Mr. LOOMIS. They have a legal right to reject.

Senator MORSE. I am interested in your use of the word "duty" in the statement you made just a moment ago in respect to the carriers' attitude toward emergency board reports. You said in effect that although you did not like some of the reports, you considered it your duty to go along with them. Did you mean legal duty or moral duty? Mr. LOOMIS. I meant moral duty. The carriers have a legal right to reject..

Senator MORSE. That is, this record should show that it is your understanding that under the Railway Labor Act the brotherhoods in rejecting emergency board reports have a legal right to reject them.

Mr. LOOMIS. They have the legal right, and so do the carriers.
Senator MORSE. So do the carriers.

Mr. LOOMIS. I think so far as the carriers' position is concerned, Senator, it comes down to this: The carriers generally feel that if they reject a report by a Presidential board and were thereby responsible for bringing on a strike because of their refusal to accept such recommendations, they just couldn't face the country in such a situation.

Senator MORSE. Under such a situation you feel that public opinion would take the position that the carriers had their day in court and they had refused to follow the recommendations of the emergency board, and therefore they ought to be considered as in the wrong. Mr. LOOMIS. I think there is no question about that.

Senator MORSE. When you used the word "duty" in connection with your statement, do you mean to imply that you feel that the same duty rests upon the brotherhoods?

Mr. LOOMIS. I do.

Senator MORSE. To accept the recommendations of the emergency board reports.

As a lawyer, Mr. Loomis, do you think that it would make any difference in the work of an emergency board, in the conducting of its hearings, in the procedure that it lays down, if under the law its report was to be considered a decision rather than a report of recommendations on the merits of the dispute?

Mr. LOOMIS. No; I do not see where it could be very much different, Senator. The emergency boards have always offered full opportunities to either side to present all the evidence and argument that either side may desire, to cross-examine to the fullest extent. I do not see how their procedures could be very much different.

Senator MORSE. If the emergency board's report had the legal binding effect of a decision rather than a report of recommendations, it would then in effect be a compulsory arbitration tribunal, would it not?

Mr. LOOMIS. That is correct.

Senator MORSE. Do you think that if an emergency board were really sitting as a compulsory arbitration tribunal, its handling of the case would be no different than the present handling of cases in the past by emergency boards where they know that under the law there are 30 days mediation and 30 days for taking strike action and 30 days for further negotiations between the parties? Mr. LOOMIS. That is my opinion, Senator.

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Senator MORSE. It would not make any difference in the taking of evidence? If they sat in that capacity, they would sit as the judges, would they not?

Mr. LOOMIS. Yes, they would. It is possible that in some respects the rules of evidence might be a little bit tighter than are now applied, although I rather doubt it. I am thinking of instances where batches of newspaper clippings, et cetera, have been offered as exhibits. I believe when the Senator was presiding officer he ruled out some of those exhibits.

Senator MORSE. If I had been sitting as the judge I would have ruled out and I mean this-if I had been sitting as a judge in 1941 I think I would have ruled out at least 60 percent of the stuff that got into that record.

Mr. LOOMIS. That might well be.

Senator MORSE. I just want to tell you I think you would have an entirely different process if you turned this into a court procedure. I am not arguing whether or not you should, but I have a very strong feeling, Mr. Loomis, that the American people ought to be told that this is not a court under the present law, because while I respect your judgment, I completely disagree that your hearings would be the same if you are trying your cases before a board whose decision was going to be final and binding. I don't see how you can escape the fact that under the present law those emergency board members know that they are making recommendations there on the evidence that is presented to them, and it is not very well sifted evidence in many instances. They have in the back of their minds all the time the fact that the boys can negotiate all of this in 30 days. This is the way it appears on the basis of the case made to them. Believe me, if they sat there as a court and were true to arbitration as a judicial process, I think you would get an entirely different handling of the case with its effects on the recommendations. That is why I have been misunderunderstood, I think, in some quarters because of the position I have taken publicly that the impression should not be created in this country that the emergency board reports are decisions. They are factfinding recommendations. To my way of thinking that is an entirely different breed of legal cat than an arbitration decision. I know it is difficult to get the average layman to recognize the differences between fact-finding and recommendations based on them and a judicial decision based upon the preponderance of evidence rule with respect to the merits of the issue. I think the difference is as great as the difference between day and night.

