[Congressional Record Volume 142, Number 141 (Thursday, October 3, 1996)]
[Senate]
[Pages S12217-S12225]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   FEDERAL AVIATION ADMINISTRATION REAUTHORIZATION--CONFERENCE REPORT

  The Senate resumed consideration of the conference report.
  Mr. McCAIN. Mr. President, I now ask unanimous consent that the time 
_______________________________________________________________________
                              N O T I C E

   A final issue of the Congressional Record for the 104th Congress 
 will be published on October 21, 1996, in order to permit Members to 
 revise and extend their remarks.
   All material for insertion must be signed by the Member and 
 delivered to the respective offices of the Official Reporters of 
 Debates (Room HT-60 or S-220 of the Capitol), Monday through Friday, 
 between the hours of 10:00 a.m. and 3:00 p.m., through October 21. 
 The final issue will be dated October 21, 1996 and will be delivered 
 on October 23.
   None of the material printed in the final issue of the 
 Congressional Record may contain subject matter, or relate to any 
 event, that occurred after the sine die date.
   Senators' statements should also be submitted electronically, 
 either on a disk to accompany the signed statement, or by e-mail to 
 the Official Reporters of Debates at ``Record at Reporters.''
   Members of Congress desiring to purchase reprints of material 
 submitted for inclusion in the Congressional Record may do so by 
 contacting the Congressional Printing Management Division, at the 
 Government Printing Office, on 512-0224, between the hours of 8:00 
 a.m. and 4:00 p.m. daily.
   By order of the Joint Committee on Printing.
                                                                     
 WILLIAM M. THOMAS, Chairman.
_______________________________________________________________________

[[Page S12218]]


until 10 a.m. be equally divided between the proponents and opponents, 
myself managing the legislation for this side, and the Senator from 
Massachusetts, Mr. Kennedy, managing for the other side.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, perhaps we could have information 
concerning the division of that time. I would guess it is less than 1 
hour equally divided. Is that correct?
  The PRESIDENT pro tempore. To be exact, it is 56 minutes.
  Mr. McCAIN. Mr. President, since the Senator from Massachusetts is 
not here, I will begin with an opening statement. I allow myself 10 
minutes.
  Mr. President, I want to talk about this critical aviation bill for a 
few minutes, and I want to begin with the most important part of it. 
That is the section that has to do with aviation safety.
  This bill has some very important and critical aviation safety items 
included in it. We all know how important and compelling a problem this 
is and a challenge for America and the world. We continue, 
unfortunately, to have serious airline accidents that continue to take 
place not only in this country but around the world, including the 
latest being another tragedy in Peru just in the last several hours. 
There is no doubt that aviation safety is a vital and compelling issue 
and one on which I believe we have made important progress in this 
bill.

  Specifically, this legislation eliminates the dual mandate and 
reiterates safety being the highest priority for the FAA. This 
legislation facilitates the flow to the FAA of operational and safety 
information, and the FAA may withhold voluntarily submitted 
information.
  It authorizes the FAA to establish standards for the certification of 
small airports so as to improve safety at such airports.
  It mandates that the NTSB, the National Transportation Safety Board, 
and the FAA must work together to improve the system for accident and 
safety data classification so as to make it more accessible and 
consumer friendly and then publish such accident data.
  It requires pilot record sharing. It requires the sharing of a 
pilot's employment records between former and prospective employers to 
assure marginally qualified pilots are not hired.
  It also discourages attempts by child pilots to set records or 
perform other aeronautical feats.
  Also, Mr. President, it requires that the Federal Aviation Agency and 
the National Transportation Safety Board work together on this terrible 
issue, very difficult issue of notification of the next of kin. Every 
time there is one of these crashes, there is a problem as far as the 
notification of the loved ones, and it was an obligation of ours to 
work this out. There have been a number of hearings following these 
tragedies, and we hear the compelling stories of the lack of 
notification, wrongful notification, and lack of sensitivity in the 
care and services provided to the family members. We have to clean this 
up and we do that in this bill.
  As far as aviation security is concerned, Mr. President, it requires 
the FAA to study and to report to Congress on whether some security 
responsibilities should be transferred from the airlines to airports 
and/or the Federal Government. I do not think there is any of us today 
who believe that security at airports is at the level we want it to be, 
and a very recent inspector general report clearly indicated that. We 
have to do a much better job.
  The FAA in this legislation is directed to certify companies 
providing airport security screening.
  It bolsters weapons and explosive detection technology by encouraging 
research and development. As you know, Mr. President, the only 
available technology today is very expensive, very large, very slow and 
sometimes not completely mission fulfilling. I believe that there is 
the technological capability out there in America and the world to 
develop the kind of weapons and explosive detection technology that we 
can put in place in our airports in a short period of time.
  This legislation requires that background and criminal history 
records checks be conducted on airport security screeners and their 
supervisors.
  It requires the FAA to facilitate interim deployment of currently 
available explosive detection equipment.
  It requires the FAA to audit the effectiveness of criminal history 
records checks.
  It encourages the FAA to assist in the development of passenger 
profiling systems.
  It permits the Airport Improvement Program and Passenger Facility 
Charge funds to be used for aviation safety and security projects at 
airports.
  The FAA and FBI must develop an aviation security liaison agreement.
  The FAA and FBI must carry out joint threat assessments of high-risk 
airports.
  It requires the periodic assessment of airport and air carrier 
security systems.
  And it requires a report to Congress on recommendations to enhance 
and supplement screening of air cargo.
  Mr. President, there is more aviation safety and security benefits in 
this bill which I will cover later this morning. There is a requirement 
to enhance airline and air traveler safety by requiring airlines to 
share employment and performance records before hiring new pilots, as I 
mentioned before.
  But most important, it provides for the thorough reform of the FAA, 
including the long-term funding reform of the FAA to secure the 
resources to ensure we continue to have the safest, most efficient air 
transportation system in the world.
  For a long period of time we worked on a bipartisan basis with the 
Secretary of Transportation, the Director and Deputy Director of the 
FAA, in trying to come up with ways to fund our national aviation 
system and its safety and security-related aspects. Right now the 
national air transportation system is primarily funded by the airline 
ticket tax, which accounts for more than $6 billion of the $9 billion 
that is necessary to fund the FAA on an annual basis. Unfortunately, 
the discretionary budget caps will simply not provide the budget 
flexibility to continue to fund today's service levels from the FAA, 
let alone the funding necessary over the next several years to meet the 
continued growth anticipated in virtually every facet of aviation. We 
must be able to fund the FAA and the national air transportation system 
in America through user fees. Those that use the system should be 
required to pay their fair share to provide a stable source of funding 
for the FAA's critical safety and operational activities and not the 
general taxpayer.
  This bill sets up a 21-member commission which will make 
recommendations which will be required to be acted on in a relatively 
short period of time so we can come up with this very important, 
stable, and critical funding of the national air transportation system.
  Again, I cannot help but mention one other aspect of this problem 
that is a clear dereliction of duty on the part of the Congress, and 
that is, on December 31, 1996, the airline ticket tax is going to lapse 
again. At the present time the airline ticket tax, with the addition of 
general taxpayer dollars, is the major method of funding aviation in 
America. Congress let it lapse last Christmas and it lapsed for a long 
period of time--until just a few months ago. During that time, the 
aviation trust fund was depleted by $5 billion. I think it will be a 
terrible thing, a terrible thing, to let this Congress go out of 
session--which we probably will--without reinstating the ticket tax, 
which is going to expire on December 31, 1996.
  I would like to tell my colleagues and I know my friend, Senator Ford 
of Kentucky, feels as strongly as I do, as does the chairman and 
ranking member of the committee, Senator Pressler and Senator Hollings. 
We are going to address this issue early in the 105th Congress in 
whatever way we can. We cannot allow this fund to be depleted so we are 
unable to fund these much-needed aviation safety, airport security, and 
air traffic control modernization projects in America.
  I am not going to point at specific committees or specific Members of 
the Senate or the House. But to allow the airline ticket tax to lapse 
is a violation of our fundamental obligations to the American people, 
and that is to ensure their safety and security. We cannot do that 
without adequate and stable long-

