Mr. MENK. I am not so sure I would mind or not mind it. If I felt that you could legislate safety, I would be here testifying for this bill. The CHAIRMAN. We are not trying to legislate safety. We are trying to set some standards. I don't think any good-thinking man would say that he would be objecting to that. You say you have them, and we agree that you have them.

Mr. MENK. We have them.

The CHAIRMAN. All right. Fine. You wouldn't object, then, to saying that we should have at least minimum Federal standards? Mr. MENK. There are minimum standards, sir.

The CHAIRMAN. Nationally?

Mr. MENK. Set by the ICC, yes, sir.

Mr. FRIEDEL. You know that your railroad has safety standards, but how about other railroads? You wouldn't mind the minimum standards?

Mr. MENK. Well, it would depend on who administers the standards. This bill provides that our own employees be made inspectors. This, in my opinion, is taking away the prerogative of management, management that has done a good job in this area and has shown a consistent improvement actually. If the standards are to be administered by our own employees, somebody selected by an outside party, or if the standards with respect to employment are to be set without regard to the agreements that we have between our unions and between the management, then I would be opposed to this type of standards. The CHAIRMAN. Will the gentleman yield?

Mr. FRIEDEL. Yes.

The CHAIRMAN. Are you opposed to the automobile safety standards that this committee passed or the airline safety standards that we have passed or the gasline safety standards that we are trying to pass? Are you opposed to all these things?

Mr. MENK. No, sir.

The CHAIRMAN. They have to be set by standards and somebody has to abide by them.

Mr. MENK. That is correct, but I don't think you can compare the airline industry with the railroad industry.

I think you have to have standards, and I don't object.

The CHAIRMAN. If we have to have standards, why don't we make them uniform to all transportation?

Mr. MENK. Again, sir; if they are made with the cooperation of the railroads who are the professionals in this business

The CHAIRMAN. We want it to be just that. We don't want it to be anything else.

Mr. MENK. Then I agree with you, sir.

The CHAIRMAN. And we could have said that a long time ago because we don't want to force anything on private industry in the land except they are consulted and have their say and have the right of appeal. Mr. MENK. Then this would be satisfactory to me.

The CHAIRMAN. Thank you.

Mr. FRIEDEL. Just one more question, Mr. Menk.

There was a charge made that they used radios working on the roadbeds and used these air hammers and, because of the use of the air hammers, they cannot hear the radio, and there is a danger here. Now, do you have any statement on that?

Mr. MENK. Yes, sir. I do. I consider the radio an instrument to facilitate safety, and I think we have surrounded the use of the radio with appropriate rules that would overcome any situation such as noise, such as dead spots, and so forth and so on.

There are particular rules that allude to this type of operation. We have rules in effect that, if they are in a situation or doing work where the noise of some machine overcomes the ability of the user to hear the radio, then he must put out a live flag in both directions in addition to having train orders out which prescribe that the train stop and not pass a red signal until he gets a proceed signal from the foreman in charge.

Mr. FRIEDEL. Thank you.

The CHAIRMAN. I would like to ask this. Mr. Moloney might be the one to answer this. I believe in your testimony, and that was last Monday

Mr. MOLONEY. I cannot remember the exact date.

The CHAIRMAN. I believe you said that the maintenance-of-way foremen, using radio, informed the engineer of an oncoming train that the line was not clear of track repair equipment; he had first said it was clear and found out that there was one piece left on there and tried to get hold of the engineer and couldn't get hold of the engineer. Mr. MOLONEY. I think that is correct. I may say that we

The CHAIRMAN. I believe according to your testimony here that he was unable to make contact with the engineer. You then blamed the resulting accident not on the inadequacy of radio as a safety system, but on employee error, is that correct?

Mr. MOLONEY. Yes, sir.

The CHAIRMAN. But yet the radio failed, and he couldn't make contact at all, and from this, doesn't it appear that the radio worked once but failed to work the second time? It did work once?

Mr. MOLONEY. The record shows, the investigation of the Interstate Commerce Commission shows that the radio did work, that two other trains in addition to the one that the track foreman communicated with heard the radio conversation, two other train crews heard it.

