that because he is jeopardizing his life, particularly in operation. Usually what happens if an employee comes drinking on the job, and it has happened to me when I was conducting trains, not with alcohol but with my fellow employees, I would just politely tell him to go home and we would call the crew dispatcher and tell him the gentleman is sick. He was sick and we would get another crewmember. There might be some delay in the train sometimes, but usually that. Now, if you condone your fellow employee out there on the job with you, then you are not only condoning, your job is at stake because if anything happens out there, then your job is at stake as well as his job and as well as the industry, damaged equipment and those sorts of things, which is costly to the industry. I think, Mr. Chairman, that perhaps a better coordinated program between labor and management on these various railroads to address it, and maybe more study by FRA with a third party in this would hopefully correct this properly. Mr. Mann, do you have something you would like to say? Mr. MANN. Mr. Chairman, there are two points I would like to bring to your attention. One is there is no real data on what role or how much alcohol plays in, if you will, employee error causing an accident. That is one area in which the Federal Railroad Administration should get into the ball game and start looking. They could do that very simply in their accident report form, have an area there where you would fill out the blanks as to the extent to which any crewmember may or may not have been drinking or participating in drugs. Mr. FLORIO. I am sure you are not suggesting we have to wait for the accidents to occur to accumulate the data to formulate responses. Mr. MANN. No, not at all. Obviously not. But we should determine what extent that is playing in accidents and injuries. The other thing is you raised the issue of what would be our position concerning the use of breathalyzer tests. Well, just off the top of my head, I would say there is a fifth amendment problem that has to be addressed before that is permitted. We would have serious reservations about that, indiscriminate use. Mr. FLORIO. Of course we are not talking about criminal penalties, so I am not sure the fifth amendment would apply. It is a condition for employment. Mr. MANN. That is true. That is correct. Mr. FLORIO. Let me develop another area briefly. You heard, I am sure, the testimony of the people from DOT, FRA, about the complexities and perhaps the confusion of the significance of the bad car order process, and their suggestion that from the 1st of March of this year, there will be a new, hopefully clarified approach to this problem. Have you had opportunity to look at the new regulations, and perhaps I could address that to your counsel, to get some impression as to whether the previous, somewhat subjective bad car orders are going to be able to be corrected such that employeesand I know this to be the case because they have communicated with me and, I suspect, every one else-feel in certain areas that the bad car order tags are being disregarded. And, in fact, the railroad's position, I assume, is that they are being disregarded because it is not sufficiently serious to stop the car from being used. Are you convinced that the new regulations will provide for some specificity as to when the car should be used and should not be used? Mr. MANN. Only as it relates to a Federal Railroad Administration regulation violation. The bad order tag, Mr. Chairman, has been used historically for years. This is nothing new. And there is certainly no misunderstanding by a railroad worker when he is supposed to apply a bad order tag and when he is not suppposed to apply one. Mr. FLORIO. In accordance with the internal standards of the railroad? Mr. MANN. Only recently, Mr. Chairman, did we have Federal regulations in rail safety. For 100 years before, it was only internal rules and regulations. The FRA has picked up in some of the areas, and the railroads themselves have continued their internal regulations with respect to safety. Mr. FLORIO. I assume we can conclude that the Federal violation process or the Federal violation standards are sufficiently delineated that a bad car order attached to a car as a violation of the Federal standards would encompass at least the internal company regulations dealing with safety. Let me make it clearer. If the internal rules and regulations of the railroad want to be much more expansive than the Federal requirements, if they have higher standards, that is commendable. But the Federal standards should be sufficiently minimal so as to say that if a car order tag is on a car because of a violation of the Federal standards, that that would stop a car from going any further. Mr. MANN. That is correct. We feel that the regulations are clear enough to prevent that. Mr. FLORIO. You are concerned about the railroads' practices. If, in fact, they are not required to put a tag on something because it does not violate the Federal standards, as of now they apparently, do not have to adhere to their own internal procedures if they choose not to do so. Mr. MANN. The abuses we have brought to your attention, Mr. Chairman, relate to Federal safety violations, not internal rules. We are talking about things that are going to cause a derailment accident or injury. Mr. FLORIO. The things you have pointed out obviously have been prior to March 1. Do you anticipate that the new regulations will deal with the problems you are concerned with? Do you anticipate that railroads, if, in fact, they have violated the bad car order tags, will violate Federal standards in the future? Mr. MANN. The examples we have brought to your attention involve instances which have occurred since March, and certainly one of the largest rail carriers in this country