Archive for the ‘Two-person crews’ Category

Key bills introduced that intend to boost transportation safety in North Carolina

Legislators in both the North Carolina state House and Senate have introduced bills to keep freight rail operations on the state’s more than 3,300 miles of track running safely and efficiently. A bus safety bill is also in the works in the state.

H.B. 408 and S. 348 require a crew of at least two qualified people in the operating locomotive of trains transporting cargo and hazardous materials in the state for public safety. H.B. 408 has four bipartisan primary sponsors including Rep. Wayne Sasser (R – Dist. 67), Rep. Carolyn Logan (D – Dist. 101), Rep. Charles Graham (D – Dist. 47) and Rep. Verla Insko (D – Dist. 56), and 30 co-sponsors. The Senate version of the bill got a late start due to the Ninth Circuit court ruling and so S. 348 only has two Democratic primary sponsors including Sen. Sarah Crawford (D – Dist. 18) and Sen. Julie Mayfield (D – Dist. 49), and three co-sponsors. Both bills have had their first reading and have been referred to the Transportation Committee and Rules Committee, respectively.

Ron Ingerick, SMART-TD North Carolina state legislative director

“It is vitally important to maintain the presence of two crew members in the locomotive,” said Ron Ingerick, North Carolina state legislative director of the SMART Transportation Division. “Despite any advances in technology, there is a safety factor called ‘the Rule of 2’ in having the engineer and the conductor in the cab, just like how airplanes have pilots and co-pilots. With the size and complexity of the modern freight train, each crew member has responsibilities, and simultaneously performs duties in providing safe and efficient operation. These crew members are the first responders to a grade crossing collision, derailment or other emergency situation.

“The public safety of our communities is non-negotiable, and H.B. 408 and S. 348 will help prevent potential accidents or derailments. The citizens of North Carolina deserve to feel safer with two crew members in the cab in the trains that roll through their communities, day and night.”

Another bill filed in the House looks to curtail railroads’ use of giant trains that block crossings. H.B. 438, filed March 29, has three Republican representatives as primary sponsors: Rep. Howard Penny (R – Dist. 53), Rep. Jerry Carter (R – Dist. 65) and Rep. Mike Clampitt (R – Dist. 119). The bi-partisan bill currently has 21 co-sponsors — two of which are the Chairman and Vice Chairman of the Transportation Committee — and is still accepting more. H.B. 438 intends to place a limitation on train length, which has been growing from an average length of a mile and a half five years ago to now sometimes exceeding four miles. The main culprit is an operating strategy initiated in 2017 by the nation’s biggest railroads called Precision Scheduled Railroading (PSR).

“Since the evolution of PSR, trains in this state have increased in length and weight, with haphazard train builds, fewer safety-critical inspections, and maintenance being deferred —increasing the risk of derailments,” said Ingerick, who is an active railroader, as well as our N.C. state legislative director who brings awareness to legislators in Raleigh. “A train that is longer is harder to operate. Also, concerns have risen from local communities and emergency responders as these longer trains have increased instances of blocked crossings.”

Blocked rail crossings cause an inconvenience for motorists, who must find alternate routes, especially in rural areas. They also pose a safety risk to pedestrians who may attempt to go under or climb over rail cars to continue their travels. A blocked crossing can play a part in delaying or detouring emergency responses when seconds or minutes count, sending responders out of their way when their aid is needed.

“Railroads are looking at returns and how their stocks are doing on Wall Street,” Ingerick said. “PSR puts safety last and profit first and makes a dangerous business even riskier.”

Lastly, Ingerick reports that the Bus Safety Risk Reduction Act has been released from bill drafting and will be filed in the coming week. The bill will include risk analysis, barriers, de-escalation training and data collection.

“Overall, I feel that we’re in a good position right now concerning these bills, but we need continued involvement from the membership in order to get these bills passed,” Ingerick said.

VICE article explains the dangers of PSR

Members and leaders of the SMART Transportation Division as well as the AFL-CIO Transportation Trades Department, spelled out why U.S. freight railroads’ obsession with Precision Scheduled Railroading (PSR) increases the danger to the public and railroad workers alike.

Journalist Aaron Gordon spoke with TD President Jeremy Ferguson and AFL-CIO TTD President Greg Regan about degradation in the safety culture of freight railroads because of PSR in an in-depth article published on March 22. “It’s going to end up like Boeing,” President Ferguson warned.

Gordon’s article touched upon many topics that our members are unfortunately already well aware of, including: the severe reduction of rail employees which has greatly impacted safe operations, the increase of fatigue associated with the same demanding work but with a reduced work force, the practice of railroads to have inspectors spend less time inspecting cars, the deferral of needed maintenance and potential safety issues being glossed over so that dwell time is not increased. It paints a very realistic and clear picture of how the railroads’ operating ratios and profits have been placed well ahead of safety and all in the name of PSR.

