UNION CALLS ICC SLOW ON RAIL-SWITCHING ROW

UNION CALLS ICC SLOW ON RAIL-SWITCHING ROW

United Transportation Union officials are accusing the Interstate Commerce

Commission of dragging its feet in handling a dispute over rail-switching services in northern California in place since January 1991.

At issue are the six miles of track that Chevron U.S.A. Inc. of San Francisco leased from Atchison, Topeka & Santa Fe and Southern Pacific railroads to move almost 11,000 cars a year between its refinery and the carrier's railyards.The dispute represents the latest chapter in battles over contract switching run by private contractors not certified as a railroad by the ICC though they are considered carriers by the Federal Railroad Administration.

The ICC previously has said it lacked jurisdiction over contract switchers, whose work often was performed by union workers before the operations were created.

The latest case is quite unusual, according to ICC insiders, for two reasons:

First, Chevron asked the ICC in September for a rarely used retroactive exemption from some agency regulations applying to railroads, 32 months after it began leasing the track. Both railroads approached Chevron about purchasing the line, but later agreed to a lease agreement, according to the oil company's filing.

Second, Chevron's contractor, Western Plant Services Inc. of Richmond, has separate contracts to serve two other shippers on the line, Paktank Industries and General Chemical.

The union contends that makes someone a common carrier because services are available to multiple customers, not just a single contract switching customer.

R.M. Sievers, an official with UTU's Local 100 in the San Francisco Bay area, said "we don't want a precedent started where carriers can talk shippers into doing their own railroad work, especially in light of hazardous materials handled there."

"I have a concern that because this complaint originated with organized labor that it was not given the handling by the ICC that it would have been given had it originated from another source," said James Brunkenhoefer, national legislative director for the union. "I can't help but feel there is a bias among some at the ICC that automatically disregards anything from organized labor."

ICC officials acknowledged receiving complaints about Western Plant Services as early as March, 1991. Letters from the ICC to UTU during that year say the agency was investigating the case, but no subsequent communications were sent.

A spokesman said the agency's only comment was that "the ICC was involved in a lengthy, protracted negotiated effort to administratively resolve the issue. The matter did not lend itself to quick enforcement. The matter before the agency will result in a definitive decision."

Chevron has filed two petitions, asking the agency to find it lacks jurisdiction in the case, or alternatively to find that Chevron is exempt from certain requirements that railroads must meet. An attorney representing the company declined to comment.

ICC staff apparently disagreed about how to handle the case, according to information in Chevron's filing.

The filing says Chevron met with ICC staff, apparently in 1991, and was advised informally that the operation was exempt from ICC jurisdiction, prompting the firm to choose a lease for the property.

However, Chevron's filing said an agency attorney told them in early 1993 that the agency had to rule on the lease, which apparently prompted Chevron to file its petitions.

Bob Schuette, manager of rail services for Western Plant Services, said the company has not applied for ICC authority to operate a railroad and does not believe it is required to.

The switching concern, a subsidiary of Hall-Buck Marine of Burnside, La., is considered a railroad by the FRA, and has provided required information on rules, operating performance and safety to FRA and other agencies, Mr. Schuette said.