President Ferguson: This election is pivotal

Published: October 16, 2020

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