Petition for Review of an Order of the Interstate Commerce Commission.
Posner, Coffey, and Nichols, Circuit Judges.*fn*
Petitioner, Raymond Walsh, petitions this court to review a decision by the Interstate Commerce Commission to dismiss the petitioner's complaint, alleging a denial of protective arrangements under section 219(g) of the Staggers Rail Act of 1980, 49 U.S.C. § 10706 note (Supp. IV 1980), for lack of jurisdiction. Based upon our interpretation of Western Railroads-Agreement, 364 I.C.C. 782 (1981) and New York Dock Railway-Control-Brooklyn Eastern District Terminal, 360 I.C.C. 60 (1979), we affirm the decision of the Interstate Commerce Commission.
Petitioner, Raymond Walsh, was employed by the Uniform Classification Committee ("UCC") from October 7, 1967 to June 30, 1981. At the time in question, the UCC was a railroad rate bureau that conducted collective rate-making activities, including the regulation of interchange arrangements and the setting of rate levels, under statutory antitrust immunity. Between September, 1969, and March, 1979, Walsh served as a non-union, salaried, "special representative" for the UCC, formulating rules governing the packing of fresh fruits and vegetables and loading of the same into rail cars for transportation. On March 21, 1979, the Interstate Commerce Commission ("ICC") deregulated the rail transportation of fresh fruits and vegetables and soon thereafter the UCC discontinued its rate-making activities in that industry. Though Walsh's rule-formulating duties were abolished, the ICC retained Walsh as a "special representative" until his discharge on June 30, 1981.
On November 25, 1981, Walsh filed a complaint with the ICC alleging that as an employee of the UCC, a railroad rate bureau, he fell within the parameter of section 219(g) of the Staggers Rail Act of 1980, 49 U.S.C. § 10706 note (Supp. IV 1980), ("section 219(g)") which provides:
"The Interstate Commerce Commission shall require rail carrier members of a rate bureau to provide the employees of such rate bureau who are affected by the amendments made by this section with fair arrangements no less protective of the interests of such employees than those established pursuant to section 11347 of Title 49, United States Code . . . ."
Walsh claimed that the ICC's deregulation of rail transportation for fresh fruits and vegetables caused the termination of his employment, thus "affecting" him within the meaning of section 219(g) and entitling him to protective arrangements.
On March 12, 1982, the ICC, Review Board Number 3, dismissed Walsh's complaint, ruling that the issue "requires a factual determination of the connection between the Staggers Act and complainant's [Walsh] dismissal. The Commission does not have jurisdiction to make such a determination." Walsh v. Uniform Classification Committee, I.C.C. Decision No. 38741 at 2 (March 12, 1982). Walsh appealed the decision, and on August 4, 1982, the ICC, Division Number 1, Acting as an Appellate Division, dismissed "the complaint for lack of jurisdiction." Walsh v. Uniform Classification Committee, I.C.C. Decision No. 38741 at 3 (August 4, 1982). The Board based its decision on Western Railroads-Agreement, 364 I.C.C. 782 (1981) ("Western"), wherein the ICC interpreted section 219(g) to require that the conditions set forth in New York Dock Railway-Control-Brooklyn Eastern District Terminal, 360 I.C.C. 60 (1979) ("New York Dock"), be applied to rate bureau employees who were "affected," within the meaning of section 219(g). The New York Dock conditions provided that Walsh was to submit his factual dispute to arbitration, in order to determine whether the ICC's deregulation of the transportation of fresh fruits and vegetables actually caused the termination of his employment.
On August 27, 1982, Walsh petitioned this court to review the ICC's decision. The sole issue before us is whether the ICC has jurisdiction over a non-union rate bureau employee's complaint that he was "affected" by a reduction in rate bureau activity and is thereby entitled to protective arrangements under section 219(g) of the Staggers Rail Act of 1980.
Petitioner contends that the ICC has jurisdiction over his complaint because the ICC's decision in Western did not impose New York Dock conditions on employees of railroad rate bureaus and alternatively, if the ICC did impose New York Dock conditions on such employees, the arbitration provision contained therein does not apply to petitioner because he is a non-union employee who never agreed to that condition.
We initially set forth the standard of review that this court applies when reviewing an ICC decision. 5 U.S.C. § 706 provides in pertinent ...