that.

In 1965, as I told you, the three bureaus were consolidated and all the hearing examiners were put in one section. At that time, we had three chief hearing examiners, one for rates and practices, one for finance, and one for operating rights.

When the consolidation took place, the one in rates and practices retired, as he was eligible to do because he was reduced from a 17 to a 16.

The one in finance kept on the job and became my assistant. He was a former chief examiner of the Bureau of Finance. He was a man who was older than I was. I think he took the job reluctantly.

In any event, he died about a year later. He died in 1966. I let him continue to handle the assignment of train discontinuance cases in 1965 and 1966 because I was busy on an influx of motor carrier cases. I didn't take over the assignment of train discontinuance cases with any specific effort until the latter part of 1966, and I knew nothing about Mr. Jerry Lyle's list.

Mr. LISHMAN. Are you familiar with the fact that among the group of eight who were selected in 1966, according to the testimony we have already received, were some of the more experienced examiners in train-off matters?

Mr. CHESELDINE. Yes, sir.
Mr. LISHMAN. Do you know the names of any of the eight?

Mr. CHESELDINE. I don't know what the list is. I can give you the ones that are more experienced and they may be on the list and they may not be. I don't know.

Mr. LISIMAN. Could you give us the names of the ones you considered to be the more experienced in train-off matters?

Mr. CHESELDINE. I am sure Goheen must have been on it. Roper was probably on it. That is going back 4 or 5 years.

Well, I am merely guessing, anyway. But I do know that the trainoff cases were handled by generally the same examiners and they liked the assignment.

Mr. LISIMAN. Was John S. Messer one of these examiners experienced in train-off matters?

Mr. CHIESELDINE. I don't remember when John Messer came with the Commission.

The reason I know some of the finance men better than others is the fact that in the thirties and forties we were A1 in one setup.

But Mr. Messer, I am sure, came in the late fifties. Some of the men that came in in that period I didn't get to know until after we were consolidated.

Mr. LISHMAN. That was in 1965?
Mr. CHESELDINE. Yes, sir.

Mr. Lishman. But this group of eight experienced examiners in train-off matters was assembled in 1966, which was 1 year after the 1965 consolidation.

Mr. CHESELDINE. Mr. Lyle had complete charge of the assignment of examiners for train-off cases as long as he was there. I didn't disturb that part of it.

I was told when we consolidated to integrate the examiner's but yet to retain some expertise. It is a whole lot easier to integrate 3,000 cases in the motor carrier field into the 50 examiners in finance and rates than it is to integrate the 100 rate cases and the 300 or 400 finance cases into the 65 or 70 motor carrier operating men, as you can easily see. There is more flexibility there.

Mr. LISHMAN. Just to get the record straight, I would like to mention the names of the eight experienced hearing examiners which, according to testimony received earlier by this committee, constituted this group, apparently designated to handle train-off matters.

This group, according to the testimony appearing at pages 37 and 38 of this transcript for the hearing on June 16, 1970, and the witness was Mr. Messer, consisted of the following examiners: Mr. Fritz, Mr. Bartoo, Mr. Goheen, Mr. Blond, Mr. Roper, Mr. Wilhite, Mr. Murphy, and Mr. Messer.

Does that refresh your recollection as to this?
Mr. CHESELDINE. I have no recollection of that list, sir

of

As I said, Mr. Lyle was in charge of the assignments and I didn't enter into that until he passed away.

Mr. LISHMAN. What was your capacity in 1966 ?
Mr. CHESELDINE. I was Chief Hearing Examiner of the Commission.

Mr. LISHMAN. Do you know whether any of those eight were assigned cases on a rotation basis?

Mr. CHESELDINE. At that time, I was trying to enlarge the scope the assignments to all examiners by giving rate men and finance men motor carrier cases. I had them. We had an influx in 1966 of almost 7,000 cases.

I was trying to integrate, but I had more cases to integrate in that direction than I had the other, so I left Mr. Lyle with his train-off cases to make his own assignments.

We very seldom, but occasionally did, gave additional cases other than the train-off cases to an examiner that was hearing a train-off case. If he was only going to be out a week, we would give him another week with some other cases.

Mr. LiSHMAN. So you do not know whether, in the first place, this group of eight hearing examiners was constituted, and you don't know whether or not-I want to be correct in understanding your testimony-although you were Chief Hearing Examiner at the time, entrusted with the responsibility of seeing that they were assigned in rotation, you do not know whether or not these examiners were assigned in rotation; is that correct?

Mr. CHESELDINE. Well, that is a double question. I will try to answer it.

Mr. LISHMAN. I am summarizing what you have just testified.

Mr. CHESELDINE. The thing about it is I don't think we agree on what rotation is, sir.

