Archive for the ‘National Rail Contract’ Category

Arbitrator finds that Section 6 bargaining regarding crew consist can begin

On July 28, 2021, a Neutral appointed by the National Mediation Board issued his ruling finding that on certain railroad properties, the current moratoria in those crew consist agreements do not prohibit the railroads from serving a Section 6 Notice regarding crew size. The properties affected or having no current moratorium include certain properties at BNSF, UP, NS and CN Railroads. Other properties not currently affected or involved may also be included in the future as moratoriums naturally expire. Please contact your local chairperson or general chairperson for specific details regarding your terminal or district.

The ruling comes after a nearly two-year battle between SMART-TD and the National Railway Labor Conference over the moratoria provisions and their effect. The arbitration was one of the largest conducted by SMART-TD and its predecessor union, UTU, in decades.

The ruling does not eliminate any current crew consist provision or requirement. The only thing it does is to open the door for bargaining to occur. The moratoria that previously prevented any mandatory bargaining on crew consist were predicated on the last remaining employees having hired on the railroad previous to the 1980’s. Today, less than 100 of these employees remain nationwide, and most are at, or near retirement age. 

Once a Section 6 is served, the Railway Labor Act requires both parties to engage in mandatory bargaining. The Act, however, does not mandate any particular outcome in such negotiations, it merely provides a process. In the event parties reach an impasse, the Act contains methods to avoid disruption to commerce through mandatory mediation and possibly intervention from the President of the United States and the U.S. Congress.

SMART-TD remains committed to protecting the jobs of today, as well as securing the jobs of the future. While only some General Committees will be involved in bargaining, the full support and effort of the International in assisting those Committees will continue.

National Contract Negotiations Ongoing

2017 Agreement Remains in Effect

IIn recent months, some have asked, “Why am I working without a contract?” The simple answer is: “You are not working without a contract.” Under the Railway Labor Act (RLA), a contract never expires, it is only amended or changed. This means all working rules, conditions and pay rates must remain in place (status quo) until such time rail labor ratifies a new, or should I say, an amended agreement.

Sometimes this can be a long process under the Act — if you still have your copy of the January/February TD News (it’s also available as a PDF on our website), there were two pages devoted to explaining the ins-and-outs of the national negotiation process. It is not uncommon for the negotiations to take time, and it should come as no surprise that the carriers are not beating down our doors to ensure you get a well-deserved pay raise as soon as possible.

Some have also asked, why don’t we have a contract yet? COVID-19 has definitely played a role in delays as it made it impossible to put 100-plus people from both our 10-union Coordinated Bargaining Coalition (CBC) and the carriers in one room to negotiate in our traditional methods. Additionally, our coalition previously notified the membership of our respective organizations that thus far, no proposals from the carriers have warranted anything worthy of putting forward to the membership for ratification.

Thus far, no proposals from the carriers have warranted anything worthy of putting forward to the membership for ratification.

As of this date, nothing has changed. As COVID restrictions are now being lifted, your negotiating committee looks forward to being able to once again meet face to face at the bargaining table with the carriers where we hope it will be much more productive than video meetings.

Negotiations are complex and involve a number of consultants and working groups that are reviewing economic data, health and welfare issues, and in some instances impacts and/or costs to either side of the equation.

We must keep in mind that an agreement by its very nature requires both sides to actually agree. How often do you agree with what your railroad does?

Now put all the railroads in one room with most of labor sitting on the other side of the table — it becomes a laborious process, to say the least. But the RLA will serve its purpose, and the parties will eventually hash out a deal. In the meantime, everything in your agreements that are currently in effect must remain fully intact — your contract hasn’t expired. Please note the bold language below from your 2017 National Agreement:

This Agreement shall be construed as a separate agreement by and on behalf of each of said carriers and their employees represented by the organization signatory hereto, and shall remain in effect through December 31, 2019 and thereafter until changed or modified in accordance with the provisions of the Railway Labor Act, as amended.

The “term of this agreement” was defined to run from Jan. 1, 2015, through Dec. 31, 2019. The framers of the agreement were simply establishing the dates and time period for purposes of pay raises, and nothing is construed to leave anyone under the RLA and our agreements “without a contract.”

