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Mr. CHESELDINE. Not necessarily.
Mr. LISHMAN. Why not?

Mr. CHIESELDINE. You could have mechanical rotation and in some way the influx of cases would be with the majority of them, the preponderance of them being motor carriers that an examiner could go for 10 years without ever getting any other than a motor carrier case if you had mechanical rotation.

Mr. Moss. Let the record show that you stated previously that you do not use mechanical rotation.

Mr. CHESELDINE. That is correct, sir.
Mr. Moss. Then you are not responding to the question.

Mr. SPRINGER. But, Mr. Chairman, I think the answer stands for itself. I think he has responded.

Mr. CHESELDINE. I will surely try to explain it, sir.

Mr. Moss. He specifically denied that they employed mechanical rotation.

Mr. SPRINGER. Is that right or not?
Mr. CHESELDINE. That is right, we do not. I said it is possible.

Mr. Moss. In response to a specific question, he came up with a hypothetical response it is possible, if we use the system, which we do not use, to go for 10 years.

Mr. SPRINGER. I understood the question was to get at the question of rotation. He merely explained that ther did not use that kind of rotation of going one, two, three, four, five. You might a-klim another question to clarify it.

Mr. CHESELDINE. I will be glad to answer any question alopar that line vou care to ask.

Vr. SPRINGER. Did you finish your answer? Was your answer finished!

Mr. CursrediNT. JI! I was using that example for was that the import of the question and the inference was that there were cases available to Mr. Messer for assignment. I said if we used mechanical rotation there possibly would not be. If we sed the system that I explained the other day that we are trying to break in new examiners in different fields, when I had the chance to use a new examiner I used it and I think that your figures show that.

I am trying to, as I told you, to integrate the whole staff into finance rate matters, as well as operating rights. Our preponderance of praminers are operating rights examiners. With 3,000 cases in t! (perating Rights Sertion, 100) in the Rate Section, and less than Hom) in the Finance Section, it is much easier to integrate the motor carrier (aps into the rail examiners, former ruil examiners, and former tinanee paminers, than it is the other way around. You just don't have the flexibility.

I admit we don't have mechanical rotation. We can't have it and theatiti to do not requirit.

Mr. Min. My point with that Mr. Linuman's question to you was Irit on viether or not you had mechanical rotation becaus that was dinner the ot!lerdir.

Vr.( Han Dist. Tenir.

Vr. M. I want torent question. I nerely pointed or't that Fornon with not at all responsive to that question. However acju?rite potrhypothonj- might be your response was not to the question aof you.

Mr. CHESELDINE. Mr. Lishman, would you please
Mr. SPRINGER. Would you like the question read over again?

Mr. CHESELDINE. Please ask the question again and I will direct to the point if that will help.

Mr. LISHMAN. This will take a little explaining because when we asked you why Mr. Messer had not been given an assignment after his recommended report on the Adequacy case, you said either because you did not have rail cases—you said you did not have rail cases.

I was just pointing out to you that you did have rail cases. You did not tell us at that time about any

Mr. CHESELDINE. Mr. Lishman, in the first part of my testimony, I told you how the three bureaus were put together in 1965 and I was to'l to integrate and to spread it.

I have been trying to do that ever since, to spread the cases. I am sure that is of record.

Mr. LISHMAN. I am using your own words. You said we didn't have rail cases.

I can cut this short, Mr. Chairman, by asking to put this exhibit in the record, which is the "Assignments of ICC Hearing Examiners in Train Discontinuance Matters.

Mr. Moss. The assignment sheet will be included in the record at this point.

(The document referred to follows:)

ASSIGNMENTS OF ICC HEARING EXAMINERS IN TRAIN DISCONTINUANCE MATTERS FROM APR. 22, 1968 TO

DEC. 1, 1969

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1. Bartoo, L. E..
2. Do
3. Do
4. Do.
5. Bateman, W.J.
6. Blond, H.J.
1. Burchmore, R. N.
8. Clerman, PJ.
9. Colter, G. F
10. Dodge, J. P.
11. Do.
12. Dowel. E. S..
13. Do
14. Farmer, L. C.
15. Do
16. Feuer B
17. Do.
18. Do.
19. Fittipaldi, J. T.
20.