[[Page S12219]]

term funding. So I want to again enter a plea, especially to the 
Finance Committee, that we address this issue as soon as possible early 
in the next Congress.
  I reserve the remainder of my time.
  The PRESIDENT pro tempore. The distinguished Senator from 
Massachusetts.
  Mr. KENNEDY. Mr. President, I yield myself 1 minute. Then I am going 
to yield 5 minutes to the Senator from Illinois.
  Mr. President, as we are gathered here this morning, I want to 
reiterate our position with regard to the FAA bill. Those of us who 
oppose the addition of the special interest provision are in support of 
the FAA conference report otherwise. We had indicated we were quite 
glad to put that whole conference report on the continuing resolution. 
We could have done that on Monday and we would not be here today.

  We would have taken an independent bill, a freestanding bill without 
this provision, and passed it either Monday when the House was in or 
any other day in the belief the House would accept it.
  So we do not yield to any of our colleagues in our interest in moving 
ahead with the FAA conference report. But what we find unconscionable 
is the inclusion of this special interest provision which is going to 
disadvantaged working men and women who are trying to play by the rules 
of the game and whose interests would effectively be compromised by 
this particular provision.
  The PRESIDENT pro tempore. The time of the Senator has expired.
  Mr. KENNEDY. I yield 5 minutes to the Senator from Illinois.
  The PRESIDENT pro tempore. The distinguished Senator from Illinois.
  Mr. SIMON. Mr. President, as Senator Kennedy said, everyone is for 
the FAA bill. The question is this amendment that was tacked on that 
was neither in the House version nor in the Senate version. Let us just 
go over what it does again. It benefits one company--one company. It 
interferes in litigation. The Presiding Officer, Senator Thurmond, for 
whom I have come to have great respect, has seen in the Judiciary 
Committee that when we interfere in litigation, with rare exceptions we 
make a mistake in the U.S. Congress.
  Third, it interferes in a labor-management negotiation that is going 
on. We should not be taking one side or another. I do not know who is 
right. All I know is Congress should not be deciding this.
  We interfere also in a competitive situation. How does this affect 
UPS? How does it affect the Postal Service? How does it affect other 
competitors? No one knows. But people can sure guess.
  Then, finally, the process is wrong. We have not had a hearing on 
this. The committee of jurisdiction has not had a hearing on this very 
complicated and, obviously, controversial labor-management issue. It 
has been rejected. Just a few weeks ago the Appropriations Committee 
rejected this very amendment. Yet we see it sliding in on a conference 
committee here.
  What it does, in essence, is it says Federal Express and all its 
employees are to fall under regulations that govern airlines. It so 
happens Federal Express has about 35,000 truck drivers who, under this 
legislation now, are going to be considered like airline pilots as far 
as labor-management relations. That is not the way to govern.
  It may be this is very meritorious. Let us have a hearing. Let us go 
through the normal process. But it should not be stuck on in a 
conference when neither the House nor the Senate had it, when this has 
been rejected several times by both the House and the Senate.
  Mr. BREAUX. Will the distinguished Senator yield for a question?
  Mr. SIMON. I will let the Senator from Louisiana get his own time 
here.
  Mr. BREAUX. I just was going to ask a question of the Senator.
  Mr. SIMON. You may ask a very brief question.
  Mr. BREAUX. Isn't the current situation that Federal Express in its 
total package is considered under the Railway Labor Act right now? Is 
that not the current situation? Is it the current situation that 
Federal Express is considered to come under the Railway Labor Act now?
  Mr. SIMON. It is a matter of controversy right now before the 
National Labor Relations Board, as I understand it. What we are doing 
is we are moving in and making a decision. That is not the way we ought 
to operate here.
  We ought to have a hearing. We ought to proceed in the normal way. 
This is obviously a matter of controversy. This is not how you solve 
controversies and how you make good legislation.