The CHAIRMAN. Not at the same place. They weren't located at the same place this train was.

Mr. MOLONEY. They passed over the same track and by the same point.

The CHAIRMAN. At the same time?

Mr. MOLONEY. Obviously not at the same time.

The CHAIRMAN. That is what I am talking about. The conditions were different.

Mr. MOLONEY. I don't think the conditions were different.

The CHAIRMAN. The time was different. There was something the matter that at this time it failed.

Mr. MOLONEY. No, sir. I don't think that that investigation shows any failure.

The CHAIRMAN. You do know that four men were killed, do you not?

Mr. MOLONEY. Yes, sir.

The CHAIRMAN. And you do know that if the flagman went out there and stopped the train, those four men would have been living today?

Mr. MOLONEY. Yes, sir; and if that train had not been scheduled to run, those men would have been living today.

The CHAIRMAN. We are not going to be so absurd as to say that. We know that if the flagman had been there, the men would be living today.

Mr. MOLONEY. No, sir. I don't know that.

The CHAIRMAN. You have good reason to believe that?

Mr. MOLONEY. I have good reason to know that if the flagman were there and far enough down the line and if the train knew that the man was in that place, if all of these conditions dovetailed, the accident could have been avoided; but I can assure you, Mr. Chairman, that there are records of accidents where flagging has taken place.

The CHAIRMAN. We can find anything that is an exception to the rule. You and I know that, but you and I know that, if there had been a flagman there, and he wouldn't have been there unless he knew the men were down the track, that would have been his purpose.

Mr. MOLONEY. Yes, sir.

The CHAIRMAN. And he would have tried to warn the men unless he had fallen asleep or God had stricken him dead, but the chances are, if he had been there, he would have stopped the train, and the four men would have been living.

All we are talking about is that there has been some laxity, something has happened, and there has been some failure. You say it was human error. That could be, but if there had been a flagman there, the chances are only one in a million, probably, that he wouldn't have stopped the train.

Mr. MOLONEY. I would have no way to measure the chances.

The CHAIRMAN. Neither do I, but the chances would have been much greater. You and I know that.

Mr. MOLONEY. I think the Interstate Commerce Commission records show that they said that the accident was caused by the foreman of that gang giving erroneous information as to the condition of the track at the time.

The CHAIRMAN. Well, you admit that. You said that after he said it was clear and it was recognized, found out that there was another piece of equipment on there, he tried to get ahold of the trainman and couldn't get ahold of him then.

Mr. MOLONEY. Yes, sir.

The CHAIRMAN. Also as to the noise of the machinery, the mechanized crew, it has been testified that it seriously interferes with any discussions, including transmission by the radio, when they are using this machinery. I don't know. I am just trying to say that there were some things happened here that we don't know about.

Mr. SKUBITZ. Will the chairman yield?

The CHAIRMAN. Surely. You go ahead.

Mr. SKUBITZ. Mr. Chairman, are you trying to establish the point that perhaps we ought to have radio equipment and flagman

The CHAIRMAN. No, I am asking for them to be safe, Mr. Skubitz, and you are, too, and I know that. Four men were killed and they would be living today. If it was your son or son-in-law or somebody else, you would say, "What is going on in this Nation?"

Mr. SKUBITZ. When there is a need, yes.

The CHAIRMAN. When it hits home, you do. Somebody can say, "That is only four men," but if it hits your home or my home, it would be a different proposition.

Mr. MOLONEY. I think so, Mr. Chairman, but I don't think you can measure safety by isolated accidents. I think you have to look at an overall record.

The CHAIRMAN. We are going to do better. We are going to look at this thing to where we hope we can give somebody an idea of setting minimum standards for safety, as we have in many other fields. This is the only one that has transportation and men involved where there have been no safety standards.

Mr. MOLONEY. I would agree with that, Mr. Chairman, but I also make the statement that in my opinion there has been no record submitted to this committee that justifies or requires this kind of legislation. I think no case has been made for it. I am not simply arguing against it.

The CHAIRMAN. Do you have to make a case when men are killed and that with the great numbers that have been killed and maimed and injured that somebody can't do something better?

Mr. MOLONEY. People are trying to do something better.

