Secretary WIRTZ. All right. Thank you, Senator.

Senator HARTKE. Do I take "all right" to mean that you will try? Secretary WIRTZ. No. I respect the suggestion.

Senator HARTKE. I got that from the inflection.

Secretary WIRTZ. I respect very much the suggestion and ask you to respect the circumstances which we face here and that it will be given, as I said before, the strongest consideration.

Senator HARTKE. There isn't any real difference, is there, Mr. Secretary, whether the ICC would act or whether the Congress would act, directly in this matter? In other words, if we wanted to we could take all these recommendations and enact them into law.

Secretary WIRTZ. You surely could. The issues are posed in terms of some 20 to 50 work rules. You could do it. I think there would be a real question as to whether it would be felt that that is a betterthat that is an appropriate legislative act.

Senator HARTKE. I am not making that suggestion. I just want to point out the fact that really what we would be doing is delegating the authority and the power by giving this authority to the ICČ.

Secretary WIRTZ. That would be true of the original 5(2) (f), and true here.

Senator HARTKE. The ultimate effect is that it would have the full force and effect as if Congress had written into a specific statute each and every one of the things as they are found by the ICC in the final analysis.

Secretary WIRTZ. I suppose that theoretically Congress could adopt a work rule on an interim basis, subject to superseding by collective bargaining, and subject to termination at the end of the 2-year period, covering every single one of those matters. It could do it.

Senator HARTKE. There is no question about the legal authority to do this, is there?

Secretary WIRTZ. I can think of none at the moment.

Senator HARTKE. In the President's recommendation and message to Congress, he referred to the 1916 situation.

Secretary WIRTZ. Yes.

Senator HARTKE. This is cited as a precedent for action in this case?

Secretary WIRTZ. No; not the forum of the action. The situation in 1916 was that Congress did eventually pass legislation covering the 8-hour rule.

Senator HARTKE. We have agreed that that is no difference really in effect than what we are doing by delegating authority to the ICC. I thought we had passed that point.

Secretary WIRTZ. No, I haven't. If the question is whether there is authority for the Congress to do it, I would feel that that is true, and that that was the earlier question. If the question is whether, as a matter of my hopefully helpful responses to this committee, there is an advisable course of action here, I would be quite clear that the prospect of congressional enactment covering each of the rules in this case would be very difficult and inadvisable.

Senator HARTKE. Let me get it clear. Maybe I misunderstand. Isn't this case cited as the authority for the action in this case? Secretary WIRTZ. Isn't the 1916 action?

Senator HARTKE. Yes.

Secretary WIRTZ. I would want to check the reference again. In the President's message he refers to the President coming to the Congress. But there is no basis in the 1916 action for the procedure which is proposed here. No, that is not. It is rather the 1940 action in the commerce act.

Senator HARTKE. What we are proposing in this law is to delegate to the ICC the authority which I understood we had agreed that Congress could write itself."

Secretary WIRTZ. That is correct.

Senator HARTKE. And what they did in the 1916 situation was really write the law.

Secretary WIRTZ. For the one point.

Senator HARTKE. And the only difference is that there are a variety of points here.

Secretary WIRTZ. Hundreds of them; that is right.

Senator HARTKE. And it would be rather cumbersome, and I think you and I could quite agree to spell this out in specific legislation, would not alone be foolish but probably would be very difficult? Secretary WIRTZ. That is correct.

Senator HARTKE. As a practical matter.
Secretary WIRTZ. That is correct.

Senator HARTKE. The similarity in breakdown of negotiations as spelled out is very, very close.

Secretary WIRTZ. There is that parallel, that is correct.

Senator HARTKE. The language of the court in Wilson v. New points this out, that the employers refused, and how the President had a conference of the parties, and how the breakdown occurred and how it was submitted to Congress; isn't that true?

Secretary WIRTZ. That is correct. In that sense there is a precedent in the broad sense.

Senator HARTKE. Then the action of the Congress in and of itself as taken in that case would be extremely parallel to this except for the procedural point; isn't that true?

Secretary WIRTZ. That is where we have the difficulty.

Senator HARTKE. Where is it different? That is what I am trying to find out.

