district court. The Supreme Court reversed the decision of the District Court of Arkansas and remanded the case back to that court for further proceedings.

The Chicago and District of Columbia Federal court cases: There is other litigation pending relevant to this controversy. Sixteen years ago the carriers and the B.L.F. & E. entered into a national agreement, commonly known as the national diesel agreement, under which the carriers agreed to employ firemen on substantially all diesel locomotives.

It was this agreement (or those of similar nature) that the carriers sought to change when they initiated their efforts to remove the firemen from the Nation's locomotives by their notices of November 2, 1959. The end result, as this committee knows, was the enactment of a joint resolution, Public Law 88-108, followed by the award of Arbitration Board 282. Because of the extraordinary nature of the joint resolution, Congress provided specifically in section 8 that "This joint resolution shall expire one hundred and eighty days after the date of its enactment, except that it shall remain in effect with respect to the last sentence of section 4 for the period prescribed in that sentence." Section 4 provided:

"The award (that is, the arbitration award) shall continue in force for such period as the arbitration board shall determine in its award, not to exceed 2 years from the date the award takes effect, unless the parties agree otherwise." Moreover, the arbitrators themselves by their award provided categorically in part IV entitled, Duration"This Award shall continue in force for two years from the date it takes effect, unless the parties agree otherwise."

On the face of it it would appear crystal clear, a subject which could not admit of the slightest doubt, that the award of Arbitration Board 282 was to last 2 years and no longer. Congress specifically passed a statute which by its terms was to expire in 180 days. The statute authorized the Arbitration Board to issue a 2-year award and the Arbitration Board itself in conformity with the statute rendered an award with a 2-year life. Moreover, the arbitration award did not purport to, and indeed it could not, change or amend or affect in any way the national diesel agreement of 1950. True, during the period of the award, the effectiveness of the national diesel agreement was suspended, but it was in no way superseded or altered. A consequence of the foregoing is that upon the expiration of the award on March 31 the national diesel agreement once again becomes operative between the B.L.F. & E. and the Nation's carriers. This proposition seems to me to be clear. But the carriers have a different view. They have worked out a theory which I find hard to understand. To them 2 years does not mean 2 years but some indefinitely longer period. Apparently, according to their theory, after March 31 the arbitration award was indeed expired by its own specific terms and by act of Congress, but despite this, its ghost lives on.

We felt that we could not in good conscience and fairness to our membership and to the American people and indeed to the carriers themselves sit back and wait until after March 31 to have this significant question determined. Therefore, on February 17, 1966, we filed a lawsuit in the Federal court in Chicago entitled B.L.F. & E. v. Atchison, Topeka, & Santa Fe Railway Co., et al., No. 66C320. This suit was assigned to Chief Judge William Campbell. Last Friday,

March 18, Judge Campbell transferred the case to the District of Columbia. In this suit we request that the court enter a declaration that after March 31 the carriers are bound by the Railway Labor Act to observe the terms and conditions of the 1950 national diesel agreement. We ask also for an injunction to prevent the carriers from violating the 1950 agreement. Another prayer is for a declaration that the notices served by the carriers on the organization on February 2, 1966, are in violation of the Railway Labor Act and Public Law 88-108, not because they were served prematurely-they were not-but for other reasons. We raised no issue in our lawsuit regarding our November 15 notices. The defendants, that is the carriers, have filed their answer in the Chicago action admitting that they have no intention of abiding by the 1950 national diesel agreement after March 31. In fact, they have stated in their answer that they intend to continue to apply the award of Arbitration Board 282 until it has been changed in a permissible manner including a voluntary agreement by the parties (Answer, p. 11). The carriers have filed a counterclaim in our suit requesting that the court enter a declaration of this fact and seeking an injunction to restrain us from withdrawing from work.

To me it is a shocking thing that the railroads of this Nation having obtained an arbitration award specifically limited to a 2-year period seek now by every device at their command to stretch that 2-year period into a permanent arrangement.