It is worth noting that negotiations for the 2017 agreement began with the filing of Section 6 notices in December 2014, and it then took 34 months before a tentative agreement was reached in October 2017 — that’s a period of nearly three years and there wasn’t a global pandemic to work through. The process does take time!

Another thing to note — only railroaders and airline employees fall under the Railway Labor Act. Airline pilots and flight attendants feel your frustrations when wanting to exercise a strike action against a carrier, the same as some of you probably do. We are a very specialized group and are governed under a very different set of rules than most other union workers.

The National Rail Contract negotiations are not the only thing on the agenda at this point in time, either. We have two other major national issues that are contract-related going at the same time, with the same railroads with whom we have to negotiate a national agreement.

One is the crew-consist moratorium dispute, which was arbitrated this month in Sacramento, Calif., on June 15th and 16th and was one of the largest groups I have ever seen in one arbitration session. Another major issue is our current health and welfare dispute, scheduled to be arbitrated Aug. 31 in Washington D.C. As I am sure you would agree, it is not easy to negotiate the direction of a new national agreement going forward into the future when we are having serious difficulties even agreeing with the carriers on what is in our previously agreed to contracts.

Your union is pushing ahead in these negotiations with all your best interests in mind, fighting to protect what you have and setting the stage to thrive in the future.

Some have asked why don’t I update them more frequently about the status of negotiations? First of all, we, the 10-union coalition, won’t negotiate via the media and will keep our game plans private within the union negotiating team. Football coaches do not go to the media talking about what plays they are going to run and what their strategies are before a game or as it is being played out. We cannot do that here either. I would also love to notify everybody anytime it looked like something positive was going to happen regarding a contract, but it would wear you out emotionally, especially if those positive possibilities never came to fruition. Furthermore, all the union presidents in this coalition have agreed that we will only update the membership collectively as one voice through joint updates so there is no confusion that we stand together in solidarity.

Your union is pushing ahead in these negotiations with all your best interests in mind, fighting to protect what you now have and setting the stage to thrive in the future. We are proving every day that solidarity is the only way to accomplish our goals in all issues, contractual or safety-related, on behalf of the membership.

We have accomplished a lot in a very short time, battled through a pandemic and an economic downturn, and are poised to set the stage for the future of the nation’s freight rail industry in these negotiations. The updates will come in due time.

Until the CBC releases our next joint report, remain assured that your negotiators and leaders will remain as stong and proud as each and every one of you who has stepped up to the plate to make our union that much stronger in the name of safety, solidarity or both.

Jeremy Ferguson
President, Transportation Division

SMART-TD arbitrates crew-consist dispute

On June 15 and 16, 2021, the simmering dispute between the SMART Transportation Division and carriers over crew consist finally reached arbitration before neutral party John LaRocca in Sacramento, Calif.

Class I railroads BNSF, UP, NS and KCS initiated a claim in October 2019, just prior to the opening of the current round of national contract handling, that asserted the moratorium provisions of various local agreements no longer barred the service of a Section 6 notice regarding the topic of crew consist.

At the arbitration, 13 SMART-TD General Committees presented their arguments against the National Railroad Labor Conference (NRLC), which represented the railroads involved.

The arbitration hearing was a result of a long court battle in which it was determined that the question of whether the moratorium language in the various agreements barred serving a notice was a “minor dispute” within the meaning of the Railway Labor Act and would have to be arbitrated.

The moratoriums were a result of negotiations in the late 1970s and early 1980s when the parties involved decided to lay to rest negotiations over crew consist until the last covered employee voluntarily separated. Despite the fact that the event has not occurred, the carriers have taken the position that the language of the moratoriums cannot be read to now bar negotiation over crew consist.

The railroads are seeking to bypass the agreed-upon wait time that bars such negotiation and to seek crew size changes now. SMART-TD argued that the language and intent of the moratoriums clearly bars any negotiation on crew consist until the last person standing is gone.

The arbitration was the largest conducted by the union in decades and was presented by a combined team of the SMART-TD International, SMART-TD Legal Department and multiple General Committees. A decision on the issue is expected by September 2021.