But by questing for those increased returns on Wall Street, the lessons learned from past operational mistakes could conceivably end up costing railroads in the long run, subjects interviewed in the article say.

This article is essential reading, and it can be found on the VICE website.

NLD Hynes appears on the Rick Smith Show

National Legislative Director Gregory Hynes was a guest on the labor-oriented Rick Smith Show on Feb. 24 where he discussed the Ninth Circuit Court of Appeals ruling earlier this week that threw out the Federal Railroad Administration’s negative preemption claim which would have nullified our two person state laws.

In addition to talking about the two-person crew ruling that reinstated state laws governing crew size, Hynes also discussed the history of railroads using technology not to improve operations but instead to eliminate jobs to increase profits and the need for Amtrak safety to be tightened in the wake of January’s insurrection at the U.S. Capitol.

Listen to the podcast here.

 

 

Ninth Circuit Ruling Favors Unions and States, Rejects FRA’s Attempt to Preempt State Crew Law

CLEVELAND, Ohio (Feb. 23, 2021) — Two of the country’s largest freight railroad unions achieved a favorable decision in the Ninth Circuit Court of Appeals on Tuesday regarding an attempt by the Federal Railroad Administration (FRA) to preempt legislation passed by a number of states that established a minimum of two-person operating crews on freight trains.

The case, brought by the states of California, Washington and Nevada and by the International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET), challenged former FRA Administrator Ron Batory’s attempt to cancel the laws of those and other states while at the same time attempting to authorize nationwide one-person crews. The unions and states argued that Batory’s May 2019 order violated the comment-and-notice procedures of Administrative Procedures Act (APA) and that his agency could not implicitly preempt the state safety rules.

The Court of Appeals ruled that FRA’s order was “arbitrary and capricious,” taking particular note that the assertions by FRA and the rail carriers that reducing the number of crew members in the cab to one person could improve safety “did not withstand scrutiny” and “was lacking.” The court also criticized the order as not being a “logical outgrowth” of the two-person crew proposal, because “[t]here was nothing in the [proposed regulation] to put a person on notice that the FRA might adopt a national one-person crew limit.”

The court chided FRA for basing its negative preemption decision on “an economic rationale” instead of what is its main obligation — safety.

The court also found the order’s “real and intended effect is to authorize nationwide one-person train crews and to bar any contrary state regulations.” In that it utterly failed to address the safety concerns raised by nearly 1,550 commenters who support two-person crews, the court found the order’s rationale was arbitrary and capricious, thus violating the APA.

Likewise, the court eviscerated the lack of a sound factual basis in the order, which merely cited a study funded by the Association of American Railroads, holding that “a single study suggesting that one-person crew operations ‘appear as safe’ as two-person crews seems a thin reed on which to base a national rule.”

“First, we thank the more than 1,500 BLET and SMART–TD members who took the time to comment on the need for two-person crews, because you have made a difference,” said SMART-TD President Jeremy R. Ferguson and BLET President Dennis R. Pierce. “We also congratulate the judges in this case for recognizing the former Administrator overstepped his bounds, and we look ahead to working with the FRA when crew size is again considered on a national level by the agency as a matter of public and operational safety.”

“We assert, and will continue to assert, that having two sets of eyes and two people working in concert together with any improvements in technology, will be the best way to serve public safety and to continue the effective and efficient movement of our nation’s railroads,” the union presidents said.

The court ruling, in vacating and remanding the FRA order, sends the matter of a potential rulemaking for freight railroad crew size back to FRA for the agency’s consideration. It also means that two-person crew legislation in the states that had been targeted by FRA’s order remain in effect.

A copy of the Ninth Circuit Court of Appeals ruling is available here (PDF).

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The SMART Transportation Division is comprised of approximately 125,000 active and retired members of the former United Transportation Union, who work in a variety of crafts in the transportation industry.

The Brotherhood of Locomotive Engineers and Trainmen represents nearly 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.

President Ferguson: This election is pivotal

The following article appeared in the August/September 2020 edition of the SMART Transportation Division News and is referred to by President Ferguson in the video above.

Dear Brothers and Sisters,

With the 2020 general election right around the corner, we are dedicating a large portion of this edition of the SMART-TD News to what may be the most-critical question we’ve ever been faced with: Who should serve as President of the United States for the next term?

Divided and contentious as this subject can be, I am asking that you take the time to read through with an open mind, and think critically about what we have riding on the outcome of this election as unionized essential transportation workers.

In determining who SMART and its Transportation Division should endorse, first and foremost we listened to what our members had to say. I want to sincerely thank each and every one of you who responded to our surveys and emails, called our office, and wrote to us to express your viewpoints. Your opinion matters to us above all else. With that being said, we also considered external sources and blocked out those that misrepresented the candidates and their intentions, or were biased towards one end of the political spectrum or the other.

