[Congressional Record Volume 142, Number 140 (Wednesday, October 2, 1996)]
[Senate]
[Pages S12166-S12177]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   FEDERAL AVIATION ADMINISTRATION--REAUTHORIZATION CONFERENCE REPORT

  The PRESIDING OFFICER (Mrs. Hutchison). Under the previous order, the 
Senate will now resume consideration of the conference report 
accompanying H.R. 3539, which the clerk will report.
  The assistant legislative clerk read as follows:

       Conference report to accompany H.R. 3539, an act to amend 
     title 49, United States Code, to reauthorize programs for the 
     Federal Aviation Administration, and for other purposes.

  The Senate resumed consideration of the conference report.
  The PRESIDING OFFICER. Under the previous order, there shall be 3 
hours for debate on the conference report, with the time to be equally 
divided between the two leaders.
  Mr. STEVENS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Madam President, the Senate now is going to continue its 
work on the Federal Aviation Administration reauthorization bill.


                    TRIBUTE TO ADMINISTRATOR HINSON

  As we start that, I want to take a moment to pay tribute to that 
Agency's leader, David Hinson.
  As many Members of the Senate know, Administrator Hinson will be 
leaving his post later this year, and he will return with his wife, 
Ursula, to their home in Idaho.
  I just called him Administrator Hinson. That is tough for me to say 
because over the last years, those of us who have worked with him 
always called him David. He is a very approachable guy and one who we 
understand. He comes from the West. In my State, where aviation is very 
critical and more than 75 percent of our communities can be reached 
only by air, David has become well known. He has been to Alaska several 
times. He had to cancel a recent visit with our air carriers because of 
the tragedy of TWA Flight 800.
  But he is continuing to work on solutions to our problems, 
particularly the problems that we are experiencing at the Juneau 
International Airport. Two critical departures have been revoked, and 
David is working with safety personnel to try to find a way to make 
those departures safe for travelers in and out of our capital city.
  As Administrator, Mr. Hinson has set the FAA on a good course, 
working with a very competent assistant and associate administrator, 
Linda Daschle. He has been able to urge Congress to address the FAA's 
future funding needs, and he has worked to improve commuter airline 
safety and,

[[Page S12167]]

with the help of Congress, has streamlined procurement rules within the 
FAA.
  He is someone I have found very interesting, because in his younger 
years, he flew in and out of my State as a commercial airline pilot.
  He was flying for the old Pacific Northern Airlines. He knows what it 
means to be involved in commercial aviation. He knows the people who do 
the flying. I think that is the most important thing.
  The FAA people have a tough job. When a plane crashes, we are all 
inclined to look for someone to blame. Often the finger pointing begins 
with the FAA itself. But the FAA's record of ensuring safety for us in 
our skies is unparalleled by any nation in the world. We move in an 
enormous number of planes and passengers every day, every week, every 
month, every year.
  While no institution is perfect, and it is very difficult for any 
administrator to really get much of a hold on an entity that has such a 
long tradition as the FAA, David Hinson has worked with his team to 
really promote improvements to safety.
  I am one Senator who has urged Administrator Hinson to stay on. But 
he has had a call that I think very few people can resist and that is 
from his grandchildren, I understand, and his wife and children. It is 
unfortunate that we are going to lose David Hinson as the Administrator 
of the FAA.
  Madam President, he is honest, straightforward, clear thinking, and 
he deserves the thanks of the American people for what he has done.
  The FAA, under his leadership, has brought about a great many 
innovations. One to me as a pilot that I find most interesting is the 
approach that has been given by the FAA during this period to utilizing 
new technology. He has moved forward through the terminal Doppler radar 
weather and Air Force surface detection equipment and brought us into 
the 21st century with a whole series of new innovations.
  But above all, one of the things that has probably been the most 
startling has been the FAA's augmentation of the GPS system to enhance 
navigation signals throughout the United States.
  The FAA's approach will allow the airlines to use GPS for precision 
approaches to airports even in bad weather when vision is severely 
limited by smog and bad conditions. They did the initial design and 
procurement work on the accelerated timetable, cutting at least a year 
off the delivery schedule. Early deployment of this system late in this 
decade will save airlines hundreds of millions of dollars annually due 
to more precise routings and fuel savings and increased airport 
efficiency.
  I myself took a trip just recently with the GPS on a very small 
plane, and by virtue of using the GPS, together with our navigation 
system, we saved fuel, we saved time, and above all, we flew a safer 
route.
  I think that the country ought to really realize what has happened in 
this period when David Hinson, a man with a background in aviation, has 
been the Administrator. He has brought us a new FAA, an FAA that is not 
afraid of competitiveness in the industry, who wants and understands 
growth in the industry, and it has been a period of time when even 
general aviation has expanded and the costs to general aviation have 
decreased.
  It is now, I think, a challenge for whoever takes his place to find a 
way to really ensure that there will be a continued place for general 
aviation in our aviation programs in the United States. Some people 
want to sort of squeeze out the private jets, the private aircraft, the 
small planes and believe that they are inefficient and cause difficulty 
within the system.
  That is not true, Madam President. There is room in our Nation's 
airline and airways system for every type of plane. I do believe that 
we will improve on what Administrator David Hinson has done to ensure 
that we have not only the best and the most active, but we have the 
safest transportation system in the world.
  I do very seriously commend him for his actions. I wish him well. He 
has had a very great impact on the bill that is before us, Madam 
President, and has continually visited all of us to assure that we try 
to put aside differences that we might have and get this bill passed.
  This bill, Madam President, contains many vitally important aviation 
safety and security provisions. No single provision is more important 
than title VII, which provides long overdue assistance to the families 
of victims of aviation disasters.
  This provision absolutely must be adopted. It is one of the 
provisions where the survivors of victims of various aircrafts came to 
those of us on the Commerce Committee and urged us to have a hearing. 
We did have a hearing. We readily discovered that the families of 
victims of past air crashes have suffered a great deal.
  The most recent tragedies, of course, involved ValuJet's flight 592, 
TWA's flight 800. Those brought forward the issue of the treatment of 
victims' families in the wake of aviation accidents. More and more of 
these accidents involve larger and larger jets, more people and more 
difficult circumstances.
  As I said last week at the Commerce Committee hearing on the 
treatment of victims' families--I was pleased to be there with the 
distinguished Senator from South Dakota, Senator Pressler; the hearing 
was held at his request. He urged many of us to come and listen to 
these people.
  We heard from family members who have lost loved ones in five 
aviation disasters. These witnesses eloquently shared their harrowing 
experiences. Each witness urged us the same thing, Madam President. 
That is my point for speaking about this. They urged that we include 
House bill 3923, the Aviation Disaster Family Assistance Act of 1996, 
in the reauthorization conference report.
  After several hours of hearing, the FAA reauthorization conferees met 
and unanimously agreed to include H.R. 3923 in the compromise 
reauthorization bill as the families have requested.
  This provision will improve the notification of families, protect the 
privacies of grieving families, improve the overall treatment of family 
members, and ensure family members have better access to accident-
related information.
  The family assistance title of this FAA bill, which is being blocked 
here now temporarily--I hope just temporarily--will require the 
National Transportation Safety Board to designate an NTSB, one of their 
own Board employees, as the family advocate for each commercial 
aviation disaster--they will designate an independent organization, 
such as the Red Cross, to coordinate care and support of the families--
and to coordinate the recovery and identification of accident victims, 
to brief families before press briefings, and to--let me emphasize 
that--to brief the families before they brief the press. All of them 
said they have a right to know before they hear it on the television or 
over the radio or read in a newspaper what has happened.
  This is one of the key provisions of this bill. It is one of the 
reasons the bill must be passed this year. We cannot wait until next 
year for that basic change. It tells people involved, in assembling 
information about these disasters, to brief the families involved first 
and inform the families of public hearings on the accident and allow 
those families to attend any public hearings.

  The family advocate created by this legislation will assist grieving 
families by acting as the point of contact within the Federal 
Government for the families, acting as liaison between the families and 
the airlines and obtaining passenger manifests and providing manifest 
information to families who have requested it.
  Madam President, I spoke to members of the airline industry. They 
welcome this concept. They welcome having someone who is known to be 
the person in charge of information for family information.
  This family assistance provision in this legislation will also 
require the National Transportation Safety Board to designate an 
agency, such as the Red Cross, to assist grieving families, as I said. 
That agency would coordinate the care and support of families, meet 
with families who come to the scene and contact other families who 
cannot, provide counseling for the families, ensure privacy of the 
families from anyone, whether it is media or lawyers, whomever it might 
be, communicate with families about the role of Government and the 
agencies and

[[Page S12168]]

airlines involved, and arrange for suitable memorial services when 
possible, obtain the passenger list, and use it to provide information 
to the families, and use the airlines' resources and personnel to the 
extent practical.