  I yield the remainder of my time back to the Senator from 
Massachusetts.
  Mr. KENNEDY. Mr. President, how much time remains?
  The PRESIDENT pro tempore. The Senator from Massachusetts has 22 
minutes.
  Mr. KENNEDY. I yield myself 13 minutes.
  Mr. President, regardless of the outcome of today's vote, this week 
of debate has already accomplished something very important for the 
American people. It has placed a spotlight on a cynical Republican 
attempt to help one of their corporate friends at the expense of that 
company's employees.
  They had hoped to carry out their scheme in the shadows, so that no 
one would recognize the injustice that was being done. That part of the 
Republican plan has already failed. The entire country now knows that 
the Republican Congress is ending as it began, with an assault on 
working men and women and their families. Key Republicans in Congress 
have conspired with Federal Express to amend the Railway Labor Act in 
order to deprive Federal Express workers of their right to form a local 
union. The company is bent on obtaining this unfair advantage before 
the Republican Congress adjourns, because they know that a Democratic 
Congress will never approve this special interest provision.

  Truck drivers employed by Federal Express in Pennsylvania began 
organizing a union several years ago, because they had not received a 
raise in more than 7 years. They were also worried about worker safety 
and about losing their jobs to subcontractors and seeing full-time jobs 
cut back to part time. It is unconscionable for the Senate to intervene 
on the side of Federal Express management to deny those workers their 
basic rights under the National Labor Relations Act.
  Mr. President, this is not a technical correction. Rider proponents 
falsely claim that this is a technical correction to an inadvertent 
action taken in the Interstate Commerce Commission Termination Act of 
1995. This is substantive. The Congressional Research Service analyzed 
the ICC Termination Act and found ``The deletion of express companies 
from section 1 of the RLA does not appear to have been inadvertent or 
mistaken.'' That is an independent judgment made by the Congressional 
Research Service after reviewing the history, reviewing the conference 
itself and evaluating the various documents.
  Second, the administration does not consider this to be technical. 
Let me, again, read the letter from the Office of Management and 
Budget, representing the position of the administration and the 
President:

       The administration believes that the provision is not a 
     technical amendment in transportation law. In fact, it could 
     result in a significant shift of the relationship between 
     certain workers and management.

  They recognize that it is not a technical correction.
  The Democratic members of the House Aviation Subcommittee have also 
recognized that this is not a technical correction. Read the debate 
over in the House of Representatives and you will see it. Every 
Democratic member of the Aviation Subcommittee points out that this is 
not a technical correction, and the Parliamentarian of the House of 
Representatives made a judgment that it was not a technical correction 
and required the House of Representatives to have an independent vote 
on this measure.
  Mr. President, the history of the FedEx rider in the House and Senate 
is out there for every Member of this body to understand. They never 
had a hearing on a rider in the House Aviation Subcommittee or the full 
Transportation and Infrastructure Committee; never had a hearing on the 
rider in the Senate Aviation Subcommittee or full Committee on 
Commerce, Science and Transportation.

[[Page S12220]]