But this is not all. Regarding our November 15, 1965, notices under section 6 of the Railway Labor Act the carriers asserted in court, as they had done previously in correspondence, that the parties were not obligated even to negotiate under the Railway Labor Act with respect to the situation after March 31 until March 31 had come and gone. In this case there is a crisis of serious magnitude in carrier-employee labor relations, a controversy that ought to be, could be and should have been resolved before the expiration of the arbitration award. Yet the Nation's railroads solemnly come into a Federal court and attempt to convince that court that they are not even obliged to negotiate on the matter until after the expiration of the award. Indeed, they go even farther and say that our November 15 notices are just scraps of paper which they can completely disregard because they were served prematurely. Now I submit that such a position if it were asserted with respect to a less serious matter would be ludicrous. No serious, responsible businessman, or labor leader would take such a position with respect to the expiration of any important contract where there was a continuing relationship. Yet that is precisely the position that the carriers have taken with respect to the employment of firemen after March 31.

Now let me discuss another important matter-one that has upset me and the members of my organization. It is a matter that goes beyond the issues of this particular controversy, but it is a subject about which this committee ought to be informed.

The award of Arbitration Board 282 affected not only the firemen but the trainmen, that is the switchmen and brakemen. Before the Arbitration Board the case of the trainmen was handled as a separate subject. As the committee knows, the trainmen are represented by separate labor organizations from those representing the firemen. The award, when issued, was divided into two principal parts, one

relating to the firemen, the other to trainmen. The Arbitration Board discussed the firemen and trainmen separately and disposed of the trainmen controversy in a drastically different manner from that provided for the firemen. For reasons which I need not go into at this point, the award with respect to the trainmen expired on January 25, 1966, whereas the expiration date with respect to the firemen is March 31. Regarding trainmen, a number of railroads, particularly eastern carriers, and the railway labor organizations representing the trainmen entered into agreements which came into effect upon expiration of the award as to them on January 25. Hence, as to those carriers there is no dispute presently pending with the trainmen. However, the bulk of the carriers did not enter into such agreements. Hence, an issue arose somewhat similar to the issue posed by the firemen, namely, what was to happen after January 25, 1966. The answer to that question was not necessarily the same as in the case of the firemen because there were a number of substantial differences between the trainmen's case and the firemen's case. Let me name one such difference: In the case of the firemen the situation prior to the award had been governed by the national diesel agreement of 1950. There was no comparable national agreement in the case of the switchmen and trainmen.

Thus prior to January 25, there was a problem looming with respect to the trainmen. As to this matter, the carriers were the moving parties in a law suit. They filed their action in the U.S. District Court for the District of Columbia, entitled Akron and Barbeton Belt Railroad Co. v. Brotherhood of Railroad Trainmen, Civil Action No. 142-66, where it was assigned to Judge Alexander Holtzoff of that court. The suit was filed January 19, 1966-approximately 1 month before our suit in the Federal court in Chicago. The carriers sought a legal declaration from the court and also an injunction. There is no need to go into the fine points of that litigation, because it is not material to the matters before us. The one point that I want to stress is that the question of the fireman was not raised in any respect in that lawsuit. It related simply and solely to the question of the trainmen and switchmen. Only the train service brotherhoods were named as defendants.

Pursuant to a prior order of court, on February 24, 1966, the parties in the District of Columbia lawsuit appeared before Judge Holtzoff to argue two questions of law. The first was the effect of the expiration of the award. The second question was whether or not the Norris-LaGuardia Act was applicable to the carrier's request for injunctive relief. This argument took place approximately 1 week after we filed our lawsuit in Chicago and after all the defendants in our lawsuit had been served with summonses. When counsel for the carriers began his oral argument before Judge Holtzoff, he immediately injected the question of the firemen despite the fact that we were not parties to that case. Carrier counsel said:

First of all, while firemen are not immediately involved in this suit, the issue now presented will, of course, affect them as well. Some 18,000 positions have been eliminated.

Thereafter, during a large portion of the argument the court and counsel for the railroads discussed the question of the firemen. The attorneys representing the railway labor organizations that were before the court were asked questions by the court regarding the

status of the firemen despite the fact that the carriers and the court well knew that the issue of the firemen was not before the court and that in a lawsuit pending in Chicago the issue of the firemen was specifically presented.

During the course of the argument the court made it quite clear that it was not favorable toward the point of view of the trainmen, namely, that upon expiration of the award the manning rules in effect prior to the award again came into force. Instead the court indicated its leaning toward a theory that after the award expired the award would serve as a "plateau" from which the parties would be required to negotiate. But, and now I am coming to the portion which is immediately relevant to the firemen, the court appeared to be convinced that whatever rule applied to the trainmen would apply also with respect to the firemen. Thus for example the court said (p. 44 of the transcript of the February 24 hearing):

No, but I can see that any decision that I reach would affect both groups, the trainmen and the firemen *** Because you can't have one result for one group and a different result for the othr.