  Now, this family assistance provision, Madam President, would require 
airlines to take a number of steps to compassionately work with 
families of aviation tragedies. Airlines would be required to publicize 
a reliable toll-free number and provide staff to handle calls from 
families, to notify families as soon as possible of the fate of their 
loved ones, in person if practical, using suitably trained individuals 
to give out that information, provide the passenger list to the NTSB 
family advocate and to the Red Cross immediately. Even if the names on 
the list have not been verified, they must start immediately working 
with the NTSB and the Red Cross.
  Further, they must consult with families before disposing of the 
remains and personal effects of the passengers, and return the 
passengers' possessions to the family, retaining all unclaimed 
possessions for 2 years. In other words, they must keep them 2 years in 
order that family members who may finally get information about their 
loved one could reclaim possession for up to 2 years.
  They must consult with the families about any monument for the 
accident and treat the families of nonrevenue passengers and victims on 
the ground the same as any other people involved. Finally, they are 
directed to work with the Red Cross to improve the treatment of 
families.
  Madam President, these compassionate and comprehensive measures to 
assist families of aviation disaster victims are now in this bill. If 
the bill is changed in any way, and fails, it will be at least another 
year before we get back to this point. The pleas of families who very 
much want to ensure that families of victims of future aviation 
disasters are treated better than they were will be ignored if this 
bill is not approved at this session.
  I think it is absolutely necessary for us to approve this conference 
report.
  Madam President, I ask unanimous consent to have printed in the 
Record excerpts of statements and testimony of victims and their 
families that really moved the committee.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           Committee on Commerce, Science, and Transportation


   testimony of richard p. kessler, jr., husband of kathleen parker 
               kessler, a passenger on valujet flight 592

       My name is Richard P. Kessler, Jr., a citizen of the United 
     States and the husband of Kathleen Parker Kessler, a 
     passenger on ValuJet Flight 592, who was killed on May 11, 
     1996, when Flight 592 crashed into the Everglades near Miami. 
     I am also a practicing attorney in Atlanta. As I stated, I am 
     a citizen of the United States, but the laws of the United 
     States did not protect me, my daughter or the families of the 
     other passenger victims.
       It has been over four months since the crash, it doesn't 
     seem that long. During the first two months following the 
     crash, I witnessed the best and the worst of human behavior. 
     The best of human behavior was demonstrated by the people of 
     Miami; the federal, state and city agencies who assisted the 
     families of the victims and conducted the search for the 
     remains of the victims; the volunteers; the counselors; and 
     especially one volunteer, Victoria Cummock, a victim's 
     advocate and President of Families of PAN-AM 103 Lockerbie. 
     The worst of human behavior was demonstrated by members of 
     the press, the electronic media, and the members of my legal 
     profession.

                           *   *   *   *   *

       I urge the Senate to introduce and pass a Bill exactly like 
     HR 3932 that has passed the House and attach amendments that 
     provide for pilot vision equipment, passenger smoke 
     protection and smoke detectors and fire extinguishers. I am 
     told that pilot vision cost per ticket is less than one cent; 
     passenger smoke protection is less than five cents per ticket 
     and penny or two for smoke detectors. Given this cost which 
     is recouped from the flying public, how can ValuJet or any 
     other airline be allowed to fly citizens of the United States 
     without outfitting their planes with such equipment that is 
     available in the marketplace?
       I am dedicating the next two years of my life to help bring 
     about better treatment of families of victims and the change 
     of the paradigm that is used in these personal injury 
     disasters. My wife died on Flight 592, but she is in Heaven, 
     I know, because she had God give me two signs that were 
     witnessed by other people. As a trial lawyer she would want 
     the paradigm that we now employ in these disasters to be 
     changed to protect the interests of all parties.
       I do not want the families of the victims of the next 
     airline crash to endure the emotional rape that we had to 
     endure following the crash of Flight 592. The next victim 
     could be your wife, daughter, son or parents.
                                                                    ____



             TESTIMONY OF KENDRA ST. CHARLES, OF USAIR #405

       Chairman Pressler, it is with great pleasure that I appear 
     before you and your fellow colleagues today. Hopefully, we 
     can change the way families are treated after an airline 
     disaster by enabling the NTSB to designate an independent 
     nonprofit organization (like the Red Cross with 
     professionally trained grief and disaster counselors) to give 
     care and support during this horrific time. A key provision 
     in the House Bill.
       On March 22, 1992, I was a passenger aboard USAir #405. We 
     had been delayed at New York's LaGuardia Airport as a 
     snowstorm had begun. As we sat on the runway, I looked out 
     the window watching the snow continue to fall and assured 
     myself that ``they'' would never let us attempt to take off 
     if it were not safe.
       After a thirty-five minute delay, we were finally cleared 
     for take off. Moments after we were in the air, the plane 
     went violently out of control, cart wheeling down the runway 
     crashing upside down with part of it in Flushing Bay. I 
     survived the impact and subsequent explosion, I survived 
     being projected through a fireball and landing in Flushing 
     Bay. I survived nearly drowning, as my seat belt held me 
     under the water. I unbuckled it and was able to wade through 
     the fiery waters, not unlike the scene from TWA 800, to make 
     my way to shore. I was one of the lucky ones. I had survived 
     a living hell, but it did not prepare me for the treatment I 
     was about to experience from the airline and insurance 
     company.
       Unconscious and barely clothed (my clothes had been ripped 
     off during impact) I was taken to a hospital with no means of 
     identification. As I was fighting for my life, my sixteen 
     year old daughter was at home watching television waiting for 
     me to return home. Suddenly the Sunday night movie was 
     interrupted by a report of an airplane crash. Her worst fear 
     was about to come true. She immediately called the 800 number 
     that was flashed on the screen. It was busy. All alone she 
     sat motionless in disbelief watching the media coverage of 
     the crash she feared I was on. Rescue workers were shown 
     pulling body bags from the wreckage. Still she was not able 
     to get through to receive any kind of information. As my 
     family arrived at my home to support my daughter, they too 
     met with the frustration of not being able to receive any 
     confirmation by either the 800 number or USAir directly. 
     Finally, out of desperation, my brother drove to the 
     airport in a blizzard to confirm that I was aboard the 
     doomed flight.
       In the hospital the doctors were unsure if I would live. I 
     was hooked up to a respirator that forced oxygen into my 
     punctured and burnt lungs for three days. I spent three weeks 
     in the burn unit until I able to return home. During my 
     hospital stay the person that I was to rely on for assistance 
     and to help coordinate my needs as well as my family's needs 
     was an untrained USAir ticket agent whose main concern was to 
     find any pre-existing conditions that I might have for the 
     purpose of future litigation. To expect that the same people 
     who had almost killed me were now going to be my caretakers 
     was very confusing. Not only were they not trained for any 
     kind of crisis intervention, but there was a direct conflict 
     of interest. They were more interested in what kind of 
     disability insurance I might have--to know how long I could 
     afford to live without an income. In other words, how 
     desperate I was to settle any damage claim.
       My physical and emotional recovery continued for several 
     years. During that time I was under the care of doctors and 
     physical therapists whose services were to be paid for by the 
     insurance carrier. Several months would pass without any kind 
     of payment. Clearly the airline was attempting to put 
     pressure on me in any way that they could. I soon realized 
     that once the media stopped filming the ``sympathetic airline 
     officials'' that they were actually more like a brand of 
     angry pit bulls waiting to attack the victim for a second 
     time.
       Unfortunately, I have witnessed this same inhumane 
     treatment of families by the airline in other aviation 
     disasters. USAir 427-American Eagle 4184-Valu Jet 59--and now 
     TWA 800. The need for change is long overdue. There will be 
     another snowstorm. There will be another delay--whether it be 
     at LaGuardia or another airport. Regretfully, there will be 
     another crash. I implore you to act now before another family 
     suffers the horror that mine did. Our children deserve 
     better, we the people deserve better.
       Thank you for your consideration.
                                                                    ____



   testimony of victoria cummock, president, families of pan am 103/
                               lockerbie

       My name is Victoria Cummock. Today, I have come to present 
     testimony as the widow of John Cummock, a 38 yr. old 
     passenger who died along with 269 people, during the 
     terrorist bombing of Pan Am 103 over Lockerbie, Scotland. I 
     have also come here to present testimony as President of 
     Families of Pan Am 103/Lockerbie and as ``a long time 
     observer'' and victims advocate having been involved in 
     disaster response work over the past 8 years and most 
     recently with the families of TWA 800, Valujet 592 and the

[[Page S12169]]

     Oklahoma City bombing. Although, I am a Commissioner on the 
     White House Commission on Aviation Safety & Security, which 
     was formed on July 25 by President Clinton and is Chaired by 
     Vice President Gore, please note that my testimony here today 
     does not reflect the views of the White House Commission.