A ruling by LaRocca in favor of SMART-TD would leave current crew-consist agreements closed from negotiations until the expiration of the moratoriums. A ruling by LaRocca in favor of the carriers would open these agreements up for negotiation on the respective properties as the current round of national contract discussions continues.

CBC issues update on National Rail Contract negotiations

January 22, 2021 — The Rail Unions comprising the Coordinated Bargaining Coalition (CBC), negotiating together in the current round of National Negotiations, have issued the following statement:

The CBC and the nation’s Rail Carriers first met concerning the November 1, 2019, Section 6 Notices in January 2020.  Although the COVID-19 pandemic has made meetings for groups of this size challenging, the parties continued to meet virtually to make presentations concerning their proposals throughout 2020.  Additional meetings have now been scheduled for early 2021.

While CBC and the Rail Carriers continue to share and discuss all aspects of what would be necessary to reach a voluntary agreement, the Rail Carriers have not made any proposals worthy of consideration by the membership of the CBC Unions.  The parties will continue to meet in good faith as we move into 2021, fully cognizant that it is our members who must ratify any voluntary agreement.

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The unions comprising the Coordinated Bargaining Coalition are: the American Train Dispatchers Association (ATDA); the Brotherhood of Locomotive Engineers and Trainmen / Teamsters Rail Conference (BLET); the Brotherhood of Railroad Signalmen (BRS); the International Association of Machinists (IAM); the International Brotherhood of Boilermakers (IBB); the National Conference of Firemen & Oilers/SEIU (NCFO); the International Brotherhood of Electrical Workers (IBEW); the Transport Workers Union of America (TWU); the Transportation Communications Union / IAM (TCU), including TCU’s Brotherhood Railway Carmen Division (BRC); and the Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART–TD).

Collectively, the CBC unions represent more than 105,000 railroad workers covered by the various organizations’ national agreements, and comprise over 80% of the workforce who will be impacted by this round of negotiations.

View this release in PDF form.

President Ferguson: Setting record straight on anti-labor articles

Brothers and Sisters,

It’s time to set the record straight. I am certain many of you have seen the recent anti-labor articles that have been published regarding our recent win in the U.S. Court of Appeals for the 5th Circuit. That win has apparently struck a raw nerve with the carriers and the minions who eagerly await their master’s call. Make no mistake, that decision struck a fatal blow to the carriers’ plans to put you on the unemployment line. Rather than accept defeat, their apologists are trying to spin this loss into something that it is not. The long history of crew consist cannot be denied. For decades, we have battled with the carriers over their fevered attempts to cut costs and put your life at risk by down-sizing crews. This current round of negotiations is no different. They sought to eliminate your job and operate trains in perhaps the most dangerous way possible. Standing up for you, that’s what this case was about.

They have severely underestimated the fight in each and every one of us; the sheer grit and determination that we have to defend our families, our jobs, and the overall welfare of our co-workers and the general public alike. The truth that these apologists fear to admit is that in this Union, the dues-paying members are the Union — period. There is no divide between the “Union” and the “dues-paying members.” There is only a “Union.” We stand together now more than ever.

To salve their masters’ wounds, those “commentators” try to spin this as union officers protecting their own jobs. They know not of what they speak and their ignorance is evident in the web that they weave. They used nameless sources in an attempt to add credibility to a tall tale that anyone with true insight would know is far from factual. The fact remains that all officers in this newly elected SMART-TD administration are firmly united.

The Railway Labor Act protects agreements from being changed except through the processes provided for in Section 6 of the Act. The carriers had agreed to crew consist provisions years ago. Not only that, but to end the constant battle over crew consist, the carriers also agreed to moratoria provisions that barred any Section 6 Notice over crew consist until the last protected employee voluntarily left service. That event has not yet happened. These are the facts, but they are nowhere to be found in any recounting in the carriers’ favored publications. Rather, what you are treated to is the old worn song of the anti-unionist. The apologist who says trust the carriers, they only want what was best for you. Right. The carriers want to give you lifetime protections? At what cost? And when they decide they don’t like that deal any more, will they ignore it just like they have tried to ignore our moratoria provisions and put you on the street? These apologists assert that they have some inside scoop, yet I have never witnessed any “commentator” at the bargaining table. They are outsiders.

