[Congressional Record Volume 142, Number 139 (Tuesday, October 1, 1996)]
[Senate]
[Pages S12095-S12115]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          FEDERAL AVIATION REAUTHORIZATION--CONFERENCE REPORT

  The Senate resumed consideration of the conference report.
  The PRESIDING OFFICER. Under the previous order, there will be 3 
hours of debate on the conference report equally divided.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, I designate myself as being in charge of 
the time for this side of the aisle.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I will be brief.
  We have decided and the reality is that we will pass this bill. Under 
the unanimous-consent agreement we entered into yesterday, we will have 
a cloture vote on Thursday, it is obvious that there are well in excess 
of 60 votes for passage of this conference report. Unfortunately, for 
reasons that are not clear to me, the other side has chosen to delay 
until Thursday that cloture vote. Then, of course, there is the 
possibility of utilizing time after that.
  Meanwhile, funding for much-needed projects is being held up. Funding 
for projects that are vital, in the view of many States throughout the 
country, which I will be describing at a later time, is being held up. 
I do not know why it is being held up. I do not know if it is at the 
behest of the Teamsters Union. I do not know if it is at the behest of 
some other labor unions. I do not know why. This provision was inserted 
by the Senator of South Carolina in conference and voted and carried 
nearly unanimously. It was the correction of a technical error. Now, 
the Senator from Massachusetts has tied up the Senate, going through 
the arcane obstruction and delay such as having the bill read for 
nearly 5 hours last evening. All but two pages of it were required to 
be read last night. I do not know why that happened, but the fact is we 
should be taking up this conference report and passing it right now. 
There are plenty of Senators who are still in town. We could do it now.
  Why the Senator from Massachusetts insists on delaying these programs 
and projects--do you know what these programs and projects are? These 
are jobs. These are real jobs for working men and women around America 
who want to move forward to take their jobs and are now precluded from 
doing so until this conference report is signed.
  The fiscal year ended last night at midnight. We are now a little 
more than 14 hours into the new fiscal year and thousands, literally 
thousands of men and women who are not working on these critically 
needed airport projects. We are now 14 hours into the new fiscal year 
where much needed improvements having to do with aviation safety and 
airport security are not being accomplished. We will go into Thursday 
at minimum, which is 2 more days away. Then the conference report is 
signed. Then it has to go to the President's desk for signature. We 
could be talking about several days, all because the Senator from 
Massachusetts objects to us moving ahead and voting on the conference 
report which has the overwhelming support of the Members of the Senate. 
Let me be clear, the provision in question was proposed on his side of 
the aisle in the conference, which was a technical correction to a 
drafting error and we all

[[Page S12096]]

know it was a technical correction--that is all.
  I say to the men and women who want to go to work, who want to help 
build their communities, who want to improve aviation safety and 
airport security, who want to do the things that this Congress and the 
American people want them to do, I am sorry; I am sorry this bill is 
being held up for no good reason. People can draw their own conclusions 
as to why this legislation is being held up.
  There is no excuse for it. There is no reason for it. I know that 
people who are members of airport authorities, people who are involved 
in small businesses around the airports that supply the equipment and 
all the materials that go into the various airport construction and 
modernization projects around this country are asking the same 
question.
  Now, perhaps the Senator from Massachusetts does not care about these 
small business people. Most of them are not union people. They do not 
give $35 million to defeat incumbent Republican Congressmen and 
Senators. No, they do not. They are just small business men and women 
around America who are trying to do their job and have been told these 
construction projects would move forward at the beginning of the fiscal 
year.
  Now they are not. Now they are not. They are being held up.
  It is interesting that we should have the deep concern and abiding 
concern about raising the minimum wage to help men and women around 
America. I wonder how many months at the current minimum wage increase 
these people are going to have to work in order to make up for the days 
and possibly weeks that are involved in the delay that is being 
orchestrated by the Senator from Massachusetts and a handful of other 
Senators on the other side of the aisle. I am going to try to get those 
calculations done between now and Thursday.
  I think it is unconscionable. I think it is outrageous. I strongly 
recommend that the Senator from Massachusetts, for the sake of his own 
State, for the sake of the programs in his own State, would want to 
move forward so these people can go to work, so these airports can be 
improved, so we can get these much needed airport projects done.
  Mr. President, let me tell you what is in Massachusetts. General 
Edward Lawrence Logan Airport in Boston, MA, $3,691,173; Nantucket 
Memorial Airport, Nantucket, MA, $949,962; the Barnstable Municipal 
Airport in Hyannis, $797,690; Martha's Vineyard Airport, $500,000; 
Worcester Municipal Airport, $500,000; New Bedford Regional Airport, 
$500,000; Provincetown Municipal Airport, $500,000--a total of 
$7,438,826 in Federal dollar entitlements, matched by $3,539,692 in 
Federal dollar State apportionments--a total of $10,978,518 the people 
of Massachusetts right now are being deprived of.
  I do not understand it. I do not understand it, especially since this 
fight is over. This fight is over because we all know what is going to 
happen on Thursday.
  ``General Edward Lawrence Logan Airport, Federal Aviation Grants, $2 
million, Noise Grant Program, Funding Crisis Alert.''
  This is from the mayor, Mayor Thomas M. Menino, City of Boston.

       General Edward Lawrence Logan Airport, Federal Aviation 
     Grants, $2 million, Noise Grant Program, Funding Crisis 
     Alert.
       A crisis exists which threatens future grants for airports.
       Excise taxes, including the airline ticket tax, which funds 
     federal airport grant programs, have expired.
       Congress must pass a short-term extension of these taxes in 
     order to make the aviation trust fund solvent again.
       Please urge Boston's representatives in Congress to save 
     the airport program.

  Save the airport program? Mr. President, I want to tell the mayor of 
Boston I will do everything I can, but I suggest that he contact 
Senator Kennedy.
  This is harsh language. These are harsh things I am saying in the 
Senate Chamber. I realize that. It is late in the season. We are in a 
political campaign. But I want to repeat, there is no rationale or 
excuse. I see the Senator from Massachusetts on the floor, so I 
directly ask the Senator from Massachusetts--I directly beg him to let 
us move forward and have a vote immediately, an immediate vote on the 
conference report. He has already lost. Let us have a vote on the 
conference report now and let us get this over with, get the bill to 
the President of the United States and have him sign it so we can move 
forward with these critical airport projects and let the working men 
and women all over America who want to begin work on $9 billion worth 
of projects, let them get to work. Let these airport related 
improvements be made. Let the aviation safety and airport security 
programs be implemented.
  I will read in just a minute the safety and security provisions that 
are in this bill which are being held up because of the Senator from 
Massachusetts' reluctance to allow us to move forward. Mr. President, 
there are various airport security and aviation safety projects which 
are in this bill, which I will not read at this time, but I can tell 
you that there are at least 100 or more all over the United States.
  Let me tell you about some of the aviation safety and airport 
security provisions. This bill requires the FAA to study and report to 
Congress on whether some security responsibilities should be 
transferred from airlines to airports and/or the Federal Government. 
The FAA is directed to certify companies providing airport security 
screening. This legislation, as soon as the President signs it, 
bolsters weapons and explosive detecting technology by encouraging 
research and development. It requires that background and criminal 
history records checks be conducted on airport security screeners and 
their supervisors. It requires the FAA to facilitate the interim 
deployment of currently available explosive detection equipment. It 
requires the FAA to audit effectiveness of criminal history records 
checks. It encourages the FAA to assist in the development of passenger 
profiling systems. It permits the Airport Improvement Program and 
Passenger Facility Charge funds to be used for safety and security 
projects at airports.
  Mr. President, the Airport Improvement Program funds cannot be used 
for such safety and security projects at airports unless the Senator 
from Massachusetts lets us move forward with this bill.
  The FAA and FBI must develop a security liaison agreement. We cannot 
begin on that. The FAA and FBI must carry out joint threat assessments 
of high-risk airports. We cannot begin on that.
  It requires the periodic assessments of all passenger and air carrier 
security systems. It requires a report to Congress on recommendations 
to enhance and supplement screening of air cargo.
  Mr. President, on aviation safety, it eliminates the dual mandate and 
reiterates safety be the highest priority for the FAA. It facilitates 
the flow of the FAA operational and safety information. The FAA may 
withhold voluntarily submitted information.
  It authorizes the FAA to establish standards for the certification of 
small airports to improve safety of such airports. It directs the NTSB 
and FAA should work together to improve safety data classification so 
as to make it more accessible and consumer friendly and then publishes 
it.
  It requires the sharing of pilot's employment records between former 
and prospective employers to ensure marginally qualified pilots are not 
hired. It discourages attempts by child pilots to set records or 
perform other aeronautical feats.
  It also requires the FAA and NTSB to work together to develop a 
system so that the notification of the next of kin can be done in the 
most humane and compassionate fashion.
  I do not know why the Senator from Massachusetts will not let us move 
forward. I ask at this time unanimous consent that we move immediately 
to the conference report and vote on it.
  The PRESIDING OFFICER. Is there objection? The Senator from 
Massachusetts.
  Mr. KENNEDY. Mr. President, I object.
  The PRESIDING OFFICER. Objection it heard.
  Mr. McCAIN. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, I ask unanimous consent that we go 
immediately to the bill on the calendar on the FAA authorization that 
is without the labor provisions.

[[Page S12097]]

  Mr. McCAIN. Reserving the right to object, the Senator from 
Massachusetts knows full well the House of Representatives, the other 
body, is out and is not coming back. The Senator from Massachusetts 
also knows----
  Mr. KENNEDY. Regular order, Mr. President. Is there objection?
  Mr. McCAIN. I was stating my reservation.
  The PRESIDING OFFICER. There is objection?
  Mr. McCAIN. I object.
  The PRESIDING OFFICER. Objection is heard. The Senator from 
Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, the House of Representatives is subject 
to the call of the Chair by the Speaker. As time-honored practice and 
procedures, they have followed that on countless occasions. I am glad 
we were able to clear the air of some of the comments that were made 
earlier by the Senator from Arizona.

  Mr. President, I wish very much that we had been able to have passage 
of the FAA conference report. My friends and colleagues have talked 
about the urgency of these various programs. I do not know what delayed 
the members of the committee itself, or the conference, from bringing 
it to the Senate in these last hours. With all the points that were 
raised by the Senator from Arizona, I would have thought we would have 
had an opportunity to have this matter earlier in the consideration of 
the Senate Calendar. I do not know what happened during the course of 
those discussions or debate, but clearly the Republicans chaired those 
conferences and they bear a direct responsibility as to when those 
conferences are going to report back.
  I heard the Senator from Arizona saying that, now that we have this 
in these final moments of the Congress, now we have to act. We ask: 
Where was this conference earlier in the course of this session? Why 
did we not act on it at an earlier period of time? Why is it one of the 
last pieces of legislation that we have before the Senate?
  Clearly, it is because those who support this provision, which is the 
subject of our debate and discussion here this afternoon, felt they 
could jam the Senate in terms of this particular provision.
  That is an old technique. The Senator from Arizona is familiar with 
it, as I am familiar with it. We ought to put it in some kind of a 
context.
  The fact remains, Mr. President, when we had the continuing 
resolution before us yesterday, I was prepared to offer the FAA 
conference report without this special provision that benefits only one 
company and that will give it particular advantages, which it does not 
have at the present time, over the ability of their workers to organize 
into a union. But that was objected to by the Republicans.
  Now they are saying, ``Well, why didn't we pass this?'' And they try 
to put the blame on the Senator from Massachusetts. We could have 
passed this overwhelmingly. I don't think there would have been a vote 
against it, if we had done it yesterday with a 10-minute time 
consideration. But, no, there was objection to that.
  Now we say, ``All right, let's get into why now our Republican 
friends and some Democrats want to have this longer, drawn-out process 
and procedure.''
  Mr. President, I want to address a few issues here this afternoon. We 
have other colleagues who will come to the floor who I hope will enter 
into this.
  First of all, I want to point out that I wish that those who are 
saying that somehow we are delaying this and somehow there are safety 
considerations, I wish they had acted on those concerns yesterday. We 
could have done this. We could have passed it. Effectively, they said, 
``No, we're not going to do that, we're not going to pass the FAA 
conference report without that special interest provision. We refuse to 
do it, even though the conference report has all those safety 
mechanisms.''
  And now after they refuse to do it, they come over here on the floor 
and say, ``We should pass it right away. I ask consent we pass it right 
away because of these safety provisions.''
  I think it is important to understand, and I know there are members 
of the committee who have a great deal more knowledge and experience 
about what is in this bill, but as I understand it, the operation 
account, which funds air traffic controllers, safety inspectors, 
security personnel, airport noise personnel, maintenance personnel, as 
well as everything and everyone that runs air traffic in the United 
States, not one of those operations is affected by the FAA 
reauthorization bill.
  Also, security personnel who operate the metal detectors to screen 
baggage are employees of the airlines who use the terminal, and, 
therefore, are unaffected by this legislation.
  Second, the facilities and equipment account pays for the display 
terminals, air traffic controllers, look-out radar equipment and other 
equipment used in the aviation industry. None of this is affected by 
the FAA reauthorization bill.
  Third, the research account funds all sorts of aviation research. For 
example, FAA has funded research on the best x-ray machines for 
checking bags. All of this research is totally unaffected by the 
pending FAA authorization bill.
  The Airport Improvement Program is the only FAA program that is 
affected by the pending FAA reauthorization bill, as I understand. AIP 
awards grants for airway improvements, and the contract authority for 
these programs depends upon the passing of the FAA reauthorization 
bill. While the AIP programs may be highly desirable, they do not 
affect the safety of the aviation industry, and those are the facts.
  I think when we are taking a look at these scare comments, we ought 
to try and put this into some kind of perspective. We are going to have 
an opportunity to vote on this measure in 2 days, in any event, but 
safety is simply not affected by this bill. We know this is true 
because in 1994, the FAA reauthorization bill was not passed for almost 
11 months. There was no question at that time with regard to safety. As 
I say, if there was such the urgency at the time, I suspect the 
Republicans who bore the responsibility of moving that process would 
have brought it forward at the time.
  Mr. President, what is really at issue here, and why are we at this 
juncture? I refer, if I can, to some of the House debate. The House 
debated this issue. As a matter of fact, with all due respect for those 
who talk about a technical amendment, this was outside of the 
conference. We have a rule that is generally not enforced, 
historically, in this body, but the House does recognize that when 
matters are outside of the conference, that they have to get a special 
rule. That happened with regard to this particular measure. When all of 
those people say, ``Well, this was just a technical matter,'' the fact 
is, they needed a separate vote in the House of Representatives.
  I quote the chairman, the Republican chairman, of the Aviation 
Committee over in the House of Representatives, Mr. Shuster, when he 
was questioned about why this new provision was added to the FAA 
reauthorization. Mr. Shuster, in response to Mr. Moakley says:

       I would be happy to respond. Absolutely.
       It is outrageous, it is outrageous that we even have to 
     deal with this issue this way, because it is nothing more 
     than a technical correction. We think it is fundamentally 
     wrong. . . because this is nothing more than a technical fix.

  That is Mr. Shuster. But even the Parliamentarian understood that was 
not the case, because they did require separate debate and a separate 
vote.
  I found reading the House debate very instructive, especially remarks 
by those who have the special responsibility, the members, of the 
Aviation Committee.
  Mr. Lipinski--and I think this really points out quite well in a 
brief way what this issue is all about when Mr. Lipinski was 
recognized. He said:

       Let us focus on what this debate is really about. This 
     provision for FedEx is another assault on the American middle 
     class. The American middle class has been attacked for over 
     15 years by our Nation's terrible trade policies, technology, 
     profit driven downsizing, profit-driven deregulation and 
     systematic sinister weakening of unions. How, you ask? Let me 
     explain.
       During the debate on the rule, I outlined the history of 
     this dubious Federal Express provision. Let us take a closer 
     look at what my colleagues are calling a technical 
     correction.

  During the debate, the House Members were talking about the different 
attempts, the five or six different attempts by Federal Express to have 
this provision included in other legislation.

[[Page S12098]]

  House Republicans tried to attach it to the 1996 omnibus 
appropriations bill, and it failed. House Republicans tried to attach 
it to the NTSB reauthorization, and it failed. House Republicans tried 
to attach it to the Railroad Unemployment Act Amendments, and it 
failed. Senate Republicans supported to attaching it to the Labor-HHS 
appropriations bill in committee, and that failed.
  So the rider was not on the FAA reauthorization bill when it passed 
the House, it was not on the reauthorization bill that passed the 
Senate, but it was added in the conference.
  So this is not, Mr. President, just a little technical change. This 
is a long-committed, dedicated effort to, in a very significant and 
important way, at the outset, override the litigation which is 
currently taking place on this very issue.
  That is interesting, isn't it? A legislative fix for something that 
is effectively in litigation at the present time in the NLRB. Federal 
Express wasn't taking a chance that the NLRB might rule in one 
particular way, and they wanted a legislative fix. They tried and tried 
and tried and tried again.
  This is not a technical fix, Mr. President. This is a very 
purposeful, directed, well-organized effort to change the rules of the 
game right in the middle of the game. Change the rules. Why do I say 
``change the rules in the middle''? Because it is, at the present time, 
in litigation. And what one side, Federal Express, is trying to do, is 
change the rules in the middle of that litigation.

  Let me just continue with what Mr. Lipinski said:

       During the debate on the rule, I outlined the history of 
     this dubious Federal Express provision. Let us take a closer 
     look at what my colleagues are calling a technical 
     correction.
       The last express carrier, as defined by the ICC, went out 
     of existence 20 years ago, so at the ICC's suggestion the 
     classification was removed from the statute because it was 
     obsolete.
       But suddenly, after the ICC bill is signed into law, one 
     company and its countless consultants decided that it might 
     want to be an express carrier some day and started knocking 
     on doors up here.
       I have already outlined the five other times FedEx has 
     tried to get this provision into law. Judging by the 
     consistent effort and expense they have gone to, it must 
     really be important for them to remove this dead 
     classification.
       But why? Federal Express would not go through all this 
     trouble if they were not going to get something out of it. 
     The fact is that it is much more difficult for a union to 
     organize under the Railway Labor Act than under the National 
     Labor Relations Act.