Shortly afterward Judge Holtzoff rendered an opinion in the case before him. The opinion, however, was not confined to the trainmen but purported to rule on the status of the firemen as well. Judge Holtzoff did not agree with the position of the trainmen that upon expiration of the award, agreements and practices previously in effect were reinstated. The court said that if he were to adopt that point of view "the vested rights of an unknown number of employees (probably large) would be immediately destroyed. This is particularly true of the firemen who have more than 10 years' service." The court ruled further: "No further steps may be taken under the award by either side after its termination date. Thus the railroads may not discharge any more firemen pursuant to the provisions of the award, and they may not initiate proceedings under the award for changing the size and composition of train crews on specified runs." The court further ruled that the carriers were entitled to an injunction to bar a strike by the labor organizations and that such an injunction was not prohibited by the Norris-La Guardia Act.

Judge Holtzoff's opinion received a great deal of publicity from the newspapers, the radio, and the TV. From one end of the land to the other stories appeared which assumed that the court had before it the firemen's case and that it had decided against the firemen. Immediately after the decision the news media sought me out and as soon as I realized what had happened, I tried to set the record straight. Throughout the land it was made to appear as though the firemen had already lost the case when in fact they were not even in court in the District of Columbia.

We are yet to have our day in court. But whatever the result of litigation, it does not solve labor-management problems. In the end an agreement must be negotiated and the sooner bargaining commences the better it will be for the parties and the Nation.

THE CONTINUING AND ALARMING DECLINE IN FIREMEN EMPLOYMENT

Next, I wish to discuss further the consequences of the award and expecially the remarks of Mr. Wolfe concerning employment of fire

men.

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With respect to the effect of the award upon the employees, Mr. James E. Wolfe, chief negotiator for the carriers, had performed incredibly before this committee. Little useful purpose would be served by a critical point-by-point exposure of his distortions of fact. We have already made a strong evidentiary showing to this committee that the carriers have seized upon every device and every possible weapon at their command under the award to drive out every employee that could be driven out. The range of devices used has been nearly endless. As we have informed this committee, they included harsh, cold-blooded application of the award which deprived longservice employees of the benefits which should have been theirs. They used the "comparable job" provisions as a sinister device whereby the offer of one so-called comparable job was seized upon as a tool to rid the carriers of 6, 8, a dozen, or even 30 or more firemen. Not content with the magnificent victory handed to them by the terms of the award itself the carriers then sought to exploit it further by offering inducements to the older engineers to retire early so that additional groups of firemen could be moved up into the ranks of engineers. As a result of all this, as of January 21, 1966, 18,000 firemen out of approximately 34,000 have been eliminated from the service. There can be absolutely no dispute over the accuracy of these figures.

Upon expiration of the award the number of firemen separated will be more than 18,000. It is our expectation that there will be approximately 20,000 eliminated by that time.

Senator McGEE. That is within another week or so?

Mr. GILBERT. Yes, sir. I told this committee when I appeared before it on August 2, 1965, that over 16,000 men had lost their jobs. In the few short months from August 1965, to January 1966, another 2,000 jobs have disappeared and in the interim another 2,000 jobs have disappeared.

Senator MCGEE. May I interrupt at that point, Mr. Gilbert. As the record shows extensively, one of the deep concerns of many members of this committee is this rate at which the jobs have disappeared. More than one of the committee members have distinct impressions or recollections, that in the dialogs of the hearings that originally set the stage for the settlement of this dispute it was indicated that the attrition in jobs would take care of what decrease there might be with the exception of a modest drop at the outset. In other words, that this would be the kind of transitory reduction of jobs that most could live with. And because of the sharp loss of jobs after the Congress enacted the original measure, I asked Mr. Wolfe, in the hearings last summer about his 1963 statement, which contributed to our impression, to be sure, when he said that of the 32,000 firemen, at least two-thirds of them, he said, will never lose their jobs except through attrition.

Now, let's see, two-thirds of 32 would be what roughly 21. They would never lose their jobs except through attrition. That would mean that 9,000 might have been dropped by his own figures. Or 10,000, let's say, dealing in round numbers.

Would you care to comment on that at this point? I think it fits directly into what you are telling the committee now.

Mr. GILBERT. Well, of course, there is a series of circumstances that led them to that. First, when they got the award, they immediately went into Judge Holtzoff's court and restrained not only