hearing in court relating to modification of that temporary restraining order, to expand it to preclude not only enforcement of the regulations but enforcement of the act, itself, where equipment and personnel were not available. That was one of the ways in which that order was modified. Did you have a representative present at that hearing?

Mr. CAREY. I told you I did not have anyone present, sir; because I was not aware of it. I cannot expect to be a clairvoyant unless I am informed.

Mr. MITTELMAN. Did you have occasion to review the transcript of the hearing?

Mr. CAREY. NO; I have not seen the transcript of that, but I do have the order issued by the court.

Mr. MITTELMAN. You have not seen the transcript of that hearing? Mr. CAREY. That is correct.

Mr. MITTELMAN. It was not of enough interest to you to look at the transcript of that hearing?

Mr. CAREY. We intended to be present at the time when the hearing was going to be held, the hearing on the merits, which is the important thing. But the thing you people are missing completely is this: You are talking about a petition for a temporary restraining order and a preliminary injunction. But the thing to keep in mind and keep in mind at all times is this, that there was a petition filed for a three-man court in order to test the constitutionality of this act. That would hold everything in abeyance as I see it. Now, the three-man court was not appointed for approximately a month or 6 weeks after the petition was filed. Chief Justice Haynesworth of the Fifth Circuit did appoint a three-man court. That will determine the constitutionality of the statute. I think that is the most important thing, one of the most important things to worry about. The fact that the order was issued, the temporary restraining order and the preliminary injunction, is the thing that has probably frustrated the Secretary of the Interior. He has given it a very narrow construction, but he is restricted because of that injunction issued in Abingdon, Va., by the district court. He may be correct in that. I have serious doubt that he is correct. But it is one of those legal arguments that you and I could continue interminably because I don't know and you don't know whether an injunction issued against the Secretary of the Interior in Abingdon, Va., is nationwide as far as the Secretary is concerned in enforcing the statute or whether it is restricted to the State of Virginia.

Mr. MITTELMAN. That is precisely the next subject I want to go into. You are aware of the fact that the Secretary of the Interior or the Department personnel responsible for enforcing the act have decided to obey the injunction on that issue on a nationwide basis.

Mr. CAREY. That is correct. That is my understanding. I don't know, in fact, reluctantly, most reluctantly I am inclined to think he may be correct. I think if an injunction issued against a Cabinet officer involving a specific statute passed by the Congress of the United States, even though it may be issued in Timbuctoo or Paducah, Ky., or Tallahassee, Fla., I am inclined to think that Cabinet officer is restrained, wherever he may try to enforce that act. That is my interpretation of the injunction, that his hands are tied probably nationwide. As I said, reluctantly I must almost agree that he may be correct,

as much as I dislike agreeing with him because he may get himself into a contemptuous situation as far as the court is concerned because an injunction as you know, is notice to the world in many instances.

Mr. MITTELMAN. Mr. Carey, I don't want to get into a legal argument. As far as I am concerned, there was no legal compunction on the Department to obey the injunction nationwide until it was so broadened.

Mr. CAREY. I certainly hope you are correct.

Mr. MITTELMAN. What concerns me is the fact that as far as I am aware there were no witnesses put on by the Government at any stage of this proceeding. There was no motion made by the Government to modify this injunction, notwithstanding all the confusion that it created in the coal fields of which you are presumably well aware. It would seem to me that from the standpoint of the union interested in having this law enforced and in view of the drastic effect on the health and safety of your thousands of members that you would want to be at least a party to the case, if only for the purpose of receiving notice of what was going on. You testified, I think, this morning that this hearing had been-I am sorry, perhaps you didn't, but there was some statement this morning to the effect that the hearing which was originally scheduled for September is now put off until November and you did not even know about it.

Mr. CAREY. Yes; I did know about it. I told you I heard about it. Mr. MITTELMAN. You heard about it. Had you been a party you might have been able to object to it.

Mr. CAREY. I made inquiries to the Department of Justice and found out it was continued to November 1. I don't speak lightly, sir. When I said that this morning, I knew it to be a fact.

Mr. MITTELMAN. My point is had you been a party to that case you would have been in a position to object to continuing the case to November 1 from September.

