SMART-TD retiree Gregg Weaver, left, and his wife Carol wear SMART “Blue Collar Biden” shirts as they watch Democratic presidential candidate former Vice President Joe Biden speak Saturday, Oct. 24, in Bristol, Pa.
SMART representatives had a front-row seat as Democratic presidential candidate former Vice President Joe Biden spoke Oct. 24 at Bristol Community College in Bristol, Pa.
SMART-TD New Jersey State Legislative Director Ron Sabol and Gregg Weaver, a retired TD Local 838 member and former Local 1390 officer who served as a conductor for many Amtrak rides taken by Biden, were in the front row at the “drive-in” rally that was broadcast live on CNN from the town outside Philadelphia.
“What we heard from Joe Biden today was a concrete plan,” Sabol said. “He has a strategy to address the virus. He has a plan to repair the economy. He has ideas and has a strategy to make things better going forward with a focus on transportation and infrastructure.”
Weaver, who worked the rails on both the passenger and freight side with Conrail for 42 years, said Biden has proven his concern for the working people. Weaver’s son, Blake, a Local 838 member, followed in his father’s path and has been an Amtrak conductor for more than 16 years.
Gregg Weaver, a retiree from TD Local 838, and his son Blake, a member of TD Local 838 and an Amtrak conductor, attend Joe Biden’s rally on Saturday, Oct. 24.
“Everybody wants to talk to him (Joe Biden) after the speech – there were politicians, the big-money donors who have millions,” Weaver said. “He didn’t go after the big donors. He picked a blue-collar working man to come talk to him. He has time for us.”
Biden addressed the COVID pandemic at the outset, mentioning that the country had set a record for daily cases with more than 80,000. The Biden campaign has observed social-distancing and mask protocols at its rallies to avoid the transmission of COVID-19. Most of the attendees participated in the rally from their cars, honking their horns in unison to show appreciation during the speech.
“I will shut down the virus, not the economy,” Biden said. “We can build back better.”
With just days until Election Day, Biden’s speech touched upon a number of union-related issues, such as infrastructure, the gigantic $1.5 trillion corporate tax cuts in late 2017 that remain the signature legislative accomplishment of the current administration and the worsening COVID-19 pandemic.
“This guy’s not on the level. He thinks Wall Street built thus country,” Biden said. “You and I know who built this country … working people built it — the middle class, and unions built the middle class.”
In the April 2018 SMART Transportation Division News reported how Class I rail carriers reaped great benefits from those Republican tax cuts.
Union Pacific (UP) received a $5.8 billion boost. CSX saved $3.6 billion, Norfolk Southern (NS) about $3.48 billion and Kansas City Southern (KCS) $488 million. BNSF, a Berkshire Hathaway subsidiary, reported in its Form 10-K filing to the U.S. Securities and Exchange Commission that it received a tax benefit of $7.4 billion. Savings for the two Canadian-based Class I railroads also increased, reported at $1.4 billion (U.S.) for Canadian National (CN) and about $406 million (U.S.) for Canadian Pacific.
“Vice President Biden understands where working people are coming from. He’s been there. He knows what kind of struggle the working people of country are going through,” Sabol said. “With Biden, SMART members, labor and the middle class will absolutely have a seat at the table.”
Today, thousands of SMART members and other unionized essential frontline employees still are waiting for additional assistance and protections that are being blocked by the Republican-controlled Senate. For others, enhanced unemployment and sickness benefits that were in effect and a lifeline early in the pandemic have expired.
“How many [parents] a day can look at their kids and say with confidence, ‘everything’s going to be OK’ and mean it?” Biden asked. “Times are hard. Unemployment is way up. Folks are worried about making their next rent or mortgage payment, whether their health care will be ripped away in the middle of a pandemic. Worried about sending their kids to school … worried about not sending them to school.
“They see folks at the top doing much better while the rest are wondering who’s looking out for me. That’s Donald Trump’s presidency.”
Legislation to help union workers such as the HEROES Act and the Moving Forward Act has been stopped by Trump and his Republican allies, including Majority Leader Mitch McConnell in the Senate.
Attendees of the Joe Biden rally in Bristol take a group photo before the former vice president’s speech. From left are Mary Kate Weaver; Carol Weaver; TD Local 838 retiree Gregg Weaver; Tyler Hutchinson; SMART-TD New Jersey State Legislative Director Ron Sabol and TD Local 838 member Blake Weaver.