                           *   *   *   *   *

       Over the past year the House Aviation Sub-Committee has 
     worked very closely with families of numerous air disasters. 
     After holding various hearings, legislation was drafted to 
     specifically address these issues. HR 3923 embodies what air 
     disaster victims families have cried out for, time and time 
     again . . . for years. It provides families of air disaster 
     victims, the same quality of professional disaster care, 
     currently given to all Americans during all other types of 
     disasters, whether natural or man made. This legislation 
     expands the role of the NTSB by placing the NTSB in the lead 
     coordinating role, to manage all aspects air-disaster 
     response and victims' family care.
       HR 3923 enables the NTSB to designate an independent 
     nonprofit disaster organization (like the Red Cross, with 
     certified grief counselors and disaster professionals to care 
     for the families). This will insure humane and uniform 
     treatment, by providing a professional disaster response thus 
     avoiding future mis-handling, conflicts of interest or abuse 
     of authority by airlines. We strongly support this change and 
     respectfully ask the Senate to adopt the House language and 
     pass this legislation on to the President desk to sign. More 
     planes will go down for different reasons. Let's not wait for 
     another disaster before we implement this change.

                           *   *   *   *   *

                                                                    ____



               statement of dario j. cremades, flight 800

       Good morning Mr. Chairman and Members of the Committee. I 
     wish to thank you for allowing me to present my views on S.R. 
     253 and H.R. 3923, the Aviation Disaster Family Assistance 
     Act of 1996. Although the testimony I am presenting are my 
     personal views, they are shared by many other families of 
     victims of flight 800.
       In spite of all the ink that has flown since TWA flight 800 
     exploded and fell into the Atlantic, these are things that 
     have remained unsaid and which deserve to be told. Because 
     the wounds that this disaster has left in its victims will 
     only heal if adequate measures are taken to prevent it from 
     ever happening again.
       Our story really started on the eve of July 17th, 1996 
     when, after having supper, we sat to watch television in our 
     apartment's living room in Manhattan. The scheduled programs 
     were interrupted by news briefs, informing us that an 
     accident had occurred at about 8 pm, off the coast of Long 
     Island shortly after the plane departed from JFK. Our mood 
     was somber and concerned about the tragedy, keeping in the 
     back of our minds the departure of our nephew Daniel, 15 
     years of age, bound for Paris that same evening.

                           *   *   *   *   *

       In light of the prior statement, our family feels H.R. 3923 
     and S.R. 253 combined and expanded reflect the needs of the 
     families of TWA flight 800 and tries to correct some of the 
     issues presented in this testimony and we support its 
     implementation into law. But we also propose the following 
     specific recommendations to consider.
                                                                    ____



            hans ephraimson, families of korean airlines 007

       Mr. Chairman: Your initiative to hold a Hearing on air 
     crash passenger issues at short notice is welcomed. We thank 
     your Committee and its hard working staff.
       We endorse H.R. 3923 as passed by the House of 
     Representatives and regret not to have had the opportunity to 
     participate in the legislation contemplated by the Senate, 
     hoping that the issues, that have to be urgently addressed in 
     the wake of the TWA 800 tragedy be incorporated in the 
     forthcoming legislation.

  Mr. STEVENS. For instance, Kendra St. Charles, who was a passenger 
aboard the USAir flight 405 appeared before us, just an incredible 
statement concerning her personal survival from that crash. She was 
taken unconscious and barely clothed to a hospital, and had no means of 
identification. She found her 16-year-old daughter was at home watching 
television and had the Sunday night movie interrupted with a report of 
the airplane crash. When she called the 800 number that flashed on the 
screen, she had no way to find out what was going on.
  She said, ``Hopefully, we can change the way families are treated 
after an airline disaster by enabling the NTSB to designate an 
independent nonprofit organization--like the Red Cross, with 
professionally trained grief and disaster counselors--to give care and 
support during this horrific time.''
  I commend to all the testimony of Kendra St. Charles.
  We heard from Victoria Cummock, a dedicated woman whose husband was a 
survivor of the Pan Am 103 Lockerbie disaster. She has been responsible 
for working with various people throughout the country to try and urge 
a different way of dealing with the survivors of victims of air 
disasters. She specifically came to our committee and urged we look at 
H.R. 3923. She said, this ``embodies what air disaster victims have 
cried out for time and time again * * * for years. It provides families 
of air disaster victims the same quality of professional disaster care 
currently given to all Americans during other types of disasters, 
whether natural or manmade.''
  She made a great impression on me. We should all thank her for the 
work she has done to bring about the Coalition of Families of Aircraft 
Disasters.
  We also heard from Richard Kessler, Jr., who was the husband of 
Kathleen Parker Kessler who was a passenger on ValuJet flight 592. He 
came to us on the Commerce Committee and made this statement:

       I urge the Senate to introduce and pass a bill exactly like 
     H.R. 3932 that has passed the House, and attach amendments 
     that provide for pilot vision equipment, passenger smoke 
     protection and smoke detectors, and fire extinguishers.

  We did not have the time to do that because of the situation that 
existed at the end of Congress, but we have adopted that bill, H.R. 
3932, as an amendment to this conference report. It is in this bill.
  We also heard from Dario Cremades. He appeared with regard to the 
treatment of families of aviation disaster victims. He particularly 
referred to the TWA flight 800. He had some very difficult problems. I 
commend his statement, likewise. He said:

       In light of the prior statements, our family feels H.R. 
     3923 combined and expanded reflects the needs of families of 
     TWA Flight 800 and tries to correct some of the issues 
     presented in his testimony.

  He urged us to support that House bill.
  Lastly, Hans Ephraimson-Abt is one of the members of the families of 
the Korean Airline 007 disaster, an aircraft that took off from my home 
city, and we all know was shot down as it went westward from Alaska. He 
told us that his group supported the passage of House bill 3923, and he 
very much wanted to have us enact as quickly as possible that and other 
matters. The other matters, unfortunately, will have to wait until next 
year.
  The point, Madam President, is that this bill contains the whole bill 
H.R. 3923, which is very much sought by all of those who have come 
before the Congress who represent families of those who have already 
suffered so much as a result of airline disasters. I think it would be 
a travesty if we have to go back and start all over next year and have 
it be more than a year before we get this legislation passed. Aviation 
welcomes it, the Red Cross welcomes it, the people who have been 
involved in these instances in the past welcome this legislation, and 
it is absolutely a must that we pass this bill this week without 
amendment and get it to the President.
  I yield the floor.
  Mr. FEINGOLD. Madam President, I thank the Senator from Massachusetts 
for his tremendous leadership on the issue before the Senate today, and 
of course for his leadership on all issues relating to working people.
  I come to the floor today to speak about the issue that is holding up 
the passage of the FAA reauthorization bill. As the Senator from Alaska 
was just indicating, that is the problem we have, the bill is held up 
and it does need to go forward. The problem that some of us have is 
with the item that has been added to the conference report. What I am 
talking about is an effort to give special treatment to one company--
the Federal Express Co.--by subverting standard labor law requirements 
in order for this company to be able to avoid unionization.
  Maybe this is just part of a larger agenda. I think it is part of a 
larger agenda, symbolized by aspects of the Contract With America, 
which represented an assault on the working people of this country. In 
a sense, this is one more kick from that contract at working people.
  Like all of my colleagues and all of us on this side of the issue 
have said, we understand the importance of reauthorizing the FAA. No 
one, absolutely no one, wants to jeopardize in any way the safety of 
our Nation's air travelers and personnel. I, like all of my colleagues, 
supported this critical bill when the Senate passed it earlier this 
year. But as we have heard repeatedly now, the bill that passed the 
Senate did

