RAILROAD WORK RULES DISPUTE

THURSDAY, JULY 25, 1963

U.S. SENATE, COMMITTEE ON COMMERCE, Washington, D.C.

The Committee met, pursuant to recess, at 4 o'clock p.m., in room 5110, New Senate Office Building, Hon. John O. Pastore presiding. Senator PASTORE. Our first witness this afternoon is the Chairman of the Interstate Commerce Commission.

Mr. Walrath, we are very happy to have you here. You may proceed to read your statement.

STATEMENT OF HON. LAURENCE K. WALRATH, CHAIRMAN, INTERSTATE COMMERCE COMMISSION; ACCOMPANIED BY ABE MCGREGOR GOFF, VICE CHAIRMAN; HOWARD FREAS, COMMISSIONER; KENNETH H. TUGGLE, COMMISSIONER; RUPERT L. MURPHY, COMMISSIONER; CHARLES A. WEBB, COMMISSIONER; PAUL J. TIERNEY, COMMISSIONER; ROBERT W. GINNANE, GENERAL COUNSEL; VERNON V. BAKER, DIRECTOR, BUREAU OF FINANCE; HENRY WHITEHOUSE, OFFICE OF CHAIRMAN; ROBERT T. WALLACE, LEGISLATIVE COUNSEL; SAM M. LANGERMAN, ASSISTANT TO THE CONGRESSIONAL LIAISON OFFICER; STANTON P. SENDER, OFFICE OF GENERAL COUNSEL; AND LEONARD S. GOODMAN, OFFICE OF GENERAL COUNSEL, INTERSTATE COMMERCE COMMISSION

Mr. WALRATH. Mr. Chairman, with your permission I would like to identify some of the Commissioners who are here in attendance, and suggest they might stand so that the members of the committee can see them.

Our Vice Chairman, Abe McGregor Goff.

Commissioner Howard Freas.

Commissioner Kenneth H. Tuggle.

Commissioner Rupert L. Murphy.
Commissioner Charles A. Webb.

Commissioner Paul J. Tierney.

On my right is our General Counsel, Robert W. Ginnane.

On my left our Director of Finance, Vernon V. Baker.

Also seated at the table with me on the far right is Robert T. Wallace, our Legislative Counsel.

There are other Commission personnel in the room. I don't want to take too much of your time. I think I have help if I need it, Mr. Chairman.

Senator PASTORE. All right, sir. You may call on anyone in your organization you deem necessary.

Mr. WALRATH. Thank you very much, sir.

I think the first page and the first two lines of the second page are merely introductory. I ask that they be copied into the record as though read.

Senator PASTORE. Without objection, it is so ordered.

(The above-mentioned material follows:)

Mr. Chairman and members of the committee, my name is Laurence K. Walrath. I am the present Chairman of the Interstate Commerce Commission and have served in that capacity since January 1 of this year. I am appearing today on the Commission's behalf to testify on S.J. Res. 102, the stated purpose of which is "to provide for the settlement of the labor dispute between certain carriers by railroad and certain of their employees."

The specific provisions of Senate Joint Resolution 102 have been commented upon at length in prior testimony before the committee. In this circumstance, and in order to avoid duplication, we shall endeavor to confine our comments principally to matters relating to the role assigned to the Commission under the resolution.

Mr. WALRATH. At the outset we desire to make our position on the merits of this broadp roposal perfectly clear. I think it could fairly be summed up in these words: Although we do not seek delegation of the task here in issue, nevertheless, as an agency of the Congress, we are prepared to accept the responsibility if the Congress agrees with the President that Senate Joint Resolution 102 is the proper solution.

There can be no question that the seriousness and urgency of the situation is precisely as the President has so clearly stated it in his special message on Monday last.

Our Commission, within the scope of its responsibilities under the national transportation policy, has been as concerned with the consequences of irreparable damage to the public interest which would follow a shutdown of rail operations as is the President and the Congress.

We would do anything properly within our power to alleviate and minimize such damage, as evidenced by our carefully planned and publicly announced emergency measures of several weeks ago when a rail strike then appeared imminent; yet nothing we could then plan would avoid the consequences outlined in the President's message transmitting this resolution for your consideration.

In these circumstances, the Commission can only say to you that: If the Congress approves the legislation now before you we will make every effort to meet the heavy responsibility this would place in the ICC and will, by every proper and authorized means, expedite a determination of any rule changes submitted to us for action.

To this end, and within the brief period allowed, we have made an intensive study of the specific provisions of Senate Joint Resolution 102. In general, we believe that these provisions are workable and adequate to accomplish the intended objectives of the resolution.

A number of questions of a clarifying nature have, however, already been raised which prompts us to invite attention to ways in which the proposed measure might be improved and clarified. To some extent

the legislative history may clear these up, but we think it of extreme importance to the public interest that these not be left in a state of uncertainty, quite apart from the merits of the issues sought to be resolved.