Secretary WIRTZ. The difference in my mind, Senator, would be that in the one case there was the adoption of the 8-hour law, I rather think on an interim basis, as I remember it.

Senator HARTKE. That is right, and the Commission was established.

Secretary WIRTZ. That is correct. And so the only difference would be the difference between the one issue and an almost infinite number of issues. Otherwise no difference.

Senator HARTKE. But, really, after all when you write a law for one issue or write a law which encompasses 50 issues, that has no real bearing on legality.

Secretary WIRTZ. No, none on legality.

Senator HARTKE. But does on the cumbersome enforcement and other things entailed thereby; right?

Secretary WIRTZ. I would add some other things. I think it would be very hard for Congress to come by the full information on each of these issues, which would be necessary to a decision.

Senator HARTKE. It is your contention here that this is not compulsory arbitration although you don't want to use that term. But there is a decision of finality, as I understood you to use it.

Secretary WIRTZ. I would be glad to use the term as applied to that area in which I think it does apply.

Senator HARTKE. You do not think this is compulsory arbitration? Secretary WIRTZ. No, I am sorry I didn't make that clear. No, I think we are clear about it. I have tried to make it clear that I think it is not compulsory arbitration because compulsory arbitration has a very definite reference to a type of procedure utterly different from this.

Senator HARTKE. I am not going to belabor and try to make you agree. I want to read to you from Wilson v. New, after we have established all the facts as being identical I think. This is the majority opinion of the Court, not the concurring opinion, written by Mr. Chief Justice White, on page 351-243, U.S. Reports:

We are of the opinion that the reasons stated conclusively establish that from the point of view of inherent power, the act which is before us was clearly within the legislative power of Congress to adopt.

We can agree this far?

Secretary WIRTZ. We surely can.
Senator HARTKE (reading).

And that in substance and effect it amounted to exertion of its authority under the circumstances disclosed to compulsory arbitrate the dispute between the parties by establishing as to the subject matter of that dispute a legislative standard of wages, operative and binding as the matter of law upon the parties; a power nonetheless officially exerted because exercised by direct legislative act instead of by enactment of other and appropriate means for providing for the bringing about of such result.

I will not ask you to comment about that. I will just say to you, sir, that I feel that this is where I draw the great degree of hesitancy about this subject matter.

Is there any question of finances involved in this whole matter? Secretary WIRTZ. Any question of

Senator HARTKE. Of the railroads' financial condition involved in these disputes. Is this a matter of consideration?

Secretary WIRTZ. There has been much discussion about it, as between the parties. I think the Presidential Railroad Commission did not go into it in any detail.

Senator HARTKE. Isn't this one of the overriding factors here, that there is a great problem involving the actual operation of railroads on a financially profitable basis?

Secretary WIRTZ. It has been much discussed, it has been much discussed, I think, in private. It has been much discussed in the publicity which both sides have circulated. It is my recollection, subject to check, that the Presidential Railroad Commission did not go into it, and that the Emergency Board did not go into it, and that it has not been gone into in any of the formal proceedings here.

Senator HARTKE. One of the problems is that it is a very difficult matter, even at best, and the powers to obtain those records are very difficult, are they not?

Secretary WIRTZ. I would think they would be, yes.

Senator HARTKE. The Interstate Commerce Commission said so, haven't they? In fact they have said it is almost beyond their capacity

with the present law to determine the financial condition of railroads, whether it is good, whether it is bad, or whether it is medium.

Secretary WIRTZ. I am familiar with that to a limited extent, and to that limited extent I would concur in what you say. Confirm what you say.

Senator HARTKE. It would be helpful if we had a real true picture of the situation without the charges and countercharges?

Secretary WIRTZ. I would surely agree with your point. I mean you refer to the other considerations which are before the Congress about the possibility of getting that picture.

Senator HARTKE. Is that right?

Secretary WIRTZ. That is correct. I didn't mean to leave the question hanging. If your question was whether I think that is a good idea, I do.

Senator HARKE. I quite agree with you, Mr. Secretary, that there is the ultimate question here of who not only has the responsibility but who is going to bear the cost of people who are displaced by machines. I think that is

Secretary WIRTZ. A very basic point.