  House Republicans tried to attach this to the fiscal 1996 omnibus 
appropriations bill and failed. House Republicans tried to attach it to 
the National Transportation Safety Board Authorization Act, and it 
failed. House Republicans tried to attach it to the Railroad 
Unemployment Act Amendments, and it failed.
  Senate Republicans supported attaching it to the Labor-HHS 
Appropriations bill in the Appropriations Committee, and it failed. The 
rider was not on the FAA Reauthorization Act when it passed the House, 
and it wasn't when it passed the Senate. The rider was added in the 
reauthorization conference committee just before the end of this 
conference.
  Mr. President, now that we know that it is not technical, now that we 
know that this has been pursued constantly by the Republican leadership 
in the House of Representatives, supported overwhelmingly by the 
Republican Members in the House of Representatives, with opposition by 
an overwhelming majority of Democrats in the House, we will see a 
similar reflection of that here later on this morning.
  Mr. President, this issue is in litigation. The Federal Express truck 
drivers started organizing in 1991. In December of 1991, the Federal 
Express truck drivers filed a petition with the NLRB for an election to 
decide whether a majority of them desire representation. This matter is 
currently in litigation. The number of the case is 4-RC-17968.
  There are Members who say it is not in litigation. It is in 
litigation, and it is before the NLRB and in active consideration at 
this time. What we are doing by this action is wiping out the 
opportunity for that issue to be adjudicated by the NLRB. We are 
stacking the deck for one side. We are refusing to let the National 
Labor Relations Board make a judgment about the truck drivers.
  The fact of the matter is, UPS has a situation almost exactly the 
same as Federal Express: Those workers who are associated with the 
airlines are considered employees of air carriers, and thus covered by 
the Railway Labor Act, while those who drive the trucks are under the 
National Labor Relations Act.
  Federal Express has been declared an air carrier, and they should be 
with regard to their air operation. The question now is, what about the 
truck drivers who drive for Federal Express? What about Federal 
Express's proposed expansion, such that the principal part of their 
operation is going to be in trucks rather than in the air? That is a 
legitimate issue. It is currently before the National Labor Relations 
Board.
  Supporters of this rider are saying that those grievances, those 
rights, those interests of working men and women are going to be 
vitiated because of the power of Federal Express, one single company. 
We are legislating for one single company, make no mistake about it.
  Mr. President, why do I call this Federal Express amendment a 
Republican ploy? Let me show you the evidence, and it is overwhelming. 
In the House, the key advocates of this amendment were Members of the 
Republican leadership, and each and every time it was offered in the 
House, it was offered on behalf of the Republican leadership. They 
voted in the House and closely followed party lines: of the 218 Members 
who voted for it, 199 were Republicans. 198 Members of Congress opposed 
it; 168 of those voting no were Democrats.
  On the cloture motion that we will be voting on shortly, nearly all 
Republicans will vote to keep the amendment in the bill, and a solid 
majority of Democrats will vote against cloture in order to remove the 
offensive Federal Express provision.
  This antiworker amendment is clearly a Republican ploy for another 
reason. It is consistent with what they have done throughout this 
session, whether it has been to eliminate the Davis-Bacon Act or to gut 
other worker protection laws. The average construction worker--may we 
have order, Mr. President?
  The PRESIDENT pro tempore. The Senate will be in order.
  Mr. KENNEDY. Mr. President, we have seen the Republican leadership 
try to compromise the incomes of construction workers, the second most 
dangerous industry in the United States, with five times more accidents 
than any other group of workers in this country. The average income of 
a construction worker is $27,500 a year. Yet the Republicans made an 
effort time after time after time here in the Senate of the United 
States and in the House of Representatives to undermine their income.
  There was opposition to the increase in the minimum wage. The story 
is there and has been written. Republicans fought it every single step 
of the way, although hard-working families who are at the bottom rung 
of the economic ladder, who are our teachers' aides, who work in 
nursing homes as health care aides, who clean buildings for the 
American free enterprise system--these are hard-working men and women 
who have families, and we believe that hard work ought to be rewarded 
and that we should not deny those hard-working Americans a decent 
income. The Republicans oppose that.
  Whether it was on Davis-Bacon, the increase in the minimum wage, or 
the earned-income tax credit, which benefits workers who earn less than 
$30,000, on each and every one of those issues involving workers' 
rights, the Republican leadership in the House and the Senate fought us 
tooth and nail. They fought us tooth and nail at the beginning of the 
Congress, and the last act of this Congress will be to undermine the 
legitimate rights of working men and women who are only trying to play 
by the rules under the National Labor Relations Act.
  The Federal Express workers may be able to persuade their coworkers 
to support organizing or they may not, but they shouldn't have the rug 
pulled out from under them as Republicans have tried to do to other 
workers over the period of this Congress.
  Mr. President, I reserve the remainder of my time.
  Mr. McCAIN addressed the Chair.
  The PRESIDENT pro tempore. The distinguished Senator from Arizona.
  Mr. McCAIN. Mr. President, I yield 4 minutes to the Senator from 
Texas, Senator Hutchison.
  The PRESIDENT pro tempore. The distinguished Senator from Texas is 
recognized.
  Mrs. HUTCHISON. Thank you, Mr. President.
  Mr. President, if someone is watching this debate today, they might 
think we are arguing about a labor bill. Mr. President, we are not 
arguing about a labor bill. Whether Federal Express can have one union 
or six unions is not the purpose of this bill, nor should it be the 
focus of this debate, nor should it have held up this Senate for the 
last 4 days.
  Because the issue here is whether we are going to reauthorize the FAA 
and give them the tools they need to keep our airlines and our airports 
safe. That is the issue. That is the importance of sending this bill to 
the President. Because if we get bottled up in other extraneous issues 
and procedures, Mr. President, what we are going to lose is the ability 
for the FAA to immediately deploy certification of the detection 
equipment that is necessary to protect air traffic passengers, the 
protection against terrorist bombs. That is what we are talking about 
today.
  The detection equipment we have today was put in place when we had 
hijacking as a problem in this country. And since that equipment has 
been put in place, we have not had hijackings of airlines in America. 
But that is not the same type of equipment you need to detect the 
sophisticated bombs that have been able to be put in buildings and 
airplanes around the world, or subway systems. So what we are trying to 
do is protect the traveling public.
  We are seeing smokescreens here about minute labor issues, and we are 
seeing procedural measures taken against a very important big-picture 
bill that will give the FAA the tools it needs. It will allow the FBI 
and the FAA to collaborate in every high-risk airport city. We need the 
FBI to work with the FAA because they have unique capabilities that are 
not there in the FAA. So we need that to happen. It can start today. 
Baggage match, something that is done for foreign travel, will now be 
looked at to see if we can do it domestically, so that if a passenger 
gets on a plane, we will know that that passenger is matched to bags in 
the compartment beneath, and we will not have bags going on a plane 
without the passenger that checked that bag in.
  We need to be able to allow the passenger facility charges and the 
fees

[[Page S12221]]

that go on the airline tickets to be used for antiterrorism and safety 
measures. That will be authorized in this bill.
  Mr. President, we are not looking at deciding in Congress and 
spending 4 days of Congress' time to determine whether FedEx is going 
to have one union or six. Our purpose here today is to pass a bill that 
protects every American and every visitor to our country who is 
traveling in airports and on airplanes with the safety they deserve. We 
can do it if we will keep our eye on the ball and do what is 
responsible for the U.S. Senate. It would be irresponsible for us to 
allow some minor disagreement on a labor matter that does not have to 
be decided by Congress to, in fact, hold up a bill that will provide 
safety for flying passengers in America.
  Thank you, Mr. President.
  Mr. FEINGOLD addressed the Chair.
  Mr. KENNEDY. Mr. President, 5 minutes to the Senator from Wisconsin.
  The PRESIDING OFFICER (Mr. Frist). The Senator from Wisconsin is 
recognized.
  Mr. FEINGOLD. Mr. President, thank you.
  There has been some confusion in this body about whether this is a 
big issue or little issue, technical issue or substantive issue. Well, 
I think the argument that this is somehow just a technical debate has 
been pretty well shredded by the reality of what has happened this 
week.
  Let me just quickly read again from the letter from the Office of the 
President, the administration, from Franklin Raines, of the Office of 
Management and Budget, which says:

       The administration believes that the provision is not a 
     ``technical amendment'' to transportation labor law. In fact, 
     it could result in a significant shift of the relationship 
     between certain workers and management. We hope Congress 
     will not jeopardize aviation safety, security, and 
     investment initiatives as it comes to closure on this 
     issue.

