In 1979, hazardous materials penalties were assessed at 167 percent above fiscal year 1978, which was itself a record year.

One area of safety of which your committee should be aware is the FRA's rulemaking. FRA has already issued or is in the process of making wholesale revisions of all its major safety standards. These include freight car, track, signal systems, locomotives and operating practices. At this time, I will not attempt to review the specifics of each of the rulemakings.

However, if any of you are interested, we would be happy to provide your subcommittee with details of what is occurring. If the new safety revisions are any indication of FRA's plans for the future, the regulations for railroad safety enforcement are well on the way to becoming virtually meaningless.

The obvious question is how can Congress cause an improvement. We recognize the financial burdens of some railroads may be a factor in the poor safety record.

However, we feel a significant improvement could be attained simply by adequate enforcement of the existing laws and regulations.

As we have told you before, we do not think FRA is doing its job. Because your committee only has an opportunity to learn what FRA is doing once every 2 years during hearings on authorization legislation, it is imperative that your committee at this time be the catalyst to help assure FRA does the job Congress entrusted to that agency.

FRA persistently has failed to hire the safety inspectors authorized by Congress. At the close of 1979, although Congress had authorized 429 federal and state inspectors, FRA had only 372 on board.

Congressional committees have long recognized this. The need for improved safety conditions is critical. We urge your committee to support several safety proposals which I shall now briefly address.

These proposals are contained in H.R. 6497 which is being actively considered by the House Committee on Interstate and Foreign Commerce.

We support an amendment to the safety laws which would allow a private right of action to assure enforcement of railroad safety statutes.

At the present time, the only method of enforcing the railway safety statutes is by civil suits brought by the United States Attorney after investigation and the issuance of citations by the Federal Railroad Administration.

Recently, constituents of RLEA have forwarded literally hundreds of complaints to FRA of ConRail supervisors removing "bad order" tags (which indicate defects that could lead to derailments) rather than requiring the cars to be repaired.

FRA took no action whatever, and RLEA was forced to file a lawsuit against them in federal court to stop the illegal acts. The private lawsuit was dismissed by the district court because the rail safety statutes do not expressly provide for a private right of action.

FRA adamantly refused to issue an injunction, and was satisfied merely by a verbal promise by a ConRail official that the railroad

would halt its practice of sending cars out of the yard even though bad order tags had been placed on them.

Throughout February and March of this year, hundreds of examples of continued abuse kept streaming into FRA. I have attached as an exhibit to my testimony one of the statements dated February 10th and forwarded to FRA on the 28th.

That statement by a railroad employee shows that the foreman of the yard instructed the car inspector to inspect the ConRail train, but not to, and I quote, "carry brake bars, change any shoes, close any doors, or do other work which would require more time." Those trains ran with worn-out brakes.

I have also attached as an exhibit to my testimony, copies of pictures taken at the scene of a Con Rail derailment in Millfield, Ohio which show that a derailed hazardous material tank car had a bad order ticket attached at the time of its derailment.

FRA is satisfied with ConRail's verbal promise, even though FRA has massive evidence that the practice continues unchecked.

When FRA unquestionably has knowledge of many safety defects of the kind leading to derailment and injuries, but chooses never to take effective enforcement action against the offending railroads and chooses never to use the injunctive authority granted to it by Congress, the employees whose lives and safety are so seriously threatened have absolutely no recourse but to file civil actions themselves to compel enforcement.

We have singled out ConRail not because it is necessarily the worst offender of rail safety, but simply to show an example of what is happening.

Statutory private rights of action are not uncommon; in fact, they are frequently found in the health and safety field in such statutes as the Occupational Safety and Health Act; Clean Air Act; Clean Water Act; Toxic Substances Control Act; Safe Drinking Water Act; Noise Control Act; and Surface Mining Control and Reclamation Act.

Rail safety, too, is an area where a private right of action is appropriate and necessary.

