(dissenting):
I must dissent from the majority opinion in this case.
In my opinion, both the Commission and the defendants here lean too heavily upon Section 2 of the Uniform Service Contract which was approved by the Commission. That Section provides that a railroad, which itself desires to furnish part of the service in connection with its sleeping car operations, may request that Pullman furnish a partial form of sleeping car service on lines of the railroad, whereupon Pullman shall furnish such partial service on reasonable and non-discriminatory terms. The concluding clause of the Section, however, — which provides that the contract shall be subject to such modification as may, in a particular case, be necessary to provide reasonable and non-discriminatory terms therefor — has been read by defendants to permit, ad infinitum, future contract modifications, and all without obtaining the prior approval of the Commission, apparently on the ground that Commission approval of the Uniform Service Contract is approval of such future modifications.
It appears to me that when the Commission undertook to interpret the law and the meaning and effect of the Contract here involved, arriving at its determination chat no hearing was necessary, it encroached upon a function reserved to the courts.
It is my view that the proposed modification here under consideration constituted not a partial withdrawal from the pooling arrangement but a complete change and modification thereof which, under Section 5(1) required a hearing by the Commission and the taking of further evidence; that the Commission, an arm of the government and composed of members skilled as experts in all of the ramifications of transportation— technical, economic and social — failed to carry out the duty for which it was specifically created when it failed to hold such a hearing and to take evidence.
It is my further view that should the Commission approve the Pennsylvania’s proposed change or modification of the Uniform Service Contract, (following the hearing required under Section 5(1) of the Act), that approval should certainly be conditioned on provisions to insure employee-protection. Otherwise, the involved Pullman employees could have no assurance of employment security even though their union be a party to a collective bargaining agreement on their behalf.
It was brought out in oral argument that about 53 Pullman conductors would lose their jobs under Pennsylvania’s proposed arrangement in the instant case. In all likelihood, however, other railroad members of the pool will follow Pennsylvania’s lead, in which event more than 600 Pullman employees will be jobless, engendering serious social and economic problems for a considerable segment of the employable public. Viewing the matter in a practical light, a large number of these employees are men who are not actually old but are too old to acquire other skills and too old to be absorbed by industrial concerns whose pension plan set-ups do not allow for the employment of, shall we say, more mature people. In their employment by Pullman over the years, these men have acquired seniority rights and they have moved closer to their day of retirement when they could expect the security of a pension which they have earned.
The Commission’s determination, in the instant case, to dispense with the hearing could be that small hole in the dike which, as it widens, may well affect the employment status and rights of untold numbers of other employees; may well have an impact on the railroads *658themselves in employer-employee relations and, finally, in the chain of events, may affect the public in the quality of the service rendered it.
Granted that the Commission has a heavy caseload and that a hearing on the instant matter could be time-consuming, and granted also that the problem of the plight of these Pullman employees is a thorny one, it is the responsibility and duty of the Commission to grasp the “thorny” thistle, to hold hearings, to take evidence and then to make its ruling.
I cannot lose sight of the fact that all of Pullman’s stock is owned by the railroad-members of the pooling agreement and that Pennsylvania, which owns more than 118,000 shares of that stock, is one of the controlling shareholders. The proposed change or modification of the contract was not arrived at by two independent contracting parties, both sui juris. For all practical purposes, the agreement is a unilateral one, the terms of which were dictated by Pennsylvania. Pullman has been cast in the role of a mere puppet, with no volition of its own, and has been placed in a position of breaching its contract with ORC&B which, in turn, is left with no recourse because Pullman is simply going out of the business of employing members of ORC&B as and whenever Pennsylvania pulls the controlling strings.
It is a skillful legal maneuver by which the Pennsylvania in this case, and eventually all of the other Pullman stock-owning railroads, may breach with impunity to themselves and to Pullman the collective bargaining agreement between Pullman and ORC&B, and have the benefits of the Commission’s approval of the pool, otherwise contrary to law — taking only the sweets and rejecting the bitters of the arrangement.
The Commission exceeded its authority when it failed to restrict itself to its field of expertise and when it refused to hold the hearing, sought by ORC&B, at which evidence might have been introduced to determine whether the new arrangement would be in the interest of better service to the public or of economy in operation.
I would remand the cause to the Commission for a hearing and the taking of evidence.