[[Page S12170]]

not contain --did not contain--the controversial antiunion provision 
that has now been inserted into the conference report.
  The other side of this debate has conveniently mentioned over and 
over again the unanimous vote in the Senate, but has also conveniently 
failed to mention the fact that this controversial provision was not 
part of the bill when that unanimous consent vote was held in the 
Senate. Also, Madam President, this provision was nowhere to be found 
in the House version of the bill, either. So it truly has no place in 
the conference report that is before the Senate today.
  Now, I realize, having been here for nearly 4 years now, that 
inserting material into a conference report which has not been 
considered by either body has become almost commonplace in the 
Congress.
  Madam President, that doesn't make it right, and it doesn't make it 
the right place for the sponsors of the Contract With America to 
administer one more blow to the working people of this country.
  Mr. KENNEDY. Will the Senator yield on that point?
  Mr. FEINGOLD. I yield to the Senator from Massachusetts.
  Mr. KENNEDY. As a matter of fact, the House Parliamentarian said it 
was outside the scope of the conference, and it was the only item that 
required an independent vote in the House of Representatives, other 
than the conference report, just to point out the validity of the 
Senator's statement. The Parliamentarian, who does not have a special 
interest in this particular matter, who neither favors it being in or 
out, but who is just ruling on the basis of an objective standard, said 
this is outside of the conference and, therefore, it is the only item 
beyond the conference report to require a special vote.
  I just wanted to ask the Senator, does that not help sustain the 
point he is making that this particular item was nowhere, either in the 
House or Senate bill, and just came at the very last moment?
  Mr. FEINGOLD. I thank the Senator from Massachusetts. It does that 
and more, because it ties in with other facts that the other side can't 
deny. Not only was this item treated in the way the Senator indicated, 
not only was it not part of the Senate bill, or the House bill, but we 
have also had analysis by the CRS, an independent agency that we rely 
on, saying that the deletion of the term ``express carrier'' in the ICC 
Termination Act of 1995 does not appear to be a technical error. I will 
say more about that in a moment.
  These are the slender reeds that the other side are resting on--that 
everybody voted for this bill originally, even though this provision 
was not in it, and it was somehow a technical error. This is not much 
to rely on. When you have a special interest provision of this 
magnitude, maybe that is what you do.
  Madam President, this provision would help Federal Express resist the 
efforts of its workers to unionize. That is the purpose of it, whether 
you call it technical, or whether you call it a drafting error. The 
fact is that the purpose of it is to stop possible unionization. It has 
already been rejected by the Senate Appropriations Committee. Let me 
repeat, the Appropriations Committee rejected the amendment. Yet, 
somehow it reappeared on the table during the bill's conference, and it 
was inserted into the conference report, where proponents felt it was 
well protected from attack. I want to repeat that phrase: Where it was 
well protected from attack.
  Again, I have been here almost 4 years. I know about the idea of 
trying to put the stuff that you want through on what is called a must-
pass bill. People back home are catching on to it, too. I watched it 
when we had the legislation to help out the folks in California after 
the earthquake. That wasn't one of the bills we weren't sure was going 
to become a law. We knew we had to help the people in California. So 
money was tacked on for Pennsylvania Station, the space station, and so 
on. It is a vehicle you use to try to avoid having items have to stand 
on their own weight in front of the Congress. When this item was placed 
before separate votes in the Congress, it didn't make it. So the 
American people are catching on to this kind of abuse of the 
legislative process.
  Madam President, this is another similar vehicle, another must-pass 
bill. It wasn't chosen by chance. You will notice that a separate bill 
to correct this so-called technical error wasn't going anywhere. No 
chance. Proponents put it on the FAA authorization bill and said, ``We 
are sorry it was snuck in there, but we have to pass the bill.'' That 
is the game. It is an insider game. But people are catching on.
  This one was just a little too much, and to have it thrown on such a 
very, very important bill for our airports across the country seems 
like just a bit too much to me. Some may say, well, as of January, we 
have a line-item veto. The President can line out something like this. 
Of course, the new line-item veto authority does not extend to this 
kind of provision, but though I have never advocated extending the 
line-item veto authority beyond removing excess spending items, if the 
President had a broader authority, this is certainly one situation 
where it would be a good policy to take this piece of special interest 
legislation out of this bill.

  So the practice will continue, unless we here and people across the 
country say, wait a minute, we don't want laws made this way. We don't 
want one company to be able to push its weight around and shove this 
provision into a bill and say it absolutely has to pass, regardless of 
the merits of the provision, because otherwise we won't be able to help 
our airports.
  Madam President, this is one of the most clear examples of special 
interest treatment I have ever seen. You know it, and I know it, and 
every Member of this body knows it. It's offensive and it doesn't 
belong on this bill. To accuse Members of the Senate of not caring 
about airport safety and the welfare of air passengers just because we 
object to this subversion of the rules is just disingenuous. We know 
what is going on here, and nobody can say this particular provision has 
anything at all to do with airline safety.
  Supporters of the provision claim that it is simply a technical 
correction, to correct the accidental deletion of the term ``express 
carrier'' from the Railway Labor Act, which was amended in the 
Interstate Commerce Termination Act of 1995--a technical error. My 
colleagues, does this look technical to you? Does all the controversy 
and anger on this issue look technical to you? It is not technical. The 
term was intentionally removed by the Congress last year, and has now 
been intentionally inserted into the FAA conference report by the 
Members of the conference committee. In fact, researchers in the 
bipartisan American Law Division of the Congressional Research Service 
say that the deletion of that term ``express company'' 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. Moreover, it appears unlikely that Federal Express would 
constitute an express company, as that term is used in the proposed 
amendment.
  That is the CRS analysis, Madam President, not a labor union. CRS is 
the Congress' own nonpartisan research service. Although the report and 
its author have been maligned here on the floor, I think those 
accusations have been unfair. We all rely on CRS for unbiased analyses 
of the facts. They say that this provision does not merely make a 
technical correction. It is a significant, substantive change. If there 
is one thing it is not, it is technical. This is a significant policy 
change, Madam President. It does not belong on this bill.
  Moreover, it is interesting to note that Linda Morgan, Chair of the 
Surface Transportation Board, formerly the ICC, confirmed CRS's opinion 
that Federal Express would not qualify as an express carrier. In a 
recent letter to Congressman James Oberstar, Ms. Morgan stated that 
when the term ``express carrier'' was in use, the ICC considered 
Federal Express to be a motor carrier, not an express carrier, as the 
company claims it was and would like to be considered in the future.
  Let me just read briefly from that letter:

       The ICC considered FedEx to be a motor carrier.

  She continued later:

       In a decision in 1934, the ICC concluded that express 
     company operations wholly by

[[Page S12171]]

     rail, or partly by rail and partly by water, were subject to 
     ICC regulation, but that an express company's motor carrier 
     operations were not.

  So this is a special interest provision, designed to protect the 
interest of one company. Now, we see these kinds of provisions often in 
tax bills, where one single company is given a tax preference like a 
special depreciation break or a tax credit. This provision, however, in 
my mind, is way out in front of the pack in terms of special interest 
benefits.
  This provision, I want to reiterate, is designed exclusively for this 
single company, Federal Express, to allow it to impose special barriers 
to block unionization efforts among employees who transport cargo by 
truck. Other motor carriers, including FedEx's major competitor, UPS, 
are, in contrast, subject to the National Labor Relations Act and 
organize at specific localities. If FedEx truckers in Pennsylvania want 
to form a union, they should have that right, under the NLRA. But if 
this provision goes through, FedEx truck drivers across the Nation 
would all have to agree to a single nationwide bargaining unit or 
forfeit the right to organize. They would have to forfeit the right to 
organize. It is an awfully big hurdle. It is a hurdle intended to 
prevent unionization. That is not what the NRLA provides for millions 
of workers across the Nation. But under this provision FedEx would have 
the more stringent rules of the National Railway Labor Act applied to 
its truck drivers.

  Supporters of the FedEx provision also claim that if we do not pass 
this bill this week, without amendment, that the safety of air travel 
will be significantly threatened. Again, this is a kind of blackmail 
attempt to stick a special interest provision in a bill and say that it 
can't be removed without jeopardizing the underlying vital legislation 
and then shift the burden to those who want to get the special interest 
provision out.
  It is a good trick. But we are here today to say that it is unfair 
and that we have been willing and will continue to be willing to come 
out here on the floor of the Senate to indicate that it is not 
justified.
  Let me just refer to a similar occurrence not too long ago on another 
item for which the distinguished Senator from Massachusetts was taking 
the lead on a bipartisan basis with the Senator from Kansas to try to 
get some semblance of health care reform in this country. Another 
provision like this got stuck in the Kennedy-Kassebaum bill. It was not 
until Members of the Senate objected loudly, strenuously, and publicly 
to that special interest provision that the proponents, with some 
embarrassment, suddenly agreed to have it dropped through a correcting 
resolution. That is what should happen right here. It should happen 
right now. This provision should be dropped so that we can get the FAA 
bill passed and signed into law in the next few hours.
  Let me stress once again--because this is the whole heart of the 
opposition's argument--that they want to pretend inaccurately and 
unfairly that we oppose the underlying bill. We do not oppose the 
underlying bill. I would like to see the FAA be reauthorized before 
this Congress adjourns.
  My colleagues, the Senators from Massachusetts and Illinois, have a 
bill ready--it is at the desk--that I support wholeheartedly. That is 
the bill we should be considering. It is the conference version of the 
FAA bill minus just this one offensive FedEx provision. But the other 
side will not agree to bring up that bill. It is they, not we, who are 
holding up the reauthorization of these important aviation programs.
  So again, let us ask: Why is it so important to supporters of this 
provision that it remain in the bill? How can it be so important? After 
all, they keep saying over and over and over again that this is a minor 
technical amendment. Well, then why does Federal Express care so much 
that it be considered an express carrier? The reason is clear: They 
want to avoid unionization. That is the benefit to this so-called 
technical correction. Federal Express, and my colleagues who support 
their provision, understand how much more difficult it would be for 
Federal Express' truck drivers to unionize if they have to organize all 
of their employees nationwide as opposed to being able to form local 
unions.
  In fact, Madam President, Federal Express' antiunion sentiment is, 
unfortunately, well documented. Federal Express Co. produces a manual 
called the Manager's Labor Law Book, which states that its corporate 
goal is to remain union-free. Of course, we all know that if Federal 
Express is able to maintain its union-free status, it will be easier 
for it to remain competitive with UPS. Like Federal Express, UPS' 
airline operations are covered under the Railway Labor Act. However, 
UPS' truck drivers are covered by the National Labor Relations Act, and 
they have been members of local Teamsters unions for decades.
  Interestingly, Federal Express' trucking operations expanded in 
recent years. Some of their drivers have been attempting to organize, 
but they have, not surprisingly, met resistance from the company's 
management. The issue of whether the company's trucking operation is 
most appropriately covered under the NLRA or the RLA is currently in 
litigation.

