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neither Mr. Alkire nor Mr. Taylor testified at the hearing, the record is silent as to whether applicant sought in good faith the advice of counsel, fully and honestly disclosing all pertinent facts to him and in good faith and honestly following counsel's advice, relying upon it and believing it to be correct.

A condition precedent to continued operation as a motor carrier under authority issued by this Commission is compliance with the act and our established rules, regulations, and interpretations. Applicant's continuous and notorious pattern of violations in the face of its prior civil forfeiture record is convincing evidence of its negative attitude with respect to such compliance and its willingness to conduct its motor carrier operations in full conformity with appropriate rules and regulations in the future. A carrier which ignores the rules, regulations, and interpretations of the Commission should not, in our opinion, be granted additional authority to engage in interstate operations. In the circumstances here present, we are unable to find that applicant is fit to receive a grant of authority, and the application will, therefore, be denied. In reaching our negative conclusion concerning applicant's fitness, we do not wish to appear unsympathetic to the immediate and substantial needs of the supporting shippers. We would point out, however, that these shippers are not precluded from obtaining relief elsewhere. They may support another carrier for temporary or permanent operating authority to provide the proposed service or make reasonable efforts to utilize the existing available services of presently authorized carriers. Midwest Emery Frt. System, Inc.-Invest. & Revoc., 124 M.C.C. 105, 119 (1975).

FINDINGS

We find that applicant has failed to show that it is fit, willing, and able properly to perform the proposed service or to conform to the requirements of the Interstate Commerce Act and our rules and regulations thereunder; that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969; and that the application should be denied. An appropriate order will be entered.

COMMISSIONER GRESHAM did not participate.

No. MC-51146 (SUB-NO. 320)

SCHNEIDER TRANSPORT, INC., EXTENSION-
MIAMISBURG, OHIO

Decided July 1, 1976

Public convenience and necessity found not shown to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of paper tags and labels, materials and supplies used in the manufacture and distribution of paper tags and labels, and machines (including service parts therefor) and nonpaper materials used in connections with paper tags and labels, from and to certain points and areas in the United States, subject to certain restrictions. Application denied.

Charles W. Singer and Gregory A. Stayart for applicant.

Maurice F. Bishop, Gerald D. Colvin, Jr., Robert L. Fleming, Michael E. Gribble, E. V. Kowalewitz, Donald B. Levine, Francis W. McInerny, Richard A. Mehley, William Slabaugh, and Michael J. Wyngaard for protestants.

REPORT OF THE COMMISSION

DIVISION 1, COMMISSIONERS MURPHY, GRESHAM, AND CHRISTIAN

MURPHY, Commissioner:

Exceptions to the order recommended by the Administrative Law Judge were filed separately by protestants McLean Trucking Company, Bowman Transportation, Inc., Yellow Freight System, Inc., and jointly by Associated Truck Lines, Inc., Central Transport, Inc., Central Transport, Inc., operator (in part) of Michigan Express, Inc., Ryder Truck Lines, Inc., and Interstate Motor Freight System, and applicant replied thereto. Our conclusions differ from those recommended.

By application filed April 30, 1973, Schneider Transport, Inc., of Green Bay, Wis., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of paper and paper products, products produced or distributed by

manufacturers and converters of paper and paper products, and material and supplies used in the manufacture and distribution of paper and paper products (except commodities in bulk), between the plant and warehouse sites of Monarch Marking Systems at Miamisburg, Ohio, on the one hand, and, on the other, points in the United States (including Alaska and Hawaii). At the oral hearing, applicant indicated it would present evidence in support of only those portions of its original application which do not duplicate its existing authority (Applicant's so-called "Limitation of Proof" is set forth in the appendix to this report). A number of protestants oppose the application.'

The Administrative Law Judge recommended that applicant be granted authority, as set forth in the aforementioned "Limitation of Proof." He concluded essentially that protestants cannot provide the complete service shipper requires, which contemplates primarily the peddle distribution of its products, because they operate principally along regular routes and under tariffs providing for only a limited number of stopoffs en route to destination.

On exceptions, protestants contend essentially that the findings of the Administrative Law Judge are contrary to the evidence and the applicable law; that the evidence fails to prove shipper's asserted need for a complete service, particularly as it envisions between 6 and 12 peddle-stop deliveries; that applicant has failed to show that the proposed service is operationally feasible in conformance with this Commission's policy on such matters; that the Administrative Law Judge failed to note, or he improperly evaluated, evidence that the supporting shipper had used sparingly (if at all) the available services of applicant and certain protestants; that, in this regard, the evidence fails to show the nature of shipper's existing carrier service

Those active protestants which did not file exceptions to the initial decision include Brown Transport Corp., Harper Motor Lines, Inc., Consolidated Freightways Corporation of Delaware, Jones Transfer Company, W & W Express, Inc., Hennis Freight Lines, Inc., The National Transit Corporation, and Roadway Express, Inc. We construe the action of these protestants as indicating a lack of continuing interest in this proceeding. Compare Builders Transp. Co. Ext.-Iron and Steel Articles, 107 M.C.C. 365, 375 (1968).