Needless to say, the railroad worker is employed in one of the most hazardous professions in this country. This worker is constantly faced with the very real potential of injury or death. The situation is, of course, worsened when the employees must work in and around equipment where there are known, yet uncorrected, safety violations. The most unacceptable working conditions are those where an employee is required to operate defective equipment or work in an area which presents an imminent danger to his safety and health, where an employee brings this to the attention of the appropriate authorities and where retaliatory action is then taken against the employee. Our offices have received numerous complaints over the years of harassment where a worker notifies authorities of violations, testifies in safety proceedings, or even institutes an action against a railroad.

There is absolutely no excuse for such action by a railroad; yet it persists. For example, I have attached as an exhibit to my testimony a citation from Detroit Terminal Railroad Company commanding a railroad employee to appear at an investigation concerning

that employee's, and I quote, "disloyal act of giving a signed statement to a representative of the FRA.'

RLEA has been advised that Detroit Terminal has been angered by the fact that FRA collected $8000 in fines for defective car violations reported by this particular employee.

Nothing short of statutory prohibitions will be sufficient to protect workers from such actions. The Supreme Court in Whirlpool Corporation versus Marshall recently upheld an OSHA regulation similar to what RLEA now supports. The court said such a provision was in clear conformance with the fundamental objectives of the OSHA Act-to prevent occupational deaths and serious injuries.

Safety is, of course, the basic underpinning of the rail safety statutes as well.

Prompted by a newspaper article a couple of years ago, the Department of Transportation has drafted proposed interpretations of their conflict-of-interest regulations which may require their employees to divest themselves of all forms of future employment rights they may have with railroads and companies in railroadrelated industries.

The National Transportation Safety Board has required divestiture. This will work considerable and unnecessary hardship on the affected employees in addition to having a deleterious effect on railroad safety enforcement. RLEA supports a provision which would allow retention of self-employment rights.

In the first place, it is ridiculous to suggest that there is any conflict of interest in federal employees maintaining seniority rights which were collectively bargained as an earned benefit for prior service on a railroad.

Those seniority rights are not a promise by the railroad of future employment with the railroad. They are merely an assurance that a prior employee who has enjoyed interim service somewhere other than the railroad will be given an opportunity to return to the railroad at no less a favorable position than when he left provided that he otherwise qualifies for employment.

There is no room for impropriety, or even the appearance of impropriety, because the railroads are without power to deny seniority rights secured by collective bargaining.

To the contrary, if the railroads had the discretion to hand seniority rights like a carrot on a stick before the government inspectors, then there could arguably be an opportunity for a conflict of interest.

Furthermore, there is absolutely no evidence that there is now or that there ever has been a conflict of interest. Rather, it appears that the action of FRA and NTSB officials was merely a gross overreaction to the article and was simply not based on any reasonable assessment of the actual situation.

Secondly, as I've mentioned, this movement by NTSB and others will have a considerable and damaging impact of railroad safety enforcement and, in fact, on railroad safety.

Qualified railroad inspectors come virtually exclusively from the railroad industry. People with the requisite knowledge and experience are normally in their mid-career years, ages 40-52.

By the same token, a newly hired federal employee will, of course, absorb the brunt of any reductions in force. In the event of a RIF then, at mid-career, if railroad seniority rights are not retained, those employees are on the street.

Furthermore, the retention of bidding rights has been a major factor in inducing experienced railroad employees to become safety inspectors. Add to that the fact that the skills of railroad operating people are not generally marketable other than on the railroad, and, of course, the future recruitment of qualified people by the FRA and others is going to be an uphill battle.

Similarly, there is no telling how many current FRA inspectors, if required to forfeit accumulated railroad seniority, would elect to forfeit their FRA positions instead, leaving an already understaffed agency with ever greater shortage.

There can be no doubt, then, that the thousands of railroad employees working in the yards and on the trains will be exposed to a dramatically increased risk of injury resulting from accidents and derailments caused by undetected and uncorrected safety defects.