  Mr. President, the Senator from Texas just again tried the ploy of 
saying this is a minor issue. She said, a ``minute'' labor issue. Well, 
does anyone believe, after the almost herculean effort to keep this 
provision in, that this is a minor issue? This is a major, major issue 
to one very powerful corporation in this country.
  Let us focus again on what this intense major debate is about. It is 
about whether one powerful corporation is going to be able to get its 
way in the closing hours of this Congress and push through a special 
interest provision aimed at only one thing --it is aimed at only one 
thing: protecting this powerful company from its workers trying to form 
a union.
  Mr. President, this apparently is not the only time that this 
corporation, Federal Express, has used this type of procedure to 
benefit its own interests. Let me say here, I do not think Federal 
Express is a bad corporation. Obviously, it provides tremendously 
important services in our economy, as do other services, such as UPS. 
But you cannot ignore the record.
  Last night, I and other Members of the Senate received a letter from 
Public Citizen, a nonpartisan public interest group. They express 
frequently a direct interest in the way this body does business. This 
is what Public Citizen wrote about the effort to push FedEx's special 
interest provision through in the FAA conference report. They said:

       This is not the first time or the second time that Federal 
     Express has used last-minute tactics to gain passage of 
     controversial amendments to law. In the 1990 aviation 
     authorization bill, with no hearings, exemption from local 
     noise requirements for aircraft were pushed through. In the 
     1994 aviation authorization bill, Federal Express was 
     involved in getting preemption of State regulation of truck 
     prices, routes and services through the Congress with no 
     hearings in the Senate where the amendment was added to an 
     unrelated bill and only a last-minute hearing in the House 
     during the conference negotiations. State officials were 
     outraged at the way this was maneuvered. In 1995, motor 
     carrier safety standards were eliminated for Federal Express 
     type trucks in the National Highway System legislation. In 
     1996, the anti-labor provision Federal Express seeks to get 
     enacted in the aviation authority conference report is [just] 
     the most recent in a long string of such maneuvers.
       These issues [they say] are major public policies that 
     deserve appropriate hearings and evaluation. The public is 
     already angry about the way wealthy business interests 
     dominate the congressional decision-making process. This 
     history of Federal Express sponsored legislation, combined 
     with the millions of dollars it spends each year lobbying, 
     campaign contributions, and providing air transportation 
     services to key members of Congress, undermines our 
     democratic system. Federal Express has a long history of 
     opposition to government regulations. But when they want to 
     block their employees' efforts to form a union and gain an 
     unfair advantage over their competitors, the sky's the limit 
     on money and political muscle they will use to get their own 
     customized regulatory protection made into law.

  Those are words by Joan Claybrook from Public Citizen. And this is 
not an isolated, innocent, or minor matter to the corporation pushing 
it.
  Mr. President, let me repeat one phrase from this letter. This kind 
of activity ``undermines our democratic system.''
  However anyone feels about the underlying merits of the issue, the 
process which is taking place is repugnant. As the distinguished 
Senator from Illinois, [Mr. Simon] has said, if this corporation 
succeeds, this will be a textbook example for years to come of how 
special interests have perverted the democratic process. I hope we will 
do the right thing and just say no to this.
  Mr. President, let me simply say, as a conclusion, I have heard 
speakers all week, and especially this morning, say that we have to 
pass this bill because of airline safety; we have to pass this bill 
because of the airline tax extension; we have to pass this bill because 
of airport aides. And I agree. We have to pass this bill. How can all 
of those things, how can all of those things be less important than 
this one provision for Federal Express?
  It seems inconceivable to me that those on the other side, given 
their commitment to those issues and those concerns, would not drop 
this provision at this point and let the bill be passed today and be 
signed by the President.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. McCAIN. Mr. President, I yield 6 minutes to the Senator from 
South Carolina, Senator Hollings.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, I'll come right to the point, it is not 
a question of one company succeeds. It is the question of one Congress 
can succeed. Congress made the error, not Federal Express. Federal 
Express had nothing to do with the dropping of the language when we 
passed the ICC termination bill last December. We made that mistake. We 
are on trial. And this distortion: coming in here and flyblowing a 
wonderful company-- ``antiworker,'' ``a Republican attack,'' ``slash 
Medicare,'' ``slash education''--none of that has anything to do with 
it.
  Let us assume that Federal Express was antiworker. That would have 
nothing to do with this particular issue. What we did here with my 
amendment--and incidentally, ``Republican,'' I have been a Democrat 
since 1948. I think you were just learning to drive at that time. So 
you can't define who is a Democrat, we will see how the Democrats vote.

