Wolfe does not want this matter settled in collective bargaining in my opinion.

The firm grip of Mr. Wolfe on all railroad personnel officers made it apparent that no effective collective-bargaining procedures could emanate from them. To move the situation from the Wolfe-imposed stalemate, I personaly sought the aid of some of what I regard to be the more forward looking railroad presidents.

On January 13, 1966, the brotherhood invoked the services of the National Mediation Board on seven railroads; namely, the Baltimore & Ohio, Chesapeake & Ohio, Norfolk & Western, Atlantic Coast Line, Louisville & Nashville, Santa Fe, and Southern Pacific (Pacific Lines). I followed up our request for the services of the National Mediation Board with a personal letter to the railroad presidents involved. It was my purpose to plead the case of direct, collective bargaining as a means of settling the longstanding dispute, and to avoid the crisis and compulsion philosophy that Mr. Wolfe has authored in the field of railroad labor relations.

I pointed out to the presidents of the railroads involved that we must move from the frozen public relations positions that have dominated the railroad manning issue for so many years. I reminded them that the brotherhood had been conciliatory on the manning question since 1962; that the determination through negotiation of what jobs require firemen (helpers) is the only key to a lasting and peaceful settlement of the issue.

I asked that their representatives be permitted to disassociate themselves from the crisis and compulsion methods of the National Railway Labor Conference and be allowed to meet our representatives at the bargaining table.

The brotherhood had no intention of singling out these railroads for pressure. I told a news conference in Washington, D.C., on January 18, 1966, that our sole purpose was to avoid a national crisis and to avoid any disruption of service on the seven railroads. I stated that our move was designed to get the bargaining process moving, and not to single out any group for pressure.

Answers received from the railroad presidents all followed the same pattern. One is reproduced in my exhibits. You will note that the railroad presidents dismissed my letter urging direct collective bargaining with the statement that the matter had heretofore been handled as an industry matter and "will continue to be handled on that basis." I felt it necessary to remind the railroad presidents on January 31, 1966, that the brotherhood had served separate notices on their companies; that the Railway Labor Act did not require national handling, but did impose on their companies the obligation to individually and separately negotiate with the B.L.F. & E. in an attempt to reach an

agreement.

The last shot in this exchange of correspondence came on or about February 9, 1966, with all answers to my second letter reading identically.

Senator MCGEE. Do you mean that literally? Were they word for word the same or just the substance the same?

Mr. GILBERT. Almost word for word, Senator.

Their letters stated there was no justification for singling out any railroad or any group of railronds, and that they had given their power of attorney to the National Railway Labor Conference.

Meanwhile, an exchange of correspondence had occurred between the Secretary of Labor and myself. Mr. Wirtz wrote to me on January 20, 1966, calling attention to the October 12 resolution of this committee, the fact that the National Joint Board had reported, that the brotherhood had filed a dissenting opinion and that notices had been served on the carriers, followed by the brotherhood requesting mediation services on certain railroads. Secretary Wirtz wrote that he would have Assistant Secretary of Labor James Reynolds arrange an acceptable date for me to meet with them.

I have already discussed the National Joint Board, but it should be noted here that I felt impelled to advise Secretary Wirtz that the brotherhood did not recognize the so-called report of the National Joint Board and that no dissenting opinion, as such, had been filed. I accepted his offer of a conference and awaited further word.

I met with Secretary Wirtz, Assistant Secretary Reynolds, and Mr. Howard Gamser, member of the National Mediation Board in Washington, D.C., on February 24, 1966. Before discussing this meeting I want to review the handling of our request for mediation services on the seven railroads.

You will recall that I stated that the brotherhood invoked the services of the National Mediation Board and no indication of what action was being contemplated. Therefore, on February 9, 1966, I wired the Board asking that it advise me what was causing the delay in the routine handling of our case.

Mr. Thomas A. Tracy, Executive Secretary of the Board, answered by wire the following day stating that the National Mediation Board was awaiting reply from the carriers in the usual manner.

Then followed a letter from the Board dated February 16, 1966, in which the Board assigned a case number to our notice No. 1: Restoration of Firemen's Jobs, on three of the seven railroads for which we had requested the services of the Board. I do not know why the Board assigned case numbers for notice No. 1 on three railroads and not on the other four railroads. The three railroads are the Chesapeake & Ohio, Louisville & Nashville, and the Southern Pacific (Pacific Lines).

