regulations of individual destination localities serve to prevent the unloading of loose and carcass meats by carrier personnel.

DISCUSSION AND CONCLUSIONS

In examining the court's opinion, we can perceive no intent by the court to predetermine the conclusion that we should reach on the merits in our further consideration of this matter. It appears clear to us that the court did not disapprove the ultimate conclusions reached in our 1975 report, but merely found that insufficient reasons were given in support of the decision. In particular, the court felt that we were mistaken in finding acquiescence by shippers and consignees in the consignee-unloading tariff filed in I. & S. No. M-28143, and that other facts cited in support of our decision were not sufficiently elaborated to stand as independent support for that decision.

Although our previous report unfortunately failed to make it clear, our decision therein to reverse our previous position on the unloading question was the result of a reappraisal of the merits of the issue, and not simply a recognition of the apparent compromise tariff in I. & S. No. M-28143. Had we believed, after such reappraisal, that there was a true commercial necessity for a carrier unloading service on this traffic, or that respondents' common carrier obligations otherwise necessarily required such a service, we would certainly not have taken the extraordinary step of departing from our previous conclusions on the issue. In our effort, however, to render an expeditious decision, and in our belief that the decision would find general acceptance, we failed to make the kind of detailed explanation of the bases for our decision that the court requires.

Now, upon remand of this matter from the court, we have fully reviewed the record and our previous decisions with respect to the unloading issue, in the light of the court's opinion and the statements of argument filed by the parties. It is our conclusion that the result reached in our 1975 report was correct, that it will best serve the public interest, and that it should be reaffirmed.

We will endeavor herein to fully set forth our reasons for this conclusion. In doing so, we will discuss what appear to us to be the four primary aspects of the problem: (1) the extent to which there is a general carrier duty to provide unloading service; (2) the reasons for the consignee-unloading rule; (3) the question of shipper and consignee necessity for carrier unloading, and (4) the question of

reasonable alternative solutions to the problems encountered under the carrier-unloading rule. Pertinent facts of record will be described under the appropriate headings.

The general question of unloading duty. In its 1974 report, the Commission concluded, on the basis of its appraisal of the record at that time, that respondents did have a duty to provide an unloading service. However, the Commission did not find that every motor common carrier has a duty to unload under all circumstances. Rather, it observed that:

Actual practices with respect to a tariff imposed duty of carrier loading and unloading, particularly with respect to truckload traffic and specialized motor operations, are not uniform. Some carriers have traditionally performed loading or unloading services while some have deferred such performance to others. See e.g., Investigation of Practices-United Warehouse Co., 316 I.C.C. 5, 9 (1962). In this regard, it must also be recognized that performance of loading and unloading in connection with the duty to pick up and deliver as part of the requirement to provide adequate service may vary according to the commercial needs of shippers.

Accordingly, the Commission recognized that a determination of whether an unloading duty exists requires consideration of (1) the "statutory obligation to provide a complete service," (2) the characteristics of the commodity transported, and (3) the commercial needs and practices of the industry or shippers served. The phrase, "statutory obligation to provide a complete service," has reference to the statutory requirement for "safe and adequate service" in section 216(b), as amplified in Commission cases. In particular, the Commission held in Restrictions on Service by Motor Common Carriers, 111 M.C.C. 151 (1970), that carriers. could not adopt tariff restrictions on the commodities they would transport or the territories they would serve, where inconsistent with the scope of their operating authority. In C.O.D. and FreightCollect Shipments, 343 I.C.C. 692 (1973), the Commission stated that carriers are required to serve shippers "fully and fairly," and to provide "fully responsive" service (pp. 742, 744). Thus, the phrase, "statutory obligation to provide a complete service," has reference to the statutory requirement for "safe and adequate" service, as interpreted by the Commission to require full observance of the territorial and commodity scope of the certificate as well as provision of a service fully responsive to shipper needs. In determining the extent of particular service obligations, the Commission has never held that the extent of shipper need is

unimportant, nor that practical difficulties in providing service can be ignored. Both factors received close attention in the C.O.D. case. The second consideration mentioned in the 1974 report, the nature of the commodities transported, is obviously relevant with respect to whether or not a particular service should be required to be performed by the carrier. This factor may make the service one that is particularly appropriate for performance by the carrier or, on the other hand, particularly appropriate for performance by the shipper or consignee.

The third factor, the commercial needs and practices of the industry or shippers served, also has a clear bearing on whether the carriers themselves should be required to perform a particular serivice. The existence of such needs and practices may warrant the continuation of particular carrier services despite problems incurred by the carriers in providing them. However, this is not to say that major carrier operating problems should be ignored to avoid minor shipper inconvenience. Rather, the factors must be balanced, and the best practical solution sought.

In conclusion, neither the Interstate Commerce Act nor the Commission's decisions thereunder establish a universal duty for motor carriers to provide an unloading service in all instances. In a particular case, the Commission may find that unloading is an element of adequate service, with respect to the transportation provided under the tariffs involved. However, as recognized in the Commission's 1974 report herein, such a determination requires an analysis of all the pertinent circumstances.

