Panel Rules Unions Must Bargain Over Crew Size

Railroad labor unions suffered a setback this week when an arbitration panel ruled that crew size is an issue that is subject to collective bargaining.

Unions have long resisted bargaining over crew size on the national level, saying it should be a local issue.

But a federal arbitration panel decided this week that crew size is a national issue.

The decision found that standard moratorium language in decades-old labor agreements do not prohibit negotiations over crew size on freight trains.

Railroad management wants to change train crew staffing practices so that there would be one locomotive engineer per train but the job of the conductor would become more of a ground-based position with conductors having responsibility for multiple trains.

The 2-1 arbitration decision is binding and grew out of a lawsuit launched by the National Railway Labor Conference, which represents Class 1 railroads, to force unions to bargain over crew size in the current negotiations for a new contract.

The arbitration panel was made up of one member approved by labor, one approved by management and a neutral member who in this case is a California law professor and veteran arbitrator.

Contract talks have been ongoing for more than a year and in the meantime federal law requires the previous contract remain in effect until a new pact is reached and ratified by union members.

The Sheet Metal, Air, Rail, and Transportation Union’s Transportation Division (SMART-TD) saw a silver lining in the ruling that the arbitration panel did not mandate any particular outcome in negotiations.

The arbitration ruling also did not mandate that bargaining over crew size be done globally, meaning crew size talks with be done on a railroad-by-railroad basis.

The railroad industry and its unions began contract talks in November 2019 on wages, benefits and work rules.

Unions can be expected to continue seeking to get state legislatures to approve laws mandating two-per crews. Some Democrat members of Congress have introduced similar legislation that would apply nationwide.

The arbitration panel’s ruling requires SMART-TD to bargain with Class 1 railroads and some smaller carriers over crew size matters.

Railway Age reported the arbitration ruling affects more than 60 percent of the conductors at Class 1 railroads, including all conductors employed by BNSF and Norfolk Southern and half the conductors at Union Pacific.

Conductors employed by Canadian National, Canadian Pacific and CSX are not unaffected by the arbitration ruling because their unions were not parties to legal action resulting in the arbitration.

Kansas City Southern recently voluntarily withdrew its arbitration demand and was dismissed from the award by the arbitration panel majority. 

The Railway Age report indicated that railroads was pushing for more efficient operations because of an increasing reliance by carriers on intermodal traffic that is subject to diversion to trucking company, many of which have non-union operators who work for lower wages and benefits than those paid to unionized railroaders.

Intermodal traffic provides lower profit margins that some carload traffic – coal being a notable example – that railroad once relied upon for their financial well being.

Industry observers have noted that the development of positive train control has given railroads an opening to seek to reduce crew sizes by arguing that it will provide for safer operations and thus a second set of eyes in the cab are not needed.

Frank Wilner, who writes for Railway Age, has long argued that “no labor union ever has done better than slow the introduction of new technology.”

FRA Gives Unions Added Time to File Appeals

Two railroad labor unions have received additional time from the Federal Railroad Administration to file petitions for review by the Operating Crew Review Board.

FRA rules governing certification of locomotive engineers and conductors require that petitions to review a railroad’s decision to deny certification or recertification must be filed with the OCRB no more than 120 days after the date of the railroad’s final decision.

The FRA’s latest action extends the 120-day limit to 180 days.

The agency said it agreed to extend the time to file appeals due to the COVID-19 pandemic.

The extension is a waiver that will expire on Feb. 11, 2022, unless extended by the agency.

The unions that sought the extension were the Brotherhood of Locomotive Engineers and Trainmen and the SMART Transportation Division.

Unions Seek Protection for Trains in Washington

Two railroad labor unions have asked the Federal Railroad Administration and Department of Homeland Security to protect passengers and railroad workers of Amtrak, MARC and Virginia Railway Express services in and around Washington.

The Sheet Metal, Air, Rail and Transportation Workers, Transportation Division and the Brotherhood of Locomotive Engineers and Trainmen said they are seeking additional security measures in the wake of rioting that occurred in the nation’s capital on Jan. 6.

The unions have asked federal authorities for a minimal standard that any regulation granted to prohibit the interference of a train crew’s duty be in line with that of aviation statutes and regulations.

The letter to the FRA and Homeland Security sent by the unions cited  “the very real risk and potential for additional violence and riots.” It noted that Washington remains on high alert.

FRA OKs Union Bid to Extend Appeals Deadlines

The Federal Railroad Administration has approved a 60-day extension to two railroad labor unions to file petitions for review with the Locomotive Engineer Review Board and the Operating Crew Review Board.

FRA rules governing certification of locomotive engineers require a petition seeking review of a railroad’s decision to deny certification or recertification must be filed with the LERB no more than 180 days after the date of the railroad’s denial decision.

