I. C. C. 427, as supplemented, in which the Commission prescribed rates on cement from and to points in southern territory, based on a distance scale applied to the distances over the shortest routes over which carload traffic could be moved without transfer of lading. Fourth-section order No. 9674, as supplemented, authorized relief with respect thereto, subject, among other conditions, to certain circuity limitations. In complying with the circuity limitations, the carriers are authorized to use distances from and to basing points and, in lieu of specific routing, to include in the tariffs publishing the rates a rule or rules showing rates and maximum distances for routing.

The present rates over applicants' routes from the Birmingham district to Wolf Creek and Atwood are 20 cents. In order to participate in the traffic, applicants propose to establish the 17-cent rate over the single-line route of the Louisville & Nashville from Birmingham, North Birmingham, and Boyles, and over the Atlanta, Birmingham & Coast from Phoenixville to Birmingham and the Louisville & Nashville beyond, and observe that rate as maximum from intermediate origins.

Under the outstanding relief, a rate of 17 cents may be applied over routes not in excess of 346 miles. The distance from Birmingham to Wolf Creek over the direct route of the Illinois Central is 234 miles. From Birmingham to Atwood and Wolf Creek by way of the Louisville & Nashville direct the distances are 369 and 373 miles, respectively, or 23 and 27 miles in excess of the maximum distance permitted under order No. 9674. The proposed routes range from 55.4 to 59 percent circuitous.

The following example is typical of departures under the proposed adjustment. As stated, the distance from Birmingham to Wolf Creek over the Louisville & Nashville is 373 miles. To Beldon and Routon, Tenn., higher-rated intermediate points on that route, 259 and 343 miles, respectively, from Birmingham, the present rates of 18 cents will be maintained. The proposed rate of 17 cents to Wolf Creek would yield 9.1 mills per ton-mile and 27.3 cents per car-mile based on the proposed minimum weight of 60,000 pounds. The average loading of cement in the southern region during 1939 was 68,600 pounds per car. The present minima are 50,000 pounds on cement and concrete mix and 40,000 pounds on masonry cement.

As hereinbefore indicated, applicants' routes are somewhat more circuitous than the routes over which relief would apply under limitations generally imposed in authorizing relief with respect to rates over indirect routes. However, strict adherence to these limitations in this instance would leave only the direct route available for the

transportation of cement traffic from the points of origin to the destinations involved at rates based on the short-line distances. In order to afford the public the benefit of competitive facilities and service, the applicants will be granted relief over the routes indicated. Western Trunk Line Fourth Section Class Rates, 238 I. C. C. 255, 290. We conclude that the proposed rates will be reasonably compensatory and that the relief sought is justified, subject to the conditions hereinafter stated.

Applicants will be authorized to establish and maintain for the transportation of cement as described herein, minimum 60,000 pounds, from Birmingham, North Birmingham, Boyles, and Phoenixville, and from intermediate points from which the rates from the named points will be observed as maxima, to Atwood and Wolf Creek, rates the same as those contemporaneously in effect on like traffic over the direct line or route from and to the same points, but not lower than 17 cents, and to maintain higher rates to intermediate points, provided that rates to such higher-rated intermediate points shall not exceed rates constructed on the basis prescribed or approved in Southern Cement Rates, supra, including authorized increases, and shall not exceed the lowest combination of rates subject to the Interstate Commerce Act.

An appropriate order will be entered.

246 I. C. C.

EX PARTE No. 72 (SUB-No. 1)

IN THE MATTER OF REGULATIONS CONCERNING THE CLASS OF EMPLOYEES AND SUBORDINATE OFFICIALS TO BE INCLUDED WITHIN THE TERM "EMPLOYEE" UNDER THE RAILWAY LABOR ACT

EMPLOYEES OF NEVADA CONSOLIDATED COPPER CORPORATION AND/OR NEVADA NORTHERN RAILWAY COMPANY

Submitted December 12, 1940. Decided October 17, 1941

The Commission has no jurisdiction to determine whether the Nevada Consolidated Copper Corporation or the Nevada Northern Railway Company is the employer, within the meaning of the Railway Labor Act, of the persons operating ore trains between Ruth and McGill, Nev.

Frank L. Mulholland, Clarence M. Mulholland, Willard H. McEwen, and E. H. Kruse for petitioners.

C. C. Parsons and W. Howard Gray for respondents.
Eugene Morton for intervener.

REPORT OF THE COMMISSION

DIVISION 3, COMMISSIONERS MAHAFFIE, PATTERSON, AND JOHNSON BY DIVISION 3:

Petitioners excepted to the examiner's proposed report, and the issues were orally argued. Our conclusions differ from those recommended by the examiner.

