Background and Procedural History

This proceeding is concerned with the issue of whether employees working as conductors in train service on California's two major common carrier freight railroads are properly qualified to do so under a California law that imposes experience requirements for such employment. A conductor is the "captain" of a train, riding on board to ensure that it moves safely and expeditiously on the railroad in accordance with the carrier's operating rules and other requirements. Traditionally, the route to qualification for promotion to the position of conductor was lengthy service as a brakeman, assisting the conductor in a sort of apprenticeship capacity until the employee was "set-up" as a conductor.² This practice has changed in recent years, a circumstance that is the occasion for this proceeding.

"Conductor" and "brakeman" are titles for operating crafts on the railroads. These jobs are defined by industry practice and collective bargaining agreements rather than by statute or regulation, and in recent years many of the historical railroad craft distinctions disappeared as work rules were modernized to facilitate more efficient train operation. Historically, brakemen were responsible for assisting the conductor, among other things by setting and releasing brakes on the rail cars as they were hauled or switched on the train.

With the tremendous technological improvements in locomotives, cars, communications, signaling and failure detection devices that have been made since the Second World War, many of the tasks traditionally performed by brakemen have been eliminated, and for many train operations the job is totally redundant. As a result, the pool of brakemen who could be promoted to conductor has greatly diminished by attrition, and new hiring and training practices enable employees to enter train service as conductors following a period of formal training that is shorter than the traditional apprenticeship period. Notwithstanding enormous changes that have taken place in the industry, California still has on its books a number of statutes premised upon railroad employment practices of a bygone era.³

One such outmoded California statute is Section 6906, which states, in pertinent part:

No common carrier shall employ any person as:

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(b) A conductor who has not had at least two years' actual service as a brakeman in road service on a steam or electric railroad other than a street railway, or one year's actual service as a railroad conductor in road service.

This statute is central to the instant proceeding.

We initiated this formal investigation because the United Transportation Union (UTU) reported to us that the respondents were violating Section 6906. These reports were corroborated by our staff, based upon employment records and other documentation furnished voluntarily by the respondents at staff's request. On the basis of the investigative record, we issued a formal Order to Show Cause (OSC) "for the limited purpose of determining why the BNSF and the UPRR should not be ordered to comply with the conductor qualification requirements of [Section 6906]."⁴ The OSC provided the respondents and the UTU an opportunity to present "evidence and/or argument" on this issue.⁵ The OSC also reflects our concern that the respondents' failure to comply with the experience requirement of Section 6906 might present a safety problem.

The assigned Administrative Law Judge (ALJ) held an initial prehearing conference (PHC) to fix a procedural schedule. Because the respondents indicated that they intended to challenge the validity of Section 6906 as part of their showing why they should not comply with it, the ALJ structured the proceeding so that this legal issue could be addressed before any evidence was taken. On September 3, 1999, the respondents filed a motion to dismiss on these grounds. The issue was fully briefed by the respondents and the UTU. By ALJ Ruling dated May 25, 2000, the motion was denied and the proceeding progressed to the evidentiary stage. The ALJ held a second PHC on June 21, 2000, and established a schedule for this phase. No hearing was held. Instead, two rounds of written testimony and briefs were filed, and the proceeding was submitted on November 13, 2000, on that record.

³ For example, Section 600(c) includes within the definition of "trainmen" motormen and telegraph operators as well as conductors and brakemen. Although some of these jobs have survived, their duties have greatly changed, and their titles have a quaint ring in their modern context.