  So what is this? What is this provision today? This is a backdoor 
effort to win that dispute. This amendment has no business in this 
bill.
  Mr. KENNEDY. Will the Senator yield on that point, because I think it 
is a very, very important one; that is, as the Senator is pointing out, 
this is a matter that is in litigation at the present time. This is a 
matter that is in litigation at the present time. What we are being 
asked to do is superimpose a legislative resolution on what is 
basically a judicial determination and thereby deny the rights of 
workers to make a judgment and decision under the existing law.
  Does the Senator not agree with me that most people would understand 
that that is sort of changing the rules of the game, changing the 
goalposts in the third quarter, and that this is basically saying that 
for people who are trying to play by the rules of the game, ``Well, it 
is just too bad, you tried to play by the rules of the game, and we are 
not going to take a chance that you may reach a positive result. We are 
going to shortchange you and really stick it to you by undermining your 
legitimate interests by legislative solution''?
  Is the Senator's opposition to this also based on his belief that we 
should not, at a time when there are matters in litigation, impose a 
legislative solution that would directly affect the outcome of that 
litigation?
  Mr. FEINGOLD. Madam President, I thank the Senator from Massachusetts 
for his question.
  Let me say, first of all, that I have the great honor and pleasure of 
serving with him not only on the Senate floor but particularly on the 
Senate Judiciary Committee. For one concerned with the independence of 
our judiciary and the relationship between the Congress and judiciary, 
this is a threatening prospect. I suppose incidents like that have 
occurred in the past in this great country. When the power of one 
single company cannot only move a Congress like this to jeopardize the 
reauthorization of a bill but do it in such a specific and targeted way 
as to try to undo the process in the courts is even more frightening.
  It is not only a question for working people; it is a question for 
anyone. They should have the opportunity to go to court and have a 
matter resolved without some company being able to flex its muscles in 
the waning days of the Congress to undo their right to their day in 
court.
  So I do think that this is an extremely important aspect of my 
opposition. I am opposed to it anyway, but it seems particularly 
inflammatory when this matter is being litigated at this time, as the 
Senator from Massachusetts has indicated.
  It makes me want to just sort of add on to something that he has said 
to me earlier. This is part of a broader agenda. This isn't just an 
isolated moment where somebody decided to insert a provision to help a 
company. This is part of a broader agenda to shove back working people 
in this country so they can't get as organized as they need to be in 
order to protect themselves and their families. It is a broader agenda. 
It is a broader agenda that was very clearly articulated in that 
Contract With America about which we will have a referendum in a few 
weeks. So let us not just view it in isolation.

[[Page S12172]]

  It is inappropriate. It does not belong here. It is a special 
interest item but part of a broader agenda that is willing not only to 
push its weight around in the Congress but to also try to override the 
procedure in our courts.
  What we are faced with here today is a situation in which many 
Members of this body have worked very, very hard to craft a good bill. 
I praise all of them. I think they have succeeded. But, unfortunately, 
the conferees allowed a corporate special-interest provision to be 
attached to this good bill, and now we are being pressured to pass the 
bill and its offensive add-on quickly because the end of the fiscal 
year has come and because, as we all know, it is an election year and 
everyone wants to go back to their home States.
  But to conclude, I think we would be making a larger mistake than 
usual if we do not remove this provision.
  I urge my colleagues to support the Simon-Kennedy substitute, which 
will provide a clean FAA reauthorization. If the proponents of this 
provision would let us pass a clean bill, this measure not only could 
but I imagine would be signed within a few hours. It is the proponents 
of this special interest treatment for one big company, not the 
opponents, who, I am afraid, have subverted the legislative process.
  So let us drop this provision, let us drop it now, and let us get a 
clean FAA bill passed.
  Madam President, I yield the floor.
  Mr. DOMENICI. Madam President, I ask unanimous consent that Peter 
Folger and Jessica Korn, fellows in my office the past year, be granted 
floor privileges for the remainder of the discussion today on this 
bill.
  The PRESIDING OFFICER (Mr. Bennett). Without objection, it is so 
ordered.
  Mr. DOMENICI. I thank the Chair.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, under the crunch of time, particularly 
during yesterday, we did not get an opportunity to recognize the 
comments of the distinguished Presiding Officer. I had the distinct 
privilege of serving with Wallace Bennett, of Utah. There is certainly 
no finer gentleman, certainly no finer Senator.
  We lived in the same neighborhood and exchanged greetings over the 
weekends, and those kinds of things. I was powerfully interested, 
because I do remember the FAA bill at that particular time, as the 
distinguished Senator from Alaska recalls, when we worked on this with 
Senator Magnuson and others. This is a good bill. I acknowledge the 
contribution that the now-Senator Bennett of Utah, the Presiding 
Officer, made to that legislation in its formative days. Hopefully, 
after tomorrow's vote, we can make gains in continuing to beef up air 
service, particularly in the area of safety.
  I also did not get an opportunity to thank the distinguished Senator 
from Alaska. He and I have worked on this over the years. And I 
particularly am thankful for the leadership of the Senator from 
Arizona, John McCain. Senator McCain has been like a tiger for a couple 
of years, trying to bring some changes to the Federal Aviation 
Administration.
  I have come all the way around in my own mind to thinking in terms of 
a separate Federal Aviation Administration, a separate board, outside 
the department, because I am sure it would receive better attention and 
I am sure it would receive better performance.
  The Presiding Officer was talking about John Volpe. I remember when 
John Volpe came on as the Secretary of Transportation. He and I had 
both served as Governors together. A lot of people have been working on 
this for a long time.
  Let me get right to the point here with the distinguished Senator 
from Wisconsin, who gets really far afield talking about blackmail, 
sticking it to them, power grab and all of that. He asked, why is it 
important? It is very important to this Senator. None other than Mark 
Twain said, years ago, that the truth was such an important item, it 
should be used very sparingly.
  The truth is that we made a mistake. Why is it important? It is a 
matter of honor. I am trying my dead level best to correct the mistake. 
It was on our watch last December. I was the ranking member, and the 
facts should be stated and the truth given accurately.
  The Senator from Wisconsin said when it was voted for, the provision 
was in it--absolutely false. The language ``express company'' was in 
the Interstate Commerce Act when we voted for the termination act, and 
thereafter, the staff was writing it up and those kinds of things, they 
thought the term ``express company'' was not necessary and deleted that 
phrase. So it was a drafting error made.
  So, when they say it was dropped out and that this amendment is part 
of a broader agenda, this Senator says: part of the contract with 
America? Come on. Everybody back home would break out laughing if they 
heard. I have been talking against that contract for 4 years now. I did 
not think much of it as politics. It was all applesauce: Get rid of the 
Department of Education, the Department of Commerce, get rid of the 
Department of Energy, repeal--get rid of public television, get rid of 
the Park Service--just get rid of it all? Come on. This is not any part 
of the contract. It is part of my particular watch, and I am going to 
get it corrected. Do not give me this stuff about procedure now.
  They said, back in my law school days, if you have the law you argue 
the law as strongly as you can. If you have the facts with you, you 
argue the facts. And if you do not have the facts or the law, you beat 
on the desk, and yell about procedure. And that is what we are 
listening to. ``It was in the House bill, it was not in the Senate 
bill''--heavens above, we passed an omnibus appropriations and 
continuing resolution earlier this week with hardly a dissenting vote. 
I would think one-third of it was not in there before or had ever been 
seen or whatever else. I know the new things that were put in, we were 
glad to get them in. That is the nature of the process. Any of that, 
``sneaking around, pulling the rug out, sticking it to them, 
blackmail''--that is tommyrot and they know it. They are the ones 
trying to pull the rug out because they continually falsely report the 
situation.