Mr. CAREY. You give me more prestige than I am willing to accept. I don't think we would have been successful in resisting continuance because of the fact that the Department of Justice through the Secretary of the Interior has worked out arrangements where these regulations are going to be issued imminently, have been told, and if this be true, then I would say that matter becomes moot.

Mr. MITTELMAN. We hope it will be.

Mr. CAREY. I hope to God it does, too. No one hopes more than I do about that particular matter.

Mr. MITTELMAN. Has the union been satisfied with the way in which the act has been enforced under the injunction?

Mr. CAREY. No; absolutely not. I think President Boyle so testified and the Director of Safety Evans also testified. Certainly we are not satisfied with the act as it is presently being enforced. I think it could be enforced with more vigor, more industry, more dynamics but it is not being done. How can you place the onus on us? As I said this morning, I think the Senate of the United States, the Congress of the United States which passed this statute, worked hard to make it a statute which is desirable, not the perfect statute but it is a tremendous improvement over prior statutes, I think that they have a tremendous interest.

Mr. Nader, you heard him testify this morning, he thought it was an ancillary duty, as it were, on the part of the Senate of the United

States or the Congress of the United States to institute litigation. I think a suit filed in the District of Columbia or anywhere today would be set aside on the basis of the fact that an injunction has been issued and priority has been assumed in the Virginia court. I don't know any court would entertain a suit today because they say, "We will wait until we see what happens in Virginia because they have preempted the field."

Mr. MITTELMAN. Mr. Carey, you already went through the fact that this injunction does remain in effect until the final hearing under the United States Code provisions applicable to three judge courts. It is possible, is it not, for a motion to be made in that case to modify the injunction?

Mr. CAREY. When the regulations are issued, as I am informed they will be imminently, and I hope my information is correct, then I think is the proper time to go in and say to the court the Secretary of the Interior has now complied with the requirements of the statute. He has issued them in the Federal Register. We now say there should be a modification and this temporary injunction should be removed. Mr. MITTELMAN. That injunction was issued in its present form about May 8. We have had 3 months when the Department has been required to operate under this injunction, it has been treating it nationwide. I personally have read the injunction. I think it is very difficult to understand.

Mr. CAREY. It is, I agree.

Mr. MITTELMAN. What I am wondering is whether the union has given serious thought to going in or at least even asking the Justice Department or the Interior Department to initiate proceedings to modify that injunction to at least make it understandable in his 3-month period. You seem to have indicated here you are willing to place complete faith in the Justice Department and the Interior Department to do what is right under the new law. I am surprised that you have so much faith in governmental institutions.

Mr. CAREY. It is a sad commentary, coming from a lawyer, to hear that you don't have faith in democratic institutions. I have faith in the U.S. Senate. I have faith in the House of Representatives. But I am not going to impugn the integrity of the Attorney General of the United States or any of his assistants until I have evidence to establish some basis for impugning him. Why would you make any charge of that kind?

Mr. MITTELMAN. I am not impugning anyone's integrity. You testified you did not even read the transcript of the hearing.

Mr. CAREY. I didn't think it was necessary to read the transcript because I got the order. I know what it holds.

Mr. MITTELMAN. I suggest, Mr. Carey, you read the transcript.

Mr. CAREY. You may make the suggestion, but I will make my own decision, sir.

Mr. FEDER. Mr. Carey, the membership of this subcommittee probably houses the greatest friends of the American workingman, I know you will agree, in the whole Congress. There is no group of people in the Senate or in the House that works harder for the workingman.

The day after the judge in Virginia modified his restraining order and broadened it in the process, the committee chairman directed the staff to immediately meet with the Government, the Department of

Justice, and Department of the Interior, and a meeting did take place the following day.

There have been meetings ever since then, and there have been hearings held by the committee. In doing so, the committee is not impugning the integrity of the Attorney General of the United States.

Mr. CAREY. Being aware of that as a fact, we would have been very happy to have had you invite us to the hearing.

Mr. FEDER. I am sure you would have been.

Mr. CAREY. We would have been there.

Mr. FEDER. I am sure of that.

The question in my mind, Mr. Carey, is a very simple thing. This statute enacted into law was signed by the President on December 30, 1969. The hearing on the merits in the case in Virginia is not scheduled until some time in November, almost 1 full year will have run and this statute will be under an injunction which you agree should be treated as a nationwide injunction.