Lastly, but by no means of least importance, it is outrageous to RLEA and its constituent organizations that these administrative bodies presume to encroach upon rights guaranteed to railroad workers through collective bargaining.

As you know, Congress itself has repeatedly recognized the importance of seniority rights vested through the bargaining procedure in other very important areas of the law-for example—civil rights and Congress has refused to intrude upon these rights. I cannot overemphasize to you the damage that would occur to the collective bargaining system as we know it in this country if agencies are permitted to do by administrative fiat that which Congress itself has wisely refused to do by legislative or otherwise over the years.

For all of these reasons, RLEA enthusiastically supports any legislation that would allow retention of reemployment rights.

Pay classifications have previously been discussed by other witnesses. The Office of Personal Management, OPM, has published a classification standard which downgrades the majority of the FRA safety inspectors.

We oppose this proposal as it would make it virtually impossible to attract qualified candidates. Moreover, any further decrease of FRA rail safety enforcement would unquestionably result in a greater increase of injury or death due to accidents or derailments caused by undetected or uncorrected safety violations.

Transportation to lodging facilities. The 95th Congress wisely recognized that considerations of safety compelled the shortening of the workday for operating railroad workers.

Therefore, in 1976, Congress adopted amendments to the Hours of Service Act. Unfortunately, a "too-common" phenomenom has come to RLEA's attention-although the counting of release time starts immediately from the time of the interim release at the designated terminal, some railroads simply do not promptly provide lodging for the employees and, of course, then the employees' actual rest time is shortened-sometimes literally by hours.

RLEA supports the amendment which would require the employee be transported to lodging facilities within 30 minutes from the time the employee walks off duty.

This would assure the congressionally mandated rest time and could have meaningful impact toward diminishing employee errors and accidents which result from fatigue.

In conclusion, RLEA hopes that your committee will consider carefully our views on each of the proposals discussed in my testimony. I might add at this point that RLEA does not oppose the safety amendments that have been proposed by the Department of Transportation.

In the interests of a safe railroad system, do not shy away from your duties to adopt the suggested safety improvements.

Senator PRESSLER. Thank you. There has been a suggestion made by some that rail employees be subject to a certification program, thereby insuring that adequate training is being provided and that employees are benefiting from such training.

Would you care to comment on this proposal? How do you view the training, particularly in the area of hazardous materials and emergency response, which employees are getting?

Mr. MANN. Mr. Chairman, we would like to supplement the record with some detailed analysis for you on that. But just generally, the training programs are varied across the country.

Some railroads are excellent, others are so-so, and some are nil. Certainly, rail labor will support any kind of program that would improve awareness on behalf of employees.

They are the ones that are getting injured, killed, and they are maligned from all sorts of areas. Any kind of program that would improve their knowledge in how to operate trains and how to handle safety rules, et cetera, would certainly be viewed favorably. Particularly with respect to certification, in the rulemaking procedures that have been undertaken by FRA in the past, we have, we being the railway labor, have come forward with proposals that would require personnel that were qualified, and throughout the rulemaking procedures, the FRA has not, in our view, attempted to require the highest-qualified persons to inspect, for example, to inspect the track, to inspect the maintenance of all the equipment. Our views are well-known, and we have supported qualified persons to do these kinds of jobs. Now, to merely attach the word "certification" to something doesn't seem to us to be that signifi

cant.

The point is, you want someone qualified to do the job.

Senator PRESSLER. In your testimony, you state that the FRA's safety regulations are on their way to becoming meaningless.

Would you please comment further, citing egregious examples of regulations which you find unacceptable and the reasons why? Maybe you will want to do that for the record. You may not be able to remember right here.

Mr. MANN. We would appreciate the opportunity to supply that for the record.

Senator PRESSLER. Thank you very much. Those are the questions I have. If you have additional thoughts, we will be glad to put them in the record. We appreciate your testimony.

I will now call on Mr. Keith Bissell, Commissioner