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Mr. PICKLE. Is the actual loss smaller than the system averages or the system losses?

Mr. WILHITE. Of course, you are only dealing with the one set of trains, and that is the only thing you are examining and considering, not the system as a whole.

Mr. Pickle. Actual losses, then, would probably be a smaller figure wouldn't it?

Mr. Wilhite. Than what they call allocated losses; yes. Some railroads in the past have put in expense items for maintenance of rightof-way.

Mr. PICKLE. The problem is that in addition to actual losses which would be reasonably estimated, we know exactly how much you paid out for salaries, how much you paid out for fuel.

You could establish those, but I suppose they bring in as part of the losses investments, overall losses, administrative costs and other figures that would not show directly in that particular run.

Mr. WILHITE. Some of them try to, and some of them bring in labor costs, that will not be saved, and those items have been knocked out.

Mr. PICKLE. I make reference now to a part of the testimony that was submitted to us that concerns the testimony of Robert Lawrence, on page 568, in which it says, “What are the duties of a machinist ?" The answer is:

To take care of the work that comes up on the diesel locomotives, repair your engines going out on freight services or passenger services, whatever they might be to take care of them and see they are in good running order, nothing wrong with them.

It goes on to say that the work is supposed to be charged to the engines you work on.

Question. I suppose all engines are numbered ?
Answer. That is right.

The testimony goes on, and what they are establishing here is that if you consider them system losses, you would have to consider the wages of the machinist and all those other people that would not be directly related to that run; is that correct?

Mr. WILHITE. That is true.
Mr. PICKLE. Let me continue with this.
Counsel points out that the gentleman also was being questioned and

you said:

May I inquire what the purpose of all this is?
And Mr. Wellington said:

Mr. Lawrence has informed me he made out time slips on work on a passenger engine, but that he was instructed by his boss, the roundhouse foreman, to put down two hours for the passenger train and another hour he had worked on a freight diesel was deducted.

You asked if this happened 3 years ago, and he said he retired in 1965.

You asked, "Are you trying to imply or prove that some of the expenses here are overstated

And Mr. Wellington said, “That is right.”

My question to you, then is, in establishing losses you do allow them to bring in losses such as the machinists, whether he worked on other kinds of locomotives besides the passenger trains.

What part did you know how to allocate to the passenger train; just to allocate it?

Mr. WILHITE. A portion of it would be; yes.
Mr. MACDONALD. Off the record.
(Discussion off the record.)
Mr. PICKLE. Was this testimony allowed, Mr. Wilhite?

Mr. WILHITE. As you will note from what they have shown you, this man was talking about the year 1965 and there was no indication that he had any knowledge of what occurred during 1966, 1967, and 1968 when he was no longer employed, and it was too remote to be of any value to determine the losses for those 3 years, and no proof that it was going on at the time.

The Commission covers that in their decision.

Mr. MACDONALD. Thank you very much, sir. I just have two last questions, I guess more in the form of a statement than a question.

But you operate under the same rules that all hearing examiners do under the Administrative Procedures Act, like the National Labor Relations Act, for a concrete example.

Mr. WILHITE. I assume so. I don't know.

Mr. MACDONALD. I am a little familiar with that. I traveled in Net England as a trial attorney for New England, and had to appear, of course, before many examiners, and it is a statement but a question at the same time.

Do you think that you showed very good judgment in traveling with either side? I don't really care whether it is the union or the railroad.

The court stenographer I can understand. You are both in the same boat, it is strange country and so forth, but don't you think it is rather bad judgment to travel with either side in a dispute that you have to adjudicate?

Mr. WILHITE. At that time, I did not think it was wrong, but since then I can see the point.

Mr. MACDONALD. Don't misunderstand me. I happen to believe that dinner or transportation or something like that will not influence anybody.

If it would, you certainly should not have the job in the first place. So, I can categorically say that of all the trial examiners I have ever had contact with, and I had contact with quite a few, they had their own prejudice and so forth, but no one is going to influence them by a dinner or traveling with them, and I don't mean to tear down our staff's evidence because it is just that, it is evidence, and I think it is evidence of bad judgment more than anything.

Mr. WILHITE. Yes, sir.

Mr. MACDONALD. Second, don't you think it was a mistake not to let somebody like the railroad conductor testify, even though as Mr. Springer has pointed out forcefully that perhaps it could be justified on very technical grounds, and don't you think it would just be better, your time is not that valuable, if he took up 3 hours, and he was rather rambling, if you sifted it don't you think you would come up with a better picture of what was happening on that railroad than the Gorernor had?

