management and labor in that industry are subject to the Railway Labor Act. Mr. Chesser's proposed amendments would not stop with negotiated labor agreements, and follow me closely on this.

His proposed amendment No. 25 would provide that no act or omission of any employee or representative of any employee involving or growing out of any labor dispute shall be subject to the sanctions and limitations provided under this bill.

Whatever an employee or his representative might do or fail to do in any labor dispute, even before agreement has been reached, and no matter how contrary to or in violation of the Secretary's standards, rules and regulations, such act or omission might be, that employee and his representative would not be subject to the sanctions and remedies provided in this bill.

Now Mr. Chesser explained this proposed amendment and I have that set out in my written statement and he in substance says that he need not remind you gentlemen that the American labor movement is bottomed on the right to lawfully strike to protest grievances and that obviously they would not willingly abide by its destruction. Mr. Crotty in his statement said that:

The proposed legislation which you are now considering is a great improvement over the existing laws which relate to railroad safety.

However, before the Brotherhoods could support such legislation, a number of revisions must be made. We are very concerned about several particular consequences of the application of the proposed legislation.

Probably the most important problems are the possibility that the legislation may limit the functions of, or the negotiations under, the Railway Labor Act, and that the Secretary's authority may extend to activities involving or growing out of a labor dispute.

We fought many hard and long years in order to get these protections and rights, and we could never support any legislation which might limit or interfere with them.

In other words, in the event of a labor dispute and with respect to anything that might be done by an employee or an employee's representative, existing rules and regulations prescribed by the Secretary, a matter over which they express great concern, would insofar as the activities of that employee or his representative are concerned be shunted aside, locked in the closet and completely forgotten.

Again I know of no such provision in the Federal Aviation Act or of any other regulatory safety act.

But Mr. Chesser goes even further than that and he proposes an amendment that would exclude entirely and under any circumstances and conditions railroad employees and their representatives from the provisions and sanctions of the bill and any act or omission by railroad employees or their representatives as distinguished from executive, managerial, and supervisory personnel would be excluded.

In other words, no matter what the circumstances under which the employee or his representative failed to comply with or violated the Secretary's rules and regulations, the sanctions and penalties would not apply to them.

Now, this is accomplished in a rather complicated way. First, it is accomplished by his amendments No.'s 1 and 4 because in his amendment No. 1 he removes from the definition of "person" any employee or his designated representative. They are not persons under the act.

He then comes along with amendment No. 4 and he defines employee or his designated representative. So any section of the act that uses the

word "person" does not include the employee or the employee's representative.

Again I know of no such provision in the Federal Aviation Act or the Motor Carrier Act or any other safety act.

Having thus effectively eliminated employees or their representatives from any sanctions or penalties under the bill Mr. Chesser then in his reference to the criminal penalties provided by the bill makes what appears to me to be a rather curious statement.

At page 16 of his testimony he says, and this refers to the criminal penalties:

2. This subsection has been beefed up by making it clearly applicable not only to the persons who actually commit the prescribed acts or omit to do acts required, but also to those who advise, counsel, or cause them.

This is his proposed amendment 22.

Now, it would certainly beef up the criminal penalties but not with respect to any employee or any employee's representative because they would have been excluded from the definition of "persons" and they would not even come under this section.

That may be his idea of beefing up the section but to me it is a rather peculiar beefing up.

The same comment is to be made about Mr. Chesser's proposed amendments to section 6 of the bill dealing with civil penalties. He would beef up that section but it would not apply to acts or omissions of employees or their representatives.

I will not comment on each of the 44 amendments proposed by Mr. Chesser and which would be necessary to make this bill in their own words, "acceptable to them," except to say that the safety authority purportedly vested in the Secretary of Transportation by this bill would be completely nullified by a labor agreement and could never be enforced against the employees or their representatives.

The whole concept of the amendments prepared by railroad labor, which amendments as I said they in their own words say must be made "if this bill is going to be acceptable to us" is in complete disregard of a statistical presentation made by their own witness.

At table 20 of Mr. Homer's presentation, which was put in the record by Mr. Chesser, there is shown the trend in train accidents caused by employee error. Measured by the standard used by Mr. Homer, his table shows that the ratio of train accidents caused by employee error increased from 1.34 in 1961 to 2.09 in 1966.

Thus with respect to that single cause of train accidents Mr. Homer presents a picture of increase in train accidents caused by employee error that equals or exceeds the increase caused by any other single factor.

Nevertheless, and in the face of this showing by their own witness, railroad labor proposes amendments by which no provision of the bill would apply to the employees or their representatives.

There is one other amendment proposed by Mr. Chesser that I feel compelled to comment on because it goes back to my mention of the power brake bill and to "achieve" and "promote" safety and how you get caught in traps.

Now this amendment would deal with section 3 (c) and under section 3(c) the Secretary is given an authority that is in fact I think this provision in the bill is almost word for word-from the Federal Aviation Act and under it the Secretary is given the authority to

grant exceptions to his safety rules and regulations when he considers those exceptions to be in the public interest.

Mr. Chesser proposes to strike the words, "public interest" and to substitute the words "interest of safety of the public and employees." Now, I previously pointed out to you the trap that that leads us into, because the Secretary thus would not be able to grant exceptions unless such exceptions were "in the interests of safety."

In other words, where an exception clearly would leave safety unaffected but would in the public interest result in economies and efficiencies with no detriment to safety the Secretary would be prohibited from granting such exceptions and that, gentlemen, is the very battle that we have been carrying on with the Commission and with railroad labor in the interpretation of the Power Brake Act.