  Mr. President, I explained that earlier. Under the Railway Labor Act, 
you have to have a national bargaining unit. Under the NLRB, you have 
local bargaining units. And each law applies to those relevant 
bargaining units.
  What the purpose of this legislation is is to short-circuit the 
NLRB's making a judgment to put the trucking aspects of Federal Express 
under the Railway Labor Act, which will make it much more difficult for 
them to ever obtain union representation.
  I continue:

       Under the RLA a unit of the company would have to be 
     organized company-wide, while under the NLRA it can be done 
     facility by facility.
       Why is this relevant for a company like Federal Express, 
     which is currently classified as an air carrier and already 
     subject to the RLA? Federal Express' operations have changed. 
     No longer does every package get on a plane. Often it just 
     goes on a truck to its destination.
       I understand that Federal Express' long-term plan is to 
     truck in packages less than 400 miles away from their hubs 
     around the country. Why would an airline like Federal Express 
     rely so much upon trucks? Because it is cheaper. To their 
     credit, Federal Express is planning for the future to remain 
     competitive. It sure seems to be working.

  They know where they are going, Federal Express. They are going into 
the trucks to deal with these issues. And they are trying to be 
characterized as an air carrier so that they will have different rules 
for the road in order to be able to halt the ability of the organizers 
to be able to go forward.
  Mr. President, that position was stated just as accurately--and I 
would refer my colleagues and friends to Mr. Oberstar's statement which 
effectively says the same; and Mr. Nadler from New York, who 
effectively says the same. These are members of the House 
Transportation and Infrastructure Committee. These are not just Members 
of the U.S. House of Representatives, these are members of the 
committee of knowledge.
  What they refer to, Mr. President, about this change is the ICC 
Termination Act of 1995 and the conference report. And if you look in 
the conference report, the general jurisdiction issues--first of all, 
if you look at page 154, you will see the Railway Labor Act amendments. 
In the first paragraph, the amendment strikes the term ``express 
company''--that is the term of art.
  Then under the amendment to the Interstate Commerce Act's general 
jurisdiction provisions, it states, ``outdated references to express 
and sleeping car carriers which no longer exist, would be removed.''
  And then you go on to the back and look and see who signed it. You 
find out that the signatories were all the members of the conference 
committee, Republican and Democratic alike. They all signed it. This 
idea that this suddenly slipped in the drafting of the measure, that 
somehow people did not quite understand, that it really is technical, 
it runs completely to the contrary.
  It runs contrary to what the Congressional Research Service has 
found. It runs contrary to the explicit words in the legislation. It 
runs contrary to the conference report, which bears the signatories of 
the Democratic and Republican members of this conference committee here 
in the U.S. Senate.
  That happens to be the bottom line, Mr. President. We understand that 
what FedEx has tried to do over a long period of time was rejected. And 
it was rejected because it was such an outrageous grab for preferential 
consideration by one company, and the history of it that demonstrates 
quite clearly that the effect of this particular change would 
dramatically alter and change the current litigation in which Federal 
Express is very much involved.
  Mr. President, I come back now to what really this issue is all 
about, as far as I am concerned. It is not just so much all of these 
kinds of references, which I am sure during the course of the debate in 
the afternoon we will come back to, but I want to just get back to how 
Federal Express treats its employees. That is what we are basically 
talking about, how these changes are going to affect the welfare and 
the well-being of these various employees.
  In 1991, Federal Express employees had gone 7 years without a pay 
increase. Today, we celebrated the increase in the minimum wage. We 
went 5 years without an increase in the minimum wage. In 1980, the 
minimum wage provided a livable wage for a family of three. Now, this 
year, prior to this day, a family of three would be $3,000 below the 
poverty wage.
  We had a commitment in this country, Republicans and Democrats, to 
say that we are for men and women who are going to work for a living, 
that they be provided a living wage so they honor work. That is a fair 
and just position. We had difficulty in getting that measure even voted 
on here in the U.S. Senate. Republican leaders in the House and Senate 
refused to even be willing to give us a vote on it. Then, when we got 
an agreement to vote on it, they wanted to reduce it; and then after we 
passed it, they wanted to delay its implementation.
  But today it went into effect for 4.6 million Americans--4.6 million, 
and $1,000 a year, $20 a week. And that went into effect.
  But here, Mr. President, we have the Federal Express employees for 7 
years without a pay increase. And the company planned to reduce the 
drivers' work hours and substitute temporary employees. That is what 
ignited the initial organizing drive in 1991. Federal Express responded 
by giving the workers a pay increase in 1992 and 1993.
  But during the last 3 years, despite the booming business, Federal 
Express employees have not received any raise, and the company recently 
announced there would be no further across-the-board increases.
  So the Federal Express employees are in the process of organizing a 
union. They want a better deal. And what are the kind of grievances 
they have?
  Well, there is Al Ferrier. He has been a tractor-trailer driver for 
Federal Express for 17 years. He wants a better deal. He has had three 
knee surgeries, a shoulder surgery, following on-the-job injury. Mr. 
Ferrier was recently diagnosed with cancer. Federal Express responded 
to Mr. Ferrier's misfortune by giving him 90 days to find a new job.

[[Page S12099]]

  Joe Coleman wants a better deal, too. He was Federal Express's 
longest service employee when the company fired him. With no union, 
there was no grievance procedure to protect him or to even give him a 
chance to prove that his dismissal was unjust.
  I could take literally hours to go through this. I do not know 
whether Al Ferrier or Joe Coleman are going to have the support of 
their colleagues to be able to say that ``we want to be organized to 
pursue those,'' or not. I do not know that. We do not know in this 
particular forum whether they do or they do not. But they ought to at 
least be given a chance. We should not have the rug pulled out from 
under them. We should not change the rules of the road at a time when 
that issue is before the NLRB, and that is what this language does.

  It is saying to the Al Ferriers and the Joe Colemans, and the 
countless other workers who feel they have not been treated fairly, we 
are going to take your opportunities away because we are going to 
change the rules of the game and put you under the Railway Labor Act, 
which means you are not going to try and just convince all of these in 
your local community or in your town; you are going to have to 
effectively convince everyone in this country because of the outreach 
of Federal Express.
  These are real grievances. These are real families. These are real 
working men and women that are trying to do this. And all we are just 
saying is that we are not going to just stand by, by the sleight of the 
hand, and take away the legitimate interests of these working 
families. That is the issue.

  We will hear later on about what we were really intending to do, and 
that this is really not going to change things. That is what the issue 
is: Whether these men and women have a right under the existing laws, 
existing laws here in the United States, to be able to make a judgment 
and a determination by convincing some, ``Come with us and let us form 
a union;'' or maybe they will be defeated.
  We are not making a judgment on that. All we are saying to those who 
support our position is let them play by the rules that exist today--
not in this legislation, not in this legislation that is being enacted 
here that was changed, which was never in the bill that passed the 
House or in the bill that passed the Senate and was basically discarded 
on a half a dozen different occasions and needed a special rule in the 
House of Representatives, even with people saying this is just a 
technical change, a technical change.
  Well, the House Republican Parliamentarian understood this is 
certainly more than a technical change when he studied it and ruled on 
it. He understood it was more than a technical change. That is the only 
provision, the only provision of the conference report they had an 
independent vote on, because it was outside the scope and added at the 
final hour.
  Mr. President, that is what we are looking at. Now we can say, well, 
is this really an isolated kind of circumstance in regard to Federal 
Express? I was absolutely startled reading through their pamphlets on 
the questions of what they were going to do about workers and how they 
would consider those that might want to get into a union. It is clear 
in reading through that book--and I see other colleagues that want to 
speak, so I will just touch on this point briefly. There is no question 
that the Federal Express is antiworker and the Federal Express Co. is 
not shy about its antiunion attitude. They distribute to managers a 
labor law book with specific instructions on how to prevent 
unionization efforts. On page 2 of the handbook Federal Express tells 
the managers, ``Our corporate goal is to remain union-free. We all have 
the responsibility of making unions unnecessary at Federal Express.'' 
Federal Express devotes a whole chapter to what are indications of 
union activity, and in one chapter they advise supervisors to be on the 
lookout for these signs and report problems by calling your local 
personnel representative, the Employee Relations Department in Memphis. 
What are these sinister signs? Employees begin leaving the premises for 
lunch in unusual numbers; employees show unusual interest in 
compensation, personnel, and other company policies.
  Mr. President, maybe they are in the union, maybe they are not. I am 
not saying one way or the other, but we ought not to say we are going 
to change the rules of the road. If Federal Express has that attitude, 
so be it. But we ought to understand it and it makes it much clearer in 
understanding what this proposal is about, what this proposal is about 
and what their intention is about.
  It is just a measure we wanted to make sure conformed with the 
previous legislation. You put this evidence together about what the 
activities of Federal Express have been, the efforts they have gone to 
change this, what their own corporate attitude is, what their 
conditions are in terms of their employees, and you find out and see 
very clearly what has been happening with regard to Federal Express 
employees.
  Mr. President, there are others here that want to address the Senate 
but I will conclude with these brief remarks. There is no question that 
this provision was put in here purposely to affect Federal Express' 
clear interests. That has been demonstrated during the course of the 
debate not just in the U.S. Senate, but the House of Representatives 
and the actions by Federal Express. They are entitled, as a company, to 
pursue whatever interests they might have--I recognize that-- but not 
to change the rules in the middle of the game. That is what they are 
doing--changing the ground rules.
  Americans understood fair play. They see it every day. They saw it 
last night in the Dallas-Philadelphia game. They understand fair play. 
They understand you have a set of rules, you play by them. Not Federal 
Express. They want the rules changed, and not changed just for the 
future--in order to be able to carry forward their company policy to 
maintain themselves really free from pursuit of grievances by workers, 
and by undermining litigation that is currently in place.
  We do not do that around here very often. We do not take legislative 
action to pull the ground out from families and workers in our country 
that are playing by the rules and thought they would play by this set 
of rules, and then to be in litigation and find out the Congress in the 
last hour is playing by a different set of rules. We do not act around 
here just to benefit one company. We take action clearly in a general 
way. There will be particular companies that are going to, for one 
reason or another, be adversely affected and impacted in an unfair and 
unjust way. We address those. We try to. We never do it as effectively 
as I think the public thinks we should. That is always complicated and 
difficult.
  That is not what this is about. That is not what this is about. That 
is not this circumstance. This is a clear power grab by Federal Express 
to carry forward its antiworker philosophy, and it is changing the 
rules in the middle of the game. It is basically unworthy for the 
Senate to favor that particular position. All we are trying to do is to 
get that provision removed. We could have tried yesterday but we were 
prevented from doing that by the Republican leadership--to say OK, we 
will pass the FAA without this provision, send it over to the House, 
and as all of us know, everyone in this body knows, the House of 
Representatives is subject to the call of the Chair. This would fly 
through the House of Representatives. We heard the same arguments when 
we had the minimum wage that we could not pass, just before the August 
recess, because the House was going to be out. We had it on Lodine. If 
Members will remember, there was a special tax provision for one 
particular company that was added to an agricultural appropriation in 
the last hours and here on the floor of the Senate there was such a row 
by Members--Republican and Democrat alike--that this was a special 
provision for a special company. We heard at that time, ``We cannot do 
that now because the House of Representatives is not there.'' We know 
the House of Representatives at the call of the Chair passes those 
measures.
  Given the vote in the House of Representatives, given the vote in the 
House of Representatives which was so incredibly close, a 20-vote 
difference, with 30 Republicans in the House of Representatives voting 
with the Democrats. Mr. President, 30 Republicans voted with the 
Democrats because they felt this kind of procedure was unworthy, 30 
Republicans, and 15 Democrats went the other way. It was decided in the 
House by 20 votes.

[[Page S12100]]

  Mr. President, they had the full debate. They understand this is a 
great deal more than just a technical amendment. It is a substance 
amendment. We ought to free this legislation from it and pass this 
legislation and get on with the rest of the country's business.
  Could I ask how much time remains?
  The PRESIDING OFFICER. The Senator from Massachusetts has 58 minutes 
remaining.
  Mr. McCAIN. Mr. President, I yield myself such time as I may consume. 
I will be very brief because the Senator from South Carolina is waiting 
to speak.
  Mr. President, the Senator from Massachusetts keeps alleging that 
somehow we could pass this bill by removing this legislative provision 
and then getting it passed. And clearly, the Senator from Massachusetts 
is entitled to that opinion.
  Unfortunately, it is not shared by the Democratic leader, Mr. 
Daschle, who had a press briefing this morning which I will quote from:

       Question. Isn't the bottom line on this FedEx business, 
     that if you don't pass the bill, and you do pass some sort of 
     a continuing funding resolution or mechanism, that FedEx does 
     not get its way and that the Teamsters do?
       Daschle. Well, it's more complicated than that. At this 
     point, we can't send a bill back to the House because I don't 
     anticipate that they'll come back.
       And because they won't come back, and there's no desire to. 
     Any change we'd have to make would require unanimous consent. 
     We're told any change to this bill would not acquire the 
     necessary unanimous consent agreement there.
       And as a result, we are really left with the conference 
     agreement that has now been written. So our options are very, 
     very limited. So it's not even a question of who wins or who 
     loses with regard to that specific provision, the question 
     is, are we going to pass a conference report that really 
     needed to be passed yesterday?
       Question. You've passed it, you've got a funding problem.
       Daschle. Exactly.
       Question. And you can't resolve that either.
       Daschle. We can't resolve that. I mean, we have--short of 
     bringing the House of Representatives back into session, we 
     can't find another way, another vehicle, another funding 
     mechanism.
       And as I indicated, that the leadership in the House have 
     already made it known that they don't plan to come back.
       Question: So you've got to pass this bill?
       Daschle. We've got to pass this bill.

  I am sorry that the Senator from Massachusetts does not agree with 
his elected leader here in his party, who clearly says we have to pass 
this bill, which he also says we should have passed yesterday.
  Why should we have passed it yesterday, Mr. President? Because there 
are thousands of men and women who are workers who are not working, who 
would be working if the Senator from Massachusetts had allowed this 
bill to pass, rather than have the bill read last night for 5 hours, as 
he did, and keeping this body tied up.
  Mr. President, let me also point out that everybody is entitled to 
their opinion, but not everybody is entitled to their facts. The facts 
are that the Senator from Massachusetts stated that only Airport 
Improvement Program moneys, aviation improvement fund moneys, would be 
affected by the lack of passage of this bill. Mr. President, that is 
not correct. The aviation trust fund is unique. The Finance Committee 
and the Joint Committee on Taxation have studied this issue, and their 
staff state that the language in the code regarding ``meeting 
obligations of the United States,'' which, I repeat, is unique to this 
one section of the code, effectively means that all spending out of the 
trust funds bill will be stopped.
  This means countless aviation safety programs, jobs, and airport 
construction programs will be affected, and are affected as we speak, 
but will be more affected as we wait until Thursday and will be more 
affected between the time the bill is passed and goes to the 
President's desk. Furthermore, if this bill is not passed, we cannot 
have criminal history background checks and the FAA will not be able to 
deploy $175 million for explosive detection technologies--many which 
are made in Massachusetts. I repeat, this information comes from the 
Finance Committee and the Joint Committee on Taxation both.
  So the Senator from Massachusetts does not have his facts correct on 
what is stopping being funded. Let me give a brief comment on some of 
the projects that we have already heard from--some of the programs that 
are stopped: Providence, RI, debt service for a new terminal, letter of 
intent; Philadelphia, PA, site preparation for new commuter runway; 
Ithaca, NY, entitlement for runway project, phase 2; Albany County, NY, 
new terminal project; Parkersburg, WV, mud slide; Parkersburg, WV, 
finish a new airport; Buckhannon, WV, site preparation for runway 
extension; Buffalo, NY, terminal project, letter of intent; Portland, 
OR, runway reconstruction; Denver, CO, debt service for new airport, 
letter of intent; Seattle, WA, ongoing noise program; Memphis, TN, 
cash-flow problem.
  The list goes on and on, Mr. President. We are already hearing from 
the airport managers who are not able to move forward on these critical 
airport projects. They are not able to move forward.
  Mr. President, look, I am not familiar with FedEx. I certainly have 
known many of their employees. There are 125,000 of them. Allegation: 
Joe Coleman was fired and received no grievance. Joe Coleman was fired 
and received no grievance procedure. Truth: FedEx has an internal 
grievance procedure, and Mr. Coleman appealed his discharge and was 
reinstated in 1991. He subsequently quit. Allegation: Al Ferrier 
received injuries and was told to find a new job in 90 days. Truth: Mr. 
Ferrier was offered a full-time job, which he turned down, a month ago.

  Mr. President, I don't know the facts of these cases. These are other 
responses to them. What the Senator from Massachusetts says may be 
true, but I have different information.
  But what cannot be disputed here, Mr. President, is that thousands of 
workers are not working today or tomorrow or Thursday because the 
Senator from Massachusetts refuses to allow this bill to move forward 
and the conference report to be voted on, and that includes aviation 
safety and airport security.
  Mr. President, let me finally say that this legislation does not 
prevent Federal Express from being subject to union organization. 
Federal Express will be treated as every other major corporation in 
America, which I hope the Senator from South Carolina will elaborate 
on, and will be subject to all of the laws that apply to all companies 
and corporations in the United States. If the workers of Federal 
Express want to become unionized, they will be allowed to do so under 
existing law.
  I yield to the Senator from South Carolina such time as he may 
consume.
  Mr. HOLLINGS. I thank the Senator from Arizona. Mr. President, the 
distinguished Senator from Massachusetts has just spewed out such a 
bunch of nonsense that it is hard to know where to begin. One is with 
respect to Federal Express. Like the Senator from Arizona, I am 
learning about Federal Express. I refer, Mr. President, to ``The 100 
Best Companies to Work for in America,'' by Robert Levrig and Milton 
Moskowitz, of last year. On page 121:

       The Federal Express invented overnight parcel delivery. 
     U.S. employees: 77,700.