Problem is, there is an abundance of misinformation coming from all directions. In a world where it’s difficult to trust virtually every source of information, where should we turn?

Fortunately, in this election we have a race where both candidates have set precedent in the White House; President Trump as the incumbent with nearly four years of experience under his belt, and Joe Biden with eight years of experience as our former Vice President. We also examined the promises that each candidate has made on the campaign trail, and compared those to their actions while holding elective office. As the saying goes, actions speak louder than words.

Below are some examples that you can trust, because they are based on objective fact – no conjecture, no spin, no bias, and no BS:

Federal Railroad Administration (FRA) appointments

In March 2009, the Obama/Biden administration nominated Joseph C. Szabo for the position of FRA administrator; a career railroader, SMART-TD member and Illinois State Legislative Director. Brother Szabo was the first FRA administrator to come from a rail labor background, and he served until 2015 when the Obama/Biden administration appointed Sarah Feinberg to the position.

Under Szabo’s tenure, accidents, injuries, and fatalities dropped to record-low levels, and the FRA improved its rules pertaining to fatigue mitigation and training requirements. Under Feinberg’s tenure, the FRA issued notice of a proposed rulemaking which would have required two-person train crews.

In July 2017, the Trump/Pence administration nominated Ronald Batory, the former CEO of Consolidated Rail Corporation, for the position of FRA administrator. Within one year of Batory’s nomination, the FRA had begun allowing Kansas City Southern to utilize Mexican train crews to cross our southern border and operate trains into Laredo, Texas.

SMART-TD and other rail labor unions had to sue the FRA to rectify this issue – a process which took more than two years to resolve.

During that time, the Trump administration ignored rail labor’s pleas to secure our southern border and prevent American jobs from being lost to foreign countries; both of which were campaign promises of his.

In May 2019, the FRA withdrew its proposed two-person crew rulemaking, claiming that research didn’t support implementing such a rule, and that two-person crews would unnecessarily impede the future of rail innovation and automation.

More on two-person train crews, and National Mediation Board (NMB) appointments

With Mr. Batory leading the FRA and its withdrawal of the proposed two-person crew rule, the nation’s rail carriers saw opportunity and in October 2019, eight (8) railroads filed a lawsuit against SMART-TD, attempting to force us to bargain over crew consist on a national level. To better their chances, the railroads filed their lawsuit in the Northern District of Texas, which is notoriously one of the least labor-friendly courts in the country.

The case was assigned to a Trump-appointed judge who in February 2020 ruled in favor of the rail carriers and ordered us to negotiate over crew consist, despite the fact that moratoriums are in place barring such negotiations.

At the same time they filed the above lawsuit, the railroads turned to the NMB, requesting that they begin the process of forcing SMART-TD into binding arbitration over the same crew-consist issues. The NMB is controlled by a 2/3 majority of Trump-appointed members, as follows:

■ Mr. Gerald W. Fauth III, a former consultant and president of a company that railroads hire for mergers, acquisitions, time studies, cost analyses and traffic analyses.
■ Ms. Kyle Fortson, a former labor policy director for Republicans on the Senate Health, Education, Labor, and Pensions Committee.

Despite SMART-TD’s objections, in January 2020, the NMB granted the railroads’ requests and voted by a 2/3 majority in favor of moving forward with the binding arbitration process.

In stark contrast to the above, Joe Biden has met with SMART’s leadership and committed to defending two-person crews. For more than 30 years, Biden commuted for several hours per day on Amtrak. To this day, he remains on a first-name basis with some of our members.

With respect to the NMB, the lone Obama/Biden appointee, Linda Puchala, is the former president of the Association of Flight Attendants. In the crew-consist binding arbitration
decision, Ms. Puchala wrote nearly three pages in dissent objecting to the NMB’s decision.

Federal Motor Carrier Safety Administration (FMCSA) appointments

Similar to the other regulatory agencies mentioned in this article, the FMCSA’s stated purpose is to establish policies governing carriers and ensure their compliance, thereby reducing accidents and protecting our bus members and the passengers we carry.

Under the Trump administration, the post of FMCSA administrator was vacant until February 2018, when Raymond P. Martinez was nominated and confirmed by the U.S. Senate. Martinez’s nomination was lauded by carrier-sponsored lobbying groups such as the American Trucking Associations, the American Bus Association and the United Motor Coach Association.

In October 2019, Martinez resigned as FMCSA administrator and Jim Mullen assumed the position of acting administrator. Mullen served in that capacity until his resignation in August 2020, which left Wiley Deck to act as FMCSA administrator.

This frequency in turnover has largely resulted in an agency without clear direction or leadership.