Mr. CAREY. I did not say I agree. I said I am inclined to agree. Don't put words in my mouth. I said I am inclined to agree. Don't say I agree. I didn't agree.

Mr. FEDER. In that one year during which you are inclined to agree we should have the Department of the Interior treating this as a nationwide injunction, over 200 miners will be killed, and the question is even if it fails why didn't the United Mine Workers seek to upset that injunction in the court in Virginia with all of the legal money at its disposal?

Mr. CAREY. For the simple reason that we intend to move at the proper time and we are going to move at the proper time.

Why do you assume the United Mine Workers would have more prestige with the Department of Justice or the Secretary of the Interior than the U.S. Congress? It seems to me the more prestigious group would be the Senate and House that passed this bill. Have they set up a meeting with the Secretary of the Interior, the Secretary of Health, Education, and Welfare and then talked to the Department of Justice and said, "We passed the statute, this thing is being flaunted, it is being defeated, it is being frustrated"? Why does the initiation not come from within your committee?

Mr. FEDER. Are you suggesting the mineworkers interest can only be protected if the Senate and House of Representatives represent the mineworkers?

Mr. CAREY. We would be in sad shape if we relied on that exclusively. Absolutely not.

Mr. FEDER. The committee was asked this morning to file a lawsuit against the Department of the Interior. Obviously, one of the factors. that will be taken into consideration in accepting this recommendation or even considering the recommendation is whether the United Mine Workers intend to file a suit to enforce this law or intend to intervene to enforce this law. Do you now have any intention of intervening in the lawsuit in Virginia or filing any lawsuit on your own to enforce the statute?

Mr. CAREY. It will be my legal opinion that any lawsuit filed at this particular time would be dismissed on the basis of the case now being tried or being litigated in Virginia, on the basis that the constitutionality of the statute is going to be challenged and a three-man court is

going to hear that. I would say that any Federal District Court judge would say, "That matter is now in litigation in Abingdon, Va., wo don't have jurisdiction because of the fact it is being tried there." Mr. MITTELMAN. Turning to another matter, Mr. Boyle, I believe there was some testimony this morning about the union personnel concerned with safety. Could you briefly sketch out the structure, the personnel of the union on the international district and local basis who are concerned with safety and how the officers are set up to handle this program?

Mr. CAREY. Before we conclude then may I interrupt for just a moment, I am reluctant to do this but this morning Mr. Nader in testifying made reference to the various appeals which are being taken by the coal companies under 301.

It was indicated that we have done nothing about it. In response to that I brought Mr. Charles Widman with me who has been specifically assigned to handle all matters involving mine health and safety litigation. I think he is in a position at this time to give you a résumé of the amount of work which has gone into our legal defense of the positions before the mine safety board.

I don't know how many cases-how many cases are there.
Mr. WIDMAN. Twelve at the moment.

Mr. CAREY. Twelve cases at the moment and probably we can anticipate hundred and hundreds more.

Will you explain the situation where the coal companies are trying to get a general proposition of law involving all mines, not only applying to specific mines of

Senator RANDOLPH. Mr. Carey, is that by the operators, a procedure in which they think that by drawing attention to certain cases that this would be let us say a structure of a case so that it might apply over a wide area?

Mr. CAREY. That is right. We take a position they can only file an appeal on one mine, the specific mine involved. They have attempted to make this broad enough to cover all kinds of mines owned by that particular company.

Mr. Widman has filed motions to strike or to dismiss in the alternative. I think he is in a better position to elaborate.

Mr. WIDMAN. I would suggest this to you, Senator. The coal companies and one Armco was mentioned this morning, Armco is the bellcow. There are 47 companies that have filed petitions under various sections of the act, five coal operators associations if you please, and if that is not enough, BCOA, the Bituminous Coal Operators Association have sought to intervene.

What they are doing is taking their best cases, the way we see it now, to change the law under 301(c) which we are going to vigorously oppose, and by changing the law they are relying on section 301 (c) and we will suggest to this committee that we think they are completely out of order in doing so because section 301 (c) permits only a modification of a health or safety standard and not an alteration. They are seeking to amend. What is more they are trying to combine these things for suit.

We say it is the Senate's intent and I think we are at the right place to get the Senate's intent that these considerations are on a mine-tomine basis and only one company at each time must review these matters, the hearing examiner will consider mine to mine.