knows the significance of the March 1 effective date. Mr. FLORIO. The supplement you provided to me with regard to some of these things really predates March. Mr. MANN. We do have some March attachments, Mr. Chairman. Mr. FLORIO. I suppose that my last area of concrn is the question about retribution. We have some instances you have provided to us concerning bad car orders and other safety things. You have given us a couple of different examples, representatives of the UTU, representatives of the Transit Workers Union. How serious a problem is this? Can you indicate to us there is a pattern of this type of activity where employees are allegedly being harassed because they have taken action by going directly to the Federal authorities? Mr. MANN. It doesn't permeate all of the railroads, Mr. Chairman, but there are enough. We have hundreds of violations of this type and we can swamp you with those examples. We have chosen not to, but we can, if you wish, and it is not related only to one railroad system. It applies to all of the United States. But it is not on every carrier. Mr. FLORIO. You have heard Mr. Dempsey say there is already a remedy for such an employee who is harassed because of the performance of his duty as he sees fit with regard to this type of reporting. Do you regard that remedy as a real remedy? Mr. MANN. It is not or we wouldn't be here, Mr. Chairman. The example we have given you is where the remedy Mr. Dempsey suggests we have has completely failed. If those remedies were effective, we would not be here complaining. Mr. FLORIO. His suggestion is whether the employee pursued the grievance procedure and what the outcome was. That seemed to be what Mr. Dempsey was suggesting. If, in fact, the employee is right, the grievance procedure would vindicate him and he would be compensated for wrongful termination, demotion, or whatever. Mr. SNYDER. Mr. Chairman, it is not normal in the industry to pursue collective bargaining safety matters, and I will tell you the reason why. You cannot strike on unsettled grievances, small grievances, whether it is time claims or anything else, even safety matters. So we have to rely on rules, regulations, and safety statutes to police this. There is no recourse for the employee out there. If you follow that route without the regulations and you just report it to his supervisor, this would be a continuous thing which would just pile up because there is no enforcement. Mr. FLORIO. Mr. Snyder, we thank you very much for your help. Our last witness this afternoon is Mr. Paul Rodgers, the administrative director and general counsel of the National Association of Regulatory Utility Commissioners. Mr. Rodgers, we thank you for your patience. We welcome you to the committee. Your statement will be incorporated into the record in its entirety, and we would ask you to proceed in a summary fashion. We ask you to introduce your colleague. STATEMENT OF PAUL RODGERS, ADMINISTRATIVE DIRECTOR AND GENERAL COUNSEL, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, ACCOMPANIED BY PAMELA E. SOMERS, DIRECTOR OF CONGRESSIONAL RELATIONS Mr. RODGERS. Thank you very much, Mr. Chairman. I am accompanied today by Pamela Somers, our director of congressional relations. I will be brief in my statement since it is a part of the record. To begin with, we support authorizations for the State grant-inaid program, either by outright appropriation or by carryover from preceding years, of $3.5 million for the fiscal year ending September 1981, and $3.5 million for the fiscal year ending September 1982. As the subcommittee is aware, the use of the State commissions to the extent they have the resources of the national safety program to get the job done would be half of what it costs the Federal Government to do it, since the matching is on a 50-50 basis. That, of course, is reflected by statistics attached to our testimony and the testimony of others today. Railroad safety continues to be a very serious problem in this country. We are pleased that the FRA is apparently making some progress in stimulating State participation, but it has been a very long time because they are now 10 years into the safety program established by the 1970 act. In our statement we specifically support two bills pending before the subcommittee, H.R. 3785 and H.R. 4454, which were, in effect, drawn by the Tennessee commission and which go somewhat beyond what the NARUC had asked for previously. While the committee is aware of the bills, there are two specific amendments proposed by the NARUC for adoption today and they are set forth in the footnotes on pages 4 and 5 of our statement. The first of these amendments, footnote 1 on page 4, would permit the States to have immediate access to Federal district court to restrain safety violations. Now, it is my understanding of the jurisprudence of this country that virtually anyone can seek resort to the courts to address alleged grievances; however, under the railroad safety program, a State commission cannot resort to a Federal district court until after 90 days has expired from the time the State commission reported the violation to FRA. You are not talking about State courts but Federal courts. It seems to me that the thrust of the 90-day period is that the Federal judiciary cannot be trusted. The truth of the matter is that the State commission would have to put on a very strong case in order to get a Federal district court to issue an injunction order to restrain a safety violation. We think psychologically this would give the State commissions a greater impetus in getting involved in this program. [Testimony resumes on p. 210.] [Mr. Rodgers' prepared statement and attachments follow:] UNITED STATES HOUSE OF REPRESENTATIVES STATEMENT OF THE NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS TELEPHONE (202) 628-7324 20044 |