  It is now over 105,000 domestic, and a total of 125,000, growing at 
15 percent per year. But this particular edition has the top-top rating 
of five stars, and really about the highest rating is four stars. 
Thumbing through this when I was given it, I could not find any other 
company with the five stars. Let me show you immediately under that 
particular provision. On pay and benefits, Federal Express is rated 
four stars; under opportunities, four stars; under job security, five 
stars; in pride in work and company, four stars; openness and fairness, 
five stars; camaraderie and friendliness, four stars. The biggest plus, 
``you probably won't get zapped.'' Biggest minus, ``you may not be an 
overnight success.''
  Now, since the distinguished Senator has raised the point that the 
Senator from South Carolina is zapping the employees, I thought I would 
have to read that. At least Federal Express hasn't raised that point, 
or zapped anyone, according to that best-of-the-best edition. So I more 
or less have to clear the record to defend my record, because we are 
not about zapping employees. We are not about end-running. We are not 
about changing the rules in the middle of the game.
  The truth is, Mr. President, that if we had known last December 22 
that the little phrase ``express company'' was being dropped from the 
ICC Termination Act, and they would have said,

[[Page S12101]]

 ``Senator, we are going to have to drop this provision,'' I would have 
said, ``Wait a minute,'' if I would have known it, and I would have 
made that exact charge: You can't change the rules in the middle of the 
game.
  Why do I say that? Because those same employees he talks about over 
in Philadelphia have had 5 years with their lawyer, and unlike what the 
Senator from Massachusetts has said about the board--I will read his 
statement from the Congressional Record. I refer to yesterday's Record 
at page S11854:

       Federal Express challenged the petition, arguing that the 
     entire company, including its truck drivers, is covered by 
     the Railway Labor Act, not the National Labor Relations Act, 
     and that therefore the bargaining unit for its truck drivers 
     must be nationwide. The board has not yet decided the issue.

  Absolutely false.
  I ask unanimous consent to have printed in the Record excerpts of the 
decision of the board.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     National Mediation Board,

                                Washington, DC, November 22, 1995.
     Jeffrey D. Wedekind,
     Acting Solicitor, National Labor Relations Board, Washington, 
         DC.
     Re NMB File No. CJ-6463 (NLRB Case 41-RC-17698).

       Dear Mr. Wedekind: This responds to your request dated July 
     17, 1995, for the National Mediation Board's (Board's) 
     opinion as to whether Federal Express Corporation (Federal 
     Express or FedEx) and certain of its employees is subject to 
     the Railway Labor Act, as amended, 45 U.S.C. Sec. 151, et 
     seq. The Board's opinion, based upon the materials provided 
     by your office and the Board's investigation is that Federal 
     Express and all of its employees are subject to the Railway 
     Labor Act.


                                   i.

       This case arose as the result of a representation petition 
     filed with the National Labor Relations Board (NLRB) by the 
     International Union, United Automobile Aerospace and 
     Agricultural Implement Workers of America (UAW). The UAW 
     initially sought to represent a unit of Federal Express's 
     employees including ``all regular full and part-time hourly 
     ground service employees in the Liberty District.'' On 
     December 9, 1991, the UAW amended its petition to exclude 
     ``ramp agents, ramp agent/feeders, handlers, senior handlers, 
     heavyweight handlers, senior heavy weight handlers, checker 
     sorters, senior checker/sorters, shuttle drivers, shuttle 
     driver/handlers, office clerical employees, engineers, guards 
     and supervisors as defined in the Act [NLRB].'' The titles 
     remaining in the UAW's petition include: service agents, 
     senior service agents, international document agents, 
     couriers, courier/handlers, tractor-trailer drivers, 
     dispatchers, courier/non-drivers and operations agents.
       The UAW argues that the employees it seeks to represent in 
     Federal Express' Liberty District are employees subject to 
     the National Labor Relations Act (NLRA). The UAW acknowledges 
     that pilots and aircraft mechanics employed by Federal 
     Express are subject to the Railway Labor Act. However, the 
     UAW contends that the two-part test traditionally employed by 
     the Board to determine whether an entity is a carrier should 
     be applied to the unit of employees it seeks to represent in 
     Federal Express' Liberty District. According to the UAW, the 
     employees it seeks to represent in the Liberty District do 
     not perform airline work and are not ``integral to Federal 
     Express' air transportation functions.''
       Federal Express asserts that it is a carrier subject to the 
     Railway Labor Act and, as a carrier, all of its employees are 
     subject to the Railway Labor Act. Federal Express notes that 
     the Board and the courts have repeatedly found it to be a 
     carrier subject to the Railway Labor Act. According to 
     Federal Express, the job classifications remaining in the 
     petition are integrally related to Federal Express' air 
     transportation activities. Federal Express contends that it 
     is a ``unified operation with fully integrated air and ground 
     services.'' According to Federal Express, allowing some 
     employees to be covered by the National Labor Relations Act 
     and others to be subject to the Railway Labor Act would 
     result in employees being covered by different labor 
     relations statutes as they are promoted up the career ladder.
       Federal Express contends that the two-part test suggested 
     by the UAW is not appropriate in this case. According to 
     Federal Express, the Board uses the two-part test to 
     determine whether a company is a carrier, not to determine 
     whether specific employees of a carrier perform duties that 
     are covered by the Railway Labor Act. Federal Express 
     cautions that adoption of the test suggested by the UAW 
     ``would drastically alter labor relations at every airline in 
     the country.'' According to Federal Express, under the UAW's 
     test, most categories of employees except pilots, flight 
     attendants and aircraft mechanics would be subject to the 
     NLRA.
       The Board repeatedly has exercised jurisdiction over 
     Federal Express. Federal Express Corp., 22 NMB 279 (1995); 
     Federal Express Corp., 22 NMB 257 (1995); Federal Express 
     Corp., 22 NMB 215 (1995); Federal Express Corp., 20 NMB 404 
     (1993); Federal Express Corp., 20 NMB 394 (1993); Federal 
     Express Corp., 20 NMB 360 (1993); Federal Express Corp., 20 
     NMB 126 (1993); Federal Express Corp., 20 NMB 91 (1992); 
     Federal Express Corp., 20 NMB 7 (1992); Federal Express 
     Corp., 19 NMB 297 (1992); Federal Express Corp., 17 NMB 24 
     (1989); Federal Express/Flying Tiger, 16 NMB 433 (1989); 
     Federal Express, 6 NMB 442 (1978). There is no dispute that 
     Federal Express is a carrier subject to the Railway Labor Act 
     with respect to certain Federal Express employees (i.e. 
     Pilots; Flight Attendants, Global Operations Control 
     Specialists; and Mechanics and Related Employees; Stock 
     Clerks; and Fleet Service Employees). However, the Board has 
     not addressed the issue raised by the UAW: whether or not 
     certain Federal Express employees are subject to the Railway 
     Labor Act.
       The NLRB initially requested the NMB's opinion as to 
     whether FedEx is subject to the RLA on July 1, 1992. However, 
     on that date, the NLRB granted the UAW's request to reopen 
     the record and the file was returned to the NLRB. The NLRB 
     renewed its request on July 17, 1995 and the NMB received the 
     record on July 31, 1995. The NMB received additional evidence 
     and argument from FedEx and the UAW on August 17, 1995 and 
     September 5, 1995.


                                  ii.

       Federal Express, a Delaware corporation, is an air express 
     delivery service which provides worldwide express package 
     delivery. According to Chairman of the Board and Chief 
     Executive Officer Frederick Smith, Federal Express flies the 
     sixth largest jet aircraft fleet in the world.
       Federal Express' jet aircraft fleet currently includes 
     Boeing 727-100's, Boeing 727-200's, Boeing 737's, Boeing 747-
     100's, Boeing 747-200's, DC 10-10's, DC-10-30's and 
     McDonnell-Douglass MD-11's. Federal Express also operates 
     approximately 250 feeder aircraft, including Cessna 208's and 
     Fokker 27's. It has over 50 jet aircraft on order.
       Federal Express currently serves the United States and 
     several countries in the Middle East, Europe, South America 
     and Asia, including Japan, Saudi Arabia and Russia. According 
     to Managing Director of Operations Research Joseph Hinson, 
     Federal Express does not transport freight that moves 
     exclusively by ground to or from the United States.

                           *   *   *   *   *



                            iii. discussion

       The National Mediation Board has exercised jurisdiction 
     over Federal Express as a common carrier by air in numerous 
     published determinations. Federal Express Corp., 22 NMB 279 
     (1995); Federal Express Corp., 22 NMB 257 (1995); Federal 
     Express Corp., 22 NMB 215 (1995); Federal Express Corp., 20 
     NMB 666 (1993); Federal Express Corp., 20 NMB 404 (1993); 
     Federal Express Corp., 20 NMB 394 (1993); Federal Express 
     Corp., 20 NMB 360 (1993); Federal Express Corp., 20 NMB 126 
     (1993); Federal Express Corp., 20 NMB 91 (1992); Federal 
     Express Corp., 20 NMB 7 (1992); Federal Express Corp., 19 NMB 
     297 (1992); Federal Express Corp., 17 NMB 24 (1989); Federal 
     Express/Flying Tiger, 16 NMB 433 (1989); Federal Express, 6 
     NMB 442 (1978). In eight of those determinations, the Board 
     exercised jurisdiction over ground service employees of 
     Federal Express, 6 NMB 442 (1978). In eight of those 
     determinations, the Board exercised jurisdiction over ground 
     service employees of Federal Express. The substantial record 
     developed in this proceeding provides no clear and convincing 
     evidence to support a different result.


                                   a.

       Section 181, which extended the Railway Labor Act's 
     coverage to air carriers, provides:
       ``All of the provisions of subchapter 1 of this chapter 
     except section 153 of this title are extended to and shall 
     cover every common carrier by air engaged in interstate or 
     foreign commerce, and every carrier by air transporting mail 
     for or under contract with the United States Government, and 
     every air pilot or other person who performs any work as an 
     employee or subordinate official of such carrier or carriers, 
     subject to its or their continuing authority to supervise and 
     direct the manner of rendition of his service. 45 U.S.C. 
     Sec. 181. (Emphasis added).
       Federal Express is an air express delivery service which 
     holds itself out for hire to transport packages, both 
     domestically and internationally. Federal Express and the UAW 
     agree that Federal Express and its air operations employees, 
     such as pilots and aircraft mechanics, are subject to the 
     Railway Labor Act. The disagreement arises over whether 
     Federal Express' remaining employees are subject to the 
     Railway Labor Act. The UAW argues that the employees it seeks 
     to represent do not perform airline work and are not 
     ``integral to Federal Express' air transportation 
     functions.'' Federal Express asserts that all of the 
     employees sought by the UAW are integrally relate to its air 
     express delivery service and are subject to the Railway Labor 
     Act.
       Since there is no dispute over whether Federal Express is a 
     common carrier by air, the Board focuses on whether the 
     employees sought by the UAW's petition before the NLRB are 
     subject to the Railway Labor Act. The Act's definition of an 
     employee of an air carrier includes, ``every air pilot or 
     other person who performs any work as an employee or 
     subordinate official of such carrier

[[Page S12102]]

     or carriers, subject to its or their continuing authority to 
     supervise and direct the manner of rendition of his 
     service''. The Railway Labor Act does not limit its coverage 
     to air carrier employees who fly or maintain aircraft. 
     Rather, its coverage extends to virtually all employees 
     engaged in performing a service for the carrier so that the 
     carrier may transport passengers or freight.
       In REA Express, Inc., 4 NMB 253, 269 (1965), the Board 
     found ``over-the-road'' drivers employed by REA subject to 
     the Act stating:
       ``It has been the Board's consistent position that the fact 
     of employment by a ``carrier'' under the Act is determinative 
     of the status of all that carrier's employees as subject to 
     the Act. The effort to carve out or to separate the so-called 
     over-the-road drivers would be contrary to and do violence to 
     a long line of decisions by this Board which would embrace 
     the policy of refraining from setting up a multiplicity of 
     crafts or classes. As stated above, there is no question that 
     this particular group are employees of the carrier.'' 
     (Emphasis in original).
       The limit on Section 181's coverage is that the carrier 
     must have ``continuing authority to supervise and direct the 
     manner of rendition of . . . [an employee's] service. The 
     couriers, tractor-trailer drivers, operations agents and 
     other employees sought by the UAW are employed by Federal 
     Express directly. As the record amply demonstrates, these 
     employees, as part of Federal Express' air express delivery 
     system, are supervised by Federal Express employees. The 
     Board need not look further to find that all of Federal 
     Express' employees are subject to the Railway Labor Act.


                                   B.

       In the Board's judgment, the analysis of the jurisdictional 
     question could end here. However, Federal Express and the UAW 
     have directed substantial portions of their arguments the 
     ``integrally related'' test. Specifically, the participants 
     discuss whether the employees the UAW seeks to represent are 
     ``integrally related'' to Federal Express' air carrier 
     functions. The Board does not find consideration of the 
     ``integrally related'' test necessary to resolve the 
     jurisdictional issue, however, review of the relevance of 
     this test is appropriate.
       The UAW argues that the employees it seeks to represent are 
     not integrally related to Federal Express' air carrier 
     functions and therefore are not subject to the Railway Labor 
     Act. Federal Express asserts that the NLRB and federal courts 
     have found its trucking operations integrally related to its 
     air operations.
       However, the Board does not apply the ``integrally 
     related'' test to the Federal Express employees sought by the 
     UAW. Where, as here, the company at issued is a common 
     carrier by air, the Act's jurisdiction does not depend upon 
     whether there is an integral relationship between its air 
     carrier activities and the functions performed by the 
     carrier's employees in question. The Board need not consider 
     the relationship between the work performed by employees of a 
     common carrier and the air carrier's mission, because section 
     181 encompasses ``every pilot or other person who performs 
     any work as the employee or subordinate official of such 
     carrier or carriers. . . . ''
       Even if the Board were to assume arguendo that the 
     ``integrally related'' test applies to the facts in this 
     case, the Board would hold in concurrence with the recent 
     decision in Federal Express Corp. v. California PUC, supra, 
     at note 10, that the ``trucking operations of Federal Express 
     are integral to its operations as an air carrier.'' 936 F.2d 
     at 1078. Employees working in the other positions sought by 
     the UAW perform functions equally crucial to Federal Express' 
     mission as an integrated air express delivery service. As the 
     record demonstrates, without the functions performed by the 
     employees at issue, Federal Express could not provide the on-
     time express delivery required of an air express delivery 
     service.
       The Board has employed the ``integrally related'' test when 
     it has examined whether to apply the trucking exemption under 
     Sec. 151 of the Act. 0/0 Truck Sales, 21 NMB at 269; Florida 
     Express Carrier, Inc., 16 NMB 407 (1989). Specifically, the 
     board has applied the ``integrally related'' test when it has 
     considered trucking operations conducted by a subsidiary of a 
     carrier or a company in the same corporate family with a 
     carrier. In Florida Express, supra, the Board found Florida 
     Express, a trucking company which is a wholly-owned 
     subsidiary of Florida East Coast Railroad, to be a carrier 
     subject to the Railway Labor Act. In O/O Truck Sales, 
     supra, the Board found O/O Truck Sales, a trucking and 
     fueling company which is a wholly-owned subsidiary of CSXI 
     (which is commonly owned with CSXT), to be a carrier 
     subject to the Railway Labor Act. In contrast, Federal 
     Express directly employs truck drivers, couriers and all 
     other employees sought by the UAW's petition.


                                   c.

       The UAW argues that the Board should apply the two-part 
     test used by the Board in other factual settings for 
     determining whether an employer and its employees are subject 
     to the Railway Labor Act. See, for example, Miami Aircraft 
     Support, 21 NMB 78 (1993); AMR Services, Corp., 18 NMB 348 
     (1991). The Board does not apply the two-part test where the 
     company at issue is engaged in common carriage by air or 
     rail. The Board applies the two-part test where the company 
     in question is a separate corporate entity such as subsidiary 
     or a derivative carrier which provides a service for another 
     carrier. In those situations where the Board applies the two-
     part test, it determines: (1) whether the company at issue is 
     directly or indirectly owned or controlled by a common 
     carrier or carriers; and (2) whether the functions it 
     performs are traditionally performed by employees of air or 
     rail carriers. Under this test, both elements must be 
     satisfied for a company to be subject to the Railway Labor 
     Act. Federal Express is an admitted carrier and the employees 
     at issue are employed directly by Federal Express. 
     Accordingly, the two-part test does not apply to this 
     proceeding.
       Even if the two-part test were applicable, the employees at 
     issue here would be covered by the Railway Labor Act. Federal 
     Express, as a common carrier, has direct control over the 
     positions sought by the UAW. In addition, the Board has found 
     that virtually all of the work performed by employees sought 
     by the UAW's petition is work traditionally performed by 
     employees in the airline industry. For example: couriers, Air 
     Cargo Transport, Inc., 15 NMB 202 (1988); Crew Transit, Inc., 
     10 NMB 64 (1982); truck drivers; Florida Express, Inc., 16 
     NMB 407 (1989); customer service agents; Trans World 
     International Airlines, Inc., 6 NMB 703 (1979).


                               conclusion

       Based upon the entire record in this case and for all of 
     the reasons stated above, the Board is of the opinion that 
     Federal Express Corporation and all of its employees sought 
     by the UAW's petition are subject to the Railway Labor Act. 
     This finding may be cited as Federal Express Corporation, 23 
     NMB 32 (1995). The documents forwarded with your letter will 
     be returned separately.
       By direction of the National Mediation Board.
                                                Stephen E. Crable,
                                                   Chief of Staff.

