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Nor do the statements of the Federal Railroad Administrator afford any sound reason for this split in jurisdiction. We do not understand how or why safety would be promoted by the States retaining jurisdiction in these specified areas while the Secretary takes over jurisdiction in all other areas.
Indeed, as pointed out by Mr. Menk in his statement, the area of safety at grade crossings was the first and insofar as we know the only area selected by the Department of Transportation for detailed study and exploration and with respect to which area we offered our utmost cooperation.
We understand the Department of Transportation research plan in that area is under discussion and that it may come to fruition in June. However, we now find that the intent and purpose of this bill is to leave the regulatory authority over this area entirely in the hands of the States.
Other questions concerning section 4 arise in our mind and I submit that they are serious questions.
Why, for instance, is Federal and uniform safety regulation of bridges with respect to which the record before this committee will show there has been neither death nor injury in the last 6 or 7 years, why is Federal and uniform safety regulation over railroad bridges of such vital importance while uniform Federal regulation of safety at grade crossings is specifically rejected by section 4 even though people are killed at grade crossings every day?
Why is it essential for the Federal Government to regulate the use, design, material, workmanship, installation, construction, and performance, and I might say even size and shape of railroad cars and locomotives while each State will regulate the amount of clearance required to accommodate the equipment in its operation?
Why is it essential to have Federal and uniform regulations that all trains must be equipped with audible signals meeting Federal standards, manufactured to Federal design in shops under Federal supervision when the States can prohibit the use of such signals during a large part of or all of the train movement?
We frankly do not understand. I gave this a lot of thought and came up with no answer. We do not understand how the installation or removal of industrial and spur tracks plays any part in the question of railroad safety. We have, however, from experience found that that question sometimes raises issues of a political nature but very seldom any issues of a safety nature.
Section 5(b) of the bill provides that compliance with any standard, rule or regulation established by the Secretary, something that is definitely required by section 5(a) does not exempt any person from any liability which would otherwise accrue except to the extent that the action creating the liability was specifically compelled by such standards, rule, or regulation and we ask what is the difference between compulsion to obey the rule which compulsion is certainly amply provided for, what is the difference between that and "specific compulsion."
Where the act of complying with the standard, rule, or regulation or the end result of such compliance is itself made the basis for a claim of liability, then the parties so complying with that rule or regulation should be specifically exonerated from any liability.
Section 6(a) of the bill establishes a civil penalty for any violation of any rule, standard, and so on of the Secretary with each day of violation constituting a separate offense.
Under existing law for the most part the comparable penalties for violating the railroad safety rules are a flat $250. Prior to 1957 the penalty was $100. The amount was raised to $250 in 1957.
It is now sought to make the penalty a variable one ranging between the current sum and a maximum of $1,000.
No reason appears to us for this change, particularly since the penalty is to be exacted in a nonwillful, nonknownng violation. In such cases there can scarcely be any degree of culpability but the existence of a flexible penalty permits a quite arbitrary assessment for culpability where none exists.
Obviously the flexible penalty is imposed in a situation where we think it is entirely inappropriate. The same section provides a penalty of $10,000 plus imprisonment for any knowing and willful violation of any rule or standard.
The monetary penalty we think is grossly excessive and it is exactly the penalty fixed in another section of the bill for such things as forci. ble assault with a deadly weapon. It may also be observed that under the comparable safety regulation of common carriers by motor vehicle even repeated, knowing and willful violation of comparable safety regulations cannot be penalized more than $500 without any provision for imprisonment.
Moreover it is easy to assume as this bill does that a knowing and willful violation is necessarily a wicked thing. We think that is very much of an oversimplification.
Sometimes the question arises in a test case, sometimes a court decision will finally determine that a violation was in law knowing and willful even though it was originally based upon a mistake of fact or law.
We do not think that such violations deserve the heavy penalty provided in this bill.
The Secretary's analysis of the bill says that the criminal penalties prescribed in subsection (c) are already under the United States Code.
If so there is no reason to include them in this bill insofar as our industry is concerned except on the assumption that the railroads are more likely than others to forcibly assault Government officials in the performance of their duties, and we doubt that.
Section 7(a) of the bill in terms permits the Secretary to seek injunctive relief against the operations of a railroad. While the bill very carefully provides for court action by the Secretary to enforce his rules and regulations, the bill is entirely silent with respect to the right of anyone to bring a court action to review any rule, regulation or standard promulgated by him. Such a provision should be an integral part of any statute of this nature.
Section 11(c) of the bill repeats in substance some of the language of the existing Accident Report Act to the effect that reports submitted by railroads on accidents shall not be admitted as evidence in court but there is no provision or an essential accompaniment, namely, that such report should not be distributed to any person other than an authorized representative of the railroad or the Department.
Even though an ambulance chaser is not able to use such a report as such in court and as evidence, he can obtain it and through its use in
his own office obtain considerable advantage in lawsuits to be brought, but the principal point is that he can obtain it in stirring up litigation. The same subsection departs from existing restrictions of the Accident Reports Act under which employees of the Board or Department are prohibited from giving any evidence concerning accidents which they investigated.
This provision we think is a good one because, when you have that kind of a provision, you obviously are going to have a much greater disclosure, a more full disclosure, a more honest disclosure, a more complete disclosure to the investigator and the investigator will be much more able to perform his duties more effectively and we think that this encourages that type of investigation.
We think that the provisions of the bill would discourage it. I would like now to address my remarks to the presentation made by railroad labor.
Now, while railroad labor attempts to play the role of a proponent of the bill it is quite obvious to us that such is not the case. In his testimony Mr. Chesser proposed 44 amendments to this bill in an attempt to make it acceptable to railroad labor.
While railroad labor may want a bill vesting in the Secretary of Transportation broad regulatory safety authority over all areas of railroad operation it seems quite obvious that they do not want this bill any more than does the railroad industry. While they impliedly argue that the bill and their requested 44 amendments thereto would impose a scheme of Federal regulation of railroads comparable to that exercised over other forms of transportation such as airlines and motor carriers, that simply is not the case.
Their proposed amendment No. 9, for instance, would provide that the bill could in no way be construed or applied so as to have any effect upon the Railway Labor Act or upon any existing agreements or those hereafter made pursuant to such act.
In other words, any standard, rule, or regulation prescribed by the Secretary could be nullified by the provisions of labor agreements. In order that there may be no doubt about this intent of the proposed amendment by railroad labor let me quote the record while Mr. Chesser and Mr. Bernstein were appearing.
Mr. KUYKENDALL. Let's correct something here. Let's just say that qualification for the airline pilot was set up and licensed by the FAA. Mr. BERNSTEIN. We considered this very problem. Let me answer it this way.
Mr. KUYKENDALL. So let's say they set up similar qualifications for one of your engineers.
Mr. BERNSTEIN. Let's assume that the administration tries to put in a rule that a man can't operate as a train engineer beyond age 60. Mr. KUYKENDALL. Okay.
Mr. BERNSTEIN. And let's assume that the Brotherhoods and management have negotiated an agreement permitting him to operate until age 65. We submit that if amendment number 9 is included in the bill, that the 65-year age limit negotiated by agreement would prevail, not the 60-year rule adopted by the administrator.
In that circumstance, the 60-year-old-age rule adopted by the administrator would be beyond his authority. I think the court would have to hold that he had no authority, because this was a subject covered by a negotiated agreement under the Railway Labor Act, and therefore, having paramount control under this amendment number 9.
Now, there is no provision comparable to this amendment No. 9 in the safety provisions of the Federal Aviation Act even though
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