Greensboro, the lowest rate that may be constructed over any line or route from and to the same points on the proposed basis, and to maintain higher rates from and to intermediate points; provided (1) that rates from the higher-rated intermediate origin points, to Greensboro, or from any of the origins involved to higher-rated intermediate consuming points from or to which the rate-making distance does not exceed 200 miles shall not exceed rates constructed on the proposed basis, (2) that the rates from or to higher-rated intermediate points shall not be increased except as authorized by this Commission and shall in no instance exceed the lowest combination of rates subject to the act, and (3) that the relief authorized herein shall be subject to circuity limitations, as hereinbefore described, and in those instances where the use of a rule showing rates and maximum distances, in lieu of specific routing, similar to that approved in Brick and Clay Products in the South, supra, is authorized by special permission No. 169163 referred to herein, the relief herein granted shall apply over such routes even though in some instances the degree of circuity may exceed the limitations specified. In complying with such limitations origins may be grouped in the same manner as that employed in class rates established under the southern class-rate revision, and the distances to be used may be those from the base points in each group in lieu of actual distances from the individual points. An appropriate order will be entered. 234 I. C. C. RAILWAY LABOR ACT DOCKET No. 71 CHICAGO NORTH SHORE & MILWAUKEE RAILROAD COMPANY Submitted February 15, 1939. Decided July 11, 1939 Upon further hearing, finding in original report, 219 I. C. C. 135, that the Chicago North Shore & Milwaukee Railroad Company's line falls within the terms of the exemption proviso in the first paragraph of section 1 of the Railway Labor Act, as amended June 21, 1934, reversed. Also found that this line does not fall within the corresponding proviso in section 1 (a) of the Railroad Retirement Act of 1937 and the Carriers Taxing Act of 1937. Robert E. Quirk and Ralph R. Bradley for the carrier and its receiver. Arthur E. Reyman for the labor organizations at original hearing; William B. Rubin for complainant in Electric Railway Docket No. 2; and Harold C. Heiss, Russell B. Day, and J. A. Farquharson for intervening railroad brotherhoods. Lester P. Schoene and David B. Schrieber for Railroad Retirement Board. J. P. Wenchel and E. Riley Campbell for Commissioner of Internal Revenue. REPORT OF THE COMMISSION ON FURTHER HEARING BY THE COMMISSION: Exceptions were filed by respondent to the report on further hearing proposed by the examiner. The labor organizations and the Railroad Retirement Board replied thereto, and the issues were orally argued. Railway Labor Act Docket No. 7 was instituted at the request of the National Mediation Board to determine whether the Chicago North Shore & Milwaukee Railroad Company, hereinafter called the North Shore, is exempt from the Railway Labor Act as amended June 21, 1934, under the proviso to the first paragraph of section 1 thereof, which reads as follows: Provided, however, That the term “carrier” shall not include any street, interur ban, or suburban electric railway, unless such railway is operating as a part of a general steam-railroad system of transportation, but shall not exclude any This report also embraces Electric Railway Docket No. 2, Division 900 of Amalgamated Association of Street Electric Railway & Motor Coach Employees of America v. Chicago North Shore & Milwaukee Railroad Company, A. A. Sprague, Receiver. part of the general steam-railroad system of transportation now or hereafter operated by any other motive power. The Interstate Commerce Commission is hereby authorized and directed upon request of the Mediation Board or upon complaint of any party interested to determine after hearing whether any line operated by electric power falls within the terms of this proviso. A motion to discontinue the proceeding without any hearing was made by A. A. Sprague and Britton I. Budd, receivers of the North Shore, which we denied. Thereafter a hearing was held at which evidence was introduced on behalf of the above-mentioned receivers, who contended that the North Shore was exempt as an interurban within the terms of the proviso, and by representatives of local divisions of the Amalgamated Association of Street Electric Railway and Motor Coach Employees of America and the International Brotherhood of Electrical Workers. These labor organizations were in accord with the receivers' contention that the North Shore was exempt, and there was no opposition to that contention from anybody at the hearing. In the original report, 219 I. C. C. 135, decided by division 3, November 7, 1936, the following conclusions were reached at page 140: Undoubtedly this is a close or border-line case, but considering the view expressed by the Supreme Court in the case hereinbefore cited, together with the absence of any opposition of record to the contention that this carrier is exempt, and the fact that no carload freight is handled to or from or interchanged at either of the two principal terminals, which are much the largest cities served, the doubt must be resolved in favor of holding that the carrier falls within the exemption. We find that the Chicago North Shore & Milwaukee Railroad Company's line falls within the terms of the exemption proviso in the first paragraph of section 1 of the Railway Labor Act, as amended June 21, 1934. On October 29, 1937, Division 900 of the Amalgamated Association of Street Electric Railway & Motor Coach Employees of America filed the complaint in Electric Railway Docket No. 2, seeking a finding that its members who are employees of the North Shore are subject to the provisions of the Railroad Retirement Act of 1937. Section 1 of that act and the same section of the Carriers Taxing Act of 1937 define the terms "employer" and "carrier" so as to include among others any carrier by railroad subject to the Interstate Commerce Act, which is followed by an exemption proviso similar to that in the Railway Labor Act. Each