  Mr. HOLLINGS. This decision is dated November 22, 1995. You don't 
have to read the entire decision. It is a very interesting thing, 
because back in 1991:

       . . . UAW amended its petition to exclude ``ramp agents, 
     ramp agent/feeders, handlers, senior handlers, heavyweight 
     handlers, senior heavyweight handlers, checker sorters, 
     senior checker/sorters, shuttle drivers, shuttle driver/
     handlers, office clerical employees, engineers, guards and 
     supervisors as defined under the act.

  So it was not any question about who all was to be covered because 
they had a chance to amend it. This is 5 years ago when this started. 
But let me read a couple of other points.
  This is the National Mediation Board talking. It was a unanimous 
decision, never appealed and at the NLRB since last November. And in 50 
years with 100 cases under the Railway Labor Act, the NLRB has yet to 
reverse it. And if he can show me--I was asking for the Senator or a 
House Member--that actually said, let's knock this express company 
reference out, I would jump off the Capitol dome. He can't find it.
  It was an innocent mistake. It was after this finding of November 22, 
1995, done in December 1995. So it was after the rules of the road that 
are now trying to be changed, and that is why we are trying to correct. 
That has been the most difficult thing. The Members really have not 
kept up with this at all.
  But the NLRB requested the National Mediation Board's opinion. This 
is the customary process. I am learning a little bit of labor law. The 
NLRB initially requested the National Mediation Board's opinion as to 
whether FedEx is subject to the RLA on July 1, 1992. They held it up. 
However, on that date, the NLRB granted the UAW's request to reopen the 
record and to file with the NLRB.
  While we hear that the poor workers have been trying to get their day 
in court, their lawyer is up there saying, ``Wait a minute. Hold it up. 
Return it to the NLRB.'' The NLRB renewed its request on July 17, 
1995--3 years. I said, ``How in the world do you hold things up over 
there in 3 years?'' They said, ``I will tell you what happened, 
Senator. They have a wild one over there in this fellow Gould who is 
the chairman.'' And he was trying his dead level best to change the 
process of taking those under the Railway Labor Act to be determined by 
the National Mediation Board and have it determined by the National 
Labor Relations Board itself. He finally got outvoted. He tried for 3 
years. He tried for whatever time he was there.
  But that was the issue. I couldn't understand why they would hold it 
up, and why we have the Senator from Massachusetts crying about the 
poor workers are not having any of their rights, and they are trying to 
play by the rules. Come on.
  Here you go. Let me read it to you. The NLRB renewed its request on 
July

[[Page S12103]]

17, 1995. The National Mediation Board received the record on July 31, 
1995. The National Mediation Board received additional evidence and 
argument from FedEx and the UAW on August 17, 1995, and September 5, 
1995.
  This is the full unanimous decision of the National Mediation Board--
November 22, 1995, for those who are over there struggling to get their 
day in court. Come on. They had 5 years to go after it. They can start 
again. I think it ought to be made clear because I want to read some of 
this to make sure that they all understand that we are not coming in 
here pulling the rug out from under employees. The Senator from 
Massachusetts says we are ``pulling the rug out''--after 5 years with 
their lawyer and everything else of that kind.
  Everyone should understand that labor is very, very virile and strong 
under the Railway Labor Act. In fact, 65 percent to 70 percent of 
employees under the Railway Labor Act are organized, whereas in the 
private sector under the NLRB, the National Labor Relations Board, and 
the National Labor Relations Act, only 11 percent.
  So this isn't trying to get a protective situation. We are not 
``pulling the legislative rug out''.
  Let me just read a couple of parts in the conclusion part because it 
says:

       The limit on section 181's coverage is that the carriers 
     must have continuing authority to supervise and direct the 
     manner of rendition and employees' service, the carriers' 
     tractor-trailer drivers, operations agents, and other 
     employees sought by the UAW employed by Federal Express 
     directly. As the record amply demonstrates, these employees, 
     as part of the Federal Express delivery system, are 
     supervised by Federal Express employees. The Board need not 
     look further to find that all of Federal Express employees 
     are subject to the Railway Labor Act.

  The contention of the Senator from Massachusetts is that we have to 
get the language out of this bill because we in conference tried to 
change the rules of the road; that we tried to pull the rug out so that 
they wouldn't be covered by the Railway Labor Act. The truth of the 
matter is, the very case he refers to in Philadelphia after 5 years and 
a unanimous opinion found just what I have read. We are trying to clear 
up the inconsistency of the dropping of the designation, which is 
appropriate and should be done. They know it. Let me read further.

       In the Board's judgment, the analysis of the jurisdictional 
     question should end here.

  However, I want to read a further paragraph.

       The UAW argues that the employees it seeks to represent are 
     not integrally related to Federal Express's air carrier 
     functions and, therefore, are not subject to the Railway 
     Labor Act.

  Going further, answering that argument on the next page:

       Even if the Board were to assume arguendo that the 
     integrally related test applies to the facts in this case, 
     the Board would hold in concurrence with the recent decision 
     in Federal Express Corporation v. California PUC . . . the 
     trucking operations of Federal Express are integral to its 
     operations as an air carrier. Employees working in the other 
     positions sought by the UAW perform functions equally crucial 
     to Federal Express's mission as an integrated air express 
     delivery service.

  Finally.

       . . . the Board is of the opinion that Federal Express 
     Corporation and all of its employees sought by UAW's petition 
     are subject to the Railway Labor Act. This finding may be 
     cited as Federal Express Corporation, 23 NMB 32 (1995). The 
     documents forwarded with your letter will be returned 
     separately.
       By direction of the National Mediation Board, Stephen E. 
     Crable, Chief of Staff; Rush O'Keefe, Esq.; Paul Jones, Esq.; 
     William Josem, Esq.; Arthur Luby, Esq.

  I have been asking for a Senator or a House Member who said that we 
shouldn't make this change, the mistake that was made. They can't find 
one. I will ask. Give me that UAW lawyer that has made the motion in 
the last 11 months before the National Labor Relations Board. The 
gentleman says here, ``This is a matter that is currently in 
litigation.'' False--threw it back over there to the NLRB, and they are 
sitting on it like they sat on it for 3 years after UAW brought it. 
There is nothing you can do about it. You have the fellow Gould over 
there. He will squat. I can't get him up off his ``whatever.'' But I 
can tell you now. It is not in any litigation at all. It is unanimously 
determined on the merits, after 5 years and 11 months later, with no 
motion, no appearance, no nothing--just sitting on it over there.
  This is a matter that is currently in litigation even while we are 
here today. It is like Edward R. Morrow down in the South Pacific or 
something in World War II. The Senator from Massachusetts says: We 
ought to let the litigation move forward, but the action that is taken 
on the FAA bill has preempted effectively the litigation which is under 
consideration even as we meet here today. Come on. Come on. Wait a 
minute.
  There ought to be some test of the truth in the facts here. When the 
people who wrote the provision, trying to do the honest thing, get 
accused of pulling rugs out and jamming, I will take that test. I will 
ask the colleagues to study these facts and to see whether the Senator 
from Massachusetts is jamming it or the Senator from South Carolina is 
jamming it and then let them make their vote.
  It is crystal clear what is going on here. It is crystal clear. 
Everybody wanted to correct it. But labor told us, they said, ``You are 
not going to do it. We are going to filibuster. We are going to veto it 
at the White House.'' I did remember that the Vice President was from 
Tennessee. I said, ``I don't think that that is going to happen. No.'' 
And I said, ``I don't think that they are going to filibuster.'' I 
think we can get 60 votes for the truth and facts.
  Now we hear about the NLRB, referring to all of these cases like you 
cannot get a case up there. Hundreds and hundreds of cases here have 
been covered by the Railway Labor Act, and the technical correction 
does not change that status. It changes future proceedings, not the one 
the Senator is talking about that they can make another argument. They 
can make these arguments.
  I ask unanimous consent to print in the Record this reference to all 
these cases.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Federal Express is Covered by the Railway Labor Act. The Technical 
                Correction Does Not Change That Status.

       Since commencing operations 23 years ago, Federal Express 
     and its employees consistently have been determined by the 
     federal courts, the National Mediation Board and the National 
     Labor Relations Board to be subject to the RLA. See e.g., 
     Chicago Truck Driver, Helpers and Warehouse Workers Union v. 
     National Mediation Board, 670 F.2d 665 (7th Cir. 1982), 
     Chicago Truck Drivers, Helpers and Warehouse Workers Union v. 
     National Labor Relations Board, 599 F.2d 816 (7th Cir. 1979); 
     Adams v. Federal Express Corp., 547 F.2d 319 (6th Cir. 1976), 
     cert. denied, 431 U.S. 915 (1977); Federal Express Corp., 22 
     N.M.B. 57 (1995); Federal Express Corp., 22 N.M.B. 157 
     (1995); Federal Express, 22 N.M.B. 215 (1995); Federal 
     Express Corp., 22 N.M.B. 279 (1995); Federal Express, 20 
     N.M.B. 666 (1993); Federal Express, 20 N.M.B. 486 (1993); 
     Federal Express, 20 N.M.B. 404 (1993); Federal Express, 20 
     N.M.B. 394 (1993); Federal Express, 20 N.M.B. 360 (1993); 
     Federal Express, 20 N.M.B. 7 (1992); Federal Express, 20 
     N.M.B. 91 (1992); Federal Express Corp., 17 N.M.B. 24 (1989); 
     Federal Express, 17 N.M.B. 5 (1989); Federal Express Corp, 
     and Flying Tiger Line, Inc., 16 N.M.B. 433 (1989); Federal 
     Express Corp., 6 N.M.B. 442 (1978); Federal Express, N.L.R.B. 
     Case No. 22-RC-6032 (1974); Federal Express, N.L.R.B. Case 
     No. 1-CA-22,685 (1985); Federal Express, N.L.R.B. Case No. 1-
     CA-25084 (1987); Federal Express, N.L.R.B. Case No. 10-CCA-
     17702 (1982); Federal Express Corp., N.L.R.B. Case No. 13-RC-
     14490 (1977); Federal Express, N.L.R.B. Case No. 13-CA-30194 
     (1991). The charges filed with Region 13 in Chicago, Case No. 
     13-CA-3019 and Region 1 in Boston, Case No. 1-CA-22,585 were 
     withdrawn after we presented the above evidence of our 
     jurisdictional status.
       The National Mediation Board (NMET) recently ruled on 
     Federal Express RLA status by stating unequivocally that 
     ``Federal Express and all of its employees are subject to the 
     Railway Labor Act.'' Federal Express Corporation, 23 N.M.B. 
     32 (1995).
       The term ``employer'' under the National Labor Relations 
     Act excludes ``...any person subject to the Railway Labor 
     Act:'' 29 U.S.C. Sec. 152 (2). Excluded from the definition 
     of ``employee'' under the National Labor Relations Act 
     is''...any individual employed by an employer subject to the 
     Railway Labor Act...'' 29 U.S.C.Sec. 152 (3). The Railway 
     Labor Act defines ``carrier'' as ``... (including) every 
     common carrier by air engaged in interstate or foreign 
     commerce...''45 U.S.C. Sec. 151, First and Sec. 181. Federal 
     Express is a common carrier by air engaged in interstate and 
     foreign commerce, and is certificated pursuant to Section 401 
     of the Federal Aviation Act.
       That interpretation of the statute consistently has been 
     applied by the NMB. Section 201 of the RLA, 45 U.S.C. Section 
     181, provides that the Act ``shall cover every common carrier 
     by air engaged in interstate and foreign commerce . . . and 
     every air pilot of other person who performs any work as an 
     employee or subordinated official of such carrier or 
     carriers, subject to its or their continuing authority to 
     supervise and direct the manner of

[[Page S12104]]

     rendition of his service.'' (Emphasis added). In accordance 
     with that legislative directive, anyone employed by an air 
     carrier engaged in interstate or foreign commerce is covered 
     by the RLA. As was explained in REA Express, Inc., 4 N.M.B. 
     253, 269 (1965):
       ``It has been the Board's consistent position that the fact 
     of employment by a ``carrier'' is determinative of the status 
     of all that carrier's employees as subject to the Act. The 
     effort to carve out or separate the so-called over-the-road 
     drivers would be contrary to and do violence to a long line 
     of decisions by this Board which embrace the policy of 
     refraining from setting up a multiplicity of crafts or 
     classes. As stated above, there is no question that this 
     particular group are employees of the carrier.''
       The United States Court of Appeals for the District of 
     Columbia Circuit noted in regard to the NMB's Federal Express 
     case that ``the NLRB had `never' asserted jurisdiction over'' 
     (Federal Express'.'' United Parcel Service, Inc., v. National 
     Labor Relations Board. 92 F.3d 1221 (D.C. Cir. 1996). Federal 
     Express has participated in five union representation 
     elections conducted under the auspices of the National 
     Mediation Board, the most recent in 1995, and presently is 
     participating in a sixth RLA election.
       The Ninth Circuit Court of Appeals in Federal Express Corp. 
     v. California Public Utilities Commission, 936 F.2d 1075, 
     1978 (9th Cir. 1991), cert. denied, ______ U.S. ______, 119 
     LEd.2d 578 (1992) found:
       ``The trucking operations of Federal Express are integral 
     to its operation as an air carrier. The trucking operations 
     are not sonic separate business venture; they are part and 
     parcel of the air delivery system. Every truck carries 
     packages that are in interstate commerce by air. The use of 
     the trucks depends on the conditions of air delivery. The 
     timing of the trucks is meshed with the schedules of the 
     planes. Federal Express owes some of its success to its 
     effective use of trucking as part of its air carrier 
     service.''
       That court also stated:
       ``Federal Express is exactly the kind of an expedited all-
     cargo service that Congress specified and the kind of 
     integrated transportation system that was federally desired. 
     Because it is an integrated system, it is a hybrid, an air 
     carrier employing trucks. Those trucks do not destroy its 
     status as an air carrier. They are an essential part of the 
     all-cargo air service that Federal Express innovatively 
     developed to meet the demands of an increasingly interlinked 
     nation.''
       It clearly has been established that Federal Express is a 
     carrier subject to the Railway Labor Act. Its employees are 
     likewise subject to the Railway Labor Act. No court or agency 
     has ever determined that Federal Express or any of its 
     employees are subject to the National Labor Relations Act.

  Mr. HOLLINGS. I thank the distinguished Chair.
  Now, Mr. President, there was reference made to the CRS. I am just 
amazed. I thought they always had a pretty good record. They ought to 
give the fellow who works over there for the Congressional Research 
Service weekend leave. And the reason I say that, they have a guy named 
Vince Treacy, legislative attorney, and he was asked on September 27, 
just a few days ago, to give an opinion with respect to the coverage, 
the Railway Labor Act coverage of Federal Express as an express 
company. And he comes up totally in contradiction to all the laws and 
all the decisions, but more particularly he knows the request is made 
because we were trying to determine the intent of Congress: Was it as 
described by the Senator from Massachusetts, or an innocent mistake by 
my description?
  Everybody agreed that there was a mistake made. We did not even know 
it was in there. And please, my gracious, instead of coming with the 
language itself in the act, he runs all around his elbow and refuses to 
put this in his three-page decision.
  I read from the conference report of the ICC Termination Act of 1995 
by Mr. Shuster on December 15, 1995. ``The enactment of the ICC 
Termination Act of 1995 shall neither expand nor contract coverage of 
the employees and employers by the Railway Labor Act.''
  The distinguished chairman on the House side, Mr. Shuster, stated in 
the Chamber when this was debated a couple of days ago, that that was 
put in at the request of labor. We will show it to you in the Record. 
``The enactment of the ICC Termination Act of 1995 shall neither expand 
nor contract coverage of employees and employers by the Railway Labor 
Act.''
  Now we see who comes in in the middle of the game trying to change 
the rules of the road. We see now who is trying to pull rugs out from 
under people. And they are using every gimmick in the book. This fellow 
will be looking for a job if I have anything to do with it, I can tell 
you that, because I have an analysis here going down each one of the 
points in the document.
  I did not want to take the time of the distinguished Senator from 
Arizona, but, for example, Mr. Treacy says: ``If, at some future date, 
the NMB ruled that some Federal Express employees were employed in 
activities that were not integrally related to its operation as an air 
carrier, then those employees would count under the coverage of the 
NLRA as a matter of law.''
  False. False. They raised precisely that point in the case we are 
talking about, and we have the National Mediation Board and its 
decision. Heavens above. We could not be more on target. They never 
called us or asked us about the history of this particular thing.
  From Treacy's legal opinion they are running around now to give some 
kind of color, or credibility to their position: `Moreover, it appears 
unlikely that Federal Express would constitute an express company 
subject to title 49, as that term is used in the proposed amendment.''
  Where did you get that? He says later on here it could go either way. 
No one, including the author of this memo, disputes the fact that the 
REA was an express company. No one disputes that Federal Express was 
acquired and operated under certificates from REA. As the Interstate 
Commerce Commission stated in its decision transferring the 
certificates, and I quote, ``The evidence establishes a public demand 
or need for the proposed continuation of express service as previously 
authorized under the acquired REA certificates.'' That is the ICC 
decision No. 66562.
  Then he states in here: ``The deletion of the term `express company' 
from section 1 of the RLA does not appear to have been inadvertent or 
mistaken.''
  That is an astonishing conclusion, Mr. President, because it ignores 
the ICC Termination Act itself, the very sentence I read. The change to 
the RLA was through a conforming amendment to the ICC Termination Act 
which included the provision, and I quote, ``The enactment of the ICC 
Termination Act shall neither expand nor contract coverage of employees 
and employers under the Railway Labor Act.''
  I could read on and on. I ask unanimous consent, Mr. President, that 
this review of the CRS paper that was gotten up quickly and certainly 
very, very, at best, carelessly, if not intentionally, just 4 or 5 days 
ago for this case, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Response to the Memo by the Congressional Research Service