Senator HARTKE. I think the President's message in this regard should not be overlooked or forgotten if this matter is successfully concluded, as I hope it will be this week through the good offices of the Secretary by continuing to negotiate.

Senator PASTORE. On that note, the Senator's time is up.

Senator HARTKE. Thank you.

Senator PASTORE. Senator McGee.

Senator MCGEE. Thank you, Mr. Chairman.

Mr. Secretary, while I share the sentiments of my colleagues that you have done an admirable job this afternoon, I want to express my personal note of your stamina as well.

This has been a considerable ordeal for you, I am sure, by men who are in a position to zero in, and you have to play the field.

Secretary WIRTZ. I will trade all these virtues, Senator, for agreement in this case.

Senator MCGEE. I want to start by expressing my own misgivings about the compulsory phase of this. I respect very much your judgment on that, that this, because of the procedures, cannot be construed as compulsory arbitration.

But given the vehicle by which this would be brought about temporarily for 2 years, it seems to me that it skirts mighty close to the edges of the possibilities of a compulsory or binding agreement.

I don't want to belabor the point except to share the misgiving of my colleague from Indiana.

May I ask you, in view of the notices that were posted in 1959 and 1960, which were pretty broad and all-encompassing-they probably cover most of the rules in the present agreements between the partiesdo not then the provisions of section 5 in the resolution actually set aside the provisions of the Railway Labor Act for 2 years?

Secretary WIRTZ. You mean with respect to the-I see what you

mean.

That because they were so broad it would be almost impossible to file some new notice, new section 6 notice that didn't come within them. Senator McGEE. Yes.

Secretary WIRTZ. I think Mr. O'Neill's comment might be more helpful on that.

Mr. O'NEILL. There are all types of notices. It is true, Senator, that these notices, carriers in 1959 and brotherhoods in 1960, pretty well cover the field. But there are many, many subjects I know that the organizations are interested in, beyond the ones that were served in 1960. However, whether the carriers have any more would be a question.

Secretary WIRTZ. The carrier's notices are a good deal broader than the brotherhood's notices.

Senator MCGEE. I understand. Is it not possible some carriers would be bound by the provisions of this joint resolution while others might not be?

Secretary WIRTZ. By virtue of their agreement, by reaching agreement?

Senator McGEE. Yes.

Secretary WIRTZ. Yes, it would be possible.

Senator MCGEE. Therefore, the carriers not entering agreement would be, let's say, bound, while others would return to the provisions of the Railway Labor Act, and thus you would have a broken pattern. Is that correct or not?

Secretary WIRTZ. Yes, it would surely be possible. Theoretically it is possible.

I as

But it occurs to me that they will, in whatever they agree on, sume provide some time period for the effectiveness of their agreement. They don't always in this industry. But to whatever extent they did, they would probably carry it on beyond this period.

I think my answer to your question, subject to Mr. O'Neill's reaction, is that that is theoretically a possibility. But practically it does not present an obstacle.

Mr. O'NEILL. That is correct.

Senator MCGEE. Does not present a practical problem because it is not likely to happen?

Secretary WIRTZ. That is correct.

Senator MCGEE. If it were to happen, it would add to the confusion?

Secretary WIRTZ. Yes, but it could happen only if some agree and some don't agree, and they have been negotiating under an agreement for national handling of the issues. We have refined it to a point of pretty remote possibility.

Senator MCGEE. Do you agree with that, Mr. O'Neill ?

Mr. O'NEILL. Yes, I do, Senator.

Senator MCGEE. What happens, again for the record, to an interim rule that expires without any negotiated rule having been made during the 2-year life?

Secretary WIRTZ. And no renewal of the resolution?

Senator MCGEE. Yes.

Secretary WIRTZ. It would mean that section 6 notices now in effect would still be standing and that there would be a right of either party to take whatever course of action it wanted at that ime.

Senator MCGEE. But an action by the Commission in the 2-year interval, and one party happened to come out best in the Commission's decision, that would still prejudice the chances of reopening collective bargaining procedures, would it not?