  At that particular time we came in here and we said, ``Wait a minute. 
When we left, we had a hearing. Been having a hearing quite regularly 
all over.'' Who is to be heard? Not the merits of workers' rights, the 
merits of the truth. Find somebody, some Senator, some Congressman. I 
have challenged him now for 3 days during this filibuster, find me 
anybody who says otherwise than that it was an honest mistake. It is 
our duty to try to correct it.
  Every time we try, we go down the list, filibuster, filibuster, 
filibuster. Yes, you have the political power. You have held the whole 
Congress up for 3 days. Every time we try to get it anywhere, you are 
going to filibuster, filibuster, filibuster, trying to take advantage 
of an honest mistake.
  We have heard from all the Congressmen, Republican and Democrat, all 
the Senators, Republican and Democrat, and we all agree that it was a 
mistake. You cannot find anybody who says it was not a mistake. To come 
in here trying to correct an honest mistake, and they flyblow a company 
with antiworker/Medicare/Medicaid and all that extraneous garbage--they 
know no shame. We are not going to filibuster. We are ready to vote. We 
are ready to vote and try to get a political division here today on 
what this Senator has been trying to clean up.
  We tried to get the other side to look at the intent. I am looking at 
the conference report by Mr. Shuster, the ICC

[[Page S12222]]

Termination Act, last December 15. ``The enactment of the ICC 
Termination Act of 1995 shall neither expand nor contract coverage of 
employees and employers by the Railway Labor Act.''
  Now, that is exactly what was intended. That is the law. The Railway 
Labor Act is just exactly what truck drivers and pilots and Federal 
Express have been under since 1973 when they started business.
  I felt like Archimedes, who said, ``Eureka, I found it'' when the 
Senator from Massachusetts cited 4-RC-17698. I ask unanimous consent to 
have printed in the Record excerpts of the final Board decision.
  There being no objection, the material was 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-1698) Federal Express 
         Corporation.

     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, 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, courier/non-drivers and operations agents.
---------------------------------------------------------------------------
     \1\ Footnotes at end of letter.
---------------------------------------------------------------------------
       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 Operation Control 
     Specialists; and Mechanics and Related Employees; Stock 
     Clerks; and Fleet Service Employees). However, the Board has 
     not addressed the issue raised by the UAW: whether or not 
     certain Federal Express employees are subject to the Railway 
     Labor Act.
       The NLRB initially requested the NMB's opinion as to 
     whether FedEx is subject to the RLA on July 1, 1992. However, 
     on that date, the NLRB granted the UAW's request to reopen 
     the record and the file was returned to the NLRB. The NLRB 
     renewed its request on July 17, 1995 and the NMB received the 
     record on July 31, 1995. The NMB received additional evidence 
     and argument from FedEx and the UAW on August 17, 1995 and 
     September 5, 1995.


                                  II.

       Federal Express, a Delaware corporation, is an air express 
     delivery service which provides worldwide express package 
     delivery. According to Chairman of the Board and Chief 
     Executive Officer Frederick Smith, Federal Express flies the 
     sixth largest jet aircraft fleet in the world.
       Federal Express' jet aircraft fleet currently includes 
     Boeing 727-100's, Boeing 727-200's, Boeing 737's, Boeing 747-
     100's, Boeing 747-200's, DC 10-10's, DC 10-30's and 
     McDonnell-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 (1993); Federal Express 
     Corp., 20 NMB 360 (1993); Federal Express Corp., 20 NMB 126 
     (1993); Federal Express Corp., 20 NMB 91 (1992); Federal 
     Express Corp., 20 NMB 7 (1992); Federal Express Corp., 19 NMB 
     297 (1992); Federal Express Corp., 17 NMB 24 (1989); Federal 
     Express/Flying Tiger 16 NMB 433 (1989); Federal Express, 6 
     NMB 442 (1978). In eight of those determinations, the Board 
     exercised jurisdiction over ground service employees of 
     Federal Express. The substantial record developed in this 
     proceeding provides no clear and convincing evidence to 
     support a different result.


                                   a.

       Section 181, which extends 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.\9\
       In REA Express, Inc., 4 NMB 253, 269 (1965), the Board 
     found ``over-the-road'' drivers employed by REA subject to 
     the Act stating:

[[Page S12223]]

       ``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 to the 
     ``integrally related'' test. Specifically, the participants 
     discuss whether the employees the UAW seeks to represent are 
     ``integrally related'' to Federal Express' air carrier 
     functions. The Board does not find consideration of the 
     ``integrally related'' test necessary to resolve the 
     jurisdictional issue, however, review of the relevance of 
     this test is appropriate.
       The UAW argues that the employees it seeks to represent are 
     not integrally related to Federal Express' air carrier 
     functions and therefore are not subject to the Railway Labor 
     Act. Federal Express asserts that the NLRB and federal courts 
     have found its trucking operations integrally related to its 
     air operations.\10\
       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.

                           *   *   *   *   *

     9 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.
     10 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 particular decision on page 2 covers every kind of 
driver you can think of--shuttle drivers, tractor-trailer drivers, 
dispatchers, courier nondrivers, courier drivers, and right on down, 
and I want to read to you in this limited time the final decision: 
``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.'' Signed, Stephen E. Crable, the chief of staff, and 
as a unanimous decision by the other members.
  That was filed on November 22, 1995, almost a year ago. This is the 
initiative to try to change it. The opponents are the ones trying to 
pull the rug out from under that decision because it was at the NLRB--
they know and we all know in 50 years and 100 decisions the NLRB has 
never reversed a decision that was unanimous by the National Mediation 
Board.
  To talk about litigation, for 5 years they had wonderful lawyers. The 
employees were there with all kinds of hearings and everything else, 
but they act like what we are trying to do is change the rules in the 
middle of the game. We are trying to correct a mistake.
  Mr. President, there is no question in my mind this is an outstanding 
company. I have ``The 100 Best Companies,'' and I could read it. But, 
simply stated, the Senator from Illinois is totally out of order with 
respect to this issue of the way to govern; one people, one Congress. 
We are the ones who made the mistake, not Federal Express. This is the 
way to try to correct it. We know we faced a filibuster at every 
particular turn you could possibly think of. We know this is partisan 
onslaught. We know this nonsense about working people and working 
families and slashing education.
  Under the Railway Labor Act, you have every right and interest to 
organize, and in fact 65 percent of the workers under the Railway Labor 
Act are organized. Under the NLRA, the National Labor Relations Act, 
only 11 percent are organized. So they are wrong when they act like we 
are trying to change the rules. We are trying to get it back to exactly 
where the parties were. We are here now because they have the legal 
power to delay us for 3 days, intimidate and terrorize.