Mr. LOOMIS. I think I am judging, Senator, by our experience in arbitration cases, of which we have had several which have not been greatly different from the emergency board.

Senator MORSE. Which have not been judicial processes. I am not referring to any specific case, but I am referring to what goes under the name of arbitration so often when it is not arbitration at all. It is a kind of mediation procedure mixed up with a little crossing on fact finding. You get a mongrel out of it in the way of a decision, at least not a very good hybrid. I think if we are going to talk about arbitration in the railroad industry, and the members of the brotherhoods ought to face this fact, too-if you are going to talk about arbitration as a judicial process, you are in court. You are just as

much in the sanctum of a judicial tribunal as you are if you walk into a Federal courtroom. That is the way I think you ought to keep it. If I were representing the brotherhoods or the carriers I would get into arbitration more than you get into it if you have judicial arbitration. I am worried about the damage that I think is being done by the Railway Labor Act in public opinion, because newspaper editorials generally don't see the distinction I am trying to draw here this morning. I may be wrong about it, but to understand my approach to these problems, you have to understand this. I think you pick up a lot of newspaper editorials, they say, "They had their decision, why don't they stick by it and live up to it?" They have never read the act. As you pointed out this morning there is no legal obligation on the part of either the brotherhoods or the carriers to accept it. The whole intent of Congress gleaned from a reading of the act and the committee hearings at the time was that they did not want this to be an arbitration, they didn't want this to be final. They wanted it to be a basis for fact finding and recommendations based on it, and then further mediation. They didn't want to draw a line ending the process.

I just happen to think the White House has been quite wrong in giving the country the impression that the brotherhoods have walked out on something here as far as any legal obligation under the Railway Labor Act is concerned, because the White House hasn't drawn clearly the distinction which you so clearly draw here this morning and that I would expect you to draw between legal and moral obligations. When you talk to the average guy on the street, he thinks the brotherhoods walked out on a decision. I don't think they have ever had a decision in this case. They have had a report of recommendations, with the legal right to reject them. It may be I didn't like the Donnell bill, as you well know, but I am not so sure that the Donnell bill can't be patched up by way of taking some things out of it for improvement of the Railway Labor Act. Your testimony doesn't surprise me from my experience with you. I am very glad that it has come from the carriers' side of the table and no one would have any question, it seems to me, that there is no legal obligation to accept an emergency board report because it is not a decision in the sense that you and I as lawyers consider the judicial process.

I didn't mean to take this much time, but what we have to do, it seems to me, is to cut away the misunderstanding that has developed in the public mind about this case and correct some false impressions that I think the White House has created in regard to people's obligations, the obligations of parties to the case.

Mr. LOOMIS. I think I should point out, Senator, that section 10 in its origins in the 1926 act-or course, that was a bill agreed to by the carriers and the organization-was unquestionably a compromise measure. It was stated by both sides in the House and Senate hearings that either party would think a long time before they would reject a report and recommendations of a board appointed by the President of the United States, that it would have to be so inequitable as to be almost beyond the limits of human endurance, and that it could be expected the public would make it so hot for any party which rejected the report of such a board that the people of the country would clearly understand the issues.

Senator MORSE. That is clearly in the record.

Mr. LOOMIS. I think that is the effect of section 10 of the act of 1926.

Senator MORSE. It was the hope of Congress as the record shows, but it has not worked out that way. We have to face the fact that we had the same attitude not so many years ago in the Congress, in 1947 to be exact, when some of us wanted a procedure for handling emergency disputes, disputes affecting what we thought was the health and safety of the American people, by having a fact-finding board with the power to make recommendations. I think this should be one of the early amendments of the Taft-Hartley Act, because I think experience has shown as some of us predicted that it is a mistake to have a fact-finding board with no power but to make recommendations. I don't deny that the power to make recommendations has an effect on public opinion. There is no question about it. But we are talking now about what kind of a procedure we should have for that final step if the parties let the case get into the White House for its solution. I think when it is in the White House it is up to the White House to make a decision on the merits and not simply say to the American people, "They have had a decision. Let them take that." Because when you boil down the White House position on this, that is about what they have been saying in their public releases. "They have a decision out of the emergency board." They didn't. It was merely recommendations.