What else is missing? Acknowledgement of the only thing the carriers care about — their bottom line. Money comes before all else. That is evidenced by the unbelievable lengths they will go to argue that you are paid too much, that your insurance is too expensive, and that they are going broke as a result of the costs of our Agreements. You are the target in their zeal to improve their stock price. That is a sad fact that you will not find in any of those articles.

Another fallacy that is being sold — technology will do everything more safely. That simply is not true. Their technology is fallible. It doesn’t work like they wish it would nor as advertised. In fact, it’s not a matter of if it will break down, but when. We have collected thousands of Failure Reports across all Class Is and the data is terrifying. Never has the human element been more important in railroad operations. Engineers spend more time with their faces in multiple screens trying to manipulate and interpret the ambiguous systems than they do focusing on the territory ahead. Conductors are relied upon now more than ever, as they are the eyes and ears of the train crew, and we have the stories to prove it.

The articles also attempt to scare you by asserting that the carriers will unilaterally reduce crews at the end of the last-person-standing moratorium. That is not how the Act works. The expiration of the moratoria does not sunset crew consist. Rather, moratoria bar either party from serving a Section 6 notice to amend or change the current Crew Consist Agreements until the last protected employee leaves. Once that happens, then a Section 6 Notice can be served and the long and drawn-out process of the RLA engaged to negotiate the next generation of agreements.

Railroad workers have all been lied to long enough by management, and we can smell lies coming from a mile away.

As a word of advice to Railway Age, I would caution them against living in the past and trying to play SMART-TD against the BLET. We are working closely together in the Coordinated Bargaining Coalition (CBC) in national handling and on the various other disputes that the carriers have forced us into.

Brothers and Sisters, do not be discouraged, and do not be swayed by those with ulterior motives. We are in this fight together, and we are moving forward.

 

 

 

 

Jeremy Ferguson
President — Transportation Division

Fifth Circuit vacates injunction in crew-consist case

Today, Aug. 28, the U.S. Court of Appeals for the 5th Circuit issued its decision in BNSF et al v. SMART-TD (Case No. 20-10162) concerning crew consist.

This decision is a long-awaited victory for the Union. The appellate court vacated the injunction that forced SMART-TD General Committees to bargain over crew consist, despite the existence of moratoria which bar such negotiation.

SMART-TD has always read those moratoria clauses to bar the service of Section 6 Notices to negotiate over crew consist until the last protected employee voluntarily separated from service. Indeed, that is the very reason for their existence.

But despite the long-standing nature of these clauses, the carriers presented a new and novel theory that the moratoria did not actually bar crew-consist negotiations.

The carriers tested this theory out by filing suit against SMART-TD in October 2019 and moving for a preliminary injunction in December 2019. In their request for an injunction, the carriers asked a district court in Texas to force SMART-TD to bargain now in spite of the moratoria. That court issued its decision on February 11, 2020, finding that even though the dispute over the moratoria was minor, and no arbitral determination had been made, SMART-TD was required to bargain now.

Under the RLA, minor disputes must be resolved through arbitration, not Section 6 bargaining. In the 22-page opinion, the appellate court walked through the various bases on which an injunction can be issued in Railway Labor Act (RLA) disputes. The 5th Circuit Court found that none existed here.

Rather, it concluded that the carriers had failed to exhaust the administrative remedy provided under the the RLA arbitration regarding the moratoria clauses.

United Rail Unions sue to block carriers from modifying Healthcare benefits without bargaining

Washington, D.C. (Aug. 7, 2020) — On August 5, 2020, 12 rail unions whose members and their families are covered by the NRC/UTU Plan and the Railroad Employees National Health and Welfare Plan filed suit against the nation’s Class I railroad carriers in the United States District Court for the District of Columbia.