It is a very neat way of writing into this bill a foreclosure of any exceptions that would accommodate efficiency and economy and in no way affect safety.

There were a few points made in Mr. Crotty's statement that I think it appropriate for me to refer to.

In Mr. Crotty's statement he has at page 2 this statement, and I quote:

There has never been any question concerning the extreme desirability of legislation prescribing authority over railroad track and bridge inspection.

Now to me that is a very broad and sweeping statement, "there has never been any question concerning the extreme desirability of" that kind of legislation, I think Mr. Crotty, himself, is the first one to recognize that there has been question and serious question because in his statement he points out that legislation dealing in those particular areas has been before the Congress at various times through the years and each time it has come up Congress has seen fit not to adopt such legislation. We find nothing in the record that has been made before this committee that should lead this committee or this Congress to arrive at any different conclusion.

At page 6 of Mr. Crotty's statement he refers to the decrease in the tonnage of new rail that was installed in 1967 as compared to 1966. But nowhere in his statement does he consider the matter of re-lay rail, in other words, where you take heavy rail and replace it with heavier rail and take that heavy rail that you took up and replace lighter rail so that you do have a continuing upgrading, for instance, in the safety of the roadway structure, the improvement, and so on, without it being reflected in new rail, that is new rail purchased.

It ought to go the same way with crossties. He says that the fact that rail has longer life-and it does. It is made differently. The steel is better today and I can't use the technical terms but crossties are treated and have a much longer life-he brushes this aside with the simple statement that that does not explain the decrease but he gives you no figures or arguments and no reasons why it does not explain. Today the life of a treated crosstie is certainly far beyond the life of the untreated crossties, say, that were in place in 1930 which I think is the first year that they used in their statistical showing.

At page 7 of Mr. Crotty's statement he says that since we dispersed the same amount of money for property maintenance, and that money let's say has stayed pretty much the same according to him, "The same amount of money being spent despite increases in cost of manpower

and materials obviously means less and therefore ineffective maintenance."

In that statement he has completely ignored any technological advancements, any mechanization of roadway work, these Rube Goldberg machines that have arms all over them and you have two operators and they do what a gang of 15 men used to do.

True, the cost of manpower has gone up but it takes less men to operate the machine than it did to do this work manually. He completely ignores instances of that nature. As a matter of fact, at one other place in his statement and measured by the same standards you would conclude this, gentlemen:

That because you don't have as many telephone operators as you had today that your service in substance has gone to hell. We do not think that is any way to measure matters of this nature.

There is one other area of Mr. Crotty's statement that I feel this committee will find most interesting. He mentioned an accident on the Santa Fe Railroad in which he, in substance, said or certainly gave the implication that the accident occurred completely because of the failure of radio communications or the use of radio.

That accident was investigated by the Interstate Commerce Commission and I should like to read for the record certain excerpts from the report of the Commission in that investigation:

Now the train involved was a train identified as "Extra 963 West."

The engineer said that while approaching Yampai, he heard a voice over the radio-telephone announcing Gang No. 3 was calling Extra 963 West. He said that in response to this call, he identified his train and announced it was near Yampai. He said the voice over the radio-telephone replied that Gang No. 3 was clear of the westward main track and gave Extra 963 West a verbal proceed signal.

He said he acknowledged receipt of this signal by again identifying his train and announcing he understood Gang No. 3 was clear of the westward main track. At another place in the report the Commission said this:

The flagman, swing brakeman, and conductor of Extra 963 West and all the crew members of Extra 803 East and Extra 907 East, said they overheard someone informing the engineer of Extra 963 West by radio-telephone that Gang No. 3 was in the clear and give him a verbal proceed signal.

The train dispatcher said the track foreman telephoned him soon after the accident and stated he had communicated by radio-telephone with Extra 963 West when this train was near Yampai. According to the dispatcher, the foreman stated he told the crew of Extra 963 West that Gang No. 3 was clear of the westward main track and later discovered that one of the on-track machines was on the westward track. According to the dispatcher, the foreman stated he then called Extra 963 West by radio-telephone to warn that trian about the on-track machine fouling the westward main track, but received no response to his call. The Commission concluded:

It is evident, however, that the information conveyed for the movement of this train was issued erroneously by the track foreman and the maintenance-of-way on-track equipment involved was moved into positions obstructing the westward main track either immediately before or soon after Extra 963 West, as a result of this mistake, was authorized to proceed at normal speed into the area where the accident occurred.

Now, as a result of this mistake, note, "The information conveyed for the movement of this train was issued erronenously by the track fore

man."

We submit rather that radio failure or any other kind of failure this accident goes back to the employee error category, but under the

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amendment to this bill no action by the employee or no action by the employee's representative which in any way conflicted with, failed to comply with, or violated the Secretary's rules or regulations, would have any effect.

Mr. Chairman, I think that completes my statement.

Mr. FRIEDEL. Can you come back tomorrow, Mr. Moloney?

Mr. MOLONEY. Excuse me?

Mr. FRIEDEL. Can you return tomorrow morning at 10 o'clock?
Mr. MOLONEY. Yes, sir.

Mr. FRIEDEL. The meeting stands adjourned until 10 a.m., tomorrow. (Whereupon, at 12 noon, the committee adjourned, to reconvene at 10 a.m., Tuesday, May 28, 1968.)