Reasons for the consignee-unloading rule.-As shown by the record in these proceedings, the drivers who operate the equipment used in transporting these commodities are, for the most part, owner-operators. That is, they are individuals who own their own tractors and transport shipments for a particular carrier under a contractual arrangement.

Beef carcasses weigh about 175 pounds, and are transported unwrapped, suspended by hooks from overhead rails in the trailer. Their unloading requires at least two men, and must be done under the most sanitary conditions possible. One unloader must grasp the beef with both arms, lift it, and after another unloader disengages and removes the hook, carry the beef out of the trailer to a rail on the receiving platform where it is hung by another hook.

Where carrier unloading is required, the driver must have someone to assist him. Frequently, he is not accompanied by a codriver. Often there are no carrier personnel available at the

destination to assist. In such cases, the driver must hire one or more local laborers to help perform the unloading. In addition, many destinations require locally issued health credentials for the handling of these commodities. It is difficult for a driver who operates to numerous destinations to maintain such credentials and keep them current."

Where, in spite of these difficulties, the driver was ready and willing to perform the unloading, the record shows that the practice of preventing him from doing so was widespread. Typically, this practice took two forms. (1) An individual at the consignee's dock would designate a gang of laborers that the driver must hire. If the driver indicated that he did not want to use them, he was delayed substantially, perhaps even overnight, in being given access to the unloading dock. The driver could not resist this form of coercion, in view of the perishable commodities involved and the loss of productive time that he would incur from the delay. (2) At other destinations, the consignee would prohibit the driver from unloading, and require that the unloading be done by its own employees, either for reasons of efficiency or on grounds that health regulations prohibited the driver from handling the meat.

Where local laborers were used, the carrier was unable to arrange the withholding and reporting of income and social security taxes because the laborers usually gave false identities. Moreover, the driver could exercise no practical control over the health, cleanliness, or unloading ability of the laborers. Where the driver was required to pay the consignee for unloading, the carrier risked violation of prohibition against rebates and discrimination.

Regardless of whether casual laborers or consignee employees did the unloading, the driver was required to pay their charges in cash. He was not reimbursed for these payments, and had to absorb them out of his own compensation. He was in no position to control the level of these charges, and was increasingly being required to pay exorbitant amounts in order to have the unloading accomplished. Respondents' owner-operators were severely dissatisfied with the coercive conditions that they were encountering and with the financial demands that were being made upon them. As a result, respondents experienced both a high number of owner-operator

In the case of loose meats, such as hams, shoulders, bellies, beef ribs, and porkloins, unloading could be performed by a single person, given enough time. However, except for this difference. the record shows that unloading conditions for loose meats have been similar to those for carcass

meats.

resignations, and difficulty recruiting new owner-operators for the transportation of these commodities.

Once the consignee-unloading rule became effective, the rate of resignations decreased substantially. Several owner-operators testified in March 1969, that they experienced no delivery problems after the consignee-unloading rule took effect in November 1968. In our opinion, these facts constitute a strong justification for the maintenance of a straightforward consignee-unloading rule by respondents. Unless persuasive considerations to the contrary exist, no rule should be imposed by us that would perpetuate the coercive and demoralizing circumstances that have been faced by the owneroperators, the exaction from them of arbitrary and exorbitant charges, and, ultimately, the impairment of the carriers' ability to continue transporting this traffic.

The question of necessity for carrier unloading.-In its 1974 report, the Commission described the "main thrust" of protestants' evidence as being that "there is a commercial need for carrier unloading since consignee unloading is not feasible, costwise, and cannot be undertaken by small receivers of these commodities." This was indeed the intent of the evidence, but, on closerexamination, the evidence falls short of proving these propositions. Testimony concerning the circumstances of particular consignees was presented by three food chains, one meatpacker, and the Department of Defense. With respect to the actual unloading function, none of the food chains showed that they were physically unable to unload with their own employees. Kroger Company, in fact, does perform unloading with its own employees. Acme Markets, Inc., stated that it would not allow its employees to unload an outside truck for safety reasons and because of union restrictions. Nevertheless, its own employees do unload boxcars and some "piggyback" (trailer-on-flatcar) shipments, as well as the company's own trucks.

3

Colonial Stores, Inc., also stated that it did not permit company employees to unload meat shipments, citing safety reasons and the sporadic arrival of trucks. Before the consignee-unloading rule took effect, unloading was done at Colonial's warehouses with laborers that made themselves available for hire by the carrier just outside Colonial's premises. This consignee asserted that, after the

'A general statement was also submitted on behalf of the National Association of Food Chains. However, upon objections to the qualifications of the witness presenting it, assertions contained therein concerning the ability of individual food chains to furnish unloading services were stricked by the Administrative Law Judge.