However, there has been one consistent theme over the last few years; the FMCSA has lent a sympathetic ear to the carrier-sponsored lobbying groups that endorse President Trump, while largely ignoring organized labor and the general public. This is evidenced by the FMCSA’s waiving of hours-of-service requirements for Mexican carriers, which already have inadequate regulations when compared to their U.S.-based counterparts. FMCSA has also turned a blind eye to carriers’ efforts to eliminate drivers’ breaks, including meal and restroom breaks, and they have allowed outsourcing of school bus drivers to third-party rideshare companies with questionable practices for conducting the requisite, thorough background checks for drivers.

National Labor Relations Board (NLRB) appointments

Similar to the NMB’s structure, the NLRB is required to have five members with a simple majority appointed by the president. To clarify the importance of these positions, these are the individuals who are in charge of investigating and remedying unfair labor practices with the carriers, as nominated by the Trump/Pence administration:

■ John F. Ring (chairman), a former management and labor relations attorney, appointed in 2018.
■ Marvin E. Kaplan, former chief counsel of the Occupational Safety and Health Review Commission, whose 2017 appointment was supported by a number of business special-interest groups.
■ William Emanuel, a former labor law attorney for transportation, logistics, and manufacturing companies, who was appointed in 2017.

With respect to the other two NLRB seats normally held by minority party appointees, President Trump has stated his intention to re-appoint Lauren McFerran, although he has yet to follow through. It is also apparent that he intends to leave vacant the seat that had been occupied by Democratic appointee Mark Gaston Pearce, resulting in a board with three Republican members and no or perhaps eventually a
single minority party member.

Since the law requires only three NLRB members for a quorum to conduct its business, the agency has pressed forward with its two vacant seats and issued a series of decisions, rulemakings and initiatives that
heavily favor corporations and repeal myriad existing worker protections. Under President Trump’s direction, the NLRB has acted on every single item on a top-10 corporate interest “wish list” that was published by the Chamber of Commerce in early 2017.

Department of Labor (DOL) appointments

President Donald Trump’s decision to nominate Eugene Scalia as the new labor secretary is driving wide rifts among HR and benefits professionals, with some praising his industry knowledge as a boon to businesses. Others decried the choice, saying he’d hurt the American worker. Scalia has spent his career fighting for the interests of financial firms, corporate executives and shareholders rather than the interests of working people.

In another example of stark contrast, in 2009 the Obama/Biden administration nominated Hilda Solis for the position of labor secretary. At the same time, Solis joined Vice President Biden’s Middle Class Task Force, and pressed ahead with a clear and unapologetic agenda to aggressively enforce workplace protection laws, and enact new rules and regulations intended to grant more power to unions and workers. Corporate interest groups, antiunion organizations, and Republican Congress members adamantly opposed Solis’s nomination. Following Solis’s resignation in 2013, the Obama/Biden administration praised her accomplishments and chose Tom Perez, a former civil rights attorney who dedicated much of his efforts to increased protections for the elderly, war veterans, and labor unions, as her successor. Perez was known for regularly making house calls and onsite trips to obtain personal feedback from workers.

Legislation affecting all TD members

In July 2020, SMART-TD and other rail labor unions were successful in getting the U.S. House of Representatives to pass H.R. 2, which contains:

■ Two-person freight crew requirements;
■ Bus and transit operator safety measures;
■ Blocked rail crossing enforcement measures;
■ Cross-border solutions;
■ Hours of service requirements for rail yardmasters;
■ Additional funding for Amtrak;
■ Requirements for carriers to meet CDC guidelines for providing personal protective equipment and cleanliness standards for essential employees.

When passed to the U.S. Senate as a part of the Moving Forward Act, President Trump threatened to veto the bill. Following suit, Senate majority leader Mitch McConnell called the bill “nonsense,” “absurd,” “pure fantasy,” and vowed that it will die before ever getting to the White House.

As previously noted, Joe Biden has met with SMART leadership and pledged his support for these issues.

Handling of the ongoing COVID-19 pandemic

Beginning in February 2020, before it was known that the virus had reached this country, we began making myriad preparations for a worst-case scenario, including modifications to our Health & Welfare Plans and a legislative agenda that make sure our members are protected. As a part of those efforts, in early March when there were fewer than 200 confirmed cases in the U.S., we wrote to the railroads, the FRA, the FMCSA, OSHA, and the Department of Transportation demanding that mandates be issued requiring essential employers to comply with basic CDC guidelines for COVID-19 cleanliness, including providing essential employees with the proper protective equipment and social-distancing measures.

As you can probably surmise by now (if you are not already aware) the response from the rail carriers, bus carriers and transit agencies was that the responsibility of adhering to CDC guidelines was entirely up to the employee. In the instances where a few regulatory agencies, such as the FRA, bothered to respond, we were told that they essentially trust the carriers to do the right thing, and in their
view, it isn’t necessary or appropriate to issue mandates.

Instead, we had to take matters into our own hands by cataloging the carriers’ violations and shortcomings via an online reporting tool, which continues to serve its purpose to this day.

What about the booming economy and increased rail traffic?

