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Washington, D.C.

The committee met at 9:30 a.m. in room 5110, New Senate Office Building, the Honorable Gale W. McGee presiding.

Senator McGEE. The Senate Committee on Commerce will come to order. This is the concluding hearing on the charges by the Brotherhood of Locomotive Firemen & Enginemen, that the law passed in August of 1963, entitled "A bill to provide for the settlement of the labor dispute between certain carriers by railroad and certain of their employees" has not been administered properly.

The Commerce Committee has jurisdiction over Senate Joint Resolution 102, which became Public Law 88-108. And this hearing is to exercise our legislative oversight function.

At the first hearing last August, August 2, the chairman announced that the brotherhood questioned the actions of Arbitration Board No. 282 and this questioning was in four major aspects.

First, whether or not the Board has carried out the mandate of Congress in connection with reductions in employment and comparable job assignments, particularly with respect to firemen with more than 10 years seniority. No. 2, whether or not there has been a deterioration of railroad safety since the removal of firemen from a substantial number of assignments. No. 3, failure to activate the National Joint Board prescribed by the Arbitration Board. And No. 4, the intended effect of the law and award on State full-crew laws.

In the 17 days of hearings in August and September this past year the committee heard from witnesses on behalf of the Brotherhood of Locomotive Firemen and Enginemen, the Interstate Commerce Commission, the Railroad Retirement Board, Arbitration Board No. 282, the Department of Commerce, Department of Labor, Brotherhood of Locomotive Engineers and the National Railway Labor Conference, and individual carriers on behalf of the railroads involved. Today representatives of the Brotherhood of Locomotive Firemen & Enginemen will testify and this will then conclude these hearings. I think the record should show the presence of the members of the committee. Senator Cannon, from Nevada, Senator Bartlett, from Alaska, and Senator Pearson, from Kansas.

The first witness is Mr. H. E. Gilbert, the president of the Brotherhood of Locomotive Firemen & Enginemen.

Mr. Gilbert, you can proceed in whatever way you deem best.

Staff counsel assigned to this hearing: Stanton P. Sender.



Mr. GILBERT. Thank you, Mr. Chairman and members of the committee.

My name is H. E. Gilbert and I appear before you again in my capacity as international president of the Brotherhood Locomotive Firemen & Enginemen. The committee will recall that I testified on behalf of the B.L.F. & E. at the commencement of these hearings on August 2, 1965.

Today I hope to accomplish several things in my appearance before you. First, and most important, I want to apprise this committee of developments which have occurred since the B.L.F. & E. presented its case at the last session. Second, I want to summarize the statistics with respect to the continued and alarming decrease in the number of firemen (helpers) on the Nation's railroads. Third, it is my task to rebut the erroneous and misleading statements made by carrier witnesses generally, in particular the statements of the chairman of the National Railway Labor Conference, Mr. J. E. Wolfe. Most importantly, I want to pinpoint the fact that the railroads have not obeyed the command contained in the resolution adopted by this committee on October 12, 1965, that the parties engage immediately in collective bargaining to resolve their differences. I will ask the committee to exercise its authority and offices to compel the railroads to bargain with us speedily and in good faith on the subjects of our notices, that the controversy may be resolved in the process of collective bargaining. I will ask the committee, in addition, for relief against the hardships which my members have endured as described in detail in earlier testimony given by our witnesses, whether that relief be by way of congressional legislation or resolution.

I anticipate that our testimony at this time will be that given by me and by Mr. W.M. Homer, who likewise appeared before the committee at the last session. Mr. Homer will discuss the continuing and deplorable rise in the accident rate, a rise which has been continued as the number of firemen employed has dropped. We intend to present evidence with regard to the effect of the removal of the firemen not only on safety but also on efficiency of operations. Finally, for each of the general chairmen who testified before this committee last summer, there will be presented a written rebuttal statement in opposition to the testimony introduced by the various carrier officials from their particular railroads. I might say at this point that we do not expect to call these general chairmen to make an oral presentation unless the committee should so direct us in the future.