of the three acts authorizes us to determine after hearing whether any line operated by electric power falls within the terms of the proviso. This may be done upon either a complaint or a request, which latter under the Railway Labor Act is to be made by the National Mediation Board, under the Railroad Retirement Act by the Railroad Retirement Board, and under the Carriers Taxing Act by the Commissioner of Internal Revenue. The last-named official on February 9, 1938, requested that we determine the status of the North Shore in the same proceeding as the above-described complaint under the Carriers Taxing Act. On February 2, 1938, A. A. Sprague, receiver of the North Shore, filed a motion to discontinue the proceeding in Electric Railway Docket No. 2. This motion was based in large part upon the same grounds as were considered in the previous motion to discontinue Railway Labor Act Docket No. 7, which was denied by our order entered July 1, 1935. It was also based in part on the decision of division 3, hereinbefore cited and quoted. Upon consideration of the motion to discontinue Electric Railway Docket No. 2 and further consideration of the record in Railway Labor Act Docket No. 7, division 3 entered an order on February 25, 1938, denying the motion to discontinue and ordering as follows: It is ordered, That Railway Labor Act Docket No. 7 be, and it is hereby, reopened by the division upon its own motion for further hearing in connection with the complaint in Electric Railway Docket No. 2 so that the status of the above-named carrier, its receiver, and employees may be considered and determined in the same proceedings and on the same record under the Railway Labor Act, the Railroad Retirement Act of 1937, and the Carriers Taxing Act of 1937. The motion to discontinue Railway Labor Act Docket No. 7 was properly denied, because we are only authorized to make a determination "after hearing." Likewise division 3 properly denied the motion to discontinue Electric Railway Docket No. 2, in which there had been no hearing, for the same reason. Counsel for the carrier and its receiver contend that division 3 was without authority to issue the above order reopening Railway Labor Act Docket No. 7. It is argued that, having once made its determination, the division had exhausted its authority under the Railway Labor Act. The Railway Labor Act, the Railroad Retirement Act, and the Carriers Taxing Act all provide that we shall make our determination after hearing, but none prescribed any specific procedure to be followed by us in conducting the hearing. We have always considered our procedure in such cases to be governed by the Interstate Commerce Act, under which it is well settled that this Commission or a division thereof may reopen its decisions for further hearing, either upon petition or its own motion. See Sharfman on the Interstate Commerce Commission, volume 4, page 240, and cases there cited. See also Tagg Bros. & Moorhead v. United States, 280 U. S. 420, wherein the Supreme Court speaking through Justice Brandeis, without indicating reliance on any statutory provision, said at pages 444-445: Where it is believed that the Secretary erred in his finding because important evidence was not brought to his attention, the appropriate remedy is to apply 196834m 40-vol. 234-4 for a rehearing before him or to institute new proceedings. He has the power and the duty to modify his order, if new evidence warrants the change. Complainant's position on further hearing differs from that of its counsel and principal witness at the original hearing. In its brief on further hearing it requests findings that the North Shore does not fall within the exemption proviso of the Railway Labor Act, the Railroad Retirement Act, or the Carriers Taxing Act. Since the further hearing the Brotherhood of Locomotive Firemen and Enginemen and the Brotherhood of Railroad Trainmen have intervened, and the former filed a brief in which its arguments differ from those of complainant but are in harmony with the present position of the latter that the North Shore does not fall within the exemption proviso in any of the three acts. Instead of supporting the contention that the North Shore is exempt, therefore, the employees through their respective organizations which filed briefs now strongly oppose that contention, and they are all in agreement in supporting the findings recommended by the examiner on further hearing. The Railroad Retirement Board, which was not a party to the original proceeding, has also intervened and filed a brief in support of its view that the North Shore is not exempt, on the ground that it is more than a mere interurban, and on the further ground that it is a part of the general steam-railroad system of transportation, which is expressly included even though operated by power other than steam. The evidence on further hearing in the consolidated proceedings was much more comprehensive and differed in many respects from the original record. The facts as stated in the original report will not be repeated here except where necessary because of difference in the evidence or in order to afford a more complete statement of the facts. The North Shore was incorporated under the General Railroad Act of Illinois, which grants broader powers of eminent domain than the General Incorporation Act under which street railways are commonly organized in that State. Since the original hearing there have been minor changes in the number of route miles and track miles operated by the North Shore, owing principally to the cessation of operation south of Roosevelt Road in Chicago, Ill. The original report stated at page 136 that altogether 20.29 miles, or 14.66 percent of the total miles of line, are in city streets. The accuracy of that statement is not questioned, but much of the mileage referred to is elevated above the street or ground level, and only about 3 percent of the total mileage is operated in common with ordinary vehicular traffic on paved streets. The North Shore owns its right-of-way from Wilmette, Ill., to Milwaukee, Wis., except for a short distance of about 3 miles, and it owns all the right-of-way of the Skokie Valley line. Practically |