Oregon III. Also the comments of the served parties have been filed as if consolidation had been effected. Accordingly, RLEA's petition shall be granted.

The Association of American Railroads (AAR) also petitioned on April 30, 1979, for leave to intervene and to file tendered comments. Its participation at this stage of the proceedings will not unduly broaden the issues. Accordingly, the petition shall be granted and its comments shall be accepted for filing and consideration.

MATTERS UNDER PRESENT CONSIDERATION

The June 28, 1978 decision in F. D. No. 28387 affirmed prior decisions of Review Board Number 5 in the trackage rights proceeding which had imposed the conditions for the protection of employees discussed in Oregon Short Line R. Co.-Abandonment-Goshen (Oregon I), 354 I.C.C. 76 (1977), but as modified by Oregon II.

The Oregon I and Oregon II decisions incorporated the provisions of the arrangements for the protection of employees negotiated between the National Railroad Passenger Corporation and various railway employee representatives and approved by the Secretary of Labor on April 17, 1971 (commonly known as the appendix C-1 conditions). Article 1, section 4, of appendix C-1 requires the giving of 20 days' notice of a transaction but does not preclude consummation of a transaction prior to the entry into a negotiated agreement for the protection of employees. Such provisions are less protective of the interests of employees and inconsistent with sections 4 and 5 of the Washington Job Protection Agreement of 1936 (WJPA) customarily imposed in merger or control type cases. See New Orleans Union Passenger Terminal Case, 282 I.C.C. 271 (1952). The latter provides for 90 days' notice of a coordination and requires that any reassignment of employees be based on a prior agreement between the carriers and the organization of affected employees.

In the June 28, 1978 decision in F. D. No. 28387, the division noted that in the past the Commission imposed different employee protective provisions in different types of cases under 49 U.S.C. 11347. The conditions which were ordinarily imposed in trackage rights cases are those contained in Oklahoma Ry. Co. Trustees Abandonment, 257 I.C.C. 177 (1944) (which excluded sections 4 and 5 of the WJPA). The conditions which were ordinarily imposed

in merger or control type cases are those contained in New Orleans Union Passenger Terminal Case, 282 I.C.C. 271 (1952) (which included sections 4 and 5 of the WJPA).

The division declined to impose sections 4 and 5 of the WJPA to the involved trackage rights case. It noted that Congress in enacting the Railroad Revitalization and Regulatory Reform Act of 1976 (the 4R Act), which amended former section 5(2)(f) of the Interstate Commerce Act (the predecessor to current section 11347), and which added section la (the predecessor to current section 10903), was aware of the fact that different employee protective conditions had been used in different types of Commissionapproved transactions. Division 1 also noted that nothing in the 4R Act expresses any disapproval of the application of different conditions in different cases. In imposing a modified version of the provisions for the protection of employees found in Oregon II, the division, in effect, imposed the appendix C-1 provisions established pursuant to 45 U.S.C. 565, which in turn substantially include all the provisions contained in the Oklahoma case.

As previously noted, the prior decision in F. D. No. 28256 adopted the provisions found to be applicable in F. D. No. 28387. Thus the employee protective provisions imposed in Oregon II (in turn being a slight modification of the appendix C-1 provisions established pursuant to 45 U.S.C. 565) became the source for the provisions for the protection of employees extended in these trackage rights and lease cases.

As previously noted, F. D Nos. 28256 and 28387 were reopened for the limited purposes of permitting comment on the changing law in the light of the Oregon III and New York Dock II decisions. The conditions for the protection of employees imposed in New York Dock II are substantially similar to the conditions imposed in the Oregon III case. Accordingly, in considering the "changing law," we shall limit our discussion to these modifications of Oregon II effected by Oregon III.

"THE CHANGING LAW”

The Commission in Oregon III effected the following changes to article 1 of the appendix to Oregon II:

1. Broadly redefined the meaning of the word "transaction" to embrace "any action taken pursuant to authorizations of this Commission on which these provisions have been imposed" in lieu

of its prior definition as "an abandonment or discontinuance pursuant to section la of the Interstate Commerce Act";

2. Rephrased the provisos to section 3 to permit concurrent entitlement to nonsimilar employee protective benefits extended pursuant to (a) Oregon III and (b) a preexisting arrangement, and, upon expiration of the 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;3

3. Rewrote section 4 to direct 90 days', in lieu of 20 days', advance notice of transaction which may affect employees and to compel an agreement between a carrier and employees in advance of any changes in operations, services, facilities or equipment;

4. Modified section 9 (inadvertently referred to as section 8 in Oregon III) by deleting the express exclusion from reimbursable moving expenses, those expenses which are incurred in connection with a change in residence made subsequent to the initial change or which grow out of the normal exercise of seniority rights;

5. Changed section 12(a)(ii) to 12(a)(iii) and inserted section 12(a)(ii) as originally contained in Oregon I expressly to protect an employee who not only owns his or her home, but who is under a contract to purchase his or her home where he or she is required to change the point of his or her employment as a result of the transaction; and

6. Modified section 12(b), which under Oregon II expressly had excluded from application under section 12, those changes in places of residence made subsequent to the initial changes caused by the transaction and growing out of the normal exercise of seniority rights, simply to exclude from application under section 12, those changes in place of residence which are not the result of transaction.