A petition seeking review of the railroad’s decision to revoke certification must be filed no more than 120 days after the date of the railroad’s denial decision.

Similar rules are in place for seeking review of a railroad decision to deny certification or recertification, or to revoke certification of a conductor.

In its latest action the granted temporary relief from the 180- and 120-day filing deadlines saying the “previously granted relief would be in the public interest, necessary to address the COVID-19 public health emergency and is not inconsistent with railroad safety.”

The extension has been sought by the Brotherhood of Locomotive Engineers and Trainmen, and the SMART Transportation Division.

FRA Spurns Union Request for Emergency Order

The Federal Railroad Administration has rejected a call by two railroad unions asking the agency to issue an emergency order calling for safety protections for railroad employees during the COVID-19 pandemic

“Although FRA believes that many safety precautions included in [the unions’] petitions could constitute best practices that should be applied in the railroad industry, FRA does not believe that an emergency order is justified,” FRA Administrator Ronald Batory wrote in a letter to the unions.

In a news release, the unions accused the FRA of failing “to mandate safety protocols to protect the health of railroad workers during the national COVID-19 outbreak.”

The Brotherhood of Locomotive Engineers and Trainmen along with the SMART Transportation Division has asked the FRA to issue an emergency order specific to employee protections after the agency announced it would temporarily waive some railroad safety rules during the pandemic.

FRA Grants Unions Extension of Filing Deadline

Two railroad labor unions have received Federal Railroad Administration approval to extend time limits for which petitions for review must be filed with the Locomotive Engineer Review Board and the Operating Crew Review Board.

In a news release the unions said FRA rules governing certification of locomotive engineers require that a petition seeking review of a railroad’s decision to deny certification or recertification must be filed with the LERB no more than 180 days after the date of the denial decision.

A petition seeing review of a railroad’s decision to revoke certification must be filed with the LERB no more than 120 days after the date of the railroad’s decision.

Similarly, under FRA rules governing certification of conductors, a petition seeking review of a railroad’s decision to deny certification or recertification, or to revoke certification, must be filed with the OCRB no more than 120 days after the date of the railroad’s denial decision.

The FRA has agreed to grant temporary emergency relief from the 180- and 120-day filing deadlines.

The deadline for any petition for review that’s due to be filed during the waiver period has been extended by 60 days.

The FRA on March 25 had granted an identical extension for railroads to respond to petitions for review field with the LERB and the OCRB.

The unions involved are the Brotherhood of Locomotive Engineers and Trainmen, and the SMART Transportation Division.

Unions Want FRA Action on Pandemic

Two railroad labor unions have asked the Federal Railroad Administration to issue an emergency order regarding employee safety conditions during the COVID-19 pandemic.

The SMART Transportation Division and Brotherhood of Locomotive Engineers wants the federal agency to activate its “emergency relief docket,” which allows railroads to request relief from regulations related to the COVID-19 emergency.

The unions said in a news release that some railroads have been slow to adopt or have yet to adopt measures suggested by the Centers for Disease Control and Prevention to mitigate the spread of COVID-19.

The news release said the FRA has yet to issue an action plan to address the potential spread of the virus among rail workers.

A week earlier the two unions had sought from the FRA emergency remedial measures, including thorough sanitation efforts in railroad facilities and on locomotives to prevent the infection of workers.

Unions Want FRA to Act on Coronavirus

Two railroad unions have asked the Federal Railroad Administration to take action to protect rail workers from the coronavirus.

The Brotherhood of Locomotive Engineers and Trainmen and the SMART Transportation Division have asked the FRA to issue guidelines directed at railroads, their employees and passengers.

“We and other rail labor organizations take this issue very seriously, and we have been monitoring it closely,” BLET President Dennis Pierce and SMART-TD President Jeremy Ferguson wrote in a letter to FRA Administrator Ronald Batory.

In a related development, executives at three Class 1 railroads canceled their planned presentations at the J.P. Morgan Industrials Conference in New York City due to concerns about the spread of the coronavirus.

The executives from Norfolk Southern, Canadian National and Union Pacific said they would not be speaking at the conference.

Also related to the coronavirus pandemic, the Commuter Rail Coalition has warned that the virus outbreak could disrupt efforts to complete installation of positive train control equipment.

The coalition said that was because of factory closings in China, where the virus originated. “Vendors have so far only alerted agencies to the threat, and agencies are exploring whether they have options for alternative sources for any components that might be cut off,” said KellyAnne Gallagher, executive director of the coalition.

Courts Sides With Railroads and Against Union

The railroad industry won a court battle this week in its efforts to force a railroad labor union to negotiate over crew size.

The National Railway Labor Conference, which represents Class 1 railroads in labor talks with railway labor groups, said a federal court in Texas rejected a union contention that the issue of whether unions must negotiate on crew size must be submitted to arbitration.

