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Mr. SKUBITZ. The foreman is responsible for the flags?

Mr. MENK. That is the track foreman's responsibility, and the thing I cannot understand, without being argumentative, is that if you put on 500 DOT inspectors, how are these inspectors going to prevent failures of this type ?

We conduct 1,300 safety meetings a month on our railroad.
The CHAIRMAN. Will the gentleman yield?

The CHAIRMAN. The other day I heard you say that there wasn't any evidence of any trestle or bridge failures in the last 6 years.

Mr. MENK. I said in casualties as a result. The CHAIRMAN. One involved some people in my district who were killed. It was a basketball team from Martinsburg. There was a trestle. The track on top of the trestle gave way and one of the cars tumbled into the river on the B. &0. Railroad going into Parkersburg. This happened a couple of years ago, the National Limited. Do you know anything about that?

Mr. MENK. My testimony, sir, was to railroad employee accidents. I don't know anything about that.

The CHAIRMAN. It doesn't matter who it is. This was an accident of some young people. I don't know if there were any members of the team, but some who were along with it that were drowned. Four people were killed.

Mr. MENK. I will accept that. All I am saying is that my testimony went to railway employees.

The CHAIRMAN. I would say anybody in America who gets killed. That is our job here, not only railroad employees or employers. It is anybody that loses his life.

Mr. MENK. I agree.
The CHAIRMAN. All right.

Mr. FRIEDEL (presiding). I just want to ask one more question, and I will be through. I think I will address it to Mr. Moloney.

Mr. MOLONEY. Excuse me, Mr. Chairman. Is it a question addressed to me?


Mr. MOLONEY. As I understood, I was coming back for questioning, and I wondered.

Mr. FRIEDEL. On page 3 of the bill there is some question about the hours of service and the rules and regulations, “minimum standards governing the use", and it goes on to "inspection, testing, maintenance servicing, repair, and overhaul of rail facilities and equipment.”

There is some question in our minds whether this will interfere with the hours of service. Mr. Boyd said absolutely no. I would like to have your version of it.

Mr. MOLONEY. I will explain it in this way, Mr. Chairman. In my opinion the testimony of the spokesmen for the Department of Transportation with respect to this bíll and the hours of service law clearly showed that they do not understand their own bill, and this is not the only point where I think their testimony showed they did not understand their own bill. The paragraph that you have referred to does refer to the use.

Now, moving down, however, to section 3(a) (3), you find there the power placed in the Secretary and the duty imposed upon him-it isn't

just the placing of a power. You can have the power. It says, “You go out and exercise it—to promote safety in rail commerce.” And subparagraph (3) refers to the practices, methods, and procedures of rail carriers,

That would, I would say, enter into the arrangements, the working conditions and things of that nature. Now, the Hours of Service Act is not repealed by this bill as are some other railroad acts, but the Hours of Service Act prescribes only the maximum number of hours that an employee in a given classification, and so on, may work. You can't work him beyond 16 hours. But if the Secretary in his great wisdom were to decide that that man should not work but 7 hours and issue a regulation to that effect, there would be no direct conflict whatsoever between the Secretary's regulation and the provisions of the Hours of Service law.

So that, I do not agree with the spokesman for the Department of Transportation that this bill places in the hands of the Secretary of Transportation no power and authority with respect to the hours of service. I don't think he ought to have it, but I think the bill does place it in him regardless of what the DOT says.

Mr. SKUBITZ. Will the gentleman yield?

Mr. FRIEDEL. I just want to follow this through. As to Secretary Boyd's statement, it was that it does not cover the hours of service, but you feel that with the language of the bill as it is, he would have regulation of the hours of service?

Mr. MOLONEY. I have said, Mr. Chairman, that in my opinion that statement is simply another statement by him that manifests the fact that the Department of Transportation does not understand the breadth and scope of its own bill, and I have said that in my opinion the mere fact that this bill does not repeal the Hours of Service law does not mean that the Secretary isn't given authority to function within the maximum set by that law.

Mr. FRIEDEL. I want to get this clear and plain without going into all of that. Mr. Boyd said it was not his intention. Do you feel that this bill does change the hours of service?