Mr. LISHMAN. I am not disputing rotation.

Mr. CHESELDINE. But you are using the word and it is subject to a number of different opinions as to what it is.

Mr. Moss. Let us get Webster's and get the definition of rotation. Mr. LISHMAN. I think we may clarify this by a specific instance.

Mr. Messer was one of these experienced hearing examiners in this group of eight constituted in 1966, and he was assigned to the adequacies case, the Southern Pacific case; is that correct?

Mr. CHESELDINE. That is correct, and he was assigned that by my assistant, Mr. Ries, who was in charge of rates and practices examiners, with my knowledge, of course.

Mr. LISHMAN. We already have in evidence newspaper items stating that het ween April 22, 1968, when Mr. Vesser's report on the Southern Pacific Adequacy case was published, and December 1969, he was not assigned any rail matter.

Is it a fact that he did not have an assignment on a rail matter during this period ?

Mr. CHIESELDINE. Not that I know of.
Mr. LISHMAN. Why not?

Mr. CHESELDINE. Either because we didn't have them or because of his decision in the Adequacy case was such that he had covered the waterfront and it was pending.

I have always assigned cases the way I would like to have them assigned. That is that I wouldn't want to hear a case by one in a certain area until my views were either approved by the Commission or disapproved.

51-728-71--pt. 1-14

Mr. LISHMAN. Did I understand you to testify that there were no cases available to which Mr. Messer could be assigned?

Mr. CHESELDINE. I said there were either no rail cases—there are more rail cases than just train-off cases.

Mr. LISHMAN. That is correct.

According to the records of the Commission, during this 18-month period, the period during which Mr. Messer failed to receive any assignment in a rail matter case, the Commission received and assigned a total of 61 train discontinuance matters.

These 61 matters were assigned to 36 individual examiners out of your total force of about 100.

Mr. Moss. Mr. Lishman, we are going to have to recess the hearing at this time. General debate is now over and we cannot sit during the reading of the bill. I will have to recess subject to call by the chairman.

I will try to communicate with him as soon as this bill is out of the way. But the permission is only to sit during general debate and that general debate has now concluded.

Mr. LISHMAN. Will it be reasonable to expect we can sit further today?

Mr. Moss. I would doubt very much we would be able to sit further today, but Mr. Staggers will have to make that determination.

Mr. LISHMAN. Do you propose to adjourn subject to the call of the Chair? Mr. Moss. We will now adjourn subject to the call of the Chair.

(Whereupon, at 2:20 p.m. the subcommittee recessed, to reconvene subject to the call of the Chair.)

INQUIRY INTO CERTAIN PROCEDURES OF THE

INTERSTATE COMMERCE COMMISSION

FRIDAY, JUNE 26, 1970

HOUSE OF REPRESENTATIVES,
SPECIAL SUBCOMMITTEE ON INVESTIGATIONS,
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D.C. The subcommittee met in executive session at 10:15 a.m., pursuant to call, in room 2322, Rayburn House Office Building, Hon. John E. Moss presiding (Hon. Harley O. Staggers, chairman).

Mr. Moss. The hearing will be in order. Mr. Cheseldine, if you will take the witness chair. The record will show that you have already been sworn. TESTIMONY OF JAMES C. CHESELDINE, CHIEF HEARING EXAM

INER, INTERSTATE COMMERCE COMMISSION, WASHINGTON, D.C.-Resumed

Mr. Moss. Mr. Lishman. Mr. LISHMAN. Mr. Cheseldine, we were dealing with the question of the fact that Examiner Messer had not been assigned any rail case from April 22, 1968, until 18 to 20 months thereafter, and we are inquiring into the reason for this situation.

As I understand it, your last answer on that was that the reason he had not been assigned to a rail case was, and this appears at page 336 of the transcript and this is your statement, “Either because we didn't have them or because of his decision in the Adequacy case was such that he had covered the waterfront and it was pending."

Do you recall that?
Mr. CHESELDINE. Yes, sir.

Mr. LISHMAN. Now, I was cut off in the midst of reviewing the records of the Commission on this point, so I will pick it up there and point out to you that according to the records of the Commission, from the period April 22, 1968, to December 1969, the Commission received and assigned a total of 61 train discontinuance matters.

Would you regard that as a correct figure?
Mr. CHESELDINE. Yes, sir, I will take your word for it.

Mr. LISHMAN. Now, these 61 matters were assigned to 36 individual examiners out of a total force then of approximately 100.

Now, of these 36 examiners, one was assigned five dockets, two received four dockets, one received three dockets, 10 examiners were assigned two dockets, and the rest handled one each.

That certainly indicates there were rail matters available for assignment to Examiner Messer, does it not?

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