As is usually the case, over the last decade the number of carloads originated by U.S. Class I railroads has fluctuated with the economy, usually varying by single-digit percentages from year to year. Despite this relative consistency, the railroads’ operating ratios and revenues have gone up by double-digit percentages, while at the same time tens of thousands of rail labor employees have been furloughed.

This is mostly due to the fact that Wall Street investors have taken an interest in our nation’s railroads, and they are obsessed with so-called “Precision Scheduled Railroading” practices, which have resulted in (among other detrimental effects) the doubling and tripling of train length and tonnage, and thus, the reduction of crews.

Under the Trump administration, the White House, FRA, Department of Transportation and other regulatory authorities have refused our requests to mandate the train length limitations and issue safety regulations that we, and the general public, deserve.

It’s also worth noting that, according to the Association of American Railroads, there has been no significant increase in coal shipments from 2016 to today. President Trump’s promises to revive this business would have been hugely beneficial to our brothers and sisters whose livelihoods depend on these shipments, and it was a part of Trump’s policy that had our full support.

Instead, we’ve been handed broken promises.

But my 401(k) is at an alltime high, doesn’t that count for anything?

Of course it does. However, more important than the inevitable ebb and flow of the stock markets is the very real threat of bus and rail automation, train crew consist changes, reduction of federal subsidies for certain carriers such as Amtrak, and the funding and administration of the Railroad Retirement Board and Social Security Administration.

Every single budget from the Trump administration proposed the reduction or elimination of funding that not only employs our members, but protects their retirement and health & welfare benefits. If not for the hard work of our Legislative Department and the support of certain members of Congress, Amtrak would have gone bankrupt under the Trump administration. This single event would deal a devastating blow to the solvency of our Railroad Retirement benefits.

In addition to the above, automation of trains and buses, and the elimination of crew members and operators alike would have compounding effects that reach far beyond the obvious unemployment issues and the solvency of our retirement funds. As we all know, furloughs tend to hit our youngest members (not just in seniority, but also in age) the hardest. From a healthcare and benefits perspective, these are our healthiest members with the lowest frequency of major medical, dental, vision, short-term disability and long-term disability claims. There is a direct correlation between extensive furloughs and the already difficult-to-manage rising cost of our benefits.

The downstream consequences of Trump’s policies can easily extend to our higher seniority members who are immune to furlough.

We’re all in this together!

In conclusion

While this edition of SMART-TD News might not change your mind about who you’re going to vote for this November, we certainly hope it will help to shed some additional light on the importance of this election and what we all have at stake. When casting our ballots, we’re making the choice between better protections and job security for our members, or leaving our regulatory agencies in control of the very Wall Street investors, CEOs and corporations that they are intended to protect us from.

We’re making the choice between tough bargaining with the nation’s rail carriers that leads to the best possible deal in our next contract, or risking letting President Trump make carrier-friendly appointments to a Presidential Emergency Board that will determine our fate.

We’re making the choice between protecting our working class or continuing on our path of worshipping the almighty dollar, while throwing caution and safety to the wayside.

One thing is certain — on our current trajectory the rich will continue to get richer, while unionized labor and other hard-working citizens are left behind to pick up the scraps.

So, I ask all of you today: Are you ready to stand up to the abuse we’ve been dealt for these last several years? Are you prepared to cast a vote that will help to ensure that your family and future generations have the ability to earn a living wage, with choice health-care and retirement benefits? Are you ready to begin rebuilding an America that works for all of us, and not just our most wealthy and elite citizens?

Regardless of the outcome, I pledge that we will continue to fight for the protections, pay, benefits and retirement that we deserve. Without your support, however, this becomes exponentially more difficult, if not impossible. It’s going to take ALL of us to make this happen.

Thank you, and God bless.

Fraternally,
 

 

 

 

Jeremy Ferguson
President — Transportation Division

District court rules Batory’s declaration of preemption stops Illinois 2PC law

In yet another example that elections have consequences, the Trump-appointed FRA administrator’s actions have potentially minimized both public and employee safety on the railroad.

In September 2019, after the State of Illinois enacted a law requiring that trains operated in Illinois be operated with a certified conductor and certified engineer, the Indiana Rail Road, which often operates with one-person crews over 250 miles of track in Illinois and Indiana, sued the Illinois Commerce Commission in U.S. District Court for the Northern District of Illinois Eastern Division.

Backed by the Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA), the carrier challenged that newly signed state law.

In May 2019, just days after the Illinois Legislature had passed the law, Federal Railroad Administrator Ron Batory, who was appointed by Trump and confirmed by the Republican-controlled Senate, withdrew a Notice of Proposed Rulemaking (NPRM) on crew size and declared that any state law regarding crew size was preempted.