       The September 27, 1996 memo by the Congressional Research 
     Service [CRS] contains several inaccuracies which call into 
     question the conclusions reached in the memo. For example:
       Inaccurate statement: ``If, at some future date, the NNB 
     ruled(sic) that some Federal Express employees were employed 
     in activities that were not integrally related to its 
     operations as an air carrier, then those employees would come 
     under the coverage of the NLRA as a matter of law.''
       Facts: The UAW raised precisely the same argument in the 
     jurisdictional case involving Federal Express that recently 
     was litigated. In response to that argument, the NMB held: 
     ``. . . the Board does not apply the `integrally related' 
     test to that Federal Express employees sought by the UAW. 
     Where, as here, the company at issue is a common carrier by 
     air, the Act's [RLA's] jurisdiction does not depend upon 
     whether there is an integral relationship between its air 
     carrier activities and the functions performed by the 
     carrier's employees in question''. Federal Express 
     Corporation, 23 N.M.B. 32, 73-74 (Nov. 22, 1995).
       Inaccurate statement: ``Moreover, it appears unlikely that 
     Federal Express would constitute an express company subject 
     to Title 49, as that term is used in the proposed 
     amendment.''
       Facts: No one, including the author of the CRS memo, 
     disputes the fact that Railway Express Agency (REA) was an 
     express company. Likewise, no one disputes that Federal 
     Express acquired and has operated under the certificates 
     acquired from REA. As the Interstate Commerce Commission 
     stated in the decision transferring the certificates, ``The 
     evidence establishes a public demand or need for the proposed 
     continuation of express service as previously authorized 
     under the acquired REA certificates.'' Interstate Commerce 
     Commission Decision. No. MC-66562 (Sub-No. 2347), June 13, 
     1983.
       Incorrect statement: ``* * * it appears logical and 
     necessary to eliminate [coverage for express companies] from 
     the RLA to preclude the ostensible coverage of nonexistent 
     express companies''.
       Facts: To state that express companies are nonexistent 
     under the RLA, or that it is unlikely that Federal Express 
     constitutes an express company, simply ignores the facts. In 
     a case addressing the jurisdictional status of REA employees, 
     the National Mediation

[[Page S12105]]

     Board defined an express company as: ``The express business 
     has always been one of pick-up and consolidation of traffic, 
     turning it over to common carriers by rail or air for 
     transport, and delivery by the express company to consignee 
     at destination. In more recent times, this has been 
     supplemented by over-the-road handling of their own business 
     without an intermediate form of transportation''. Railway 
     Express Agency, 4 N.M.B. 253, 269 (1965). The NMB defined an 
     express company by describing precisely the service Federal 
     Express provides.
       Inaccurate statement: ``The deletion of the term `express 
     company' from [S]ection 1 of the RLA does not appear to have 
     been inadvertent or mistaken''.
       Facts: This rather astonishing conclusion ignores the ICC 
     Termination Act itself. The change to the RLA was through a 
     conforming amendment to the ICC Termination Act, which 
     included the following provision: ``The enactment of the ICC 
     Termination Act of 1995 shall neither expand nor contract the 
     coverage of employees and employers by the Railway Labor Act 
     . . .''. Public Law 104-88 (H.R. 2539), Sec. 10501(B).
       Inaccurate statement: The memo suggests, consistent with 
     organized labor's lobbying position, that it is more 
     difficult for employees covered by the Railway Labor Act to 
     organize. The memo states: ``This [amendment] would require 
     those [express company] employees to organize under the 
     limited craft bargaining units permitted by the RLA, rather 
     that under the wide range of appropriate units afforded by 
     the NLRA.
       Facts: About 11% of the private sector workforce covered by 
     the NLRA is represented by labor unions for purposes of 
     collective bargaining. Some 65-70% of employees covered by 
     the RLA are represented by labor unions. Which law is more 
     conducive to union organizing? As with most of the 
     unsupported conclusions in the memo, the memo again ignores 
     the facts.

  Mr. HOLLINGS. Now, Mr. President, let me take the full responsibility 
because there is no trickery in this whatever. It was openly discussed. 
My colleagues on the House side as well on this side, all agree that it 
was an innocent mistake. I do not think you could have Members 
supporting our position against the powerful Senator from Massachusetts 
and the powerful labor movement which has made this issue if it were 
not the case.
  That is why we included it at my behest, because I wanted to make 
sure just exactly, in the expression of the Senator from Massachusetts, 
we were not going to change the rules of the road in the middle of the 
game. I think that game in Philadelphia is over. But if he thinks it is 
continuing, then it is in the middle of the game, because this was done 
in the ICC Termination Act of December 15 after the rule of the road on 
November 22, 1995.
  I am glad the distinguished Senator from Arizona referred to these 
employees. That saves me time. It saves the Members some time. We could 
go through the history of this particular company and labor relations 
and various talking points, and you could be more than persuaded now as 
I have been because I did not think we were going to have this great 
rhubarb come up.
  But ever since they were organized, back in 1983, I guess it was--no, 
1973, because here is a 1979 decision--Federal Express has been an 
express carrier, first under the decision back in 1979. In 1936 the 
Railway Labor Act was amended to include air carriers, which very few 
people realize had included air carriers, including the one who 
suggested that we drop the language about ``express.''
  Without reading that decision, we move to the 1993 decision of the 
National Mediation Board and on down the list of the various decisions 
from time to time. We find out there has been a total consistency for a 
company that is extremely well operated, is extremely patriotic, it 
takes care of its employees.
  I have been through its facilities. When I went up to Alaska many 
years ago, we got there early and somebody said you ought to go over 
here and watch that operation they have over at Anchorage while we wait 
for our ride, which I did. I never realized the technological advance 
that had been made by this old Marine--or young Marine, as I look upon 
him, Fred Smith.
  Before they take off in Japan, they have already computerized 
information and forwarded it to Anchorage. At Anchorage they have 
various ways for the State Department, Interior Department, Wildlife 
Service, textiles--Customs, and they have all those things. They know 
the packages. They know where new shipments are coming through, where 
there may be some textile fraud, where there may be some drugs; issues 
involving the Justice Department, the DEA.
  As everything is unloaded in a matter of a couple of hours there, 
this mammoth plane, it goes into all those sockets, runs down these 
wheels, all those people are at their stations and this is down into 
the inner part of America.
  All I could say to myself, understanding this particular point being 
raised, that, if you had me running around the countryside trying to 
argue a different union here and another union over here, with certain 
little organizers here--I want to emphasize this--that experience, 
because the distinguished Senator from Massachusetts says they are 
primarily the little towns. This crowd, UAW, is well represented. They 
know how to organize folks.
  They spent 5 years on this Philadelphia case that has long since been 
decided unanimously against them. Now comes, the Senator from 
Massachusetts depicting: It is an ongoing litigation matter, they have 
not had their chance, they are playing by the rules and Hollings is 
pulling the rug out from under them.
  Nothing could be further from the truth. I would not engage in such 
conduct. I take offense even having me referred to in that way. I do 
not have to get into some company over there in Tennessee. But I 
certainly do not have to stand by and, just because they have a 
powerful Senator and a powerful labor movement, see a good crowd get 
rolled.
  I am not going to be rolled.
  I yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER (Mr. Kyl). The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I will just take a moment or two and then 
yield to my friend and colleague. The fact is, Mr. President, the 
Senator from South Carolina is still--still cannot show where the 
Federal Express is an express company under the Railway Labor Act. He 
cannot show it. It is not there. No court award has ever held Federal 
Express is an express company. The Federal Express has argued that time 
and time and time again.

  The fact of the matter is, on the case he talks about, the National 
Labor Relations Board is still out there, it is still current. It is 
case 4RC17698--still current. He can say it is not current. It is 
current.
  He can find fault with Mr. Gould. We have had the hearings on Mr. 
Gould that would show the way the National Labor Relations Board has 
acted since he has been up as being more expeditious, faster in terms 
of the considerations of various cases, and speeded up consideration in 
various regions more than any National Labor Relations Board of recent 
times. It has also seen a significant reduction in those terms.
  I will just conclude at this point and say we can obfuscate this 
situation in any way that we might try. But the fact of the matter is, 
the part of Federal Express that flies is an airline. The part that is 
a truck, is a truck. What they want to do is take the trucking and put 
it in the airlines to make it more difficult for workers to be able to 
come together.
  The fact of the matter is, UPS has airline designation under the 
Railroad Act, and has trucking designation under the National Labor 
Relations Act. The issue that is before the NLRA is exactly the same.
  Sure, mediation has found Federal Express is an airline. The question 
is, whether the trucking should be considered under the National Labor 
Relations Act. They have found this division on UPS. They are their 
principal competitors. It does not take a lot of time to have people 
understand that is what the issue is. What is being attempted here is 
to say: Oh, no, we are not even going to let the National Labor 
Relations Board--we are going to effectively close that door down, cut 
off that case--which is active--and put them under the Railroad Act, 
which will make it much more difficult for them to be able to express 
their grievances.
  That is common sense. People ought to understand. You have the post 
office, now, that is competing with air and trucking; you have UPS, air 
and trucking; and you have Federal Express, air and trucking. And you 
have the efforts, now, in terms of Federal Express, to vastly expand 
the trucking division. What their attempt is, now, is to get in with 
this special provision to

[[Page S12106]]

effectively exclude themselves from what their other competitors are 
involved in. Then they will be much more successful in terms of the 
bottom line. That is what we are talking about and that is what is at 
issue.
  I think it is a commonsense fact because that is what the real world 
is all about. That is the issue which this legislation is attempting to 
undermine, that decision by the National Labor Relations Act on that 
particular issue in question and why it continues to be so insidious.
  I yield time as the Senator from Illinois would want.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. SIMON. Mr. President, I have great respect for my colleagues from 
Arizona and my colleague from South Carolina. Senator Hollings in many 
ways has contributed significantly. He has talked more candidly about 
the revenue situation that the Federal Government faces than any other 
Member of this body and I am grateful to him for that.
  He also is the one who educated me on the whole question of gross 
interest versus net interest. One of the little games that 
administrations of both parties play is they list net interest rather 
than gross interest so interest does not look so bad. Fritz Hollings is 
the person who educated me on that.

  But I think on this issue he is wrong. I think there are three 
questions that we have to ask ourselves. When you ask those questions, 
then you have to come to the conclusion that we are making a mistake.
  First of all, who benefits? The answer is--no one has questioned 
this--one corporation, Federal Express, benefits. No one else benefits 
by this.
  Second, there is the question of litigation that is pending. My 
colleague, the Presiding Officer, sits on the Judiciary Committee. He 
has not been there too long yet, but he will become, over time, one of 
the most valued members of the Judiciary Committee and of this body. I 
have said that, not just in his presence, but to others. I can tell you 
that, almost always, it is wrong to pass legislation that interferes in 
litigation. It is just bad policy.
  And third, the process is wrong. We are going through this and there 
is no question it is a major change, without any hearings. When the 
Congressional Research Service says, ``The deletion of `express 
company' from section 1 of the RLA does not appear to have been 
inadvertent or mistaken,'' my friend from South Carolina says they are 
wrong. I do not know who is right. But I would think the committee of 
jurisdiction ought to hold a hearing on this.
  I also have great questions of whether we should interfere in a 
competitive situation.
  Senator Kennedy is correct when he says UPS is designated in two 
different ways, and Federal Express wants to be designated in only one 
way. Federal Express, as I understand it, has about 1,000 planes and 
35,000 trucks. What they want to do is to be designated as an airline, 
including the 35,000 trucks.
  Maybe that is what we should do. I doubt it, but maybe that is what 
we should do. I think we ought to at least hold a hearing on it.
  I am also concerned, and I say this to my friend, the senior Senator 
from Arizona, Senator McCain, who has been a leader, I think we have to 
honestly ask ourselves, why is Federal Express being given preferential 
treatment in this body now?
  I think the honest answer is Federal Express has been very generous 
in their campaign contributions. I have to say, they have been good to 
Paul Simon. My guess is, if you check this out, you will see they have 
been good to every Member of this body. I am grateful to people who 
contribute, but I don't think they ought to set public policy because 
of those contributions. I think that is what is happening here.
  We need to change the way we finance campaigns, and I commend my 
colleague, the senior Senator from Arizona, for being a leader in this 
area. The system distorts what happens here, and I think this is an 
example of that distortion.
  They have good people, like George Tagg, who I think most of us know, 
just a very, very fine person. I think most of us frequently use 
Federal Express. I am not knocking the company. I say to the company 
leaders who, I am sure, are monitoring what is going on here right now, 
I think they are well on the way to winning a pyrrhic victory. I think 
they may well, as the Senator from South Carolina has suggested, get 
the 60 votes, but I think you will see that journalists, academicians 
and others are going to use this as an example of a special interest 
prevailing and the public interest not prevailing. Not to have a 
hearing on this fundamental question is simply wrong.
  I hope that somehow a compromise might be worked out where a hearing 
would be agreed to and it would be agreed that the committee would act, 
not necessarily favorably, but the committee would act on it shortly 
after the first of the year.
  This process is wrong. There is no question the underlying bill 
should pass, but I think we are doing a disservice to the Senate and to 
the Nation as we move ahead in this way.
  Mr. President, I yield the floor.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I yield myself such time as I may consume. 
Let me, again, repeat my respect and affection for the Senator from 
Illinois, but in all due respect to the Senator from Illinois, if we 
are talking about campaign contributions here, I say to the Senator 
from Illinois, organized labor, the ones that are behind trying to kill 
the FAA reauthorization bill, has given a thousand times more--a 
thousand times more--in campaign contributions.
  I would be glad to examine the campaign contribution reports to the 
Federal Election Commission as to who has been getting what money and 
how much has been given and compare this corporation, with what 
organized labor is doing.
  I say to the Senator from Illinois, right now today, there is an 
unprecedented--without precedent--infusion of funds by organized labor 
unions into the congressional campaigns and the Senate campaigns, the 
likes of which I haven't seen in the 14 years I have been a Member of 
the Senate. I strongly suggest, before the Senator from Illinois 
suspects--suspects, as he said --that campaign contributions play a 
role here, that he look very carefully at the contributions by 
organized labor unions and the significant contributions that have been 
made by the individuals who are trying to knock out this legislative 
provision in the bill.
  The Senator from Illinois makes a very serious charge about 
suspecting--about suspecting--campaign contributions. I will tell the 
Senator from Illinois, it is clear as to who has been making the 
campaign contributions. It's been organized labor, it's been an 
intensive effort.

  The other Senator from Arizona and I know of over a million dollars--
over a million dollars--that has been poured in by organized labor 
against one Congressman in the State of Arizona, a rural district, 
something like we have never seen before. We have never seen it in the 
history of our State.
  So, look, I appreciate the efforts by the Senator from Illinois for 
campaign finance reform. I look forward to joining him and Senator 
Boren and others who have left the Senate who we need very badly in 
that effort, but to somehow think that Federal Express' campaign 
contributions have something to do with this legislation, when it pales 
in comparison with that of the campaign contributions and the phone 
banks and the organized labor leaders who show up and demonstrate in 
front of our colleague's every campaign appearance, I say to the 
Senator from Illinois, he has his priority skewed very badly.
  Mr. SIMON. Will my colleague yield just for 30 seconds?
  Mr. McCAIN. I will be glad to yield to the Senator from Illinois.
  Mr. SIMON. What you say underscores the point, that the way we 
finance campaigns today taints the whole process, there is just no 
question about it. We can exchange charges, but we need to improve the 
system.
  Mr. McCAIN. Mr. President, again, I repeat my great appreciation, my 
respect, and my affection for the Senator from Illinois. Nothing that I 
said should be construed as anything but a difference of view as to 
what role campaign finances and contributions may have played in this 
legislation, because there is no reason whatsoever for there to be any 
friction between myself and the Senator from Illinois, as he enters

[[Page S12107]]

the last few days of a distinguished career of service to the people of 
Illinois and this body. I hope the Senator took my response in that 
vein as he leaves the floor.
  Mr. President, let me just correct one thing. A drafting error in the 
Interstate Commerce Commission Termination Act of 1995 created an 
ambiguity regarding the express companies status under the Railway 
Labor Act. That is acknowledged by the people who drafted the 
legislation and the Senator from South Carolina who was involved at the 
time in the drafting of that legislation. That is what we are doing 
here, we are correcting a technical error.
  One provision states the intent of Congress:

       The enactment of the ICC Termination Act of 1995 shall 
     neither expand nor contract the coverage of employees and 
     employers by the Railway Labor Act.