The Mediation Board has not assigned case numbers on any of the railroads concerning notices Nos. 2 and 3. My conferences with the Mediation Board clearly foretell that the B.L.F. & E. is being involved in a mass of legal redtape which no other union in any other industry is ever subjected to. In industries other than the railroad industry, notices for collective bargaining are served and handled to a conclusion without the impediments of legal and administrative redtape. This is not true in the railroad industry.

Our notice No. 2, we are informed, will be the subject of a hearing some time in the future because the railroads contend that the B.L. F. & E. is endeavoring to negotiate for people not in the industry. We have a short answer for this: We are in respect to one aspect of notice No. 2 negotiating for our members whom we contend have been unlawfully separated from the industry and should be returned. thereto. If a fireman has been unlawfully discharged, would the contention be entertained that we could not represent him in his efforts to be returned to railroad service?

The Meditation Board has also taken to date the rather astounding position that it must clear up its record as to notice No. 3-for what

reason, I do not know. The Mediation Board admits and concedes that the B.L.F. & E. has since the beginning of time represented firemen in matters of training and promotion. Now it appears that the carriers and BLE are taking the position that the B.L.F. & E. cannot presently negotiate on this same subject matter. I inquire, what possibly has developed that could change our traditional rights to negotiate for firemen on matters of training and promotion? Still, the Mediation Board seems to be insisting on a hearing of some kind. This is just stalling and the erecting of impediments to progressing collective bargaining which we have initiated.

Even though the brotherhood was disappointed at the action of the Mediation Board in assigning case numbers on only three of the railroads, and not even including all notices involved, we expected that mediators would be assigned promptly and our efforts to move into a collective bargaining atmosphere would be fruitful.

Despite the seriousness of the case, and the fact that this issue has been the subject of one crisis after another since 1959, the Board did not assign mediators, after designating case numbers.

I

It was at this point that my meeting with Secretary Wirtz, Assistant Secretary Reynolds, and Mr. Gamser took place on February 24. inquired of Mr. Gamser about the delay in getting serious negotiations underway, particularly in light of the resolution of this committee. It was my understanding at the conclusion of the conference that we would have mediators assigned as promptly as the Mediation Board could get mediators available.

I waited until March 3, 1966, when I again wired the Board and recalled the Wirtz-Reynolds-Gamser session I had had and asked the Board to advise when we could expect mediation to begin. Four days later, Mr. Tracy wired that docketing of the unassigned cases depended on carrier confirmation that conferences were closed; that the Board was seeking more information on certain of the notices and finally that those cases which had been docketed would be assigned mediators "consistent with prior commitments."

Frankly, I am mystified as to why the National Mediation Board has been unable to find even one mediator to assign to one of the three cases that it docketed and assigned case numbers. It seems odd that all the routine, day-to-day matters of the Board are given precedence over a situation that prompted your committee to recommend that special attention be given by the Mediation Board and the Secretary of Labor.

I have to state once more that the brotherhood sought to fulfill your direct advice by instituting the collective bargaining process with formal section 6 notices of November 15. Now, more than 4 months later, we not only do not have any semblance of a negotiated settlement, we have not even been able to involve the Government agencies beyond the first routine steps.

Before I leave the subject of collective bargaining efforts, let me mention a notice served by the carriers on the B.L.F. & E. on or about February 2, 1966. Attached to my exhibit is a typical notice, the one served by the Norfolk & Western Railway and dated February 2, 1966. This notice is a truly remarkable document. It begins by reiterating the carrier position that our notices of November 15, 1965, were premature, unlawful and unbargainable, but then presents a carrier demand to negotiate on the very subject matter in our

notice No. 1 of November 15. There were three parts to the carrier notice of which part B was the most significant. Part B proposed a rule that would grant management unrestricted right under all circumstances to determine when and if a helper-fireman should be used in freight and yard service.

The carriers proposed meeting on this notice on various dates, usually early in February, that is about 7 weeks before the expiration of the arbitration award. Thus the Norfolk & Western proposed a meeting on its notice on February 8, 1966.

Magnanimously, the carrier offered to discuss at the meeting our proposals of November 15. Thus the carriers, in their standard form notice of February 2, 1966, with convenience forgot that conferences "on the property" as we say in our notices of November 15, had been concluded and that to seven carriers, the B.L.F. & E. had invoked the services of the National Mediation Board as I related previously.