The suit asks the court to force the carriers to bargain in good faith with the unions over mandatory subjects of bargaining. The involved issues have been the subject of collective bargaining for decades and are in fact part of the carriers’ bargaining notices served on November 1, 2019, pursuant to Section 6 of the Railway Labor Act (RLA). At issue are carrier attempts to restrict access to certain medications and to forcibly reconfigure health care networks.

The unions are: the American Train Dispatchers Association; the Brotherhood of Locomotive Engineers and Trainmen; the Brotherhood of Maintenance of Way Employes; the Brotherhood of Railroad Signalmen; the International Association of Machinists and Aerospace Workers; the International Association of Sheet Metal, Air, Rail and Transportation Workers, Mechanical Division; the International Association of Sheet Metal, Air, Rail and Transportation Workers, Transportation Division; the International Brotherhood of Boilermakers; the International Brotherhood of Electrical Workers; the National Conference of Fireman & Oilers District, Local 32BJ, SEIU; the Transportation Communications Union/IAM; and the Transport Workers Union.

The rail carriers are: BNSF Railway Company; Kansas City Southern Railway Company; CSX Transportation; Grand Trunk Western Railroad Company; Norfolk Southern Railway Company; Soo Line Railway Company; and Union Pacific Railway Company. Also named in the suit is the National Railway Labor Conference (NRLC), whose National Carriers’ Conference Committee (NCCC) is the designated bargaining agent of the railroads.

The unions have asked the court to:

  • issue a declaratory judgment that the carriers are obligated to bargain in good faith with the unions on proposed health and welfare changes in accordance with the collective bargaining procedures outlined under the RLA;
  • issue a declaratory judgment that health and welfare plan design changes are a mandatory subject of collective bargaining pursuant to the RLA;
  • issue a declaratory judgment that the NRLC may not force plan design changes upon its employees without the agreement of the unions, to be achieved through the mandatory dispute resolution process of the RLA;
  • issue an order enjoining the NRLC from trying to force these health and welfare changes via arbitration rather than addressing them in collective bargaining; and
  • issue an order requiring the NRLC to engage in good faith negotiations with the unions over their proposed health and welfare changes through the RLA’s major dispute resolution procedures.

The chief executives of the 12 unions issued the following statement concerning the lawsuit:

The railroads’ attempt to evade their legal obligation to bargain on these issues of great importance to our members has left us with no choice but to enforce these legal rights in court. If implemented without successfully negotiated application, the carriers’ proposals could be extremely harmful to our members and their families. Even more outrageous, the process they are attempting to impose would allow rail carriers to reduce employees’ access to medicines and doctors in the middle of a pandemic. When they should be rewarding the contributions of their essential employees with hazard pay, the rail carriers instead attempt to reduce medical benefits when they are needed most. Events like these are why railroad managers were labeled as “Robber Barons” over a century ago; their actions today are proof positive that the label still applies. Unfortunately for working class Americans, this is the way of many corporations across the country in Donald Trump’s America; essential employees are treated as expendable employees. We will not stand idly by while management attacks the core legal rights our members enjoy.

Updates will be provided as developments warrant.

Read this release in PDF form.
Read the case filing. (PDF)

Coordinated Bargaining Coalition National Negotiations Update: July 31, 2020

Bargaining teams from 10 unions that make up the Coordinated Bargaining Coalition (CBC) for this round of national freight rail negotiations participated in a Zoom conference with National Railway Labor Conference (NRLC) Chairman Brendan Branon and participating Carrier representatives on July 28th. This meeting was held for the sole purpose of reviewing PowerPoint presentations relative to each side’s respective positions on issues contained within their Section 6 Notices. While there were no negotiations during the Zoom conference, the meeting was beneficial to both sides in an effort to keep the process moving forward in a good-faith effort to achieve a voluntary agreement.

The first formal negotiating session took place, in person, earlier this year on February 26th and 27th and a second meeting had been scheduled for March 31st. This meeting was canceled because of the COVID-19 pandemic, and all subsequent scheduled meetings were also canceled. Tuesday’s conference was the first time the parties had convened in any manner since February.

Members of the unions participating in the CBC will be kept apprised of further developments on your contract negotiations as developments warrant.