First, Mr. Chairman, a question has arisen concerning the scope of the term-and I refer you now to page 2, lines 3 and 4 of the joint resolution, in which this language appears-"work rules involving the manning of train or engine crews***" which may be made the subject of an application under section 1.

One view of this is that it would encompass only those proposals which involve the use of firemen on other than steampower engines, and consist of crews including the manning of motorcars and selfpropelled vehicles.

However, from testimony given by Secretary Wirtz before this committee, and also in the House on yesterday, it appears that the intention of the drafters was to include also the subjects of interdivisional runs and the combination of road and yard work.

There may be, Mr. Chairman, other areas of a rather shady concern where there might be differences of opinion in connection with interrelated questions.

We believe it is important that any possible misunderstanding of our jurisdiction under section 1 be removed, either by specific language or, if that is not practical, by legislative history to the extent possible. Senator PASTORE. Before you go any further, Mr. Walrath; is there anyone here representing the Labor Department? [No response.] Will some member of the staff get some member of the Labor Department here who can talk with reference to the questions that are being raised?

All right, sir; you may proceed.

Mr. WALRATH. Turning now to another aspect of the operation of section 1, Mr. Chairman, section 1 of the resolution further provides that changes in work rules within the scope of that section shall become effective upon approval or modification by the Commission-and now I refer to lines 10 and 11, page 2, where this language appears: "in accordance with the procedures and provisions of section 5 of the Interstate Commerce Act."

The Commission construes that phrase as incorporating by reference the general procedures which are applicable to section 5, and which we frequently use in connection with proceedings under this section and others, and we are authorized to use other sections of the act, principally section 17. As so construed, the Commission would be authorized to prescribe special procedures for expeditious disposition of an application filed under section 1 of the joint resolution.

Perhaps I might add here, expedition seems to be implicit in the language of the resolution, and I take it that it was implicit in the President's message. We think expedition is called for.

However, since section 6 of the act-and I refer now to page 5, lines 12 through 18-contains language which provides for "special procedures" under the section 6 type application, it might be arguedthis is what we fear-that absence of a similar provision in section 1 was deliberate and intended to prevent adoption of special procedures. We do not believe that that was intended. Any possible doubt in the matter should be removed and could be removed by inserting a simple

phrase such as this: "and pursuant to general or special rules of procedure prescribed pursuant to the provisions of section 17 of that act.' Senator PASTORE. Where would you put that?

Mr. WALRATH. I would put that on page 2, line 11, after the words "Interstate Commerce Act," in section 1 of the resolution.

Senator PASTORE. What would that enable you to do?

Mr. WALRATH. That would enable us to adopt expedited procedures where the rights of the parties were not adversely affected, in which we could have prehearing conferences, get the views of the parties as to how long they would need to file certain documents, and replies, and so forth. We could speed it up, Mr. Chairman, beyond that which would normally occur.

Senator PASTORE. What would happen if you couldn't do that?

Mr. WALRATH. If we couldn't do that, then it might be argued, although we do not agree with this argument, that the spirit of this is that the full 30 days for filing and 20 days for reply should be taken. If so, much time could be consumed in a situation of urgency, unnecessarily.

Senator PASTORE. All right, sir.

Mr. WALRATH. I should add there, too, that it might be argued that oral hearing might be required even though verified statements would serve the same purpose. There are many ways in which our special rules might be used if they were clearly authorized.

Coming to another subject, Mr. Chairman: A question has been raised both here and in the House as to whether an order entered by the Commission under authority of the joint resolution would be subject to judicial review, and opinions have been expressed, with which we agree, that our orders would be subject to such review in the same manner as other orders of the Commission.

I think, Mr. Chairman, you may have cleared that question up on your record last night. I believe you read the appropriate sections of the statute into the record here. If it is not clear, we would be glad to answer questions. I agree with you completely in what you said in the record last night.

In this connection, and in order to prevent possible multiple suits in various Federal-district courts, we have this additional suggestion: we urge that a clause be added to section 7, and that would be on page 6, providing that any suit to set aside an order of the Commission entered pursuant to authority granted by the resolution must be brought in the U.S. District Court for the District of Columbia.

I would like to depart from my prepared statement a moment to explain why.

We are aware that most of the railroads of the United States are involved here, and different brotherhoods. It is conceivable that even given good faith in every respect, that they might differ among themselves. One might question our order and another not.

And then we might have a multiplicity of judicial reviews going on at the same time in different parts of the country.

In a normal situation perhaps that is not bad at all. But in a situation here, where we are all trying in the public interest to meet an urgent situtaion, it could lend itself to delays and perhaps even inconsistent lower court decisions, which would mean that before it could be finally settled it would have to go to the Supreme Court.