25118

June 4, 1968 Southern Pacific. 25345

Nov. 1 1958 Kansas C1 Southern. 25517

Feb. 19. 1959 Norfolk & Western. 25375

Oct 15, 1959 Denver & Rio Grande. 25530

Mar. 26, 1969 Chicago, Milwaukee, St. Paul & Pacific. 25074

May 16, 1968 Penn Central. 25765

July 30, 1969 Louisville & Nashville. 25373

Nov. 26, 1968 Penn Central. 25649

May 15, 1969 Ilinois Central. 25543

Mar. 6. 1969 Penn Central. 25716

June 17, 1969 Kansas Cty Southern 25802

Aug. 20, 1969 Chicago, Burlington & Quincy. 25803

do

Do. 25395

Do.. 21. Fried son, 22. DO 23. Fritz, E.T. 24. Do.. 25. Glennon, R. M. 26. Do.. 21. Goneen, W. 28. Do

Do 30. Do 31. Do 32. Hartsock, R. 33.

Do.. 34. Jennings, K. A. 35. Margulies, M. B. 36. May, J. M.

Dec. 4, 1968 Chicago, Milwaukee, St. Paul & Pacific. 25567

Mar. 25, 1969 Louisville & Nashville. 25136

June 27, 1958 Missouri Pacific. 25415

Dec. 23, 1968 New York, New Haven & Hartford, 25735

July 3, 1969 Erie Lackawanna. 25923

Nov. 26, 1969 Seaboard Coast Line. 25924

do. Richmond, Fredericksburg & Potomac. 25595

Apr. 1.1969 Penn Central, 25813

Aug. 27, 1969 Baltimore & Ohio. 25235

Aug. 28, 1968 Seaboard Coast Line. 25755

July 17, 1969 Penn Central. 25547 (13a(2)) June 1969 Santa Fe. 25744

July 8, 1969 Penn Central & Illinois Central. 25052

Apr. 29, 1968 Penn Central. 25209

Aug. 8. 1968 Southern Pacific. 25558 (13a(2)) May 1969 Penn Central. 25784

Aug. 20, 1969 Western Pacific. 25793

alo. Southern Pacific. 25676

June 2, 1969 Seaboard Coast Line. 25827

Sept. 10, 1969 Chicago, Milwaukee, St. Paul & Pacific. 25865

Oct. 14, 1969 Chicago, South Shore & South Bend. 25777

Aug. 6, 1969 Chicago, Milwaukee, St. Paul & Pacific. 25704

June 18, 1969 Union Pacific.

29.

ASSIGNMENTS OF ICC HEARING EXAMINERS IN TRAIN DISCONTINUANCE MATTERS FROM APR. 22, 1968 TO

DEC. 1, 1969-Continued

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37. McKiel, J. A.
38. Miller, E. J.
39. Murphy, R. H.
40. Reidy, E.J.
41. Reilly, J. A.
42. Roper, T. R.
43. Do.
44. Do
45. Do.
46. Royall, W. A.
47. Sarbacher, H.
48. Schutrumpf, A.
49. Soffer, J. K.
50. Do.
51. von Rinteln, V.
52. Welch, F. A.
53. White, R. A.
54. Whitehouse, H.
55. Do..
56. Do..
57. Do..
58. Wilhite, W. W
59. Do.
60. Wilkins, R. M.
61. Laughlin, J. F.