Mr. MOLONEY. I think that this bill gives the Secretary the power to prescribe, in the interests of safety if he so finds, hours of service less than the maximum provided or set by the Hours of Service law. I see nothing in the bill that will prevent him from doing it.

I agree, Mr. Chairman, that he said it was not their intention. In the beginning of my testimony I said we were not for this bill, and I said that railroad labor was not for it because it came in with 44 amendments, and they said that several of those amendments were musts, that they would not support the bill if those amendments were not put in, so that I said they were not for the bill, and we are not for the bill. I frankly do not think the DOT is for the bill because never in my life have I heard as many protestations and disavowals of intent and purpose to perform acts and to exercise authority that this bill would vest in the Secretary.

They said, “It is not our intention to get into this area," but the bill leaves the area wide open for them to get into it.

“We did not conceive that the bill would be so construed,” but there is only one way to construe the bill.


"We don't think we would get into this. We are not sure about this

Frankly I said I think we could put the DOT along with labor and railroad management, that insofar as this particular bill is concerned, I don't think they are for it themselves.

Mr. Brown. Mr. Chairman, would you yield to a question on that point!

Mr. FRIEDEL. On that point just briefly. Mr. Brown. I just want to observe that it really doesn't make any difference what the current Secretary says his plans are with reference to legislation. If the legislation provides the power to the Secretary, the next Secretary of Transportation, who may or may not have testified on this bill, might have entirely different views and be ready to use the power authorized in this legislation. This is why, and I think it's important, I suggested to the Secretary yesterday that the language of the bill be cleared up so that at least this piece of legislation does what this Secretary of Transportation thinks it ought to do if that is the way we want to pass it.

Mr. MOLONEY. I think, Mr. Brown, that that would be a very difficult cleaning up task in the light of the testimony that we have heard here because I do not think that the spokesmen of the DOT have been able to tell this committee, and certainly have not been able to explain to me, what it is they do intend and do want.

Mr. FRIEDEL. Mr. Macdonald.
Mr. MACDONALD. Thank you, Mr. Chairman.

I was very interested, Mr. Moloney, in your defense of the Hours of Service bill because I introduced a bill in the last session to try to amend that, to try to update it, and you talk about it as if it was sort of Holy Scripture. As we all know, it was passed in 1917 and it seems to me that the conditions on the railroads have changed to such an extent that perhaps a modification and a change in the hours of service would be helpful to everybody.

Mr. MOLONEY. If you will recall, Mr. Macdonald, we opposed that bill.

Mr. MACDONALD. Which bill!

Mr. MOLONEY. Time change in hours of service. We not only opposed it, but you will also recall that the majority of the operating crafts of railroad labor also opposed the bill.

Mr. MACDONALD. That is not my understanding.

Mr. MOLONEY. It is my understanding that the engineers opposed it. It is my understanding that the trainmen finally took a position in opposition to the bill. The firemen were probably the only ones in support of the bill.

But let me also call to your attention that, regardless of the changes that may have taken place in railroading, when the Interstate Commerce Commission was asked, not once, but several times, "Can you show us any correlation between the hours worked by an employee and the causes of accidents?" after much trial, and let's say tribulations maybe, because they had gone on record in support of the bill

Mr. MACDONALD. Yes, sir.

Mr. MOLONEY. They were unable to come up with such and frankly stated that they could find no correlation or relationship between the hours that a man had worked and the cause of an accident. So there

may have been changes, but here again we don't think a case had been made for safety there.

Mr. MACDONALD. I don't want to get, if you will pardon me, off the track because we are not hearing that bill, but I was very surprised when Mr. Menk stated that the Federal Government "has been right in enacting much legislation and in imposing certain-Federal--regulation on industries where a given need is plain and where only governmental action can bring relief," and I am now quoting from your statement on page 5.

But I also recall, because I asked the gentleman to supply the information, and I don't know if it was Mr. Chessér, but someone testified that there had been 7,000 accidents during one year, in the last year. Don't you think that 7,000 accidents is a rather substantial number?

Mr. MENK. Yes, sir.

Mr. MACDONALD. In that case, if nothing is being done to prevent these accidents, don't you think the Federal Government should set up some standards to be followed if, obviously, the States aren't doing so?