In the Indiana Rail Road lawsuit, the carrier and lobbying groups repeatedly referred to “the wisdom” of Batory’s declaration of federal preemption. The Trump appointee has followed up with other FRA choices such as safety waivers for railroads during the COVID-19 pandemic and refusing to issue an emergency order on faulty air brake components.

“Ron Batory’s notice withdrawal absolutely paved the way for the district court to rule,” SMART Transportation Division President Jeremy Ferguson said. “We must keep in mind, however, that this issue is not yet settled. A larger discussion in court remains ahead, as the judgment states.”

Indeed, the district court noted that the issue of validity of the FRA’s action, which was raised by SMART-TD and the Brotherhood of Locomotive Engineers and Trainmen, was not properly before it and as such, the action stood for the time being.

The court went on to note that those issues are currently pending before the U.S. Ninth Circuit Court of Appeals involving a challenge by the states of California, Washington and Nevada, along with SMART-TD and BLET, as to the FRA’s compliance with the required APA procedures and its ability to declare state law preempted.

Oral argument was heard in that case Monday, October 5, 2020. The court has taken the matter under advisement and will issue a decision hopefully in the near future.

“It is worth noting that if the Ninth Circuit later holds that the FRA Withdrawal Order is invalid, then the Illinois Commerce Commission may move to vacate the judgment,” the district court ruling stated regarding the Illinois case.

The Illinois Commerce Commission, which would have enforced the law, was joined by SMART-TD and the BLET in defending the two-person crew law.

The court’s ruling effectively voids enforcement of the law, which took effect in January.

Read the ruling.

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

Court vacates FRA approval of KCSM engineer certification

WASHINGTON, D.C., (August 28, 2020) — A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit has vacated Federal Railroad Administration (FRA) approval of the Kansas City Southern Railway (KCSR) certification program under which locomotive engineers employed by a contractor of Kansas City Southern de México (“KCSM”) have been permitted to operate over Texas Mexican Railway (Tex-Mex) tracks in the United States since July 10, 2018. Under the decision, the matter has been remanded to FRA “either to ‘offer a fuller explanation of the agency’s reasoning at the time of the agency action,’ or to ‘deal with the problem afresh by taking new agency action.’”

This ruling followed a challenge by the Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (“SMART–TD”) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) to the agency’s actions in approving the certification program.

The court agreed with the unions’ position, holding that FRA “fail[ed] to provide a reasoned explanation for its approval of the materially altered engineer certification program administered by one of the railroads.” The court further held that KCSM was under a statutory and regulatory obligation to have its own engineer certification program, which requirements FRA failed to enforce, finding that:

“By virtue of the Railroad Administration’s passive approval system and the complete absence of any accompanying explanation for the agency’s approval of [KCSR’s] modified engineer certification program, the administrative record is devoid of any explanation or reasoning for the administrative steps taken and legal determinations made by the agency in approving the engineer certification program. Likewise, in searching the administrative record for the rationale by which the agency allowed [KCSR] to certify the engineers of another railroad, despite the former’s apparent lack of control over [KCSM’s] crew members, we come up empty-handed. And in a hunt for the reason that service under a foreign regulatory system was credited to allow an abbreviated certification program, we hear only crickets.

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“… what we confront in this case is a total explanatory void. There is no reason — not one word — in the administrative record for the Railroad Administration’s material and consequential decisionmaking on important matters of railroad safety. Not even [KCSR’s] certification program itself, as submitted to the agency, provides an explanation for the relevant determinations that the Agency presumably reached.”

However, the Court declined to rule on several other objections made by the unions that related to conductor certification, transfer of the air brake testing waiver in place for northbound trains, and inadequacy of hours-of-service recordkeeping, finding that there had been no final agency action so the Court lacked jurisdiction to address these objections. In doing so, the Court acknowledged FRA’s “shadowy and unwritten processes make it difficult for aggrieved parties to navigate the … jurisdictional constraints.”

SMART–TD President Jeremy R. Ferguson and BLET National President Dennis R. Pierce applauded the decision.

“We congratulate the court for exposing just how much FRA has become captive to the railroad industry,” the presidents said. “This is a significant victory for Tex-Mex crewmembers, but is just one skirmish in the war to preserve well-paying American jobs. We also thank all the counsel who worked so hard on this case, especially Special Counsel Kathy Krieger for an outstanding job.”

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The SMART Transportation Division is comprised of approximately 125,000 active and retired members of the former United Transportation Union, who work in a variety of crafts in the transportation industry.

The Brotherhood of Locomotive Engineers and Trainmen represents nearly 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.

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.

Kansas DOT proposes two-person crew regulation

Another state is making a two-person freight crew the law of their land.

On July 27, the Kansas State Department of Transportation proposed a regulation that requires railroads that operate in the state to maintain a two-person crew in the lead locomotive.