25596

Apr. 10, 1969 Baltimore & Ohio. 25162

July 12, 1968 Norfolk & Western. 25107

June 6, 1968 Penn Central. 25679

June 2, 1969 Santa Fe. 25711

June 19, 1969 Illinois Central. 25221

Aug. 19, 1968 Chicago, Burlington & Quincy. 25264

Sept. 9, 1968 Do. 25288

Sept. 25, 1968 Baltimore & Ohio. 25718

July 1, 1969 Northern Pacific. 25767

Aug. 6, 1969 Texas & Pacific.
25807

Aug. 22, 1969 Atlanta & West Point.
25040 (13a(2) June 1968 Santa Fe.
25731

June 30, 1969 Chicago, Burlington & Quincy.
25816

Sept. 3, 1969 Great Northern. 25129

June 18, 1968 Illinois Central. 25810

Aug. 27, 1969 Norfolk & Western.
25859

Oct. 14, 1969 Penn Central,
25143
July 2, 1968

Central.
25150

do

Seaboard Coast Line. 25151

...do.. Central of Georgia. 25282 (13a(2)) Nov. 1968 Missouri Pacific. 25047

Apr. 24, 1968 Louisville & Nashville, 25230

Aug. 23, 1968 Chicago, Burlington & Quincy. 25384

Nov. 27, 1968 Seaboard Coast Line. 25645

May 21, 1969 Norfolk & Western.

Mr. CHIESELDINE. Sir, isn't that a summary of what was assigned! Mr. LISHMAN. Yes, sir, that is correct.

Mr. CHESELDINE. May I just explain one thing about this assignment business.

With 100 examiners they are not all available at one time, they naturally have assignments and they get through with them at various times. At the end of each month I look at their monthly reports and decide which ones are available for assignment.

One time I may have 10, another time I may have 15. Then it is a matter of taking out of those 10 or 15 the particular cases that are coming in at that time. It could be that at the particular time that I am looking for an examiner there are nothing but motor carrier cases.

When a train-off case comes, which gets priority, we look to see what we have left on that list that we can assign to them.

I hope that explains what my previous answer meant.

Mr. LISHMAN. Mr. Cheseldine, did the new examiners that are on that summary of assignment sheet, did these new examiners write their own draft reports in every instance?

Mr. CHESELDINE. I wouldn't know.

Mr. LISHMAN. Isn't it customary when you put a new examiner on to know whether or not he would write the report?

Mr. CHESELDINE. In the train-off cases?
Mr. LISHMAN. Yes.

Mr. CHESELDINE. No, sir. In fact, in order to acquaint my assistants with the problem of train-off cases and myself, they both have heard train-off cases and I have, myself. I did not write the one that I heard but I had it written and I checked it over for accuracy before it was sent to the Commission.

Mr. LISHMAN. How about nontrain-off cases; did these new examiners write their own draft reports in those cases?

I am talking about rail matters.

Mr. CHESELDINE. There are only two areas that we do not write an initial report and recommended order. It is in the train-off cases and it is investigation suspension cases. One has to be decided in 4 months. The other has to be decided in 7 months.

The initial reports are written on behalf of the Commission and there is not an initial recommended report by the examiner.

Mr. LISHMAN. We are familiar with that, Mr. Cheseldine. I am talking about the draft report.

Mr. CHESELDINE. Even if the train-off case is heard by an examineryou asked me in all cases. I know in my own case I did not write the draft.

Mr. Moss. He did not ask you in all cases.

The question went to the cases of new examiners, not all cases, and the question was did they write the draft report.

Mi. CHESELDINE. In most cases, yes. In most cases, yes. Mr. SPRINGER. This is new examiners; is that right? Mr. CHESELDINE. Yes. Let us put it this way: They are new to train-off cases. Mr. Moss. Does the question relate to both train-off and non-trainoff cases?

Mr. LISHMAN. Yes. Rail matters, I used as the phrase.

Mr. CHESELDINE. You see, the rail matters on suspension cases are written by the hearing examiner usually, but it is an initial report of the Commission because of the 7-month period they have to be decided in.

Mr. Moss. Now you have me totally confused.
Mr. CHESELDINE. I am sorry, sir.