  However, a second provision drops express carriers under the Railway 
Labor Act. This was clearly inadvertent and a contradiction to the 
stated intent of Congress.
  Those are just facts. Mr. President, I yield 10 minutes to the 
Senator from Utah.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. BENNETT. Thank you, Mr. President, and I thank the Senator from 
Arizona.
  Mr. President, I am not a member of the Commerce Committee. If we 
could choose our committees without the restrictions of reality, I 
would like to be a member of the Commerce Committee. I join in this 
debate, nonetheless, because of the history with the Commerce 
Committee.
  I don't know how far back some of the current Members go, but I was a 
very, from my present standpoint, young lobbyist for the U.S. 
Department of Transportation in the first 2 years of the Nixon 
administration. We didn't call ourselves lobbyists. They don't call 
them lobbyists today. They call themselves ``congressional liaison 
people'' or, in my case, I was in charge of congressional relations.
  But we were lobbyists, and in the spirit of full and fair disclosure, 
I will use that term. My assignment from then Secretary John Volpe, who 
had been Governor of the State of Massachusetts, was to convince the 
Congress to pass the Airport Airways Act and create the Airport Airways 
Trust Fund.
  My predecessors at the Department, who had been Democrats under the 
Presidency of Lyndon Johnson, had tried to do the same thing and had 
been unsuccessful, for a variety of reasons. There were some in the 
administration who said we would be unsuccessful as well. Representing 
a Republican President to a Democratic Congress, it was not supposed to 
be the most harmonious kind of circumstance.
  So I came up here in the Senate, obviously not on the floor, but up 
in the gallery, and in Senators' offices and, with my staff, worked 
with the then-chairman of the Commerce Committee, Senator Magnuson, and 
ultimately succeeded in getting strong bipartisan support for the 
Airport-Airways Act and the creation of the aviation trust fund.
  We thought, naively it turns out, that by creating the trust fund we 
would produce stability in funding for the FAA and airport-airways so 
that there would never be any doubt of the flow of funds for people 
involved in keeping our national airways safe.
  So it comes as a moment of nostalgia to me to come to the Senate now, 
some 25 years later, and find that the flow of funds out of the 
aviation trust fund that I had a small hand in creating have been 
interrupted, cut off, jeopardized by an attempt to filibuster in this 
body the bill that would provide those funds, and that the intent of 
Congress, in which I participated to see to it that there would never 
be any challenge to that funding, has been frustrated here.
  I understand the Senator from Massachusetts has every right to do 
what he is doing. I have participated in filibusters myself when I felt 
the cause was just and the point was well worth making. But I find this 
more an attempt to play to the gallery, if I may, than to address the 
issue, because it has been virtually conceded on both sides that it is 
simply a matter of time before the process plays itself out. The bill 
will pass. The money will be available to keep the airport and airways 
trust fund funding going to the FAA. The arguments have all been 
repeated again and again and again.
  I find that a little sad from that past history. I was hoping to be 
able to look back on my career and say that the one thing I did while I 
was at the Department of Transportation was help remove the airport-
airways thing from this kind of disruption. Now I see that that is not 
possible.
  I sit here, not as a member of the committee, and hear the debate 
going back and forth. ``It was an innocent mistake.'' And, ``It is a 
technical correction.'' ``Oh, no. This is a major policy issue.'' Back 
and forth, back and forth, with voices being raised on both sides.
  If I may, Mr. President, I am reminded of an experience in my even 
younger days, before I served in the Nixon administration, all the way 
back to my teenage years, the first experience I ever had listening to 
a debate in the Supreme Court.
  This was a debate over the sentences that were given to the 
Rosenbergs back in the days when President Eisenhower was President. 
You say, what does that have to do with this? Absolutely nothing, 
except this one phrase sticks in my head.
  In the course of that debate, one of the Supreme Court Justices asked 
one of the lawyers, ``Who are you?'' The lawyer was taken aback by this 
question, and gave his name. The Justice said, ``No. I know what your 
name is. What is your standing? Who are you with respect to this 
case?'' The man then said, ``Well, I represent somebody who is next 
friend of the Rosenbergs, a man named Edelman. I am the lawyer for Mr. 
Edelman.''

  The Justice called for a law book. The debate went on for a bit, and 
the Justice interrupted the lawyer again and said, ``Is that the same 
Edelman as in the case of California v. Edelman?'' The lawyer was 
stunned that the Supreme Court Justice would have this in his mind, and 
he stumbled around and he said, ``Yes, it is.'' At which point the 
Justice closed the law book with a look of some disgust and said, ``A 
vagrancy case.'' ``Oh, no,'' said the lawyer. ``That was not a vagrancy 
case. That was a free speech case.''
  It was the wrong thing to say to a Supreme Court Justice, who 
reopened the book and said, reading, ``California v. Edelman, a 
vagrancy case,'' at which point the lawyer compounded his mistake by 
saying, ``Well, it may say that on the heading, but if you'll read the 
case, you'll see that it was a free speech case.'' Whereupon, the 
Justice leaned forward and said, ``Let's ask Mr. Justice Clark. He 
wrote the opinion.'' And Mr. Justice Clark said, ``It was a vagrancy 
case.''
  I remember that very clearly as a young teenager in my first 
experience with the Supreme Court. The reason I bring it up now is, I 
sit here as a Member of the Senate, not a member of the Commerce 
Committee, and hear this argument. ``It is a technical fix.'' ``No. 
It's not. It's a major policy question.'' And like the Justice, I would 
say, let us ask the man who wrote the opinion what it is.
  The man who wrote the opinion, as I understand, in this case is the 
ranking member of the Commerce Committee, who says it is a technical 
fix. I heard him say so on the floor here. He says it is a technical 
correction. He is the ranking member of the committee from the minority 
party. The chairman agrees with him, the chairman from the majority 
party. I find that convincing, having heard the people who wrote the 
legislative words we are arguing about saying this is what it is.
  I do not want to be in the position of that lawyer before the Supreme 
Court trying to say, ``The man who wrote the opinion doesn't know what 
the opinion really says.'' ``The man who wrote the provision doesn't 
really know what the provision really is.''
  So, Mr. President, I hope we can move forward quickly. I hope, having 
made the statements, having discharged our political responsibilities 
to the various people on both sides who have urged us to do this, we 
can move quickly. I hope we can move this afternoon to say, all right, 
we have made our position clear. We have said what it is we have to 
say. We have satisfied the constituents that come to us and plead for 
support here.
  Now we have at stake the safety, the continuance, the future of the 
Nation's

[[Page S12108]]

air system. Let us get on with it. Let us see to it that there is no 
challenge to the airport and airways safety and progress in this 
tremendously important area.
  In my home State, we are trying to get ready for the Olympics in 
2002. When the world comes to Utah in 2002, they are not going to come 
by ox cart the way they came the first time in the 1840's. They are 
going to come by air. When they come, the facilities have to be in 
place. The opportunity to get those facilities in place is being held 
up by our failure to provide this funding. I think that is a shame. I 
think we ought to move ahead.
  Finally, I keep hearing all these things about how terrible Federal 
Express is. The most--I ask unanimous consent that I might be allowed 
the proceed for 3 additional minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. I hear how terrible Federal Express is. The only 
concrete statement really that I have heard is that Federal Express 
employees have gone for years without a pay increase. I realize that is 
a terrible thing. I have gone for years without a pay increase. Indeed, 
the whole time I have been in the Senate I have been denied a pay 
increase. I wish I had the salary I had before I came to the Senate 
when I took at least a 50 percent pay cut in basic pay, and more than 
that in bonus pay, in order to become a Senator.
  I do not think that is a demonstration of prima facie that this 
company is antiworker, because if we accept that, then the Senate is 
clearly antiworker and we probably ought to do something about that, 
too.
  So, Mr. President, I hope we could proceed with this and we could 
recognize that the positions have been staked out. The votes are where 
they are. I hope we will get on with it. I yield the floor.
  The PRESIDING OFFICER (Mr. Gorton). The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I will take just a few moments. Mr. 
President, I am really somewhat startled by the fact that those of us 
in this body making about $130,000 a year are comparing ourselves with 
men and women making $30,000 a year and who have not gotten a pay raise 
for the last 7 years. We can make light of that fact, but it is not 
made light of for hard-working families that are trying to make ends 
meet and provide for their children and to meet responsibilities and 
pay a mortgage. I do not see how that kind of comparison really 
advances the argument. I do not believe it does.
  Mr. President, I think it is a fair question and the Senator from 
Utah has raised it about this language. Is it, as I have suggested, 
Senator Simon, Senator Feingold, Senator Harkin, Senator Wellstone, and 
others stated, that this was a carefully-crafted project in order to 
effectively diminish in a significant way the legitimate rights of men 
and women that are in this particular company, as Senator Simon has 
pointed out; or was the Federal Express Co. deletion a matter that was 
decided by the conference committee--and the conference committee 
report actually bears the name of my friend and colleague from South 
Carolina.
  I listened with interest to the Senator from Utah talking about going 
to the individuals that are the most familiar with this particular 
legislation. I have Jim Oberstar, the ranking Democrat on the House 
Transportation Infrastructure Committee and Bill Lipinski, the ranking 
Democrat on the House of Representatives Aviation Committee. This is 
what Mr. Oberstar says:

       The ICR staff itself recommended the elimination of the 
     express carrier status. It was not an oversight. It is not 
     something that someone forgot to do. It is not something that 
     was neglected and drafted. It was not a drafting error, but 
     it was done for good reason. The last express carrier went 
     out of business in the mid-1970's. Federal Express purchased 
     that carrier's operating certificates. The Surface 
     Transportation Board, successor to the ICC, advises in 
     writing Federal Express apparently never engaged in the 
     operations authorized by these certificates. Subsequently, 
     Federal Express obtained and operated new certificates.

  Mr. President, here is Mr. Oberstar, who knows something about it. 
Then he continues along page 11463, September 27, 1996:

       We should not on the thin thread of a nonexistent operation 
     of a dormant authority purchased and never used, lock this 
     carrier into a statutorily established position within the 
     meaning of the Railway Labor Act forever and ever. This is 
     simply wrong.

  Mr. President, Mr. Oberstar knows, as the ranking member, what he is 
talking about. This was not an oversight. This is the ranking member. 
Our friends say, ``Look at what people who understood, the men of the 
committee who spent the time.'' That is fine, that is a fair enough 
test. That is Mr. Oberstar.
  We have other Members in the House. Mr. DeFazio points out:

       Unfortunately, what we have here, done at the very last 
     moment, is to put an extraneous matter voted on by neither 
     committees of jurisdiction, voted on neither by the House nor 
     the Senate, to benefit one very large multinational 
     corporation who has generously filled many campaign coffers 
     of Members in this House and the other body. This is not a 
     technical correction.

  He says it is not a technical correction.

       Do trucks run on rails? No. Well, we are going to classify 
     Federal Express, for the purpose of this bill, as a rail 
     carrier.

  Mr. President, we could go through the members of the relevant 
committees. Both Mr. Nadler and Mr. DeFazio in the House are members of 
the Transportation Infrastructure Committee, these are members of the 
committee saying this, not just myself and Senator Simon.
  Now, the fact of the matter is, Mr. President, it is not just us who 
are saying this. We are also looking at the Congressional Research 
Service. I know their report is demeaned out here on the floor of the 
U.S. Senate but the Congressional Research Service is to guide the 
Members of the Congress, the American Law Division of the Congressional 
Research Service.
  We asked them, is this just an oversight or was it purposely intended 
to be done--so that the Members would understand whether they should 
accept the fact that this is just an oversight, we never would have 
permitted it, and therefore we are remedying a situation that happened; 
or whether it was recognition that that language should have been 
dropped for the reasons that we mentioned earlier and that now suddenly 
putting this language back in has an entirely different meaning. I 
think hopefully we understand that now, as the Senator from Illinois 
and others have pointed out.
  This is the CRS report, ``The deletion of `express' company''--those 
are the words--``does not appear to have been inadvertent or mistaken. 
To the contrary, the deletion appeared to be consistent with the 
statutory structure and the intent of Congress. Since the Railway Labor 
Act coverage has been triggered by Federal regulation of express 
companies, it appears logical and necessary to eliminate the cross-
reference to title 49. Elimination of `express' from the RLA appears to 
be a necessary step in harmonizing the Railway Labor Act with the title 
49 of the code.''
  This is an independent judgment. You can say I do not like that 
particular lawyer, I do not like that individual. You can threaten 
those individuals, I suppose, and say we will hope that that person 
does not continue to work at CRS. But the fact of the matter is, that 
is the independent judgment and decision, one in which I agree.
  Now, taking what the conclusion would be from the CRS. If the 
amendment were enacted ``court decisions since that time have upheld 
NMB discretion in resolving representative disputes. On balance, the 
proposed amendment would appear to confuse, rather than clarify the 
question of Railway Labor Act coverage.''
  On the one hand it can be argued the amendment would have no effect, 
and it is very interesting for those that are supporting this 
legislation to say, ``Look, it is not really going to have an effect,'' 
because they say it will not expand or contract the rights of the 
workers. Well, it is interesting that they are arguing that at this 
time. It also points on the other hand, it could be argued since 
neither Federal Express nor anyone was certified an express company 
subject to the title, it would follow that no employer would come under 
the coverage. Nonetheless, courts usually strive to give meaning to all 
enactments.
  That is right. They are understanding and everyone is understanding

[[Page S12109]]

what this is about. This is Federal Express, their understanding, to be 
able to read the legislative history and understand. There is one 
company that will benefit, and proponents have argued the amendment 
would simply put the term back in the Railway Labor Act and would in no 
way affect, and proponents argue that the amendment merely corrects an 
error in order to preserve the proponents saying it will expand the 
coverage to ground-based employees of a carrier whose jobs are not 
integral to air freight operations.
  There it is, Mr. President, exactly. UPS, the flight aspects are 
considered to be under the carrier provisions. Those that drive the 
trucks are considered under UPS under the National Labor Relations Act. 
Federal Express flies, they ought to be under the Railway Labor Act. 
The truckers ought to be--a judgment ought to be made. All we are 
saying by the National Labor Relations Board, all we are saying, let 
them make the judgment, not preclude them, not preclude them from 
making a judgment. That decision is before the National Labor Relations 
Board. And it will certainly be argued, if this becomes law, that this 
is exactly what is intended, to expand for ground transportation. That 
is the way the Federal Express is moving and expanding dramatically. It 
will give them extraordinary advantage. Put this back in and we don't 
know what the results will be. We do know, I think, what will happen. 
Federal Express will have another weapon to turn its back on the 
legitimate rights of workers and workers' rights.

  Finally, that is what this is all about--whether these workers and 
workers' rights are sufficiently legitimate that they are going to 
appeal to those that are working in a particular community, to be able 
to make a decision and say, look, we feel that we can protect our 
rights better by becoming a union, or whether they say we don't want to 
choose a union. All we are saying is let them make the local choice, 
let them make the decision. UPS drivers have made that decision. That 
issue is before the National Labor Relations Board. Why take it away 
from the National Labor Relations Board and undermine those rights and 
put it under the Railway Act, which virtually says to all of those 
workers, we know you had the rights under the National Labor Relations 
Act, like they did in UPS, to go ahead and see if you can try and form 
a union. Maybe you will, maybe you won't. But we are letting you make 
that local choice and decision. But under this legislation, we are 
effectively saying, no way, not for you in this Federal Express Co. You 
are not going to be able to do it. That is, in effect, what this is all 
about.
  Finally, Mr. President, I mentioned before that we are all for the 
extension of the Aviation Act. I don't know whether our colleagues were 
here earlier. I would have offered the FAA conference report without 
this provision on the CR and had a 10-minute discussion. We would have 
voted on that and the House would have accepted it. We would be off on 
our way to be able to do that. But the decision was made not to do 
that. So we are at least in the position now where we have to follow 
this procedure. But we are strongly committed to support that 
particular provision. We think that it is important.
  Mr. President, I yield the floor and withhold the balance of my time.
  Mr. McCAIN. I yield 5 minutes to the Senator from Utah.
  Mr. BENNETT. I thank my friend from Arizona. I will not consume much 
time. The Senator from Massachusetts appropriately corrected me on any 
suggestion that there is a similarity between the salary of a Senator 
and the salary of some of these workers, and I accept that correction 
on his part. I meant not to make that comparison. I didn't think I had 
made that comparison. But if he felt that was made, it was appropriate 
for him to raise the issue.
  I would like to revisit the issue of the pay increase, because I have 
now been given some additional information that I did not have when I 
spoke before. The charge has been made that Federal Express has not 
given a pay raise to its employees in 7 years. I am now told that the 
truth is somewhat different, and that all kinds of programs relating to 
pay have been initiated within the last 3 years. There is now an 
opportunity for an employee to get professional pay. There is an 
incentive pay plan. There are programs for merit increases. And there 
is a program for best-practice pay. So the company has put in place 
this series of 4 opportunities, making all employees eligible for a pay 
increase that could be as high as 10 percent annually.
  I think it is important, in the spirit of full disclosure, as we go 
about this debate, that we not leave on the record unanswered the 
charge that Federal Express has not made any pay increases available to 
any of its employees for 7 years, and the implication, therefore, it is 
the duty of the U.S. Senate to somehow punish them for this kind of 
activity on their part, when in fact they have put in place programs 
that make pay increases available to their employees up to the level of 
10 percent annually.
  If I may, again, without suggesting in any way any comparability 
between the salary of a Senator and the salary of some of the employees 
we are talking about here, I do wish that Members of the Senate could 
look forward to any kind of cost-of-living increase and not have had 
their pay frozen for the entire time I have been here. Maybe my coming 
caused that. If that is the case, I suppose there are plenty that hope 
I leave. I would like to think that was coincidental.

  Mr. President, I repeat again what I said before. I think everybody 
has said whatever they want to say on this issue. It is clear that one 
side wants to take the opportunity to attack Federal Express and, 
thereby, perhaps tilt things in one direction or another in a time of a 
union election, to pay off whatever political debts to the unions that 
are urging them to attack Federal Express. The other side has made it 
clear that we want to get on with the legislative process of providing 
funds for the FAA.
  I see no reason to repeat all of these arguments. I see no reason to 
wait until next Thursday to get this resolved. Everybody knows how it 
comes out, as the Senator from Illinois indicated when he spoke. I hope 
that people who are in leadership positions, who can deal with these 
things and deal with the Senator from Massachusetts, can sit down and 
get this thing resolved so that we can have a vote on it, let the 
Senate work its will, having heard all of the arguments, and get the 
money that is so desperately needed into the hands of the people who 
are so importantly in charge of something as significant as our 
Nation's airlines and safety.
  Mr. McCAIN. Mr. President, I yield myself such time as I may consume, 
and I will be brief.
  Mr. President, let me remind my colleagues again, in the words of the 
distinguished Democratic leader, as he stated this just this morning:

       Question. So you've got to pass this bill?
       Daschle. We've got to pass this bill.