Mr. LOOMIS. In all cases they have gotten something more out of the White House than the Board recommended.

Senator MORSE. I think both sides to these disputes know that is likely to be part of the price you pay the fiddler if you get into that kind of music hall.

Mr. LOOMIS. We know it very well.

The Mediation Board resumed its mediatory efforts on June 27, 1950. On July 11 the organizations advised the President by telegram of their rejection of the emergency board report. That telegram appears in carriers' exhibit No. 3 as item No. 1, telegram of July 11, signed by President Nemitz of the Order of Railway Conductors and President Kennedy of the Brotherhood of Railroad Trainmen.

Senator LEHMAN. May I ask a question before we get into this subject. Maybe this question was asked of you, Mr. Loomis, while I wasn't present, but apparently the claim has been made that one of the weaknesses of the emergency boards is that they were not sufficiently familiar with the problems confronting the workers and the carriers, and therefore it was suggested the other day by the representative of one of the brotherhoods that on each emergency board there should sit a representative of the carriers and a representative of the workers. In other words, let us say that there would be a board of five members, three representing the public, one representing the carriers, and one representing labor. Their idea is that through the inclusion of experts on these emergency boards the true facts and appreciation of the problems would be made available to the board. How do you feel about that? Do you think it would help?

Mr. LOOMIS. I think in many cases it would help, Senator. In some cases it might not be of much value. I think on the whole it probably would be a desirable thing. Certainly in cases that involve operating

rules and technical questions I think it would probably be of assistance to the public members to have representatives of the parties participate in their deliberations as members of the board.

Senator LEHMAN. I ask that question because I am much more interested in seeking means by which we can strengthen the operation of the act than I am in assessing any blame for the past. I want to ask you another question.

It has been represented by the brotherhoods that if negotiations could be carried on by responsible heads of the brotherhoods with responsible operating heads of the carriers, it would be very conducive to reaching agreement. I refer only to matters of such importance as involve large policies throughout the country. That argument has met a responsive chord in me because in my own experience I have always felt that when the responsible heads of organizations that were involved in the dispute or potential dispute could sit down and discuss matters, men who really knew the problems, a great deal could be gained. I understand that in the past in most of these differences or negotiations the carriers were represented largely by lawyers, by legal representatives rather than by the practical, experienced operating men. I wonder how you feel about that.

Mr. LOOMIS. I think there is nothing to it at all, Senator. In the first place, take the last 10 years, the carriers have been in almost constant negotiation of one kind or another with one or another union or one or another group of unions. No railroad president or no operating vice president or no general manager could possibly spend that time. If he did, he wouldn't be doing anything else on the railroad. Originally the committees were largely made up of general managers in the earlier days, until it got so heavy that as a matter of operation the railroads just couldn't spare their operating officers by and large to handle that.

Insofar as this question of lawyers is concerned, there are 18 men on the carriers' conference committees. Six of those eighteen have had legal experience or legal training. Most of the personnel, officers of the railroads, have been operating men, superintendents, general managers, general superintendents, and have come up through the operating ranks. Insofar as lawyers go, and I am one, of course lawyers vary just like anybody else, but I think there is nothing to that discussion. All of the men on the committees are experienced in labor negotiations and labor statistics, are in constant touch with the chief executives. I just think there is nothing to that.

Senator LEHMAN. I do not wish to reflect on lawyers, for many of whom I have a very high regard, and I don't want to imply that I think a system of that sort which has worked out on hundreds of different local disputes or differences that undoubtedly arise has no merit, but here is a situation which affects the entire country, which affects every railroad in the country, or substantially every railroad. Certainly it affects every one of the 150 million residents of the country. It does seem to me that a good deal could be gained even though it might mean taking away some of the operating men from their managerial problems, if around the table confronting each other you could have the responsible heads of the brotherhoods and responsible, experienced operating men. I can't get away from the fact that in my own experience I found that kind of approach very