Mr. SPRINGEP. Is it all right, Mr. Chairman, if he explains it a little further? It is not clear to me.

Mr. Moss. Yes, it might be helpful.

Mr. CHESELDINE. Let me put it this way: Mr. Lishman is using rail cases. If you get away from rail cases and talk about all cases.

Mr. LISHMAN. I used that phrase because you corrected me when I had not used that phrase "rail cases." So I was very careful to use your own words. I had used the words "train-off cases." When I switch over to using your phrase now I am getting confused.

Mr. CHESELDINE. That is because you asked me whether Mr. Messer had been assigned rail cases. I don't really know whether he had any other rail cases. I just know he did not have, during the period indicated, he did not have any train-off cases. But he could have had an abandonment case very easily without me knowing it.

I am just trying to testify to what I know, sir. But getting back to our problem of final reports, I mean reports being written by examiners, we have two categories where the Commission issues the initial report. It is the 4-month period requirement on the train-off cases, the 7-month period on the investigation suspension of rates.

In both cases the Commission has to, in order to get the decision out, waive the report and recommended order of the examiner.

Now, all other cases that I can think of right now there is an initial report and recommended order written by the examiner that hears the case or in conjunction with somebody else that helps him.

Mr. Moss. Now, in the case where the examiner does not write the initial or draft report, the two types of cases that you described, how does the Commission draft the report?

Does it just go to the raw hearing record ?

Mr. CHESELDINE. It assigns the case to an attorney-adviser to prepare.

Mr. Moss. From the hearing record ?
Mr. CHESELDINE. From the hearing record.
Mr. Moss. There is no intervening summation by the examiner?

Mr. CHESELDINE. No summation, but the examiner is available for conference if the attorney-adviser does not understand anything.

Mr. Moss. Is he always in town at that point?

Mr. CHESELDINE. No. I can't promise that, sir. But I do know that if he is in town he is available.

Mr. Voss. If he is not in town, he is not available?
Nr. CHSELDINE. That is right.

Mr. Moss. So the attorney-adviser must work from the hearing record developed by the examiner in the course of his hearings?

Mr. CHESELDINE. That is right, if the examiner is not available.

Mr. SPRINGER. What is meant hy "you waive the report, the preliminary report"?

Vİr. CHIESELDINE. The Commission puts that in the first paragraph of their decision.

VIr. SPRINGER. How does the Commission get the understanding of this thing if they waive a report?

Ir. CHESELDINE. I am only using the term-it was necessary to waive the report and recommend order--dne to the time limitations.

Mr. SPRINGER. Then, how does the Commission know about what is in the record ?

Mr. CHIESELDINE. They have a record of the whole thing. The entire record is there, the pleadings are there, the briefs are there.

Mr. SPRINGER. I know, but don't the Commissioners always they don't read that record; do they?

Mr. CHESELDINE. No, they rely on the attorney-advisers and their own staff.

Mr. SPRINGER. I am not being critical. I am trying to find out what they do. Now, in these cases where they waive, I understand that what they do is have a fellow there who has read the record and he relates the facts to them orally; is that correct?

Mr. CHESELDINE. No, I don't think it is orally. I think he reduces it to writing first.

Mr. SPRINGER. Who reduces it to writing?
Mr. CHESELDINE. The attornev-adviser who is assigned to the case.
Mr. SPRINGER. But it is not a formal report.
Mr. CHESELDINE. No, it is a dra ft.

Mr. SPRINGER. In other words, what they really waive then is a formal report of the investigation; is that correct?

Mr. CHESELDINE. What they waive is a formal report to which the parties can file exceptions.

Mr. SPRINGER. I understand what you are doing.

Mr. CHESELDINE. By the same token, when an initial report is prepared by the Commission and issued, the parties have a little more appeal authority, I mean appeal rights, than they would with the other.

Mr. SPRINGER. I understand what you are talking about. Thank you.

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