Railroads are seeking to negotiate with unions over the redeployment of conductors from onboard trains to working primarily on the ground.

In a news release, the NRLC said it filed the lawsuit last October in the U.S. District Court for the Northern District of Texas in Fort Worth against the International Association of Sheet Metal, Air, Rail and Transportation Workers, Transportation Division.

SMART-TD contends that longtime labor agreements ban negotiations over crew staffing of freight trains.

The Texas court ruled the union’s refusal to bargain over crew size violates federal law and it ordered SMART-TD to “bargain in good faith with each of the railroads” over train crew redeployment and staffing issues.

The litigation played out as unions and the NRLC are getting started on the latest round of contract talks.

Under federal law, existing contracts do not have an expiration date and the bargaining process can take years to conclude.

An analysis published on the website of Railway Age noted that the fight over crew size is at its core about the efforts of railroads to lower their labor costs in the face of declining coal traffic and tough competition to divert containers and trailers from trucks driven by non-union drivers.

Another underlying issue, Railway Age wrote, is the use of technology such as positive train control that holds the potential to transform how railroads operate.

Railway Age said these newer technologies create job redundancies.

On the other hand, Railway Age said SMART-TD is seeking to serve the interests of its members by keeping as many of them employed as possible.

What the Class 1 railroads want to achieve in negotiations is not a new idea.

BNSF proposed in 2014 operating trains with a locomotive engineer and assigning conductors to ground-based supervisory positions.

The new operating rules would have applied only to trains operating in positive train control territory.

Those newly designated “master conductors” would have worked from a fixed or mobile location and would have overseen more than one train.

The carrier offered higher pay and career income protection but the proposal was rejected in a vote of union members.

The Railway Age analysis noted that the national union leadership urged its members to reject the work rule changes because unions by nature don’t want to negotiate on crew size.

They see those negotiations as ultimately leading to fewer jobs for their members.

Those fears are not unfounded. At one time freight trains operated with four- and five-person crews, but today two-person crews are standard.

“So mostly this is about adapting to change; and, as will be seen, it is not now going well for the labor union—and eventually may not for its members if the comparison is to be the rejected BNSF tentative agreement,” Railway Age wrote.

The negotiations over crew size are not likely to yield an agreement in the near term.

The talks may be influenced at some point by the intervention of third parties whether those are courts, regulators or legislators.

The Railway Age analysis noted that in the past unions have agreed to rule changes in exchange for a good, but not necessarily better contract as far as their interests were concerned.

They took higher pay as the trade off for lost jobs among their membership rather than have a settlement imposed on them that would be even more advantageous to the carriers.

Unions are themselves appealing to third parties to try to codify their demands for two-person minimum crew sizes nationwide.

The unions have had some headway in obtaining state-mandated minimum crew laws but those are subject to being overruled by federal law and/or regulation.

SMART-TD is appealing the Texas district court decision to the U.S. Fifth Circuit Court of Appeals.

Union Sues Mediation Board on Arbitration of Crew Size

The National Mediation Board has appointed an arbitrator to handle a case involving crew size, which has prompted a railroad labor union to sue the Board.

The  SMART Transportation Division and nearly two dozen General Committees filed the suit after the mediation board voted 2 to 1 in favor of appointing an arbitrator.

“The National Mediation Board has unlawfully and without authority initiated an arbitration process involving the SMART-TD and multiple rail carriers, contrary to the provisions of the Railway Labor Act,” the lawsuit states.

The Mediation Board had acted after the National Railway Labor Conference requested the board to forcibly appoint a representative of SMART to negotiate on the union’s behalf over crew sizes during talks for a new contract that are in the process of getting underway.

The NRLC represents a coalition of Class 1 railroads.

SMART had earlier taken the position that crew size should be negotiated at the local level between individual railroads and local committees.

The carriers have also filed a lawsuit against SMART in an effort to force it to negotiate crew size at the national level.

The Class 1 carriers have been open about their desire to operate many trains with one-person crews.

The two Mediation Board members who sided with the carriers, Kyle Fortson and Gerald Fauth, were appointed by President Donald Trump.

The dissenting member was Chairwoman Linda Puchala who said the Board’s action circumvented decades of Railway Labor Act precedent in how these disputes are handled.

A spokesperson for the Labor Conference supported the Board’s decision.

“We support the National Mediation Board’s designation of a SMART-TD representative and agree with the Board’s well-considered decision that such designation is required under the Railway Labor Act,” the spokesperson said.

He added that the carriers believe collective bargaining is the proper forum to discuss train crew staffing and joint arbitration sought by the railroads is the appropriate method for resolving the parties’ dispute over the interpretation of common contract language.

The first round of negotiations will open on Feb. 26 and 27 in Washington.