The Brotherhood of Locomotive Engineers and Brotherhood of Railroad Trainmen have petitioned the Commission as follows:

We, the undersigned, representatives of the train and engine employees of the Nevada Consolidated Copper Company, petition the Interstate Commerce Commission to hold hearings for the purpose of determining the status of the Nevada Consolidated Copper Company R. R. under the Railway Labor Act.

The Switchmen's Union of North America was permitted to intervene, but its attitude toward the petition has not been disclosed. A similar petition was contemporaneously filed with the Railroad Retirement Board, and a joint hearing was held before examiners of that board and the Commission. That board on December 3, 1940, found in effect, among other things, that these so-called ore-train operators were embraced within the provisions of the Railroad Retirement Act. Carriers' suit to set aside the board's decision was dismissed by the

United States District Court for the District of Colorado on August 22, 1941. The fifth paragraph of section 1 of the Railway Labor Act defines an employee as follows:

The term "employee" as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission now in effect, and as the same may be amended or interpreted by orders hereafter entered by the Commission pursuant to the authority which is hereby conferred upon it to enter orders amending or interpreting such existing orders.

Respondents are the Nevada Northern Railway Company, the Nevada Consolidated Copper Corporation, and the Kennecott Copper Corporation. The Nevada Consolidated Copper Corporation is the operating and managerial agency of the Kennecott Copper Corporation which owns all of the stock of the Nevada Northern, although the latter company and the Nevada Consolidated Copper Corporation are separate legal entities.

The employees under consideration are engineers, firemen, conductors, and brakemen employed solely in the operation of ore trains running between Ruth and McGill, Nev. There is no question as to the character of the work performed by them, or as to whether they are officials or subordinate officials. In their brief, petitioners state that the sole issue here presented is whether these ore-train operators are in fact employees of the Nevada Northern. Petitioners argue that these ore-train operators are employees of the Nevada Northern, whereas respondents are of the opinion that the Nevada Consolidated Copper Corporation is the employer.

This Commission does not have jurisdiction to determine who is the employer, within the meaning of the Railway Labor Act, of these ore-train operators. Ore Dock Foremen and Laborers-Railway Labor Act, 246 I. C. C. 703.

We find that we do not have jurisdiction to determine whether the afore-mentioned ore-train operators are in the employment of the Nevada Northern or the Nevada Consolidated Copper Corporation. The petition is dismissed.

PATTERSON, Commissioner, dissenting:

For reasons fully stated in my dissenting expressions in Hudson & M. R. Co. Employees-Railway Labor Act, 245 I. C. C. 415, and Ore Dock Foremen and Laborers-Railway Labor Act, 246 I. C. C. 703, it is my view that the authority specifically granted this Commission under section 1 (5) of the Railway Labor Act to make a determination as to whether a worker is an employee or subordinate official of

necessity authorizes us to make determinations whether the worker is in the service of a carrier and whether the carrier has continuing authority to supervise and direct the service of the worker.

Here the record clearly shows that these ore-train employees are in the service of the Nevada Northern Railway, and that said carrier has continuing authority to supervise and direct the manner of rendition of their services. We have jurisdiction to so find and should do so.

No. 194821

EAST ST. LOUIS COTTON OIL COMPANY ET AL. v. BALTIMORE & OHIO RAILROAD COMPANY ET AL.

Submitted June 16, 1941. Decided October 6, 1941

Upon argument, findings in supplemental report, 243 I. C. C. 43, modifying prior findings in 156 I. C. C. 644 and 210 I. C. C. 76 so as to permit publication of reduced rates on coal from mines in southern Illinois to destinations in southeastern Missouri without corresponding reductions from mines in Alabama and western Kentucky, affirmed.

Appearances as shown in supplemental report, and George Holmes for petitioners.

REPORT OF THE COMMISSION ON ARGUMENT

BY THE COMMISSION:

In the original report in the title proceeding, 156 I. C. C. 644, division 2 prescribed reasonable rates on bituminous coal from mines in southern Illinois to destinations in southeastern Missouri, and from mines in western Kentucky rates 25 cents per net ton higher than those found reasonable from southern Illinois. In the original report in No. 26488, 210 I. C. C. 76, we found the relation between the rates on bituminous coal from certain Alabama mines to the same destination territory and rates from mines in the southern Illinois and western Kentucky groups unduly prejudicial to the former and unduly preferential of the latter. To destinations in southeastern Missouri we prescribed a differential relation of 35 cents from western Kentucky and 85 cents from Alabama over southern Illinois.

Since that differential relation was prescribed, the circumstances and conditions with respect to the movement of coal have changed materially because of increasing motor-carrier competition from

1 This report embraces also No. 26448, Alabama Mining Institute v. St. Louis-San Francisco Railway Company et al.