  I read again the statement of the Senator from Massachusetts, talking 
about that Philadelphia case: ``Federal Express challenged the 
petition, arguing the entire company, including its truck drivers, is 
covered by the Railway Labor Act and not the Labor Relations Act, and 
therefore the bargaining unit for its truck drivers must be nationwide. 
The board has not yet decided the issue.''
  Absolutely false. The board decided the issue on November 22 of last 
year. In Re: Federal Express, 23 NMB, No. 13. And I quote what they 
decided unanimously:

       The board is of the opinion that Federal Express 
     Corporation and all its employees sought by the UAW's 
     petition are subject to the Railway Labor Act.

  But the Senator from Massachusetts says--``a man convinced against 
his will is of the same opinion still''--and I quote yesterday again, 
``The Senator from South Carolina still cannot show where Federal 
Express is an express company under the Railway Labor Act.''
  I just did. That is one of the most recent decisions. I laid it in 
the Record and enumerated some 31 decisions. Maybe we ought to ask it 
in reverse. Find me a single decision since 1973, when Federal Express 
went in business, in which it was not held to be an express company 
under the RLA. It has always been held that it is under the Railway 
Labor Act.
  Mr. President, let me move on. Right here they say you are not 
playing fair, that they are playing by the rules of the game. We are 
trying a new case here that we have not had a hearing on or anything, 
they say--it makes me go to the Record.
  They say the United Parcel Service has so many planes and trucks, 
Federal Express has so many planes and trucks, United Parcel Service 
plays by the rules and Federal Express ought to play by the rules.
  Oh, boy, that has been raised by the best of the best lawyers. There 
is not any question that the Teamsters and the United Auto Workers both 
have the best of the best lawyers.
  In the Board case: United Parcel Service, Timothy J. Gallagher and 
the International Brotherhood of Teamsters, National Committee 
intervenor, decision and order of August 25 of last year by Chairman 
Gould and members Stephens, Browning, Cohen and Truesdale, and I quote:


[[Page S12173]]


       Approximately 92 percent of the packages picked up, 
     processed and delivered by the respondent travel exclusively 
     by ground.

  Ninety-two percent; 85 percent of Federal Express travels by air, and 
that case, interestingly, appeared in an argument made by the teamster 
attorney on May 9, 1996, in the United States Circuit Court of Appeals 
for the District of Columbia Circuit. United Parcel Service petition, 
National Labor Relations Board. Mr. Muldolf, the lawyer, was answering 
a question.

       Mr. Muldolf: Well, the case now pending before the NLRB is 
     a FedEx case which has been referred back. There has not been 
     a decision there, but if you take the NLRB's decision in UPS 
     and you take the NMB's advisory opinion in Federal Express, 
     you see--and I can't tell you what the NLRB is going to do--
     these companies are like night and day. Ninety-two percent on 
     the ground, 15 percent on the ground--

  That is the language of their own lawyer. But you get the politician 
lawyers who appear on the floor of the Senate and they want to try a 
different case. I don't know if they have ever been in the courtroom 
before. This Senator has made a living at it. We are not going to let 
them get by with this bum's rush, because exactly what they accuse me 
of--inserting this language, of pulling the rug and sticking it to 
them--is exactly what they are trying. They know when they say 
``litigation pending'' that there is none. The NLRB has been sitting on 
the finding of the National Mediation Board since last November. I have 
searched the record, and in the last 50 years of 100 cases where the 
National Mediation Board has given its opinion, the NLRB has yet to 
reverse it.
  So they know it is a given. If they tried to rule otherwise, it would 
be appealed and reversed right away. So there is nothing pending. But 
what they are trying to do is come in after the rules of the game, 
after November 22, after the full hearing over a 5-year period. It 
wasn't started until the end of 1990, the first part of 1991. After 5 
years and with all the lawyers, they were unanimously ruled against, 
and they try now to change the rule by saying, ``Oh, they made that 
error. We can get this organized, and we can get the votes, we can 
control it.''
  They have been blocking correcting this mistake every way they can. 
Yes, they blocked it in the Appropriations Committee because I wasn't 
prepared. I thought an honest error would be respected by Senators as 
gentlemen. I went in, explained exactly what happened. We called the 
roll, and it was 10 to 10. I hadn't even bothered to get the proxies. 
However, later on, we did include it in the conference report. It has 
been debated, affirmed in the House by a rollcall vote. We are ready to 
vote now, and they are claiming we are filibustering.
  It reminds me, I say to the Senator, of a young lad who went to the 
psychiatrist, and she drew a line on the board and said, ``What do you 
think of?''
  The young lad said, ``Sex.''
  She drew some crosses.
  He said, ``Sex.''
  She drew circles.
  He said, ``Sex.''
  She said, ``Young man, you're the most oversexed, depraved person 
I've ever seen.''
  ``Doctor, me depraved?'' he said. ``You're the one drawing the dirty 
pictures.''
  Come on. Are we doing the filibustering? We are ready to vote, have 
been ready to vote. They are the ones who moved to postpone. I haven't 
heard that motion in the 30 years I have been here; never heard it. But 
I heard it from the Senator from Massachusetts for the first time. Then 
they wanted to read the bill. And they say we are the ones 
filibustering?

  Why is it important? Because the truth is important. It was not part 
of the bill when it left the Senate. It was not a part of the bill when 
it left the House. We know it wasn't in there. Look at what we voted on 
on Monday. I can give you ad nauseam a list of things that were never 
in the House, never in the Senate that appeared there.
  They say this is ``one more blow to the working people.'' It is not 
any blow to the working people. I am not engaged in that kind of work. 
I am not forestalling the entire Congress for a broader agenda. I could 
comment further but in the interest of time let me go down to a couple 
of other things.
  The intent. Oh, yes, the Congressional Research Service. The comment 
was made he was demeaned, the lawyer. If I could get him, I would wring 
his neck. I couldn't demean him enough. Why? Because he was asked about 
this provision and said it was put in intentionally, when he knows 
otherwise. He failed and refused to quote the intent of the Congress.
  This is in the conference report, Mr. Shuster, of the committee of 
conference, submitted the following report:

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

  With the deleted language, that is the ambiguity we are trying to 
clarify. But when you look for intent, and we told them about it, the 
CRS letter continually disregards the intent with this letter to the 
Members. I can't get to all the Members and explain this. They have 
labor reps running all around. They say, ``Stay home, they have to get 
the 60 votes.''
  It is so hard, as Twain says, to use the truth. It's so hard to 
develop it around this particular issue.
  There has been an onslaught, Mr. President, against the company. I 
saw a part of the distinguished Senator from Massachusetts' press 
conference on TV. By the time I saw it, it was cut, but it was 
partially on C-SPAN that ``it was a horrible company; they hadn't given 
a pay raise in 7 years,'' the FedEx employee was saying. I called, and 
we will get it in the Record. They have had, I was told, over the last 
8 years, each year an average of 6.5 percent, for a total of a 50 
percent wage increase. I said that very carefully because that is 
exactly what I was told, and I am going to get a copy of it.
  Mr. President, we have in this book: ``The 100 Best Companies to Work 
for in America'' with special recognition in the following categories: 
One of the best 10 overall companies; one of the 10 best for job 
security; one of the 10 best for women; one of the 10 best for 
minorities; one of the 12 best with significant employee ownership; one 
of the 10 best training programs. We have the Minority Business 
Council; the Hispanic Council; the Good Housekeeping magazine's 69 top 
companies for working mothers, and on and on and on.
  This book--we wouldn't want to put the book in the Record --is ``The 
100 Best Companies to Work for in America,'' by Robert Levering and 
Milton Moskowitz.
  But when you get an outstanding company, and they are playing by the 
rules, and you get the bum's rush as a result of a drafting error, 
after the conference, that we have been trying to correct, and then 
they give you all this procedure and everything else like we are doing 
the sneaking--we have done nothing here in this particular provision in 
the FAA Reauthorization Act but put the parties back exactly where they 
were, which was the intent. None of the rights or responsibilities were 
either contracted or expanded for employees or employers.
  We have not had hearings. When they talk about hearings, there was 
not any hearing when this was deleted, there was not any statement 
made. I cannot find--I said, ``Where is the Senator, where is the 
Congressman who said, `I wanted this. I put it in. I discussed it. I 
talked about it.'?'' They cannot find one of 535; yet we get accused of 
blackmail.
  I never heard of such outrageous fraud going on here trying to change 
the entire picture of what really is the case with respect to this 
particular matter.
  Mr. President, one more time I ask unanimous consent to have printed 
in the Record excerpts of the National Mediation Board's opinion in re 
Federal Express case No. 4-RC-17698.
  There being no objection, the excerpts were ordered to be printed in 
the Record, as follows:

                                     National Mediation Board,

                                Washington, DC, November 22, 1995.
     Re NMB File No. CJ-6463 (NLRB Case 4-RC-17698) Federal 
         Express Corp.