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The unions comprising the Coordinated Bargaining Coalition are: the American Train Dispatchers Association (ATDA); the Brotherhood of Locomotive Engineers and Trainmen / Teamsters Rail Conference (BLET); the Brotherhood of Railroad Signalmen (BRS); the International Association of Machinists (IAM); the International Brotherhood of Boilermakers (IBB); the National Conference of Firemen & Oilers/SEIU (NCFO); the International Brotherhood of Electrical Workers (IBEW); the Transport Workers Union of America (TWU); the Transportation Communications Union / IAM (TCU), including TCU’s Brotherhood Railway Carmen Division (BRC); and the Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART–TD).

Collectively, the CBC unions represent more than 105,000 railroad workers covered by the various organizations’ national agreements, and comprise over 80% of the workforce who will be impacted by this round of negotiations.

Read this update in PDF form.

National Legislative Director Hynes speaks out in Trains Magazine about railroad issues

SMART-TD National Legislative Director Greg Hynes

In an interview to appear in the April edition of Trains Magazine, SMART-TD National Legislative Director Greg Hynes was interviewed about key issues and industry trends including Precision Scheduled Railroading (PSR), two-person crews, autonomous trains and the effect presidential elections have on the railroad industry.

In the interview, Hynes spoke about how PSR is a threat to jobs, the industry and the public because fewer safety inspections are being performed with fewer people and that there is a blatant disregard by Class I management toward fatigued and ill individuals who aren’t being allowed time off.

When asked if autonomous train technology could come to the U.S., Hynes responded:

“Where they have the autonomous trains out in Australia is on a route that doesn’t have any grade crossings, there are no people nearby, and it’s basically out in the middle of nowhere. But if you try to do that in the United States, where you have thousands and thousands of grade crossings, it will be a really bad thing. The people on a train are the first responders in every crossing incident. You won’t have that with an autonomous train.”

Trains closed the interview asking how the 2020 presidential election will impact railroads and unions. Hynes noted that whoever is in the White House determines who runs the FRA.

“If we see a continuation of what we have right now, it will not be good for rail safety or labor. This current administration has not been friendly to labor at all. Rail safety is not their primary function anymore, as we saw in their decision to not implement a national crew-size rule. How is that in the best interest of safety? It’s all about protecting the railroads’ bottom line, but that’s not the FRA’s job.”

To read the full interview, check out the April print issue of Trains Magazine.

NTSB member displeased FRA omitted fatigue in risk-reduction rule

Jennifer Homendy, a member of the National Transportation Safety Board (NTSB), said that the Federal Railroad Administration (FRA) final rule for Class I railroads and certain smaller railroads to establish risk-reduction safety plans issued Feb. 18 falls well short of the intent of the Rail Safety Improvement Act (RSIA) that was passed by Congress in 2008.

NTSB member Jennifer Homendy

“As the lead @TransportDems staffer who drafted the Act, I’m glad the rule’s out but it doesn’t comply with the RSIA,” Homendy said on Twitter. “It leaves out commuter and passenger railroads (that rule has been stayed 9 or 10 times now) and it fails to require freight railroads to implement fatigue management plans as part of their risk reduction program (which was required in RSIA).”

Later in her Twitter thread, she cited five accidents investigated by NTSB involving both freight and passenger rail that were linked to fatigue and reminded her followers that fatigue management is on the NTSB’s most-wanted list in preventing railroad accidents.

She also mentioned that FRA has seemed to reverse course over the years as in 2015, agency leadership had told NTSB that fatigue management would be addressed in a final rule.

The final rule as published requires Class I railroads to compose an FRA-approved RRP plan.

“These comprehensive, system-oriented safety plans are required to identify and analyze hazards and their associated risks, and develop and implement plans to eliminate or mitigate those risks,” FRA said in a release announcing the final rule. “An RRP is designed to improve operational safety, complementing a railroad’s adherence to all other applicable FRA regulations. Each railroad must tailor an RRP for its individual operations, and the RRP must reflect the substantive facts on any hazards associated with each railroads’ operations.”

“Railroads’ ongoing evaluation of their asset base and employee performance associated with operations and maintenance, under FRA regulations, can now follow a more uniform path of standardization, towards further reducing risks and enhancing safety,” FRA Administrator Ronald L. Batory said in the release.