[[Page S12224]]

  I thank the distinguished Chair.
  Ms. MOSELEY-BRAUN. Mr. President, the bill before us today, H.R. 
3539, the Federal Aviation Administration Authorization Act of 1996, is 
important legislation. It reauthorizes the Airport Improvement Program, 
providing needed grants to States and to airports for airway 
improvements, helps to improve safety and airport security, and makes a 
number of other important contributions to aviation.
  In Illinois, O'Hare airport in Chicago could expect more than $8.5 
million next year. The Peoria airport could receive $860,000. The 
airport in my State's capitol, Springfield, should receive more than 
$660,000 if this legislation is enacted. The Southern Illinois Airport 
Authority, which operates an airport in Carbondale, expects more than 
$1.5 million if this bill becomes law.
  These grants are important to these and other airports in Illinois, 
and to airports across the country. They are what keep our airports 
functional and safe, and help maintain the air transportation 
infrastructure of our country that fuels our economy. Congress can 
hardly afford to adjourn without the passage of this legislation.
  This bill even includes a provision that I worked very hard on, along 
with my colleague from Oregon, Senator Wyden, that will allow 
communities to participate in the process of improving safety at their 
railroad crossings. Under a 1994 law, communities did not have this 
option. They were essentially directed to install extremely expensive 
safety devices, or their locally imposed whistle ban would be revoked. 
I am delighted that we were able to work out an amendment to this 1994 
law that gives communities the flexibility they need to improve safety 
from the local level, and not just by Federal dictate.
  It is therefore very disheartening that, despite the obvious merits 
of this legislation, despite the fact that this is a good, bipartisan 
bill, and despite the fact that it will allow communities to 
participate in the process of improving railroad crossing safety, I am 
forced to vote against this entire bill because of one sentence that 
was inserted by the conference committee and dubiously labeled a 
clarifying amendment.
  Mr. President, supporters of this one sentence argue that it is, in 
fact, a technical correction--a clarifying amendment--and that it 
corrects a mistake that occurred when the Congress drafted and approved 
the legislation eliminating the Interstate Commerce Commission. I am 
not on the Commerce Committee, and I am not familiar enough with the 
details of the legislative language that was used when Congress 
eliminated the Interstate Commerce Commission to evaluate the merits of 
that claim.
  I do know, however, that a technical correction does not provoke the 
kind of controversy that this one sentence amendment has provoked. 
Technical corrections are, by definition, noncontroversial. They change 
details of legislation or of law in ways that do not have substantive 
affects on policy.
  Technical corrections do not result in my staff being bombarded by 
calls, faxes, and letters--which is exactly what has happened since 
this sentence was discovered in the FAA Authorization Conference 
Report.
  Technical corrections do not prompt Senators to demand a full reading 
of the text of legislation. Yet the other night we listened while the 
bill clerks diligently read the text of almost the entire FAA bill for 
3\1/2\ hours.
  Technical corrections do not lead to filibusters, and Mr. President, 
I believe that is exactly where we are today, in the midst of a 
filibuster over a supposed clarifying amendment.
  Technical corrections do not tie the Senate in knots and hold the 
104th Congress in legislative session for several days after we were 
scheduled to adjourn sine die.
  Technical corrections do not motivate press conferences, where 
workers express their fears that this provision will allow their 
company to trample their employment rights. Regardless of the 
substantive merit of this claim, or the claims of either side in this 
debate, a provision that is this controversial is not a technical 
correction.
  Technical corrections do not require five or six attempts to be 
inserted into legislation. That is the history, however, of this 
sentence. Attempts were made to attach the provision to fiscal year 
1996 appropriations legislation. Those attempts failed. An attempt was 
made to attach it to the NTSB reauthorization. That attempt failed. 
Members tried to attach it to the Railroad Unemployment Act amendments, 
and failed. An attempt was made to attach it to this year's Department 
of Transportation appropriations bill. That attempt failed. Another 
attempt was made to attach it to the fiscal year 1997 omnibus 
appropriations legislation. That attempt failed as well. This is not 
the legislative history of a technical correction.
  This is the history of a highly contentious provision that many 
people believe will directly affect their lives. This is the 
legislative history of a provision that one company believes will give 
it the upper hand in negotiations with some of its employees. This is 
the legislative history of a provision that should be the subject of a 
hearing--but it has never been the subject of a hearing, in either the 
House or the Senate.
  This provision has never even been debated in either the House or the 
Senate. It had never passed either body--and yet it found its way into 
the conference report on this important legislation reauthorizing the 
Federal Aviation Administration.
  It is deeply unfortunate that this highly controversial sentence has 
been attached to such a valuable piece of legislation. It is deeply 
troubling that this provision has never been the subject of a hearing 
or been debated on its merits. I deeply regret that I must oppose this 
legislation, because in the 11th-hour, a highly controversial provision 
has been attached to the bill under the guise of a clarifying 
amendment.
  It is my hope that the Senate will be able to clean up this FAA bill 
and act on it immediately, before the end of the 104th Congress. This 
bill is too important for airports, our transportation infrastructure, 
and our economy, to let it be derailed by one controversial, 11th-hour 
amendment.
  I urge all of my colleagues to vote against cloture, and support a 
clean alternative to this bill.
  Mrs. BOXER. Mr. President, the pending conference report is a very 
important piece of legislation that means nearly $4.6 billion in grants 
to airports across America the next 2 years and as much as $75 million 
in entitlement and apportionment funding this year to airports in my 
State of California. It also authorizes funds over the next 2 years for 
operations, equipment, and research of the Federal Aviation 
Administration.
  And, in a very important change in public policy, the bill ends the 
FAA's dual mandate of regulation of civil aviation and promotion of air 
travel. After this bill becomes law, the primary mission of the FAA 
will be to ensure the safety of the flying public.
  The bill also contains important provisions that will increase 
security at the nation's airports and begin implementation of the Gore 
Commission recommendations to enhance security. This bill will 
immediately authorize heightened airport employee screening checks and 
criminal background checks and will facilitate sharing of information 
on pilot records.
  As far as I know, not one single senator opposes this FAA 
authorization bill. So why are we still here?
  We are still here because of an unusual parliamentary move in the 
conference on this bill last week, in which a provision that was not in 
either the Senate-passed bill or the House-passed bill was added in 
conference. That move is what triggered the fierce debate we have had 
on this issue since last Saturday.
  Had that provision--relating to labor organizing rules for employees 
of Federal Express--not been added in conference, the Senate would most 
likely have adjourned several days ago.
  Those who oppose the provision have exercised their rights to debate 
it at length. So today there will be a cloture vote on the conference 
report. And while I support the FAA reauthorization bill, I will vote 
against cloture on this conference report for two reasons:
  First, I strongly object to the procedure that was used to add this 
provision to the bill in conference. I understand that under the rules, 
the conferees had the right to do what they did. However, what is legal 
is not necessarily prudent and constructive.
  Given the facts--that the underlying bill is noncontroversial and a 
very important and necessary measure to pass