     Jeffrey D. Wedekind,
     Acting Solicitor, National Labor Relations Board, Washington, 
         DC.
       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,

[[Page S12174]]

     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.'' \1\ 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 [NLRA].'' The titles 
     remaining in the UAW's petition include: service agents, 
     senior service agents, international document agents, 
     couriers, courier/handlers, tractor-trailer drivers, 
     dispatchers,\2\ courier/non-drivers and operations agents.
---------------------------------------------------------------------------
     Footnotes at end of article.
---------------------------------------------------------------------------
       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,\3\ 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 NNB'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-Douglas 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 (1989); 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. 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 related 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 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.\4\
       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

[[Page S12175]]

     ``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.\5\
       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 issue 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 an employee or subordinate official of such 
     carrier or carriers. . . .'' (Emphasis added).
       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. O/O 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 a 
     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.

                               footnotes

     \1\ The Liberty District includes portions of southeastern 
     Pennsylvania, southern New Jersey and Delaware.
     \2\ The dispatchers at issue do not dispatch aircraft.
     \3\ FedEx no longer employs Flight Attendants.
     \4\ Two courts have held that certain employees of a carrier 
     who perform work unrelated to the airline industry are not 
     covered by the Railway Labor Act. Pan American World Airways 
     v. Carpenters, 324 F.2d 2487, 2488, 54 LRRM 2487, 2488 (9th 
     Cir. 1963); cert. denied, 376 U.S. 964 (1964) (RLA does not 
     apply to Pan Am's ``housekeeping'' services at the Atomic 
     Energy Commission's Nuclear Research Development Station); 
     and Jackson v. Northwest Airlines, Inc., 185 F.2d 74, 77 (8th 
     Cir. 1950) (RLA does not apply to Northwest's ``modification 
     center'' where U.S. Army aircraft were reconfigured for 
     military purposes). Work functions described in Carpenters as 
     ``substantially identical'' to those before the Ninth Circuit 
     were held by another court to be within the ``compulsive'' 
     jurisdiction of the Railway Labor Act. Biswanger v. Boyd, 40 
     LRRM 2267 (D.D.C. 1957). The Board has not had the occasion 
     to make a final determination regarding the appropriate 
     application of this line of cases.
     \5\ Federal Express Corporation v. California Public 
     Utilities Commission, 936 F.2d 1075, 1078 (9th Cir. 1991). 
     Chicago Truck Drivers v. NLRB, 99 LRRM 2967 (N.D. Ill. 1978); 
     aff'd 599 F.2d 816, 101 LRRM 2624 (7th Cir. 1979).
  Mr. HOLLINGS. This goes into every detail that was raised. Because 
when you finally corner them one place, they squirt out like 
quicksilver in the palm of your hand, talking about integrally related 
tests and so forth. All of that was considered in this particular 
decision. Trent Lott, Newt Gingrich, a letter to the majority leader 
and the Speaker, where we had to hear from certain Members on 
yesterday's debate, signed by Bud Shuster, chairman; Susan Molinari; 
chairman of the Railroad Subcommittee. And it is not you, Hollings, 
saying it was a mistake. Anybody intimately connected will not say 
otherwise, and has not said otherwise.
  Mr. President, I ask unanimous consent that the letter be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    Congress of the United States,


                                     House of Representatives,

                                    Washington, DC, July 12, 1996.
     Hon. Trent Lott,
     Majority Leader, U.S. Senate, The Capitol, Washington, DC.
     Hon. Newt Gingrich,
     Speaker, U.S. House of Representatives, The Capitol, 
         Washington, DC.
       Dear Mr. Majority Leader and Mr. Speaker: We are writing to 
     you to set out the facts regarding a technical error in the 
     ICC Termination Act of 1995, Public Law 104-88. The mistake 
     concerns the context in which the ICC Termination Act 
     addressed the relationship between the economic regulation of 
     transportation under Subtitle IV of Title 49, United States 
     Code, and the Railway Labor Act (45 U.S.C. 151 et. seq.).
       The ICC Termination Act abolished the former Interstate 
     Commerce Commission, reduced economic regulation 
     substantially in both rail and motor carrier transportation, 
     and transferred the reduced but retained regulatory functions 
     to a new Surface Transportation Board, part of the Department 
     of Transportation.
       One form of ICC regulatory jurisdiction under the former 
     Interstate Commerce Act was exercised over ``express 
     carriers''--as defined in former 49 U.S.C. 10102, a person 
     ``providing express transportation for compensation.'' This 
     was part of the ICC's jurisdiction, since express service 
     originated as an ancillary service connecting with rail 
     freight service.
       The Railway Labor Act included in Part I coverage of ``any 
     express company . . . subject to the Interstate Commerce 
     Act.'' [45 U.S.C. 15].
       In the ICC Termination Act, economic regulation of express 
     carriers was eliminated from the statutes to be administered 
     by the new Surface Transportation Board, on the ground that 
     this form of regulation was obsolete. (Another category of 
     ICC and Railway Labor Act ``carrier''--the sleeping-car 
     company--was similarly eliminated from STB jurisdiction.)
       In light of the abolition of economic regulation, the ICC 
     Termination Act contained a conforming amendment (Section 
     322, 109 Stat. 950) which also struck the term ``express 
     company'' from the Railway Labor Act definition of a 
     ``carrier.'' Although unaware of any possible effects of this 
     conforming change on the standards applied under the Railway 
     Labor Act, Congress plainly delineated its intent in new 
     Section 10501(c)(3)(B) of Title 49, U.S. Code [109 Stat. 
     808]: ``The enactment of the ICC Termination Act of 1995 
     shall neither expand nor contract coverage of employers and 
     employees by the Railway Labor Act.''
       The apparent contradiction between the legislative intent 
     stated in Section 10501(c)(3)(B) and the conforming Railway 
     Labor Act in Section 322 could be interpreted to alter the 
     legal standards by which companies are determined to be 
     governed, or not governed, by the Railway Labor Act. 
     Therefore, a technical correction is necessary to restore the 
     former Railway Labor Act terminology and thus avoid any 
     inference that is at odds with the clearly stated legislative 
     intent not to alter coverage of companies or their employees 
     under the Railway Labor Act.

[[Page S12176]]

       We hope that this brief summary of the facts will provide 
     you with information useful in your future deliberations.
           Respectfully,
     Bud Shuster,
       Chairman.
     Susan Molinari,
       Railroad Subcommittee Chairwoman.