Upon receiving the carriers' notice, the B.L.F. & E. was genuinely puzzled whether the notice was intended to be a notice under section 6 of the Railway Labor Act. Contrary to usual practice, it did not say it was such a notice, but if it was, we had a statutory duty to fulfill. If it was not, then our participation in negotiations was purely voluntary. Accordingly we wrote letters of inquiry and the carriers replied that the notices were truly section 6 notices. Thus these carriers have taken the position, officially, that the B.L.F. & E. cannot serve a valid notice before March 31, 1966, as to post arbitration award working conditions, but that the carriers may do so.

Recently the carriers have performed another flip-flap. The precise question arose in litigation in the Federal court in Chicago, which I will discuss more fully in a few minutes. In the Chicago case, the carriers switched gears and solemnly declared there that their February 2 notices were not section 6 notices.

The carriers' February 2 notices, therefore, represent a resurrection of the substance of the carrier notice of November 2, 1959. The carrier February 2 notice should be contrasted with our November 15 notice: their position is a rigid refusal to advance an inch. Ours is a genuine effort to resolve the problem. We have offered to permit removal of firemen on those runs where it can be done with safety. The carriers stand adamantly on their 1959 position.

The Arkansas full crew case: Let me turn now to another subject. On January 31, 1966, the Supreme Court of the United States decided the case of Brotherhood of Locomotive Engineers, et al. v. Chicago Rock Island & Pacific Railroad Co., et al. That decision will be found in volume 34 Law Week page 4103. I think it is important for this committee to know of the Court's ruling in that case, even though it has no direct bearing on the issues before this committee. When Congress was considering the legislation which ultimately became Public Law 88-108, there were a number of States which had on their statute books laws fixing the size of minimum crews. These statutes in general required each train in road operations to have at least a fireman and an engineer in the cab and also required a conductor and a minimum number of brakemen. There were similar regulations with respect to yard operations. These statutes, generally known as "full crew statutes" or "safe crew statutes" had been on the books for substantial periods. Their constitutionality had been upheld on three separate occasions by the Supreme Court, in 1911, again in 1916, and again in 1931, dealing with the Arkansas statutes.

The carriers, having won the dramatic, unprecedented, regretted, and unfortunate victory which was theirs in the Award of Arbitration Board 282, were not content with its benefits in the non-full-crew law States. They were determined to reap the benefits of the award in the full-crew law States as well.

Following issuance of the award of the Arbitration Board, the carriers immediately began a two-pronged attack, one in the State legislatures designed to obtain repeal of the State statutes and the other in the State and Federal courts designed to have these laws set aside on one basis or another. In some States the attack was made on the ground that the State had no constitutional authority to require any specific number of employees in the operation of trains. Combined with this argument or sometimes relied upon as the sole argument was another contention, namely, that Public Law 88-108 had "superseded" or "preempted" the State statute. With insignificant exceptions, the railroad business of this country constitutes interstate commerce. As we all know, Congress has very broad power to regulate such commerce, and, in general, when Congress chooses to regulate interstate commerce conflicting State laws must give way.

Shortly after rendition of the award of the Arbitration Board the Rock Island and a number of other carriers in Arkansas started an attack in Federal court on the validity of two Arkansas full-crew laws. The carriers argued that the Arkansas State statute had been preempted by Public Law 88-108. Their second line of attack was that the laws were unconstitutional-this despite the fact that they had previously been upheld by the Supreme Court of the United States. The suit was heard by a three judge court because the constitutionality of a State statute was called into question. A number of the operating brotherhoods, including the B.L.F. & E., none of whom had been named as parties, were permitted to intervene in that case. The trial court ruled in favor of the carriers, holding that the State laws were pre-empted and holding that the laws were vulnerable on certain constitutional grounds. Under law, a direct appeal lies from a decision of a three judge court and it was on that basis that the case was carried directly from the Federal district court to the Supreme Court of the United States.

The Supreme Court by a vote of 7 to 1, with Mr. Justice Fortas not participating, ruled in favor of the employees. The Supreme Court held first that when Congress passed Public Law 88-108 it did not intend to interfere with State full crew legislation. In fact, the Supreme Court referred to a statement by a carrier spokesman on this point. At the time when the bill which became Public Law 88-108 was before this committee, the carriers commented on the few jobs that would be lost if the brotherhood accepted the railroad's proposal and said "25.9 percent of the firemen positions in freight and yard service must be maintained because of the provisions of so-called full-crew laws of the States of (listing 13 States including Arkansas)." Yet after the carriers obtained their award they immediately attacked the legislation which they had previously argued could ameliorate the effects of the award. It took the Supreme Court of the United States to blow the whistle on them.

Further the Supreme Court rejected the carriers' contention that the Arkansas laws were unconstitutional for the reasons relied on by the