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it. This deals with exemption of persons from liability, and I just simply don't know what the language here means.

If you wish to comment on it, please do so, and then we will have your comments, as well as those of all the others as they come along.

Mr. BERNSTEIN. We will comment. When we saw DOT's proposal on this, and I read the except clause, which is what you are referring to, I didn't understand it, in all candor, and I gave it to four other lawyers in my office, and one of them understood it.

And so we were against it, for one simple reason: If you don't understand it, you can't be for it, you have to be against it, but the best view of it was that it was circular reasoning, the dog biting his tail, saying that you weren't relieved of common law liability because of the rule, but if you followed the rule, it was OK.

Now, the only way I can read that as saying you are liable on one end, if you are not on the other. I think it is very inept language, and I think it lacks clarity, and what is even more important, the brotherhoods feel that there should be no relief from common law liability merely because you follow a rule.

Common law, I believe

Mr. Adams. You would relieve certain specific statutory liabilities. For example, this would exempt the type of liability created under the general principle that if you violate a rule, you have a type of additional specific liability.

In other words, when you violate a specific rule, as opposed to a general liability, you can be held liable but under this if you are specifically authorized to follow a rule you would be exempted from all liability, general and specific.

Mr. BERNSTEIN. Well, it may mean what you say, Mr. Adams, but I don't know that it does mean that, and what is more important, I don't think any court will know.

Mr. Adams. All right, fine.
Thank you, Mr. Chairman.
Mr. FRIEDEL. Mr. Brown.
Mr. Brown. I would like to pursue this area in a little more detail.
Mr. BERNSTEIN. I am sorry.

Mr. Brown. Well, it may be helpful to the question that I am going to ask.

Mr. BERNSTEIN. I am sorry, Mr. Brown.

Mr. Brown. I was just trying to get the chairman's approval that you are conversing on your own time, and not on mine. [Laughter.]

Mr. BERNSTEIN. You can submit the bill to us, Mr. Brown.
Mr. Brown. Thank you.

My question pertains to 5(b) and 3(a) (3), and your remarks about the exemptions under your amendment No. 9 to the Railway Labor Act exemptions.

Is your thinking that anything that the railroads and railroad labor agreed on would not be subject to Federal jurisdiction under 3(a) (3) of this legislation? Is that correct?

Mr. BERNSTEIN. Right.
Mr. Brown. Now under 5(b)

Mr. BERNSTEIN. When you said "agreed on," I assume you mean agreement reached under the Railway Labor Act. Mr. BROWN. Right.

Now, under 5(b), where does that leave this responsibility, or the possibility of suit, if management and labor agree on a regulation or a standard which the Federal Government does not agree to?

Mr. BERNSTEIN. I will answer you. I have already stated that it was our view that amendment 9, anything that was bargained on between brotherhood and management under the Railway Labor Act would be carved out of the jurisdiction of the administrator.

Having done that, if you knock the except clause off in 5(b), the act merely reads “Compliance with any standards does not exempt you from any liability,” meaning common law liability, which would be the situation as it previously existed, and as it should be.

Mr. BROWN. If labor and management reach an agreement setting a standard which does not comply with the Government standard, would labor then share management's common law liability ?

Mr. BERNSTEIN. I do not believe so, and I might say incidentally, on this very same subject, a question was asked yesterday, Would the adoption of these regulations or this provision in compliance, 5(b), impose any liability on the Federal Government, for what people did, and I think the answer is this: The Federal Government is civilly liable only to the extent permitted by the so-called Federal Tort Claims Act, with which I am sure you are familiar.

The old rule of the common law used to be you can't sue the sovereign. The Federal Government says, "Now, you can sue us, for certain things."

Now under that act, there is an exception or exemption, of course, so-called, using the statutory language now, so-called discretionary functions.

The courts have held, whatever the outer limit of discretionary functions may be, it is clear that the act of adopting a rule or regulation by the administrative agency is a discretionary function.

There are borderline or gray areas, but that is not a gray area. When a Federal administrator adopts a rule or regulation, that is an action which is exempt from civil responsibility under the Federal Tort and Claims Act.

Now, it is true there won't be a comparable relief to private agencies, such as the brotherhoods, but I think the fact that the brotherhood and the railroad come to an agreement on something does make the brotherhood liable, if for no other reason that the common law concept of human intervention.

That is, the railroad itself has made this agreement, and they are running the railroad, and if they think that arriving at that agreement will create liability or create an accident, then it is their duty not to arrive at such an agreement. That is the concept of human intervention in common law tort.

Mr. BROWN. I have just one other area of questioning. Do you understand the licensing described yesterday by Mr. Lang as not covered in this legislation?

Mr. BERNSTEIN. I understood Mr. Lang, and we were somewhat dismayed, in all honesty, by Mr. Lang's thought that they might get into extensive licensing.

Mr. BROWN. His enthusiasm?

Mr. BERNSTEIN. Our enthusiasm was on the wane at that point, when he spoke about that. Do I speak for the brotherhood ?