Mr. MENK. I don't know what he related the 7,000 accidents to. We also put some testimony in the next day with a witness representing the industry which broke down these figures, but I understand Mr. Boyd yesterday said the railroads were extremely interested in safety, and to say that nothing is being done is certainly not a fair statement. We have a tremendous safety program.

Mr. MACDONALD. I am not saying that nothing is being done. What I am saying is what has been done isn't enough if there are 7,000 accidents during a given year. You protest that your standards are very high. I don't ride your railroad so that I don't know whether they are or not. I just take your word for it, but what would be wrong with other railroads coming up to the standard that you say that you maintain because obviously something must be wrong if there are 7,000 accidents a year.

Mr. MENK. First of all, I don't think our standards are any higher or any lower on our railroad. On our railroad we had 406 reportable accidents in the year 1967. Of that number, after thorough investigation, a great number were as a result of employee negligence. People are human, and human beings make mistakes.

In the year 1967 in train accidents there were four injured, employee negligence caused three, and other causes, one. There were 245 train service accidents where employee negligence was developed as the cause for 155 and other causes were 96.

I agree that nobody should get hurt, nobody should get killed, but how in the world we are going to, by legislation, make people safethere is nothing wrong with the standards that we have on the railroad today, sir. The standards are fine. The rules are the best that can be devised, and we can't have a supervisor standing behind every employee on the railroad to see that he complies with them.

Nr. MACDONALD. I don't mean to interrupt you, but my time is limited. I don't think that it is probably a very good rule if the testimony I heard given about this new type of coupling operation is correct. It seems to me to be a constant hazard.

Do you have that kind of coupling?

Mr. MENK. I didn't hear the testimony and didn't see it. What is the coupling?

Mr. MACDONALD. Well, as I recall it, and it was a week or 10 days ago now, the railroads put through a type of coupling that goes to the side instead of joining on, and I am obviously not an employee of the railroads and never have been but according to testimony it sideswiped many employees, caused many casualties to hands and caused some deaths.

Mr. Chessner is sitting behind and he can tell you what type it is.

Mr. MENK. Oh, cushion underframe. I don't quite agree. I of course don't agree with Mr. Chesser that if the employees do the coupling function with minimum precaution that they will be injured. This isn't any coupler that goes out the side or anything like that.

It is the same coupler except it is encased in an underframe that provides cushioning for the car. It is just simply a long drawbar and assume he is talking about the pin lifters.

At any rate, I don't believe that these long drawbars are cause for personal injury in themselves if the employee maintains the caution that he should maintain. Working on a railroad is a dangerous thing just like being a housewife is a dangerous thing.

Mr. MACDONALD. Right. I quite agree with you and this is why there are hearings. Perhaps

the bill isn't

drawn in the best possible way. It is a fairly all-encompassing bill and this is what the hearings are held for so that we sitting here can hear testimony in confrontation.

You say one thing and the brotherhoods say another and we have to make up our minds as to what is the true fact and not 100 percent believe you or 100 percent believe the other side but just take a preponderance of the evidence and thereafter pass out a bill which will do what it is intended to do.

My last question is this: If you spent as many million dollars as you say you have, and I believe you, on safety, what makes you think that the DOT can come up with tougher regulations than you selfregulate yourself and, if you are self-regulated up to the standards of this bill, then it wouldn't really affect you one way or the other, would it?

Mr. MENK. I have no idea, sir what regulations they are going to come up with. The bill doesn't say.

Mr. MACDONALD. Thank you, Mr. Chairman.

Well, hypothetically if your standards are so high that you have few casualties as you state you do have, wouldn't it seem unreasonable that DOT would come up with standards that you would have to work your own standards up to. Maybe they are not after the type of operation that you are president of. Maybe they are after some other sort of operation in which the State boards which regulate them perhaps are not as tough as the States through which your trains go.

Mr. MENK. Well, the only thing I can say, sir, is that you said maybe they are not. I don't know what they are after, the bill doesn't say. We don't know how the standards are to be set. We resist the indication in the bill that our own employees are going to be the people that administer it, the union employees, if you please. I think anybody on this committee can see that this could cause in my opinion utter chaos.

For instance, we have got 115-pound rail which we think is perfectly adequate and the record shows it is adequate. The possibility could exist that somebody in the DOT and maybe not as knowledgeable,

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