“Kansas now joins a growing list of states that believe federal inaction on this issue is too great of importance to public safety and our members’ safety,” SMART Transportation Division Kansas State Legislative Director Ty Dragoo said in an email to TD members in his state. “The work we have done, the years of relationship building, the local, county and regional meetings where we have presented our case, and above all else, your efforts in your communities have finally paid off.

“Today is the proudest day of my career and, indeed, my tenure as a member of this great union.”

Kansas Gov. Laura Kelly, a Democrat, said the proposed rule was a needed step to preserve safe functions of the rail industry in the state in a news release announcing the regulation.

“Kansas has faced issues ranging from crew member fatigue to derailments which pose a threat to our safety and security – but by maintaining the current practice of requiring a two-person crew we can ensure the health and safety of Kansas workers,” she said. “This proposed regulation is a commonsense, necessary measure to protect our state’s railroad crew members and keep every community along the tracks safe.”

Exceptions to the Kansas regulation include switching operations, brake testing, safety inspections, or while performing setouts in conjunction with road service.

“The benefits of the proposed rule and regulation is railroad and community safety, including the role two-person crews can play in helping to prevent potential accidents or derailments and in emergency situations,” the state said in its release.

The persistence of Dragoo and the state’s legislative board paid off after more than a decade of work. Dragoo previously helped to persuade legislators to introduce a two-person crew bill, H.B. 6057, back in 2016, but it died while in committee.

“All the outreach by Brother Dragoo, the Kansas SLB, SMART-TD members and other rail workers and concerned parties was instrumental in proving the point that a safe operation is one with a certified conductor and a certified engineer working in tandem with technology playing a supporting, not a supplanting, part,” SMART-TD President Jeremy Ferguson said. “This realization is one that transcends partisanship and ensures the continued safety of Kansas residents and rail workers.”

Kansas becomes the second state in 2020 to move ahead on a two-person-crew regulation. Washington had a state two-person crew law signed March 30th that took effect June 11th. If the rule goes ahead in Kansas, it would become the 10th state with a two-person crew regulation.

At the federal level, a number of states and rail labor unions continue to engage in a lawsuit against the Federal Railroad Administration (FRA) in the U.S. Court of Appeals Ninth Circuit. The federal agency, led by Donald Trump appointee Ron Batory, has attempted to prevent states from passing laws mandating a minimum train crew size.

A hearing in that case is likely later this year.

Read the Kansas State Legislative Board’s statement on the proposed regulation. (PDF)
Read the Kansas DOT release announcing the proposed regulation. (PDF)

H.R. 2 passes U.S. House and moves to Senate

H.R. 2, the Moving Forward Act, a massive $1.5 trillion infrastructure bill that contains provisions important to members of all crafts in the SMART Transportation Division and to sheet metal workers, passed through the U.S. House of Representatives by a 233-188 vote on July 1.

A major component of this bill is the INVEST in America Act that passed the U.S. House Transportation and Infrastructure Committee in late June.

H.R. 2 contains:

  • a two-person freight crew requirement
  • bus and transit operator safety measures
  • blocked-rail-crossing enforcement
  • a cross-border solution
  • yardmaster hours of service
  • additional funding for Amtrak
  • requirements for carriers to meet CDC guidelines and to provide personal protective equipment (PPE) to transportation workers

“This is an unprecedented step ahead for many of our union’s major issues through the legislative process,” SMART Transportation Division President Jeremy R. Ferguson said. “Our concerns were heard and addressed by the writers of this bill — safety for workers and communities alike in the bus and transit operator safety measures and in the crew-size provision, funding for Amtrak, and a number of other provisions intended to rebuild and transform the nation’s roads and rails.

“Federal agencies and big-pocketed lobbyists have tried to obstruct the essential protections that this bill provides to our members and to the people who work on, live near and use our nation’s transportation network. These representatives all had the foresight and initiative to move them forward.”

Ian Jefferies, CEO of the Association of American Railroads (AAR), earlier in the week had an op-ed published that was highly critical of the legislation, targeting the two-person crew portion and one that dealt with study of potential rail transport of Liquid Natural Gas (LNG) specifically, saying the bill “woefully missed the mark.”

In the column, Jefferies also argued that legislators were “putting their collective thumbs on the scale” regarding railroad safety in regulating the crew-size safety issue.

The INVEST in America component of the Moving Forward Act was shepherded by House T&I Chairperson Peter DeFazio, an Oregon Democrat, through the committee June 18. He commented on July 1 after the bill’s passage:

“Passage of this bold, forward-thinking infrastructure bill is proof that finally, there is a majority of us in Congress who won’t accept the status quo and instead are willing to fight for a new vision that invests in our communities, addresses the climate crisis, and creates better opportunities for all. And we get there by putting millions of people to work in jobs that cannot be exported, while harnessing American-made materials, ingenuity, and innovation,” he said. “With the Moving Forward Act, we make it clear that our infrastructure does not have to be a product of the past, with crumbling roads and bridges, unreliable transit and rail networks, inequitable outcomes, and little regard to our changing climate and our changing economy. I challenge my Senate colleagues to join the House in thinking big and being bold on long-overdue investments not only in our infrastructure, but also in the communities and the people we all represent.”