Weaver reminds his SMART-TD brothers and sisters that railroaders especially need to keep in mind that their benefits are vulnerable to the whims of Capitol Hill.
A vote for Trump and for his Republican allies is opening the door for workers’ health care, jobs and pensions to be targeted, he said. Children would be off their parents’ health coverage at age 18 instead of being covered until age 26 under the Affordable Care Act.
Weaver said a vote for Democrats would protect union jobs and railroaders. Biden would not be hostile to Amtrak, whereas Trump and Republicans have habitually tried to cut funding for the national passenger rail network.
“Joe Biden has got their backs. He’s not going to make things worse for them,” Weaver said. “There will be a lot less fighting with the Democrats than with the Republicans.”
Biden gave a brief outline of his economic recovery plan — taxes would not be raised on any family making less than $400,000, while making corporations pay their fair share.
“It’s time for working people and the middle class to get tax relief,” Biden said.
He also said his administration would focused on job creation and education.
“We’re going to create millions of union jobs modifying the infrastructure to modernize it, “ he said.
Biden also emphasized in the speech that he is not banning fracking, an accusation leveled by Trump lately on the campaign trail.
To get involved, text SMART Army to 21333 and for voting information, text SMART vote to 21333.
From left, local chairperson Edgar Menendez; vice local chairperson Herminio Hernandez; member Emmerett Watson; member Silvena Cazares; and Legislative Representative Latonia Martinez of TD Local 1608 show their support. Photo submitted by SMART-TD California State Legislative Director Louis Costa.
Front row, from left: Rosana Santana, executive secretary; Maria Magallon, operations manager; and Iveth Lopez, administrative assistant. Back row, from left: Local 1608 Chairperson Edgar Menendez; Local 1563 Chairperson Robert Gonzalez; Local 1565 Chairperson Quintin Wormley; Local 1564 Chairperson Andy Carter; GO-875 General Chairperson John M. Ellis; Local 1563 Vice Local Chairperson Jaime Delgadillo; and Local 1564 Vice Local Chairperson Greg Smith. Photo submitted by TD GC Ellis.
Local 72 (Battle Creek, Mich.) Alternate Legislative Representative Ray Sones shows his support for SMART-endorsed presidential candidate Joe Biden.
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.
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.
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.
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.
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.
■ 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.
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.
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.
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!
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.
President — Transportation Division
Amtrak, despite having been given $1 billion in funding under the CARES Act to prevent furloughs as a result of COVID-19, has announced that more than 500 – 509 to be exact – SMART members are targeted to be furloughed, effective Oct. 1.
Carrier leadership announced Sept. 1 that approximately 1,950 unionized jobs are being targeted by Amtrak’s latest cost-cutting measures, which come on the heels of voluntary buyouts from earlier this year and a reduction in service on a number of long-distance routes.
Undoubtedly, the pandemic has rocked the global economy. However, some countries have it under control and can focus on virus containment and economic recovery while others, such as the United States, are seeing cases continue to rise (more than 6 million nationwide) along with deaths attributed to the virus (approaching 200,000).
“It is our hope to recall furloughed employees as soon as business conditions or funding permits,” Amtrak wrote in its notification of the furloughs.
“This week, another 2,000 workers learned that they will be losing their jobs due to the effects of the coronavirus pandemic. This time it is largely Amtrak employees who operate trains, provide onboard services, and support passengers who will bear the brunt of this administration’s failure to lead the country during this pandemic. The jobs at the center of today’s announcement are good paying, union jobs that sustain middle class families and will be difficult to replace, especially in a time of sky-high unemployment,” said U.S. Rep. Peter DeFazio, chairman of the House Committee on Transportation and Infrastructure. “In July, I led the House in passing the Moving Forward Act, which tripled funding for Amtrak to nearly $29 billion. Later that month, the House also approved transportation appropriations legislation that provided $10 billion for Amtrak, including emergency appropriations that contained protections to prevent the furloughing of workers. In fact, our Committee will soon be hearing from workers who are impacted by these furloughs. It’s time for Republicans in the Senate to stop sitting on these important bills and do their job to protect Amtrak employees and so many others currently in need.”