COMMENTS

Consolidated comments were filed in both proceedings by RLEA, the Brotherhood of Locomotive Engineers (BLE), and the AAR. Comments in F. D. No. 28256 were filed jointly by Mendocino

The provisions to section 3 contained in Oregon II prohibit the duplication or pyramiding of benefits. This prior language is substantially the same as that contained in the arrangement established pursuant to section 405 of Rail Passenger Service Act (RPSA) and as noted by RLEA was subject to the interpretation by the arbitrator in "Arbitration of Penn Central Transportation Company and BRAC," (1972), as requiring an election of all the benefits (and obligations) of one arrangement, with resultant permanent forfeiture of all the benefits under the arrangement not elected.

Coast Railway, Inc. (MCR) and California Western Railroad (CWR). Comments in F. D. No. 28387 were filed separately by the Norfolk and Western Railway Company (N&W) and by the Burlington Northern Inc. (BN).

MCR and CWR jointly, and N&W and BN separately, replied to BLE's and RLEA's comments, and RLEA replied to the comments of MCR, CWR, N&W, BN, and the AAR.

BLE and RLEA believe the Commission should modify the provisions for the protection of employees in the same manner as Oregon III modified Oregon II. Their position is predicated on the same premise previously advanced in these proceedings as well as in the Oregon Short Line and New York Dock II cases. They contend that the provisions previously established in the involved proceedings as well as in Oregon II fail to provide the minimum protections required under 49 U.S.C. 10903(b)(2) and 11347. Their position is that those sections require levels of protection at least as protective to the interests of employees as those contained in New Orleans Union Passenger Terminal Case, 282 I.C.C. 271 (1952), which in turn applied applicable provisions of the WJPA. They argue that the Commission conceded as much by undertaking to effect the modifications to Oregon II in Oregon III. They further claim that the New Orleans case contains benefits which are neither contained in appendix C-1 nor New York Dock II and therefore New York Dock II itself requires further modifications.

The position of the carriers is largely represented in the comments of the AAR except as noted below.

The AAR believes that incorporation into article 1, section 4, of the requirements of sections 4 and 5 of the WJPA (which require extended 90 days' advance notice and preconsummation finalized negotiations) undermines the congressional purpose in enacting the 4R Act. This is so, AAR argues, in light of the absence of such equivalent provisions in appendix C-1, as established pursuant to 45 U.S.C. 565. AAR believes that the Commission in New York Dock II and Oregon III has already disregarded the legislative history of the 4R Act.

Specifically, argues AAR, Congress simply intended to require a fair and equitable arrangement for the protection of employees containing benefits no less than those established pursuant to 49 U.S.C. 11347 and 405(b) of the Rail Passenger Service Act (45 U.S.C. 565(b)). However, labor protection under section 405(b) involves only substantive provisions. This section does not involve procedural protections like those involved in sections 4 and 5 of WJPA.

AAR points to the recent recodification of the Interstate Commerce Act by Public Law 95-473 (effective October 17, 1978) in particular to section 10903(b)(2) which provides that the "provisions shall be at least as beneficial to those interests as the provisions established under 11347 of this title [former section 5(2)(f)] and section 565(b) of Title 45 [section 405(b) of RPSA].” According to the AAR, the Preamble to the Revised Act indicated that the act is being revised without substantive change. Accordingly, it follows that all references to section 565 of title 45 as contained in the 4R Act of 1976, specifically in former section 1(a)(4) and 5(2)(f) of the Interstate Commerce Act, as well as in current section 11347, must mean section 565(b) of title 45.*

According to the AAR a requirement of a preconsummated implemented employee protective arrangement is also inconsistent with the past practices of the Commission. Such arrangement would unduly interfere with the issuance of temporary service orders allowing the carrier to exercise trackage rights pending Commission action upon a section 11344 application because of an emergency need for service.

AAR also states that the more specific definition of transaction as pertains to trackage rights and lease cases, need not and should not be changed. This is so because there is no need to implement other changes in the employee protective provisions. Specifically, AAR argues that the reason for broadening the definition of transaction in New York Dock II and Oregon III was to make it more compatible with the notice and preconsummation negotiation provisions incorporated into article 1, section 4. However, these provisions have no application to trackage rights and lease transactions. Finally, AAR also objects to the unions' proposed modification to article 1, section 3.

AAR argues that if Congress, by the 4R Act amendments, had intended generally to adopt appendix C-1 (which by its express terms prohibited both the "duplication and pyramiding" of separate employee benefits) as the Commission has previously concluded, then it also must have intended to adopt the interpretation given to

'Except for the change in the statutory language as contained in section 10903 of the recodified act, this argument was advanced but not sustained in Oregon II. Otherwise we are not persuaded by this argument, despite the recodification. It is true that section 10903 now refers to the provisions as established under section 565(b) of title 45. But it also refers to the provisions established under section 11347. Section 11347 refers to the terms established under (general) section 565 of title 45, as well as those terms imposed under section 11347 prior to February 5, 1976. If Congress had intended that we focus on section 565(b) rather than section 565 generally, it could have been more precise.