Mr. WILHTE. I think, as I have said before, and I think Congressman Springer indicated the same thing, that his attorney could have proceeded a little differently.

Mr. MACDONALD. We know the attorney has to be a fairly competent attorney. As a matter of fact, that is the only thing that seems to me suspicious about it. You don't get to be an assistant attorney general by being 1 day out of law school.

You could have gotten a legal aid guy who could have handled the case better than that. That makes it more suspicious to me all the more, frankly.

It seems to me that he was not wanted to testify, and that is how it was arranged. I can't ask you a question about this because it is out of my province, and I am not castigating you or anybody else, but I think in the overall picture it would have been wiser from all points of view to let the man testify.

I hope as you continue in your job there that you listen to people who are not terribly skilled and are rambling. We have many testify before us here who are the same way.

So I would hope that it is not still your custom to travel with either side, or anyone who has interest in it. I repeat, I don't think there is anything insidious about it, but I just think it is a bad image maker.

Mr. WILHITE. I think you are right. Maybe I should have taken it upon myself to have taken charge and had it marked and had it offered, and then I could have ruled and the Commission could have either sustained me or overruled me.

Mr. MACDONALD. Are there any further questions?
Mr. SPRINGER. Just one.

I want to say that I agree with my splendid colleague from Massachusetts about fraternizing, because I think an examiner, like a judge, has to be almost like Caesar's wife, above suspicion, and you are seen with everybody.

I think however, that your rulings were right. This man was represented by competent counsel, and he tried to introduce testimony that was not admissible, and you ruled exactly right.

I may say this has not always been true about this so-called sitting down together and eating, and so forth. I was very strongly of that opinion until I read the life of Abraham Lincoln the other night, and I found out as they traveled over the district, Judge Davis was the circuit judge in that circuit at Bloomington and later was on the U.S. Supreme Court, as you know, and I think he later became Chief Justice.

Well I found out that in Danville, Ill., at least on two evenings at the end, there was just one double bed, and he and Lincoln slept in the same bed.

May I say to you, Mr. Examiner, at least you have not been accused of that, even if there was only one bed.

(Laughter) Mr. MACDONALD. I would like to ask my colleague, did President Lincoln appoint the judge to the Supreme Court?


Mr. SPRINGER. If they slept together, I suppose he could have been accused, of something:

Mr. MACDONALD. With that, we thank you very much.
The hearings are adjourned until tomorrow afternoon at 2 o'clock.

(Whereupon, at 5:50 p.m., the subcommittee adjourned, to reconvene at 2 p.m., Wednesday, June 17, 1970.)





Washington, D.C. The subcommittee met at 3:15 p.m., pursuant to notice, in room 2123, Rayburn House Office Building, Hon. Harley O. Staggers (chairman) presiding

The CHAIRMAN. The committee will come to order, and we will continue the hearings which we started yesterday. Our first witness this afternoon will be Robert T. Wright, attorney-adviser, of the Interstate Commerce Commission.

Mr. Wright.

I have understood here that Mr. Tuggle would like to be on first if he could, so if it is all right with you, Mr. Wright, we will take Mr. Tuggle.

So if you will, take the stand, sir.

If you will raise your right hand before you sit down, do you solemnly swear or affirm that the testimony you are about to give to this subcommittee is the truth, the whole truth, and nothing but the truth, so help you God?

Mr. TUGGLE. I do.
The CHAIRMAN. Counsel may start the questioning.



Mr. LISHMAN. Commissioner Tuggle, how long have you been a member of the Interstate Commerce Commission?

Mr. TUGGLE. I went on the Commission in September 1953.

Mr. LISHMAN. How long have you served as Chairman of Division 3, or any other administrative division which handles train-off matters?

Mr. TUGGLE. I became Chairman of Division 3 in 1960 sometime.
Mr. LISHMAN. Who was Chairman of Division 3 prior to 1960?

Mr. TUGGLE. I don't recall. I might say that in 1959 I was Chairman of the Commission, but sometime during the following year I went in as Chairman of Division 3.

Mr. LISHMAN. Commissioner Tuggle, these hearings have covered some aspects of the discontinuance matter decided in January 1969, involving the Chicago, Burlington and Quincy Railroad, F.D. 25230

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