Protestants refer to the Commission's "General Policy Statement Concerning Motor Carrier Licensing Procedures 'Operational Feasibility)," issued November 23, 1973. Pursuant to the policy, an applicant's initial evidentiary presentation (as here pertinent) at oral hearing must include evidence of how its equipment is expected to be returned to an origin point, as well as other data relating to the operational feasibility of its proposal (including the need for deadhead operations). These policy requirements are made applicable to all applications filed on or after December 1, 1973, and, “to the extent practicable, *** to all proceedings in which an applicant's initial presentation of evidence has not been completed as of December 1, 1973]." In this proceeding, the application was filed before December 1, and applicant did not complete its initial presentation until August 7, 1974.

or any material deficiencies therein; that the evidence does not warrant a grant of authority particularly respecting shipper's Canadian traffic, which protestants Central, Norwalk, Michigan, and Mohawk aver they have handled without complaint, and which they allege applicant cannot handle for lack of proof of appropriate Canadian authority; and that, for all of the above-stated reasons, the application should be denied.

In its reply, applicant maintains that the recommended grant of authority is fully supported by the evidence and should be affirmed; that protestants have failed to demonstrate any materially adverse effects on their operations by a grant of the authority sought; and that protestants have failed to show any good or sufficient cause for reversing the Administrative Law Judge's recommended grant of authority.

The evidence, the initial decision and recommended order of the Administrative Law Judge, the exceptions, and the reply have been considered. We find the Administrative Law Judge's statement of facts to be substantially correct, and, as supplemented herein, we adopt that statement as our own.

FACTUAL BACKGROUND

Schneider is a motor common carrier experienced in the transportation of cellulose materials and products, paper and paper products, and materials, equipment, and supplies used in the manufacture and distribution of the above-described commodities. The corresponding territorial scope of its pertinent authority is virtually nationwide. Applicant asserts, however, that its authority as now framed does not permit it to provide a complete service for the supporting shipper. Specifically, applicant explains that it holds no authority to transport machines and certain nonpaper items distributed by the supporting shipper, including materials and supplies used in the manufacture of such items. According to Schneider's witness, applicant has handled only inbound shipments of paper and paper products for the supporting shipper under existing authority (no specific details were given). By this application, Schneider seeks primarily to broaden its commodity authority to encompass shipper's full line of products, so that it may become the primary motor carrier in shipper's new distribution scheme. The service proposed will embrace the expedited handling of pool-load and less-than-truckload (LTL) shipments, multiple pickups and peddle deliveries (with an unlimited number of

stopoffs), and coordinated movement of outbound and inbound traffic. Applicant intends to serve the supporting shipper with equipment terminating at or near Miamisburg, although, if necessary, it will station equipment at shipper's facility there. As relevant, Schneider maintains a terminal at Dayton, Ohio, and it operates nearly 1,500 trailers suitable for the transportation of the involved commodities. Applicant expects the proposed operation to reduce its systemwide deadhead mileage, which was 17 percent for the first 9 months of 1973. The proposed inbound service in particular is expected to help balance applicant's operations in southern Ohio, southern Indiana, and northern Kentucky, where, in 1973, applicant terminated 338 vehicles fewer than those it originated. Applicant believes that a grant of authority, as sought, will enable it to conduct more efficient operations and to provide a complete service to the supporting shipper.

Supporting shipper, Monarch Marking Systems, a subsidiary of Pitney Bowes, Inc., of Miamisburg, manufactures and distributes "complete marking systems," which are used generally by manufacturing and retail business establishments, including grocery and chain department stores, to price and identify their products. The principal commodities produced by Monarch, which represent the core of its marking systems, are paper-made price and identification tags and labels, 130 million of which are manufactured daily at Miamisburg. From an inspection of samples of these commodities, it appears that the tags are affixed to consumer products by string, wire pins (which are integrally inserted into the tags), plastic hooks (or, "tagger tails"), and staples. It further appears that the paper labels are adhesive and may be printed and affixed to consumer products by use of one or several depicted applicating machines manufactured by Monarch at Miamisburg. Monarch also manufactures machine service parts (whose volume was 3 million pounds in 1973) and stocks them primarily at regional warehouses strategically located in 10 major American cities. The machines, the service parts, and the tag-affixing devices (except string) constitute a minute, but unspecified, portion of nearly every shipment of tags and labels, for which principal reason applicant seeks to broaden its commodity authority. Monarch maintains satellite plants at Garden Grove, Calif., and Toronto, Ontario, Canada, for which the Miamisburg plant supplies an unspecified volume of rolled adhesive paper to make paper labels. Shipper separately lists representative destination points in all involved States and the volume of traffic (undifferentiated as to the commodities involved) which moved to

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