  Mr. HOLLINGS. Mr. President, there are some other things to be 
touched upon as we move through this. I think one of the important 
things is the particular charge that they come bringing about something 
being unfair and not according to the rules, or whatever else.
  I reiterate as positively, as affirmatively as I can, ever since 
1973, when the Federal Express Co. was organized, it has been under the 
Railway Labor Act, the Railway Labor Act. All of its matters, I am 
finding out as a lawyer, are automatically referred by the NLRB to the 
National Mediation Board. The matter that is now being discussed, what 
is being ``fair'' and ``unfair'' and those kinds of things, and ``Why 
can't we change that?'' it could be if we had some hearings, if we had 
it brought before the Congress.
  But the best of the best has just served on what we call the Dunlop 
Commission. When President Clinton came to town, he got the former 
Secretary of Labor under Gerald Ford, President Ford, and said, study 
and see what needs to be done under labor, the labor statutes.
  None other than Doug Fraser, the former president of the United Auto 
Workers, served on that commission. And that commission determined that 
the Railway Labor Act should not be modified.
  We can be ready to argue that and go in length on it. But I think 
when you find the UAW lawyer, and they know about this decision of the 
Mediation Board that I already put in the record, when you find a 
Teamster lawyer, in his arguments before the circuit court, when you 
find the Dunlop Commission--if we had just started this thing, we would 
have weighted support by all the particular studies and lawyers who 
have been in the particular field.
  But like the sheep dog that had tasted blood, when they saw this 
particular mistake, they went to gobble up the entire flock. They said, 
``We can do it. All we need to do is have everyone anxious to go home, 
and we'll just show them, and we'll move to postpone. We'll say, `Read 
the conference report. Read it.''' And then after reading it for 2 
days--the distinguished Senator said he did not know why we were here 
for 2 days. The 2 days is so the union crowd can work around the clock.
  I cannot do any work when I am on the floor trying to defend the 
truth. Yet we are getting blamed for blackmail and that kind of thing. 
I think it is totally out of character with the service here in this 
particular body. I yield the floor.
  Mr. DOMENICI addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, parliamentary inquiry. How much time 
remains on this side?
  The PRESIDING OFFICER. The Senator from New Mexico controls 56 
minutes 20 seconds. On the other side, it is 37 minutes 54 seconds.
  Mr. KENNEDY. Mr. President, are you suggesting we have only 36 
minutes on our side? We had one speaker, Senator Feingold. He was our 
only speaker.
  Mr. HOLLINGS. I just got through speaking.
  Mr. KENNEDY. Whose time?
  Mr. HOLLINGS. Our time on this side.
  Mr. KENNEDY. With all respect, I did not yield any time to the--I 
thought the Senator was opposed to the position. The way it was divided 
up, we are entitled to at least have time for the Senators in 
opposition, the position of the Senator from Massachusetts and the 
others. I did not understand the time agreement was to be between--I am 
always glad to accommodate, but I mean we have had one speaker against 
it. Now it is 20 until 4. We have been here since 2 o'clock. We have 
had 15 minutes on one position.
  I ask, how was the time allocated?
  The PRESIDING OFFICER. The time was under the control of the 
respective leaders. Therefore, the time on the part of the Democratic 
Senators is charged to the Democratic leader, and the time on the part 
of the Republican Senators charged to the Republican leader.

  Mr. KENNEDY. Well, Mr. President, that is a surprise to me. Was that 
the way it was done yesterday, Mr. President?
  As I understand, I had the control of the time yesterday.
  The PRESIDING OFFICER. The Senator from Massachusetts is correct, 
that was the procedure yesterday. There is a different time agreement 
in place today.
  Mr. KENNEDY. Well, parliamentary inquiry. When was that time 
agreement entered into?
  The PRESIDING OFFICER. The Chair is incorrect. It is the same 
agreement.
  Mr. KENNEDY. Well then, could I ask the Chair then to correct the 
time allocation?
  Mr. STEVENS. Mr. President, there is no correction due. This time was 
divided across the aisle, an even amount of time for the Democrats and 
an even amount for Republicans. After all, we do have more Senators on 
this side of the aisle than that side of the aisle, and yet we split 
the time evenly. Three hours each day is to be split evenly between the 
two sides.
  Mr. KENNEDY. Or their designees, as it was yesterday, Mr. President. 
I was here all day yesterday.
  We talk about a ``jamming.'' We were here yesterday, and we had it 
divided up evenly between those for it and against it. We have had one 
speaker who has spoken for 14 or 15 minutes against this provision, and 
now we are told we have 38 minutes left. That is not the--that is very, 
very clear. That certainly supports what we have been saying about this 
particular provision, Mr. President. We did not divide the time 
yesterday that way. It is unacceptable to say you are to change the 
rules of the game overnight without anything to demonstrate it.
  The PRESIDING OFFICER. The Chair was mistaken in suggesting there was 
a change in the time agreement. The Chair is advised by the 
Parliamentarian that the agreement has been followed in this pattern 
ever since it was entered into.
  Mr. STEVENS. Mr. President, I ask the Senator from Massachusetts to 
look at the order. It is ordered that at 2 p.m., Wednesday, October 2, 
there is to be 3 hours for debate only, to be equally divided between 
the two leaders. That is what we are doing.
  If the Senator seeks any more time, I am prepared to stay here as 
long as he wants to have more time.
  Mr. KENNEDY. I have every intention to have time to do that, Mr. 
President.
  Mr. STEVENS. This time is to be equally divided between the two 
leaders.
  Mr. KENNEDY. It was my understanding----
  Mr. STEVENS. Mr. President, 46 Senators over there have an hour and a 
half, and 53 Senators over here have an hour and a half. I do not see 
anything unfair.
  Mr. KENNEDY. I will take what time I shall need at the appropriate 
time, Mr. President. This is the first time that I can remember in the 
time I have been in the Senate when there has been a division on an 
issue with those Members that are for a proposal and those that are 
against, and when there is a time agreement to divide the time equally, 
and then have it interpreted the way it has been interpreted--this is 
the first time in my recollection this has happened.
  I made it clear, both to our leader, and he indicated to the majority 
leader as well, as to what we were asking for, and that is to have an 
hour and a half on each side to make the presentation evenly divided. 
This is a convoluted interpretation of that understanding.
  I will take such time as I might need later on.
  Mr. STEVENS. Mr. President, I yield such time as the Senator from New 
Mexico desires.
  The order is specific, to be equally divided between the two leaders. 
The Senator from Massachusetts has been assuming he has been designated 
by the leader that he is to assume the time. I have not been advised.
  Mr. DOMENICI. How much time, Senator Murray, did you want?
  Mrs. MURRAY. Less than 10 minutes.
  Mr. DOMENICI. She has been waiting longer. I will yield if they take 
it out of their time, and then ask that the Senator from New Mexico be 
recognized after Senator Murray completes her remarks.

[[Page S12177]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New Mexico will be recognized at the conclusion of 
the remarks of the Senator from Washington. The Senator from Washington 
is recognized.
  Mrs. MURRAY. Mr. President, I rise today as a strong proponent of the 
bill before us H.R. 3539, the Federal Aviation Administration 
reauthorization bill. This legislation does provide critical aviation 
safety and reform efforts and it is the principle authority for 
aviation infrastructure investments.
  The importance of this bill only underscores the time and serious 
attention, Members in this Chamber have given to the legislation's 
express carrier provision. I have listened closely over the last few 
days to colleagues whom I deeply respect, on both sides of this issue 
and both sides of the aisle.
  As much as I want to see the FAA bill pass, I believe we must focus 
on the question of fairness. Did this provision, we are now debating 
receive enough public comment and undergo hearings necessary to 
adequately judge the change? Is this provision so insignificant, that 
it can be quickly addressed in the rush to adjourn? Are we creating a 
priority system that places specific companies above others?
  These questions are serious and far-reaching. This provision raises 
too many concerns and justifies this Chamber's serious examination of 
the language. First, one must look at the legislative history of this 
rider. There has never been a hearing on this provision in a House 
subcommittee or full committee. Neither have there been any hearings on 
this provision in a Senate subcommittee or full committee.
  There have been previous attempts to attach the rider to omnibus 
appropriations bills, the National Transportation Safety Board 
reauthorization and the Railroad Unemployment Act. All of these 
attempts to insert this controversial language have failed.
  The rider was not on this bill as it passed the House and was not 
included in the Senate's original FAA reauthorization bill until it 
reached the conference committee. There are even jurisdictional 
questions to be answered as the House required a special rule just to 
consider the provision. In the end, 198 Members of Congress opposed the 
FAA bill with this added rider.
  Second, as debate continues on this provision, it becomes clear that 
this is not simply a technical correction. The term ``express carrier'' 
has been obsolete for years and was purposely removed from the Railway 
Labor Act and the Interstate Commerce Act when Congress passed the ICC 
Termination Act last year. Express carrier was removed, simply because 
no express carrier existed since the mid-1970's.
  Congress is charged with promoting an equal playing field for all. 
Unfortunately, what appeared to be an innocuous correction has become a 
dangerous reclassification. We must ensure that employees of one 
company have the same opportunities as those employees in other similar 
organizations.
  Many will try to boil this issue down into another labor battle. I 
prefer to look at the provision as one that denies a specific group of 
employees, basic rights in the workplace. These opportunities are 
already granted to these employees' colleagues.
  All of us are ready for adjournment. Many have felt that they've 
become hostage to an insignificant technical correction with little 
impact. Our 4 days of debate will one day, however, appear 
insignificant. Especially in contrast to the thousands of workers who 
will forever be held hostage by this language.
  Mr. President, let's act reasonably. Let's act rationally and by all 
means let's adjourn. But let's leave this session with a clear 
conscience and a bill we can all live with, confident that we did not 
act in haste or shortsightedness.
  In the interest of good Government and good public policy, let's 
remove the provision and re-examine it through the normal legislative 
process. In the interest of good Government and good public policy, 
lets pass the FAA bill without this express provision. This legislation 
is strong enough on its own merits. I am certain the House will 
recognize its responsibility to come back and finish a job, so critical 
to America's workers.
  The PRESIDING OFFICER. Under the previous order the Senator from New 
Mexico is recognized.

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