Mr. CHESSER. Yes.
Mr. BERNSTEIN. We didn't like that.
Mr. Brown. His enthusiasm seemed to be quite extensive.
Mr. BERNSTEIN. Yes, it did.

Mr. FRIEDEL. The House is in session, and the committee will stand adjourned until 10 tomorrow morning, and we will continue at that time.

We have two other witnesses that were to be heard this morning and we will hear them tomorrow.

Mr. CHESSER. Thank you, Mr. Chairman.

(The following correspondence was subsequently submitted for the record :)

HOUSE OF REPRESENTATIVES,
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D.C., May 23, 1968.
Mr. AL H. CHESSER,
Chairman, RLEA Safety Committee,
Brotherhood of Railroad Trainmen,
Washington, D.C.

DEAR MR. CHESSER: In the hearings yesterday on H.R. 16980, a bill to establish railroad safety standards there was a colloquy between Representative Brotzman and Mr. Bernstein appearing on page 159 having to do with the role of the National Transportation Safety Board.

Mr. Bernstein discussed the role of that Board and stated that after it had investigated an accident, it issued a report which might serve several purposes, among which purposes was that it had a "use in private litigation". In this connection I wish that you would review the language of Section 11 of the bill, language which has been disturbing to me, and comment as to whether or not subsection (C) cannot be construed in a manner opposite to that suggested by Mr. Bernstein, namely, as preventing the use of any such report in any private litigation. Sincerely yours,

HARLEY 0. STAGGERS,

Chairman.

RAILWAY LABOR EXECUTIVES' ASSOCIATION,

Washington, D.O., June 7, 1968. Hon. HARLEY O. STAGGERS, Chairman, Committee on Interstate and Foreign Commerce, Rayburn House Office Building, Washington, D.O.

DEAR MR. CHAIRMAN: This letter is in response to your letter of May 23, 1968, in which you asked me to comment on whether or not Section II (c) of H.R. 16980 would prevent the use of any report by the National Transportation Safety Board.

Decisions from limited litigation which has already arisen under parallel language in other statutes such as aviation (49 U.S.C. 144 (e)) and motor carriers (49 U.S.C. 320(f) prohibit any report from being introduced as evidence. Universal Airlines, Inc. v. Eastern Airlines, Inc., 188 F. 2d 993, 88 U.S. App. D.C. 219 (1951); Lobel v. American Airlines, 192 F. 2d 217 (2d Cir. 1951). The scope and extent to which the reports may be otherwise used is unclear, particularly their use in pretrial proceedings. In the case of Yanick v. Pennsylvania Railroad Company, 192 F. Supp. 373 (E.D.N.Y.1961), the Court permitted testimony which was given in an ICC investigation to be used for impeaching a witness. In Berguido v. Eastern Airlines, 317 F. 2d 628 (3rd Cir. 1963), the Court permitted the use of experts' testimony given at a Civil Aeronautics Board hearing to be used to refresh the witness' recollection.

The Railway Labor Executives Association favors extensive use of these reports in private civil litigation. This would assure private litigants the advantages of public investigation which they could not privately afford to duplicate, and would still serve the purpose of avoiding the possibility that the report will in effect preempt the function of the fact-finder in any litigation. While it

may not be proper to permit the reports to be introduced as evidence in litigation, they should have wide use otherwise. This could be accomplished by eliminating the words "or be used” on page 12, line 7, of H.R. 16980.

In our view, were Section II (c) stricken entirely the use of the reports would be adequately handled by the common law. At common law the reports themselves would not be admissible because they would be considered hearsay. However, the reports certainly could be used for further investigatory and discovery purposes. Witnesses or experts who contributed their services in investigations and/or providin expert opinions would be called to testify and otherwise be utilized in private litigation, notwithstanding they had performed a parallel service which eventuated in the official report of the investigating agency.

In our view, as at common law, it is proper to exclude the reports themselves from evidence as hearsay because otherwise the conclusions of the report might substitute for the independent judgment of the jury. Except for that limitation, the reports ought to be used for all other purposes, as indicated. Trusting this answers your inquiry, I am, Sincerely yours,

AL H. CHESSER, Chairman, RLEA Safety Committee.

HOUSE OF REPRESENTATIVES,
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D.C., May 23, 1968.
Mr. AL H. CHESSER,
Chairman, RLEA Safety Committee and National Legislative Representative,

Brotherhood of Railroad Trainmen, Washington, D.O. DEAR MR. CHESSER: It seems to me that it would be helpful if the record in our hearings on H.R. 16980 was clarified in several particulars.

What is your interpretation of that portion of section 3(a) (2) (which gives the authority to the Secretary to issue rules governing the use, etc., of rail facilities and equipment) specifically lines 11 and 12 on page 3, which include the phrase "the equipment and facilities required therefor"? Are the facilities and equipment required the equivalent of shop facilities employed in the maintenance of rolling stock and locomotives?