Let me start in now with my first topic, namely, to acquaint the members of this committee with developments since last summer. These developments, although numerous, augur little for a rapid disposition of the controversy. The award of Arbitration Board 282 will expire 9 days hence. It is an unfortunate fact, but a fact nonetheless, that despite earnest efforts by the B.L.F. & E. to initiate serious collective bargaining with respect to the use of firemen in road and yard service, the carriers have remained adamant in refusing

to undertake serious, responsible collective bargaining on this important question.

Let me list the principal events for you before discussing them in turn: (1) Since my last appearance before this committee, the National Joint Board established by Arbitration Board 282 has terminated its brief and unhappy career. (2) There has been an important Supreme Court decision with respect to the effect of the award of Arbitration Board 282 on State full-crew laws. Let me say, briefly, that the Supreme Court upheld the views of this organization in every respect on that important topic. (3) On November 15, 1965, the B.L.F. & E. served upon the carriers three separate notices under section 6 of the Railway Labor Act. These notices initiate collective bargaining procedures under the act and look toward the making of new agreements between the carriers and the brotherhood for the period after the expiration of the award. These notices were served approximately 42 months before the expiration of the arbitration award at the end of this month and as close on the heels of this committee's resolution of October 12, 1965, as operation of brothernood machinery would permit. Had the carriers evinced a desire to negotiate with us in good faith, there would have been ample opportunity in those 4% months to arrive at agreements. Unfortunately, however, we have encountered stubborn opposition from the carriers at every step of the way and the result is that rather than being able to report to this committee agreement between the parties, we can report only obstruction and delay on the part of the railroads.

At this point I wish to state to the members of this committee that the section 6 notices served by the brotherhood upon the carriers did not make a demand for the restoration of the firemen on every locomotive in the country. While the brotherhood believes firmly that a fireman is essential to the safe operation of every locomotive, nevertheless in the interest of bringing this lengthy controversy to a conclusion, the notices we served upon the carriers are designed to permit the carriers to operate without a fireman in those situations. where, in our judgment, such action can be taken with the least impairment of safety and efficiency of operations.

(4) Another major development upon which I will comment later has to do with litigation filed in the Federal court in the District of Columbia. In the litigation filed in Chicago, the brotherhood is seeking a declaration as to the carriers' obligations to employ firemen after March 30. Prior to the award of Arbitration Board 282, employment of firemen was required on substantially all road and yard locomotives by virtue of an agreement entered into between the carriers and the brotherhood on May 17, 1950, generally known as the national diesel agreement. It is the position of the brotherhood that upon expiration of the award the national diesel agreement of 1950 again controls. The carriers have announced publicly, and in fact, as I state in more detail subsequently, they have stated in court, that after March 30 they do not intend to abide by the 1950 agreement. Because of the prime importance of this question the brotherhood instituted litigation in the Federal court in Chicago asking for a declaration from the court.

Senator CANNON. What is the status of that litigation now?

Mr. GILBERT. I understand it has been transferred to the District of Columbia.

Senator CANNON. Do you have any estimate as to when that is likely to be determined by the court?

Mr. GILBERT. I am advised by our general counsel that we do not have

Senator CANNON. In other words, March 30 may be upon us before you have any decision as to whether or not you are entitled to declaratory relief under that action. Is that correct?

Mr. HEISS. It would be my estimate, Senator, that no decision would be forthcoming between now and the end of the month.

Senator PEARSON. Any temporary orders at all entered?

Mr. HEISS. The only temporary order, Senator, is the order of transfer entered by Chief Judge Campbell last Friday in the U.S. district court in Chicago.

Mr. GILBERT. The National Joint Board. The foregoing that I have just mentioned constitutes the many features of the terrain I hope to cover with you today. Let me now go back to the first subject mentioned, that of the National Joint Board, and tell you in more detail about that unfortunate fiasco.