  That is as simple as it is. I don't know exactly why the Senator from 
Massachusetts wants to drag out this procedure. But I do know this, Mr. 
President: We are now hearing from airport managers and workers, and 
even union members all over this country, who are asking why can't we 
move forward with our airport projects, why can't we begin the much 
needed repairs. We are even hearing from bureaucrats, who are saying, 
``We want to work, we want to move forward on aviation safety and 
security measures that are necessary to safeguard the flying public.''
  Why is it that we have to wait until Thursday for the bill to be 
completed and then sent over to the White House for signature? Why do 
we have to do that? I think that is a legitimate question, Mr. 
President.
  On the subject of Federal Express, I don't know much about Federal 
Express, except that I see them everywhere. Members of my family, 
especially my wife, use that service quite a lot, along with a number 
of other organizations that deliver packages.
  But I am not here to argue whether Federal Express is a good or bad 
corporation. In fact, I think that is a straw man, Mr. President. In 
fact, I think it is an evasion of what this debate is really all about. 
What this debate is about is whether there was a mistake or drafting 
error for which there needed to be made a technical correction in 
legislation that was passed in 1995, or whether there was not.

[[Page S12110]]

  Now, the Senator from Massachusetts believes that had no relevance, 
that was not correct. He is entitled to that opinion, and I respect 
that opinion. I am not sure I see the point here in attacking a company 
and accusing them, and having a big poster board up there that says 
``anti-worker.'' What does that have to do with anything that we are 
really debating here?
  What it really has to do with is a union agenda to attack a 
corporation. Again, they are free to do that, and the rules of the 
Senate, I am sure, certainly allow the Senator from Massachusetts to do 
that. But that is not really what the debate is about. The debate is 
about whether an error that was made in drafting and enacting 
legislation should be corrected or not. It is that simple. Whether 
Federal Express is the best corporation or company in the world, or the 
worst, has no bearing on it.
  So, again, I am sure that the Senator from Massachusetts seems to be 
enjoying relating anecdotes about the anti-employee behavior of Federal 
Express; although, in my experience, most corporations that mistreat 
their employees are not successful. But maybe this is an exception to 
my general experience in that area.
  I don't claim to be an expert. But I am not sure how we really gain 
anything by continuing to try to discover whether Federal Express is a 
good or bad corporation. The question here is: Are we going to allow 
the airport projects and aviation safety programs--the aviation safety 
and airport security programs--to move forward, which will happen on 
Thursday anyway now, or are we going to continue to delay? We have 
already passed our deadline for completing this matter by some 17 
hours.
  The Senator from Massachusetts professes and I accept his sincere 
commitment to the working men and women of America. I do not question 
that at all. But I do question why he wants to delay the inevitable 
until Thursday, or Friday, or next week costing these working men and 
women I don't know how much other income because I don't know what 
their salary is, but at least a week's worth, if not 10 days worth. In 
some families, that means a lot. That really does mean a lot. There are 
only 52 weeks in the year when you can work and we are now costing 
these families income by not passing this critical legislation.
  Now the Senator from Massachusetts is going to deprive those working 
men and women. I have no idea how many tens of thousands of them would 
be working on $9 billion worth of airport projects. I don't know how 
many there are. But I know they are going to be out there suffering as 
will their families.
  The Senator from Massachusetts continues to sort of blame this side 
that we didn't pass the bill. We passed the bill and finished 
conference on September 23, in plenty of time, Mr. President. The 
conference report could have been passed and sent to the White House 
days ago before October 1, and this critical funding would have 
continued.
  Now we are getting emergency phone calls from all over America. They 
are calling saying, ``What is the matter with you guys? What is the 
matter with you? You are hung up on some technical point here,'' and we 
are being deprived the ability to provide the critical aviation 
services to our citizens that they deserve. Frankly, I do not 
understand it.
  I again urge the Senator from Massachusetts to allow us to move 
forward. We could have a vote on the conference this afternoon and pass 
it with 60 votes, or 51 if he would just let us have an up-or-down vote 
on the conference report. And we could be done with this. Instead the 
Senator from Massachusetts is choosing to drag this out for 3 more 
hours of debate tomorrow. And, very frankly, it is not clear to me what 
there is to debate more except to keep going over again and plowing 
over ground that has already been plowed, which by the way would not be 
a unique activity for this body. But at the same time there is a lot 
more at stake here than in the normal course of debate.
  So again I want to urge the Senator from Massachusetts, take down 
your antiworker poster and let us talk about whether indeed this was a 
technical correction to a drafting error that needed to be made or not 
or whether the argument of the Senator from Massachusetts is correct 
that this is really a subject for the National Labor Relations Board. 
It may be. Let us try to convince our colleagues on the basis of 
whether that is, indeed, the case, or not.
  I am willing and eager to engage the Senator from Massachusetts in 
open and honest debate on that issue. I am not eager to try to find out 
whether Federal Express is a good or a bad corporation because I do not 
think that is relevant to the issue and the question here. But I am 
afraid that is not going to be the case.
  Finally, Mr. President, before I yield the floor, again this is an 
issue that must be resolved. It is going to be resolved. And we are not 
doing anything except penalizing working men and women all over 
America. We are jeopardizing the aviation safety of the American flying 
public. And we are not proceeding with the much needed modernization 
for our air traffic control system, and we are not moving forward in a 
myriad of ways that we critically must move forward with immediately.
  Mr. President, I say with some self-serving comments that this has a 
huge bearing, and is an encompassing extremely important piece of 
legislation; the result of 2 years of work with the Secretary of 
Transportation, with the Administrator of the FAA, and with the Deputy 
Administrator of the FAA, Linda Daschle, who did such an outstanding 
job on this--an incredible job. Hundreds of hours were spent with 
Senator Pressler, the chairman of the full committee, Senator Hollings 
the ranking member, Senator Ford, and me. I mean we have worked for 
literally 2 years on this very important legislation. And we had a 
couple of false starts I might remind my colleague from South Carolina. 
But we finally came up with legislation which really is important to 
the future of America.
  Instead now we are hung up on what is fundamentally a difference of 
opinion as to whether a mistake was made in the drafting of 
legislation--and by the way, in view of those who were drafting the 
legislation, or whether Senator Kennedy is correct, that this is a 
subject for the National Labor Relations Board.
  It seems to me that we could pretty well ventilate that difference of 
opinion today and we could move forward with a vote on the bill today.
  I again urge my colleague from Massachusetts to do that for the 
benefit of, if not the Members of the Senate who want to go home and 
campaign, the working men and women in America, tens of thousands of 
whom--if this debate drags out, I will have more specific statistics as 
to the incredible impact that this is having economically on America, 
not to mention the critical aviation safety and airport security 
reasons.
  Mr. President, I reserve the remainder of my time.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I will just speak briefly at this time.
  I listened to my friend from Arizona talking about workers that are 
affected. I am asking what about those workers that are working for 
Federal Express that are playing by the rules who tried to get together 
and have their own set of grievances? What about those workers who have 
their case before in adjudication at the present time? What about those 
workers? What about their families? They have been waiting for months 
and months for a decision to see if their rights are going to be 
protected, and with the passage of this legislation effectively we are 
undermining those. I don't hear from the Senator from Arizona any 
concern about those workers. I would have thought that he would have 
been concerned with them.
  Mr. President, we have debated about whether this was a mistake or 
not. I will not get back into the fact that we have had now the number 
of Members--Mr. Lipinski, ranking member of House Aviation, Mr. 
Oberstar, ranking member of the House Transportation, Mr. DeFazio on 
the Transportation Committee, and others in the House, and the members 
of the committee, plus CRS, all indicated that it was not just a 
passing factor, but that it was to give very clearly one company an 
advantage over others and being a serious disadvantage to workers.

[[Page S12111]]

  Mr. President, the Senator from Arizona reminds me of that young 
person who shot his parents and then came before the judge, and said, 
``I plead, give me mercy. I am an orphan.'' We said the other day on 
the continuing resolution that we would pass the conference report 
without the antiworker provisions, and he said, no, no. Where was all 
of his concern about the workers then? Where was all of his concern 
about what is going to happen out in these various airports then? Where 
was all of his concern about the importance of passing out legislation 
then?
  Well, after that legislation was safely passed, it only took a little 
bit of time. And then he comes out here and says ``Oh, we have to pass 
this legislation now.''
  Mr. President, we are quite prepared, if it is agreeable to Senator 
McCain, to ask that we go to consideration of S. 2161, which is the FAA 
bill that is on the calendar now without the anti-worker special 
interest Federal Express rider, and we are prepared to move ahead on 
that.

  I get back time and time again from the Senator from Arizona: ``We 
can't do that because we are going to go out. We are going to go out.'' 
The fact of the matter is the House adjourned in 1994, and it came back 
and passed GATT. There are other examples that I will put in the Record 
of where the House came back in, the most recent with the GATT. They 
came back in and passed virtually immediately on the action that was 
taken by the Senate. It is done, and it has been done and historically 
done.
  We could do that this afternoon. But no, no, no, no, no. He refused 
to do that because they want to stick it to these workers; stick it to 
the workers, pass this provision in there to stick it to the workers. 
They are the interest. This is my interest in terms of--
  Mr. McCAIN. I ask for a ruling from the Chair----
  Mr. KENNEDY. I have the floor, Mr. President. I ask for regular 
order.
  Their interest is my interest. That is basically what this issue is 
about.
  The PRESIDING OFFICER. The Senator will suspend.
  The Senator from Arizona.
  Mr. McCAIN. Under the rules of the Senate, I do not believe the words 
of the Senator from Massachusetts, saying I want to stick it to the 
workers, is appropriate language for the Senate.
  The PRESIDING OFFICER. The Senator will withhold.
  The ruling of the Chair is that the language of the Senator from 
Massachusetts is not in violation of rule 19.
  Mr. KENNEDY. I thank the Chair.
  Mr. President, the issue of those workers--this is about Federal 
Express. They have rights. They have their interests. If they are 
against the workers and workers' rights, so be it. This is a free 
country. They can go within the context of the law. What we are 
basically talking about is the grievances that those workers have, who 
are trying to carry them forward, and we have legislation that would 
effectively undermine them.
  I know the Senator from Utah is not on the floor. I hoped to just be 
able to clarify this position. As I understand, from 1984 to 1991, 
which is a period of 7 years, there was no pay increase; that in 1991, 
workers began to organize, and Federal Express gave workers a pay 
increase, and then another in 1993. In 1996, the company announced that 
there would be no further wage increases. That is my information. If 
that helps clarify the Senator's understanding of what I was trying to 
portray, that is fine.
  Mr. President, this is an important issue. It is so easy to always 
find an excuse not to look out after working people. We heard from the 
Republicans month after month after month where they would not even 
permit the Senate of the United States to vote on an increase in the 
minimum wage. Month after month after month they said no. ``Over my 
dead body,'' was what they said in the House of Representatives. ``I 
will fight it with every sinew in my body''--an increase in the minimum 
wage to permit those Americans on the lowest rung of the economic 
ladder the ability to work and be out of poverty. No, they said. No, we 
have got other measures to consider in this Chamber. We are not going 
to permit that.
  Then, finally, because of the American people's sense of fairness and 
decency, they had to relent in the Senate of the United States and the 
House of Representatives. Then they tried to cut it back. Then they 
tried to delay it in the conference. That is the record of the anti-
worker leadership over the period of this last Congress.
  The first thing they did was attack the Davis-Bacon Act. The average 
construction worker makes $27,500 a year, and that is too much for some 
on the other side; we are going to emasculate that. Second, we have got 
to cut back on the earned-income tax credit. Who benefits from that? 
Workers who make up to $28,000, $29,000 and their children. That is too 
much. We are going to cut back on those individuals.
  The next thing we are going to do is make all of you pay more for 
your parents because we are going to cut back on the Medicare and give 
$245 billion of tax relief to the wealthiest individuals. We know what 
the record is of the Republican leadership over there.
  I am not surprised at what the Senator from Arizona is saying now. 
All you have do is look at the record of this last Congress, and it has 
been anti-worker, anti-worker on a minimum wage, anti-worker on the 
earned-income tax credit, anti-worker on workers who are trying to get 
the Davis-Bacon provision so that those who have the skills ought to be 
able to get decent work, and cutbacks in education where the workers' 
children are going to school. Cut back on those programs. Cut back on 
the scholarship programs for those children who are going to college. 
To do what? Cut back on the Medicare, cut back on the Medicaid to give 
the tax breaks to the wealthy.
  That has been the record. You do not have to listen to this Senator 
in October to make that out. The record is complete with the battles. 
So it is not a surprise to me when the Senator says we are concerned 
about workers, we are concerned about workers over here, and does not 
even mention those individuals who have very legitimate grievances and 
are being shortchanged by legislative action--shortchanged--and others 
who are going to be given some advantage, significant advantage, by 
statutory language.
  This is not a question of oversight. All you have to do is read the 
record, read the unbiased analysis of those who observed the history of 
this particular provision. We know that. This is special legislation 
for a special company that has done what it could to frustrate workers 
from being able to proceed to pursue their legitimate grievances. That 
is what this is about.

  That is what this is about. It is an issue we are fighting for, and 
it is an issue we are staying here another day for. For some, workers' 
rights are important. For some, the grievances of workers are important 
in this country, maybe not to others. Maybe not to others. But to some 
Senators, they are. They are worth fighting for. We will have that 
opportunity for the Senate to make a judgment on this on Thursday next 
at 10 a.m. We will then follow the rules of the Senate and abide by 
that decision. But until then, we are going to continue with everything 
that we can to make our case for justice and fairness for working 
families.
  Mr. McCAIN addressed the Chair.
  Mr. KENNEDY. I reserve the remainder of my time.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I yield myself 2 minutes.
  I enjoy spirited debate in this Chamber. I enjoy an exchange of 
philosophy and ideas, and I learn from debate, especially with some of 
the more learned colleagues on the other side of the aisle. But I have 
to say, with all due respect to the President, I just grow weary, I 
grow weary when someone on the other side of the aisle says I want to 
stick it to workers, that I want to abandon old people.
  That really has nothing to do with debate. That just has to do--even 
though the ruling of the Chair just was not in my favor, it is 
unnecessary, it is unwanted and, very frankly, I say to the Senator 
from Massachusetts, I am sorry that he has to lower the level of debate 
to impugning my character and motives for a position that I happen to 
take on this bill. I do not impugn the integrity, the motives of the 
Senator from Massachusetts. I believe that he has strongly held views. 
I believe that what is happening now is bad for workers of America, but 
I certainly do not

[[Page S12112]]

blame the Senator from Massachusetts and, very frankly, I do not look 
forward to further debate with the Senator from Massachusetts because 
it is obvious that it cannot be debated on a level that I think is in 
keeping with the tradition of this distinguished body.
  Mr. President, I would like to reserve 8 minutes for Senator 
Hutchison when she arrives in the Chamber. In the meantime, I would 
like to yield time, what time there is between then and 8 minutes left 
for Senator Hutchison, to the Senator from South Carolina.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President. I do not know where to come in. I know 
we finally have beaten them when they start debating the minimum wage 
bill, no pay increase, anti-worker, Davis-Bacon, scholarships for 
students. It reminds me during the war boarding ships in the Navy, they 
said, ``When in danger, when in doubt, run in circles, scream and 
shout.'' And so we now have to come to the floor of the Senate and talk 
about everything else but what is really at hand.
  My distinguished colleague from Massachusetts thinks when he repeats 
something or says something, somehow that makes it true. He continually 
comes again and again and he says, well, the Senator from South 
Carolina cannot show that Federal Express is an express company under 
the Railway Labor Act. We filled the record. We will have go back to it 
again and again and again.
  Since commencing operations 23 years ago, Federal Express and its 
employees consistently have been determined by the Federal courts, the 
National Mediation Board, and the National Labor Relations Board to be 
subject to the RLA. See Chicago Truck Driver, Helpers, Warehouse 
Workers Union v. National Mediation Board, 1982; Chicago Truck Drivers, 
Helpers and Warehouse workers v. NLRB in 1979; Adams v. Federal Express 
Corporation back in 1977; Federal Express Corporation, 22 N.M.B. 57 
(1995); Federal Express Corporation, 22 N.M.B. 157, 1995; Federal 
Express Corporation, 20 N.M.B. 666 in 1993; Federal Express 
Corporation, 20 N.M.B. 486; Federal Express, 20 N.M.B. 404; Federal 
Express, 20 N.M.B. 394 in 1993; Federal Express, 20 N.M.B. 360 in 1993; 
Federal Express, 20 N.M.B. 7, 1992; Federal Express, 20 N.M.B. 91, 
1992; Federal Express Corporation, 17 N.M.B. 24, 1989; Federal Express, 
17 N.M.B. 5, 1989; Federal Express Corporation and Flying Tiger Line, 
16 N.M.B. 433 in 1989; Federal Express Corporation, 6 N.M.B. 442, in 
1978; Federal Express, Case No. 22-RC in 1974; Federal Express, NLRB 
case in 1985; Federal Express, NLRB case No. 1-CA 25084 in 1987; 
Federal Express, NLRB case in 1982; Federal Express NLRB case in 1982; 
another one, again, in 1977; 1991.