Leaders in the SMART-TD National Legislative Department thanked DeFazio and the bipartisan group of Democrats and a trio of Republicans who supported H.R. 2.

“As if we need any additional evidence that elections matter, this result shows that the 2018 change of party control in the House made a difference,” National Legislative Director Greg Hynes said. “We appreciate those legislators who supported this legislation in its journey through the House. There is more work to be done and a path to be cleared for this legislation, and our membership is more than willing to put in the time to make legislators understand why the bill provisions are necessary.”

The Moving Forward Act now moves to the United States Senate, where, according to Politico.com, Republican U.S. Sen. Mitch McConnell of Kentucky, the majority leader, called the bill “nonsense,” “absurd,” “pure fantasy” and vowed that it will die before getting to the White House, where the president has threatened to veto the bill.

House Committee sends INVEST Act to full House for consideration

The Investing in a New Vision for the Environment and Surface Transportation (INVEST) in America Act passed through the U.S. House of Representatives’ Transportation and Infrastructure Committee late June 18 by a party-line vote of 35-25.

The legislation, which contains provisions that affect the safety and well-being of all members of the SMART Transportation Division, now moves to consideration by the entire U.S. House of Representatives.

“This is another step in what has been a years-long journey,” National Legislative Director Gregory Hynes said. “We are now farther than we have ever been in regard to having national two-person freight crew protections made into law thanks to our members’ action and advocacy.”

“But we will need to keep the pressure on members of Congress in both the Senate and in the House so that this and other parts of this regulation are not casually tossed out in accordance with the carriers’ will as the scheduled July 1 floor vote approaches.”

The union has rolled out contact forms on its Legislative Action Center for members and concerned parties to reach out to their U.S. representatives as the INVEST Act is considered by House members. These links will be accessible through the main SMART-TD web page as well.

A coordinated informational campaign also has been launched to educate members on what the act provides. While not perfect, this legislation represents a step to shoring up a craft that has been under siege for years, SMART-TD leaders say.

“There are some people in our union who misunderstand the intent of the bill because they might support the Republican Party or the president. They degrade the union on social media or say that this attempt at legislation is a giveaway or too weak in protecting conductors because there are some exceptions in it,” SMART-TD President Jeremy Ferguson said. “It establishes protections where there are NONE. Your union is not the enemy — the carriers want to eliminate even more jobs and lay waste to the people and families who kept the freight industry going through a pandemic. The battlefield is in the halls of Congress and passage of the INVEST Act, with the protections intact, would be a victory.”

The INVEST in America Act contains provisions on:

  • Two-Person Crews;
  • Operator Assault;
  • Blocked Crossings;
  • Sleep Apnea for Commercial Drivers;
  • Yardmaster Hours of Service;
  • a “Cross Border” fix.

During the two days and more than 24 hours of committee consideration in the House on June 17 and 18, four Republican representatives proposed amendments attempting to remove the portions of the INVEST Act covering freight rail: two-person crews, yardmaster hours of service, blocked crossings and the “cross border” fix, making President Ferguson’s prediction about the legislation become true.

“There are only two parties at the table. The Democrats wrote it into the bill, only the Republicans will take it out,” he wrote June 3.

For example:

Democratic Rep. Alan Lowenthal of California proposed Amendment 43, which requires the federal DOT to study, establish standards and come up with a final rule regarding untreated obstructive sleep apnea, which affects many transportation workers. The amendment succeeded and was passed by voice vote.

In contrast, four Republican representatives attempted to attack provisions important to our members.

  • Republican U.S. Rep. Scott Perry of Pennsylvania proposed Amendment 125, which attempted to remove two-person crew protections. That amendment was defeated by a voice vote after Perry in his argument parroted talking points rolled out by rail industry groups including the Association of American Railroads (AAR).
  • Republican U.S. Rep. Brian Babin of Texas proposed Amendment 41, which attempted to remove the cross border fix proposed in the act, but later withdrew his amendment before it could be voted upon.
  • Republican U.S. Rep. Bob Gibbs of Ohio proposed Amendment 25, which attempted to remove the yardmaster hours of service rules proposed in the act, but later withdrew his amendment before it could be voted upon.
  • Republican U.S. Rep. Troy Balderson of Ohio proposed Amendment 23, which attempted to remove the blocked-crossing rule proposed in the act. That amendment was rejected by voice vote as part of an en bloc package of amendments.

The actions of these legislators will be remembered in November, but we have bigger concerns as we approach a scheduled July vote on the bill. Use the Legislative Action Center to contact your members of Congress and let them know that the INVEST in American Act deserves their support, keeps communities safe and protects American workers and their jobs!