On January 5, 1966, the National Joint Board ceased to function. On that date two documents were submitted to the parties by the members of the Board. One was delivered to Messrs. Wolfe, Hallmann, and Coughlin, other members of the Joint Board, by Mr. J. L. Shattuck, B.L.F. & E. member of the Joint Board, under date of January 5, 1966. This document stated that the proceedings and activities of the Joint Board had not been of such character as would enable it to make a joint report of the type contemplated by the award of Arbitration Board 282, and proposed that the Joint Board make a report accordingly. A second document was submitted by the carrier members and the Brotherhood of Locomotive Engineers' members jointly. This ultimately was offered as the report of the Joint Board although not concurred in by Mr. Shattuck.

The Joint Board, you will recall, was established by section II, part (E) of the award of Arbitration Board 282. I submitted to this committee under date of January 7, 1966, copies of the report of B.L.F. & E. Board Member J. L. Shattuck, which covers quite comprehensively the history of the National Joint Board and the reasons for its basic failure. I ask that the report be made a part of the record. There are a few additional words, however, which I feel I ought to say at this time.

The award directed the parties, within 30 days after the effective date of the award, to establish a National Joint Board. The Board was charged with the responsibility of "making an intensive and continuing study of the experience in road freight and yard service with and without the employment of firemen (helpers)" during the period that the award was to remain in effect. During the 3-month period before the award was to expire, the National Joint Board was to prepare and issue to the parties a report based on a study so conducted. The National Joint Board consisted of four members, two selected by the carriers, one by the B.L.F. & E., and one by the BLE. The carriers named as their members Messrs. J. E. Wolfe and E. H. Hallmann, and the BLE initially named as its member Mr. A. F. Zimmerman. (Mr. Zimmerman was replaced by Mr. C. J. Coughlin before any meetings took place.) The Joint Board met on only five occasions between October 12, 1965, and January 5, 1966.

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Senator CANNON. That October date, was that before or after we held our hearings? When we were concerned as to the fact that there had been no meetings?

Mr. GILBERT. It was subsequent, Senator Cannon, subsequent to the hearings.

Senator CANNON. So there were five meetings after we held our hearings and pointed up the fact that there had not been meetings at that time?

Mr. GILBERT. That is correct, sir.

Senator CANNON. Thank you.

Mr. GILBERT. On the latter date, B.L.F. & E., Board Member Shattuck reported to the parties that the Board

has been unable to function as a joint board; that it has not discharged the responsibility imposed on it of "making an intensive and continuing study of road freight and yard service with and without the employment of fireman (helpers) during the period that the award remains in effect.'

See page No. 2 of Mr. Shattuck's report, which you have.

Mr. Shattuck further reported that the overriding reason for this failure was that all information within possession of the carriers, such as original reports of accidents, had been denied to noncarrier members of the board. The Joint Board was established to make a study participated in by all parties. This contemplated, among other things, that the representatives of the carriers and the representatives of the employees would each place before the Board all data in their possession relevant to the subject matter the Board was to study. The B.L.F. & E., through Mr. Shattuck, tendered its materials. But the representatives of the carriers and the BLE did not tender their materials under circumstances which would permit a joint study. In fact, there was no study whatever of experience in operating some locomotives without a fireman (helper) and the papers offered as a report of the Joint Board are utterly worthless.

The reasons for failure of the Joint Board are relevant to the problem before us. The National Joint Board experience demonstrates, I believe beyond any question, that it is hopeless to look to a body of this kind as a mechanism for factfinding and data gathering. It is true that to some extent the failure of the Joint Board was due to the failure of the award to be specific about certain critical details of the Board's functioning. While it was implicit, for example, that the Joint Board was to commence work immediately after its establishment, the award did not so state explicitly. The award did not state categorically the type of representative to be appointed by the parties. No provision was made as to how meetings of the Board were to be called, or for a Chairman. Especially serious was the failure of the award to impose upon the parties and in particular upon the carriers an obligation to make available to the Board information respecting operations with and without firemen, which only the railroads could have. There was no provision for professional assistance or staff. Despite these shortcomings, in my view, had there been a determined good faith on the part of the carriers (and I regret to add on the part of the BLE) these difficulties could have been readily overcome.

Compounding all other problems was the unfortunate failure of the BLE to remain on labor's side. It was a crucial, implicit assumption of the Arbitration Board that the BLE and the B.L.F. & Ê. would cooperate. Since there were no neutral members on the

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