Is it your interpretation and proposal that railroad shop facilities be covered under this bill or would such facilities be included under the bill which is currently being considered by the Labor Committee?

In connection with this same subsection, perhaps you or Mr. H. C. Crotty, President, Maintenance of Way Employees, might care to elaborate as to whether the words of lines 11 and 12, "the equipment and facilities required therefor" include the trucks to which Mr. Crotty referred in his prepared statement on pages 16 to 18. His testimony was to the effect that the passage of the legislation would give the Department of Transportation the needed authority in this field of safety, but his remarks do not include the specific section upon which he is relying for the grant of this authority.

In addition, while you did not comment upon it, Administrator Lang testified that the Hours of Service Act of 1916 was not being repealed by this bill as the Department was giving the matter further study in the thought that later on they might come up with a recommendation.

In such connection, I wonder whether your interpretation of the language in Section 3(a) (2) giving the Secretary the power to prescribe rules, regulations, and minimum standards governing the use, etc." of rail facilities and equipment as well as the language of 3(a) (3) giving the Secretary authority governing practices, methods, and procedures of rail carriers, is not broad enough to encompass the authority to establish Hours of Service.

There may be further items on which we should like clarifying comment as we make further study of your helpful testimony as well as that of Mr. Crotty. Sincerely yours,

HARLEY 0. STAGGERS,

Chairman.

RAILWAY LABOR EXECUTIVES' ASSOCIATION,

Washington, D.C., June 7, 1968. Hon. HARLEY 0. STAGGERS, Chairman, Committee on Interstate and Foreign Commerce, Rayburn House Office Building, Washington, D.C.

DEAR MR. CHAIRMAN: This is in reply to yours of May 23 asking our interpretation of various sections of H.R. 16980. I will answer your inquiries in the sequence set out in your letter.

The second and third paragraphs of your letter make certain inquiries with respect to lines 11 and 12 on page 3 of Section 3(a) (2) of the Administration bill and appear particularly concerned with the question whether railroad shop facilities are comprehended thereby.

At the outset, I might say it is difficult to explain precisely the intentions of the language involved. As we interpret it, however, Section 3(a) (2) up to the clause reading "and the equipment and facilities required therefor" was intended to give the Department of Transportation authority to regulate all phases of use, inspection, maintenance, etc., of rail facilities and equipment as earlier defined in the Act. The language, excluding the above-quoted clause, alone would seem sufficient to us to give the Department of Transportation power to regulate shop facilities. Apparently, however, out of an abundance of caution the draftsman of 3(a) then included the quoted phrase in order to assure the Department's right to control the shop facilities used for testing, maintenance, etc. In short, we believe shop facilities are covered by 3(a) (2) and in fact out of excessive zeal they appear to be covered twice. As you know, the Railway Labor Executives' Association feels there is a simpler way of reaching this entire problem.

You also inquire whether, in our view, shop facilities would be covered by the bill currently being considered by the Education and Labor Committee, H.R. 14816, the so-called Occupational Safety and Health Act of 1968. As we understand the latter bill, the Secretary of Labor is given broad authority to regulate working conditions in industry at large without any emphasis upon any particular industry. If there were no more involved in the labor bill, obviously there could be overlapping where both the Department of Transportation and the Department of Labor might be regulating the same shop or industrial conditions. However, H.R. 14816 contains an exception precluding the Department of Labor from regulating where other Federal agencies have "statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health". Therefore, if both bills were passed in their present form the grant of authority to the Department of Transportation under 3(a) (2) which, as indicated, we believe covers shop facilities, would preclude the Department of Labor from exercising authority in this case.

You also asked whether we desire to elaborate on the question whether lines 11 and 12 in referring to "the equipment and facilities required therefor” include the trucks used by the railroads to haul men and equipment to site for repair work, to which Mr. Crotty referred in his prepared statement on pages 16–18. In our view, 3(a) (2) would give the Department of Transportation authority over these items by reason of the broad definition of equipment and facilities contained in the definition section of the bill.

Finally, you make certain inquiries with respect to the Hours of Service Act and particularly why that Act was not repealed by the proposed bill (Section 13(a)) and whether, nevertheless, the Secretary could get into hours of service questions under the language of 3(a) (2) and (3) of the proposed legislation. In our view, it was desirable to exclude hours of service from the impending legislation. In the first place, as you know, we fought many long and hard years to obtain any hours of service legislation to offer some protection to employees. While that existing law may not be perfect, at least it does afford some protection. Considerable concern has been expressed by some of the Brotherhoods about tampering with this existing law.

This leads to the question, of course, whether under the Administration proposal the Department of Transportation could still get into hours of service questions under 3(a) (2) and perhaps 3(a) (3). If 3(a) (2) and (3) are examined in isolation, perhaps one can, as certain witnesses did, so construe their language. However, in context, and particularly with the hours of service law being the isolated exception from the general repealer of all existing safety acts (Section 13(a)), we would seriously doubt that a court ought properly to construe 3(a) (2) and (3) as extending the Department's power so as to include hours of service

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