Transportation Secretary Elaine Chao said the final rule will improve freight rail safety in America in the same release.

It remains to be seen whether fatigue management will be addressed in a future rulemaking.

Read FRA’s final rule on risk-reduction programs as published in the Federal Register.

Texas court rules that SMART-TD has to negotiate crew consist

A federal court in Texas ruled in favor of rail carriers this week, directing the SMART Transportation Division to negotiate over crew-consist without regard to moratoriums barring such negotiation.

U.S. District Court Judge Mark T. Pittman, a January 2019 Trump appointee, issued his ruling on February 10, 2020.

The case was filed Oct. 3, 2019, by BNSF, CSX, Kansas City Southern, Grand Trunk Western, Norfolk Southern, Illinois Central, Union Pacific, and the Belt Railway Company of Chicago asserting that the moratoriums in the various crew-consist agreements did not bar the carriers from reopening crew consist.

The judge, following the carriers’ arguments and ignoring any counter by the union, found that any dispute over whether the moratoriums barred reopening was a minor dispute, then nonsensically concluded that the union would have to negotiate while arbitrating over whether the union even had to negotiate in the first place.

“Unfortunately, this decision comes as no surprise. The court ignored the provisions of the RLA,” SMART-TD President Jeremy Ferguson said. “The judge sided with the carriers on every issue, not even recognizing our arguments or providing any real analysis. It is simply infuriating.”

Carriers are attempting to replace one of the crew members in the cab of the train with technology and to establish one-person operations. The crew-consist agreements that have been negotiated by the SMART-TD and its predecessor unions over many years stand in the way but are being undermined by this and other actions.

“As a group we are going to work together to correct the course that this ruling has put us on,” Ferguson said.

SMART-TD filed an appeal with the 5th Circuit Court of Appeals in New Orleans, La., on February 12, the day after the judge’s ruling was released.

In a related matter, the National Railway Labor Conference (NRLC), which represents the carriers, has requested that the National Mediation Board (NMB) appoint an arbitration board member to force a single arbitration over the more than two dozen crew-consist agreements that have been negotiated locally by various General Committees.

SMART-TD, and nearly two dozen of its GCs, have sued the NMB challenging the Republican members’ 2-1 decision granting the carriers’ request to appoint an arbitrator.

Judge Pittman’s ruling is available for review here.

SMART-TD files suit challenging NMB’s decision regarding crew consist

On January 23, 2020, SMART Transportation Division and nearly two dozen General Committees brought suit against the National Mediation Board (NMB) challenging its 2-1 decision which granted a National Railway Labor Conference (NRLC) request to appoint an arbitration board member concerning crew-consist moratoriums in local agreements. The NRLC acts as the representative of the carriers.

The carriers, through the NRLC, took the position that the moratoriums do not bar service of Section 6 bargaining notices regarding crew consist and urged the NMB, through a little-used provision of the Railway Labor Act (RLA) that allows the NMB to appoint a board member to an arbitration panel, to appoint a SMART-TD member to an arbitration board.

The SMART-TD rejected earlier attempts by the carriers to arbitrate the moratorium issue, noting that the language clearly bars any bargaining over crew consist and, moreover, that such matters can only be handled locally. Despite the organization’s numerous arguments that such action was clearly improper, the NMB’s majority, along party lines, named TD President Jeremy R. Ferguson as the union member of the board.

Through this action, the carriers are trying to force a single arbitration over more than two dozen crew-consist agreements that have been locally negotiated by the various General Committees.

According to the suit, “The NMB has unlawfully and without authority initiated an arbitration process involving the International Association of Sheet Metal, Air, Rail and Transportation Workers -Transportation Division (“SMART-TD”) and multiple rail carriers, contrary to the provisions of the RLA.”

The NMB majority consisted of Kyle Fortson and Gerald Fauth, Republican appointees of President Donald Trump. Chairwoman Linda Puchala dissented in the decision.

Puchala, in her dissent, said the decision by the two other board members circumvents decades of RLA precedent in how these disputes are handled.