  The National Mediation Board recently ruled--and this is a 1995 
case--on Federal Express' Railway Labor Act status by stating 
unequivocally that ``Federal Express and all of its employees are 
subject to the Railway Labor Act.'' Federal Express Corporation, 23 
N.M.B. 32 (1995).
  I do not know how you make it more clear than that. You have that 
decision that said, in 1993, and I read, ``Federal Express Corporation 
has been found to be a common carrier as defined by 45 U.S.C. 151.''
  Then I look at 45 U.S.C. 151, 1st, ``The term `carrier' includes any 
express company.''
  You read it to them; they don't want to listen. They just act like 
there is nobody else, they are here looking out for the workers, trying 
to make it an emotional thing, who is for the workers. I was around 
here for the workers when some of these were voting for NAFTA. We lost 
400,000 jobs; the Mexicans lost 1 million jobs. We went from a $5 
billion balance in trade, a surplus, to over an $18 billion deficit. I 
lost 10,000. I don't know how many this year. I know more than 10,000 
by the middle of the summer. I lost 10,000 jobs down there.
  GATT--I voted against GATT. I had to hold up the Senate and 
everything else of that kind, trying to make sense so we would not 
repeal 301. They kept on saying it was not repealed. Now they 
understand. The Japanese laugh at them. They say, ``Let's go to the 
World Trade Organization, WTO.'' Find out what you get out of that 
group.
  So, do not run around saying, ``I am looking out for workers and 
helping workers, and you are antiworker.''
  The PRESIDING OFFICER. The time of the Senator from South Carolina 
has expired.
  Mr. WYDEN. Mr. President, I rise in support of the conference report 
on S. 1994, to reauthorize the programs of the FAA. For the safety and 
security of every Oregonian who flies and for our smaller airports this 
legislation is critical.
  I want to commend the chairman of the committee, the chairman of the 
Aviation Subcommittee, and especially the distinguished ranking member 
of the Aviation Subcommittee, Senator Ford, for their hard work. The 
conference report includes several provisions I have worked on. In 
particular, I take pride in those that make safety paramount at the 
FAA, that require making airline safety information available to the 
public and that strengthen security at our airports.
  I also want to thank the managers for their cooperation in 
incorporating my amendment on train whistles. This provision will stop 
the Government from imposing a one-size-fits-all approach on 
communities with railroad grade crossings. Without this provision, 
towns across this country, like Pendleton, OR, would have had train 
whistles blowing night and day. My amendment will assure that the 
Federal Railroad Administration works with the people in Pendleton and 
elsewhere to develop appropriate safety measures for their grade 
crossings.
  When we began the process, this was a relatively modest 
reauthorization bill. No safety or security measures to speak of. Now, 
these concerns are at the forefront, where they belong.
  With this bill, we go beyond all the talk about safety. With this 
bill, we take the first step ever toward making information on airline 
safety available to the public. Finally, the traveling public will be 
able to get basic safety information in plain English.
  Everyone who flies should be able to make informed choices about the 
airlines they fly and the airports they use. This legislation will help 
consumers do that.
  Today, travelers can get plenty of information from the airlines 
about whether their bags will get crushed or their flights will arrive 
on time. With this bill, travelers will no longer have to go through 
the legalistic torture of the Freedom of Information Act to get basic 
safety information. They'll be able to get it online, from the National 
Transportation Safety Board.
  No one thought this would be easy. I have talked to people in all 
parts of the aviation community--the FAA, NTSB, airlines, labor, 
manufacturers, pilots, and consumer groups--about the best way to do 
this. While there are certainly differences over how to do it, everyone 
agrees that it should be done. And I agree with those in the industry 
who say that anything involving safety should not be part of 
competition. But by having uniform definitions, standards, and public 
access to this information, I believe we will move safety out of the 
shadows and into the sunshine.
  Also of special interest are the provisions seeking to improve 
aviation security.
  This conference report will require more comprehensive employment 
investigations, including criminal history records checks, for 
individuals who will screen airline passengers, baggage, and property. 
We remove the legislative straitjacket that has hamstrung the FAA's 
efforts to deploy security equipment in airports.

  When we talk about a security system that will cost as much as one B-
2 bomber, we can't expect the airlines to shoulder that burden alone.
  The conference report puts the administration on top of airport 
safety and security functions. Right now, this task is undertaken 
almost exclusively by the air carriers. From now on, the FAA will be 
firmly in charge.
  Another problem is the lax attitude we have toward some of the most 
critical players: Those who monitor the x-ray machines. What is the 
point of having $1 million machines if these workers are being paid 
minimum wage and lack any basic training? Americans should not expect a 
second-class attitude will produce first-class security.
  The amendment will toughen up the attention paid to these critical 
workers.
  There remains, however, one glaringly weak link in the security 
chain.

[[Page S12113]]

 It is that we don't even have an evaluation of the current status of 
security at our Nation's airports. We need a basic security baseline in 
order to establish goals and priorities. We need regular reports on 
whether the goals are being met. This is not rocket science. It is 
security 101. Although this is not included in the bill, I intend to 
work with the FAA on this in the coming months.
  Finally, I want to note another very important provision for Oregon: 
Funding protection for smaller airports. These airports, such as Bandon 
and John Day and Klamath Falls, serve citizens in the more rural parts 
of my State. Without the funding formula in this bill, these smaller 
airports would suffer disproportionate cuts in grant funds when 
appropriations are tight. Unless I've missed something, there doesn't 
appear to be any extra airport improvement grant funding lying around.
  Mr. President, there are many other important elements in this 
legislation. I want to conclude by again thanking the leaders of the 
Commerce Committee for their excellent work on a good aviation safety 
and security bill.
  Mr. HOLLINGS. When does the time terminate? Right just before 5?
  The PRESIDING OFFICER. There is 8 minutes remaining to the Senator 
from Arizona. He yielded those 8 minutes to the junior Senator from 
Texas, and 24 minutes remain to the Senator from Massachusetts.
  Mr. HOLLINGS. I thank the Chair.
  The PRESIDING OFFICER. The Chair, acting in his capacity as the 
Senator from Washington, suggests the absence of a quorum.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Texas has 8 minutes yielded by the Senator from Arizona.
  Mrs. HUTCHISON. Mr. President, it is hard to imagine that we are 
really still here, talking about whether we are going to vote on an 
aviation security bill. We know that we must have this. We are trying 
to respond in a responsible way to the potential for terrorism in our 
airports. We are trying to make sure that the FAA has the tools that it 
needs for safety. Yet, we are being held up on a really technical 
point, not to mention taking people away from what they need to be 
doing right now with regard to the rest of this session. I do not 
understand it.
  What we are talking about today is the most bipartisan solution to a 
real problem that we have in this Government, and that is the 
reauthorization of the FAA, which thousands of the traveling public 
depend on for the safety of our airline passengers, as well as the 
safety of our visitors to this country. We have the reauthorization 
before us, and it is October 1 and we are not able to move forward.
  I would like to talk about a few of the things that are in this bill 
which we cannot do today because we are in the middle of some kind of 
filibuster, which really is meaningless because we are going to vote on 
this bill sometime before the end of this week. But here is what we are 
not able to do today because this bill has not been passed.
  We are trying to get explosive detection devices certified by the 
FAA. There is $400 million in the continuing resolution that we passed 
last night, and it is for the technologies which are now available that 
we are not using in this country but that they are using in foreign 
countries for the detection of explosive devices that might be taken on 
an airplane.
  These devices that could be certified, right now, today, if we could 
pass this bill, cannot be deployed without this provision. So we are 
losing valuable time in getting the best of the technology.
  You may ask, ``Gosh, we put our bags through screens right now at 
airports.'' That is true, we do. But those screens were made to stop 
hijackers. Those screens were made to detect guns and knives, but not 
explosive devices, and particularly not the high-level, sophisticated 
explosive devices that we know are now on the market. But detection 
devices are available for those devices. We can detect those explosives 
if we can deploy the equipment and get it certified by the FAA, which 
we cannot do right now because this bill is being debated on a 
technicality that was decided by Congresses in the past and which has 
been decided by this Congress, and it is just a matter of time before 
we get to what will be an overwhelmingly positive vote that will show 
that this Congress has decided this issue.

  We would require background checks for baggage and passenger 
screeners. We believe it is prudent to have background checks on the 
contracted-out employees who are doing this screening. That is in this 
bill. The FAA would be able to audit the criminal records checks for 
tarmac-access employees. That is provided in this bill, if we can pass 
it.
  We are going to have a study that will determine if we can have 
baggage-match reports on domestic flights. One of the things that is 
done on overseas flights is matching baggage that is checked with the 
passengers. I believe this is going to be feasible on our domestic 
flights, because I think the technology is there that will keep us from 
having the delays that the airlines have been concerned about. So we 
want to be able to assess that, and that is provided for in this bill. 
But it is being held up now with this debate over a nonissue so that we 
are not going to be able to immediately go forward to implement tests 
on baggage match, which may be one of the most important ways to make 
our airlines and our airports more safe.
  We are also going to ask the FAA in this bill, when it is passed, to 
look at how we can improve security for mail, for cargo. It is 
important that the sense of the Senate in this bill which says we 
believe that cargo security can be enhanced be passed, because if we 
can enhance cargo security, that is one area that really is pervasive 
in our aviation system, and it is really the underbelly, to use a pun, 
of aviation security.
  We would require, in this bill, an aviation security/FBI liaison in 
cities with high-risk airports to coordinate with the FAA. This bill 
says that we think there needs to be a person in every FBI office where 
there is a high-risk airport--any airport that has international 
service--that in every FBI office, there should be a liaison with the 
FAA and with the airport to make sure that there is coordination, where 
information is exchanged, where the FBI can look at what the FAA is 
doing or what the airlines are doing for security, to give their 
opinion about whether it is sufficient or whether it could be improved.
  In fact, we would have a joint threat assessment by the FAA and the 
FBI, and they want that authorization. Both entities want to work 
together, and they want the authorization to do that. It makes sense.
  So why aren't they doing that? Because we are discussing a labor 
issue that was decided years ago. The people of America probably don't 
understand that, and many of us on this floor don't understand that 
either.
  We are talking about taking away the dual mandate of the FAA, which 
is promotion of the airlines and safety. That has always been a kind of 
a conflict that has had to be resolved from time to time, and we are 
taking promotion out, because the airlines do a good job of that.
  When the FAA was created back in the old days, airlines were just 
beginning, and people had to be convinced that airlines were going to 
be safe. But now we see the safety record of airlines, and it is 
terrific. You are safer on an airplane than driving to the airport, and 
that is a fact. So now we are going to make safety the mandate of the 
FAA, and that is proper, because passengers want to make sure that they 
are safe.

  I think of the families of the passengers on TWA Flight 800 who went 
to France this week. They are trying to put their lives back together. 
I think of what those families are thinking about, what their loved 
ones felt when they were thousands of feet above the ground and, 
through no fault of their own, their lives were taken from them, and 
they were helpless.
  We want to make it as safe as possible for every traveling American, 
and this bill will do it. Mr. President, there is no reason to be 
holding this bill up on matters that have been decided by this 
Congress. There is no reason to hold this bill up over a technical 
labor

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issue that has been decided by this Congress. We have so many important 
safety issues in this bill that are being addressed. We should be 
responsible and get this bill out today so that we do not delay for 1 
more day the deployment of the explosive detection devices that are 
ready to go on line and into our airports to provide the level of 
safety that our passengers require, expect, and are entitled to.
  So, Mr. President, I hope that those who are holding up this bill, 
knowing that they will not succeed, but, nevertheless, imposing on 
their fellow colleagues to make some sort of point that is not being 
very well made and putting in jeopardy the safety of the flying public 
and people who go into airports by the hundreds of thousands in this 
country every day--we could be doing more, and we could be doing it 
right now. The FAA is waiting for this authorization. It is at hand. 
Why would we be delaying for the next 2 days when we could start the 
deployment today, this minute, of the explosive detection devices which 
are provided for in the continuing resolution that has already been 
signed by the President and all we need is the authorization to do it?
  It is not responsible, and I call on my colleagues who are holding 
this bill up and ask them to be responsible and help us address these 
issues for the safety of Americans and our families and our loved ones.
  Mr. PRESSLER. Mr. President, as chairman of the conference on H.R. 
3539, the Federal Aviation Authorization Act of l996, I rise in support 
of this critically important aviation safety and security legislation. 
Despite some unwarranted, partisan exchanges in the past few days--
unwarranted because this is in no way a partisan issue--this is 
bipartisan legislation which enjoys strong support on both sides of the 
aisle. When we vote on final passage later this week, I believe this 
legislation quite deservedly will enjoy overwhelming support.
  There are many Senators from both parties who had a hand in crafting 
this legislation. Today, I wish to express my personal thanks to some 
of my colleagues.
  My good friend from Arizona, Senator McCain, has been a driving force 
behind this legislation. As chairman of the Aviation Subcommittee, 
Senator McCain set the lofty goal of meaningful reform of the FAA. 
Through Senator McCain's tireless efforts, this legislation puts in 
place a mechanism to ensure the FAA is on firm footing to meet our 
aviation needs well into the new century. Senator McCain's great vision 
in aviation policy can be seen throughout this conference report.
  I also want to commend my good friend from Alaska, Senator Stevens, 
who is really the unsung hero of this legislation. When we reached an 
impasse as to how best to address the question of long-term FAA 
financing reform, it was Senator Stevens' thoughtful suggestion of an 
independent task force study that broke the deadlock. Those who have 
watched the debate on this conference report over the past week have 
seen firsthand Senator Stevens' passion for aviation safety and 
improving the treatment of families of aviation disaster victims.
  Let me also commend and thank my good friend from South Carolina, the 
ranking member of the Commerce Committee, Senator Hollings, who 
provided important leadership on this conference report. Also, let me 
acknowledge the leadership of Senator Ford, the ranking member of the 
Aviation Subcommittee.
  H.R. 3539 is a bipartisan, omnibus aviation safety and security bill. 
It reauthorizes the airport improvement program [AIP] and thereby 
ensures airports across the Nation will continue to receive Federal 
funding for safety-related repairs and other improvements. It reforms 
the FAA in a way which hopefully will reduce bureaucracy, increase 
responsiveness, and enhance the efficiency of that agency. The 
conference report also contains numerous provisions which will improve 
aviation safety, enhance aviation security and provide long overdue 
assistance to the families of victims of aviation disasters.

  Mr. President, as I have said repeatedly in this body over the past 
few days, we have a responsibility to the American traveling public to 
pass this legislation before we adjourn. For instance, this legislation 
provides statutory authority to deploy explosive detection devices at 
our Nation's airports as recommended by the White House Commission on 
Aviation Safety and Security on which I serve. Even though yesterday 
the Congress approved funding to purchase these explosive detection 
devices, without passage of this conference report the Federal 
Government will not have statutory authority to deploy them. Such a 
scenario is completely unacceptable. The American public expects the 
level of security at our airports to be improved immediately. We must 
respond before the Senate adjourns.
  Mr. President, I wish to speak for a few minutes about what this 
legislation means to my home State of South Dakota. In South Dakota, 
air service is critical to economic development. For example, the 
decision whether to open a new factory in a small city or where to 
locate a new business often turns on the availability of good air 
service. That was never more evident to me than when a company recently 
visited Rapid City, SD to consider relocating there. This move would 
create more than 100 new jobs. One of the very first questions they 
asked my staff concerned air service between Rapid City and a major hub 
airport. In South Dakota, air service and economic development go hand 
in hand.
  Mr. President, this legislation is a great air service victory for 
South Dakota.
  First, the legislation doubles the size of the Essential Air Service 
[EAS] program to $50 million. What does that mean? It means the cities 
of Brookings, Mitchell, and Yankton in my State will be ensured of a 
continued air service link to our national air service network. In 
addition to helping to protect existing EAS service in Brookings, 
Mitchell, and Yankton, I am hopeful that a $50 million EAS program will 
result in increased air service for these cities. A $50 million EAS 
Program is great news for the economy of South Dakota.

  Second, the legislation ensures small airports such as those in South 
Dakota finally receive their full and fair share of AIP entitlement 
funds. Adequately maintained airports are critical to air service. They 
also are critical to air safety. Under the new AIP formula I helped 
develop in this conference report, South Dakota airports are big 
winners. For instance, AIP entitlement funds will increase at least 
$225,000 annually for the Sioux Falls Regional Airport, $170,000 for 
the Rapid City Airport, and $100,000 each for the Aberdeen, Regional 
Airport and the Pierre Regional Airport. Hopefully, improved airport 
facilities resulting from this formula adjustment will help stimulate 
increased air service in Sioux Falls, Rapid City, Aberdeen and Pierre. 
Again, such a result would be great news for economic development in 
those cities and our State. The new formula ensures they receive their 
fair share of Federal dollars.
  Mr. President, this conference report should have passed the Senate 
last week. Regrettably, a few Senators have been using procedural 
maneuvers to hold up this vitally important aviation safety and 
security legislation over one provision they find objectionable. During 
debate, I have listened to those Senators mischaracterize this 
provision as some type of conspiracy by the Republican leadership. That 
baseless assertion could not be further from the truth. As the 
distinguished ranking member of the Commerce Committee, Senator 
Hollings forcefully pointed out during yesterday's debate, the 
provision in dispute is a provision that Senator Hollings, a senior 
Democratic Member of this body, offered. Moreover, there is nothing 
partisan about the Hollings amendment. In fact, it was supported by all 
five Senate conferees including Senator Hollings and Senator Ford, two 
of the most respected Democratic Members of this body.
  Yesterday during debate on the Hollings amendment, I heard several 
Members of the group blocking this legislation make blanket statements 
that the Hollings amendment is not truly a technical correction. With 
all due respect to those Members, I authored the ICC Termination Act. I 
know what we intended to do in that legislation. Therefore, I can 
unequivocally say they are dead wrong. In the ICC legislation, the 
Senate never intended to strip Federal Express or any person of rights 
without the benefit of a hearing, debate or even discussion. That point 
is

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made crystal clear by section 10501 which reads ``the enactment of the 
ICC Termination Act of 1995 shall neither expand nor contract coverage 
of the employees and employers by the Railway Labor Act.''
  Mr. President, fairness dictates we correct that inadvertent error. 
That is precisely what the Hollings amendment does. It is exactly why I 
supported it in conference. It is why I continue to support it 
strongly.
  This historic piece of aviation legislation reflects the outstanding 
work Congress does when it proceeds on a bipartisan basis. We should 
meet our responsibility to the American traveling public by passing it 
as soon as possible. Lets get the job done for the American public. I 
urge that the Senate immediately pass the conference report to 
accompany H.R. 3539.
  Mrs. HUTCHISON. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. Time yielded to the Senator from Arizona has 
expired. The clerk will call the roll and charge the time against the 
time remaining.
  The bill clerk proceeded to call the roll.
  Mr. GORTON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GORTON. Mr. President, I ask unanimous consent to speak for 5 
minutes or less as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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