[[Page S12225]]

this year, that we are now at the end of this session of Congress, and 
that the new provision is quite controversial--adding such a provision 
in conference was bound to cause great turmoil. The conferees should 
have anticipated that it might endanger, or at the least, delay, 
passage of the underlying bill.

  I wish that the conferees had acted with greater prudence in the 
interest of passing the important FAA Reauthorization legislation.
  Second, I strongly oppose the labor provision itself. I am not an 
expert on labor law or transportation law. But after reviewing the law 
in question and the facts of this case, I conclude that the provision 
that was added is in fact a special exemption from applicable labor 
organizing rules for one company.
  The provision's supporters argue that it is merely a ``technical 
correction'' to the Interstate Commerce Commission Termination Act of 
1995. They claim that Federal Express is an ``express carrier'', not a 
``motor carrier'' for purposes of labor organizing rules.
  Why is this classification so important?
  For the working people, the employees of Federal Express, it makes 
all the difference--between being able to organize like other employees 
of other companies across the country, on a local basis, or having to 
organize nationally, drastically reducing their ability to organize.
  According to the Surface Transportation Board, the agency that 
assumed regulatory responsiblities of the ICC when it was terminated by 
Congress, in a June 14, 1996 letter from Chairman Linda Morgan, Federal 
Express was never considered to be an ``express carrier'' by the ICC.
  Chairman Morgan states in that letter that Federal Express, has 
always been classified as a ``motor carrier'', not an ``express 
carrier''.
  I believe the law and the facts are clear. Federal Express is and 
always has been a ``motor carrier'', subject to the labor organizing 
rules of the National Labor Relations Act, which allows employees to 
organize locally.
  The provision that was inserted in the conference report is a special 
exemption from the labor organizing rules that apply to ``motor 
carriers'' such as Federal Express.
  If the proponents of such an exemption wish to debate this proposal, 
they have every right to introduce legislation, hold hearings on it, 
and try to move it through Congress. But I believe that it is 
inappropriate and imprudent to attempt to push it through in a 
conference report in the last hours of this session.
  Mr. LEVIN. Mr. President, the conference report now before us 
includes language which would restore the express carrier 
classification within the Railway Labor Act. This rider was not 
included in the FAA reauthorization bill as passed by either the House 
or the Senate. It was inserted into the legislation in the conference. 
This is not the right way to legislate.
  The language that was inserted by the Conference Committee into the 
FAA Reauthorization Act was deleted by the ICC Termination Act of 1995 
(Public Law 104-88), a law passed by Congress. That deletion was 
included in the legislation when it was before the House and when it 
was before the Senate and was a part of the conference report as 
adopted by both Houses. It was not a modification made in the 
enrollment process, as has been suggested.
  Concerns have been expressed that removal of this provision from the 
FAA reauthorization would greatly delay or kill this bill. That is not 
accurate. I support the FAA reauthorization. It is important for 
America and for Michigan. Virtually all Members of the Senate support 
this bill. There is a bill at the desk in the Senate which contains all 
of the language of the FAA reauthorization bill now before us with the 
single exception that it does not contain the provision causing so much 
controversy. The bill at the desk could be taken up and passed 
immediately. Regardless of the outcome of this cloture vote, the FAA 
reauthorization is virtually certain to be enacted before this Congress 
adjourns sine die, as it must be.
  It is now amply clear that issue involved in the provision added in 
conference is a significant one. It can and should be the subject of 
hearings and full consideration by the appropriate committees of 
jurisdiction. It can and should be considered early in the 105th 
Congress.
  For these reasons, I will oppose the motion to invoke cloture. I will 
vote in favor of final passage of the FAA reauthorization bill which I 
strongly support.

                          ____________________