The CHAIRMAN. Of course they are, but they are doing it in isolated things and different ways, and if we have minimum standards that we say everybody must adhere to, don't you think it would be better? Mr. MENK. Mr. Chairman, may I comment on this?

The CHAIRMAN. I would say that I am to appear before the Rules Committee on another bill right now. I must go, but I will be back.

Mr. MENK. If I might, for the record, clear this radio thing up, the radio is a supplemental device. In addition to the radio, when you have track that is under maintenance and/or impassable, you have rules which cover it, and one of the rules is that a red signal be placed on each side of the affected work area. The train must stop before passing. A yellow flag must be placed two miles in advance of the red flag.

If the rules are complied with, there is no way that the train can· come in, radio or no radio, sir.

The CHAIRMAN. All right. Was this done on that day?

Mr. MENK. I don't know what case you are talking about.

The CHAIRMAN. Was this on your track?

Mr. MENK. No, sir.

The CHAIRMAN. Is there anybody here that can tell me that that was complied with that day?

Mr. MOLONEY. The flag was not placed out that day.

The CHAIRMAN. Are you sure? Is that a matter of record?

Mr. MOLONEY. I think the record shows the investigation.

The CHAIRMAN. What record?

Mr. MOLONEY. The accident that you are referring to, Mr. Chairman, was the subject of a formal investigation and report by the Interstate Commerce Commission.

The CHAIRMAN. And is this contained in the report?

Mr. MOLONEY. I think the statement in there is that when the foreman said that he could not reach the train by radio on that last-minute attempt to correct his erroneous information, that he then went down with the flag and tried to flag them.

The CHAIRMAN. And you allow these things, or whoever this railroad was, allows these things to be done on their railroad, and there is something the matter in the land. We are going to have to set some standards that are going to be adhered to. You said, all right, maybe this line had it, but they weren't enforcing it, were they? What was the matter with them?

Mr. MOLONEY. Mr. Chairman, I do not understand, frankly.

You have referred to enforcement. I have listened carefully to the testimony of the Secretary and the spokesmen for the Department of Transportation, and I have yet to have a clear understanding of how they intend to enforce their regulations.

I heard them say they would have 14 field inspectors. Now, if you think 14 field inspectors are going to flag every motor car operation in this United States

The CHAIRMAN. I know that is an idle gesture for you because you know that is impossible, but you know, too, that if they put some enforcement and some punitive measures here, you know that the railroads of this country are going to try to see that they are enforced, and they would see that those flags-I don't know whether they were out that day or not-but there would be no doubt in your mind or mine that, if you had some Federal standards to go by, those flags would have been out there that day.

Mr. MOLONEY. There must be some doubt.

The CHAIRMAN. Of course there is. You have put a doubt in my mind.

Mr. MOLONEY. The Brotherhood has proposed an amendment to this bill that would say if the man did not put the flags out, if he did not abide by these regulations, he would not be subject to any penalties or sanctions whatsoever.

The CHAIRMAN. Who said this?

Mr. MOLONEY. Railroad labor has said that that is an amendment that is necessary to this bill to make it acceptable to them.

The CHAIRMAN. I would like to see that amendment.

Mr. MOLONEY. It is in the record, Mr. Chairman. It has been the subject of a great deal of testimony.

Mr. MENK. Mr. Chairman.

Mr. SKUBITZ. Mr. Chairman, may I ask a question?

The CHAIRMAN. Yes, but I would like to say this before I must leave.

I am hopeful that we will be through with these two gentlemen as soon as we can because I think it is a rehash of most of the questions that have been gone over in the past. I don't want to cut anybody off, but I think that we want to make the record as clear as we can anyway. So I will turn this over to Mr. Friedel. I recognize you, Mr. Skubitz, before I leave.

Mr. SKUBITZ. I have one question.

Mr. Menk, you were speaking of putting flags along the track. Whose responsibility is it to place the flags, the railroad or the employees?

Mr. MENK. Well, it is not a brotherhood matter. It is a matter of complying with the rules of the railroad, and it is the foreman's responsibility to see that the flags are placed in accordance with a predetermined plan as is illustrated by this chart that I have in my hand.