Next week, the House Transportation and Infrastructure Subcommittee on Railroads, Pipelines, and Hazardous Materials will be holding a hearing on Amtrak’s response to the COIVD-19 pandemic. On the docket to be discussed are these furloughs and the carrier’s reduction in service, among others.
Our union is working hand-in-hand with the subcommittee and with receptive members in Congress to see that these cuts are reversed.
“We are doing everything in our power to make sure that this nation’s decision makers are fully aware of the ongoing events at Amtrak and the devastating effects they’re poised to have on our membership,” SMART Transportation Division President Jeremy R. Ferguson said. “One branch of Congress has already greenlit the money. It’s time for the Senate and the White House to do the same.”
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.
* * *
“… 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.”
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.
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.
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.
CLEVELAND, Ohio, (August 21, 2020) — As freight rail traffic levels rebound strongly from the economic slowdown caused by the coronavirus (COVID-19) pandemic, railroad management has unleashed an unprecedented barrage of measures to manipulate recalls from furloughs, make already draconian attendance policies even more punitive and interfere with union representatives who fight to protect their members from this abuse.
SMART Transportation Division and the BLET’s National Division both have received multiple reports from their General Committees of Adjustment on various Class I railroads indicating two specific types of recall-related conduct that could jeopardize tens of thousands of dollars in unemployment benefits. These benefits are paid pursuant to the Railroad Unemployment Insurance Act (RUIA), which is administered by the U.S. Railroad Retirement Board.
At least one carrier is disputing unemployment claims for all days later than the date of a recall notice, regardless of when the furloughed worker actually received the notice and irrespective of collective bargaining agreement provisions that provide the employee with a certain number of days within which to report. These provisions allow furloughed railroad workers to make necessary arrangements to settle personal and family obligations, such as child care, to accommodate a return to work without being penalized economically for the position in which the carrier’s furlough originally placed them.
The GCAs have also reported that one or more carriers have recalled furloughed employees who, after reporting for work, are then furloughed for a second time. In at least one instance, an employee quit other employment he had found, only to be kicked to the street again by the railroad without ever having performed service. And, for workers receiving RUIA benefits, a one-week waiting period during which no benefits are paid could be triggered, depending upon the timing and duration of this second furlough.
The leaders of both unions expressed outrage over these actions.
“Just when one thinks the carriers can’t possibly stoop any lower, they try to game the RUIA system to their benefit,” said SMART-TD President Jeremy R. Ferguson and BLET National President Dennis R. Pierce. “Since RUIA tax rates are experience-based, maybe the carriers are looking to minimize next year’s hit. But cutting their losses on the backs of union members and their families in this fashion is reprehensible.”
In an August 14 letter, SMART-TD and BLET General Chairpersons jointly blasted BNSF management for changes to that Carrier’s attendance policy. According to the letter, the changes would be implemented via a blitz of threatening letters to workers who took off from work on what are now, but were not then, viewed by the Carrier as being “high impact” days. Most of these are family-friendly days, including national holidays, and letters apparently are being sent even in cases where permission to take the time off had been granted to workers.
“The Carrier continues to remain inflexible when it comes to respecting workers’ attempts to have lives outside of work,” the union presidents said. “If a worker happens to have chosen to engage in a family event, to enjoy a holiday or some sort of emergency cropped up on one of these unknown-until-now ‘high-impact’ days, he or she can now expect to receive a threatening letter and have a watchful eye just waiting to issue punishment if they dare have off time that coincides with another of these days.”
The unions’ General Chairpersons also pointed out that thousands of BNSF operating employees remain furloughed, and that this reserve is more than sufficient to meet any service needs on “high impact” days while, at the same time, allowing reasonable time off from work. Further, they report that the Carrier continues to do nothing to address long-standing problems with poor lineups, denial of reasonable vacation and personal leave requests, excessive held away-from-home terminal times during holidays, excessive on-duty times and denied holiday pay claims. As a reminder, even in the midst of a pandemic-stricken U.S. economy, BNSF reported second-quarter earnings of more than $1.13 BILLION in net earnings and a 61.1% operating ratio thanks to the essential work done by employees who are being targeted for discipline and punishment by this policy.
BNSF also is attempting to pressure working local union representatives to not take time off from work to represent their members. In some cases, local representatives are invited to conferences with the railroad, then are denied the time off work to attend the conference, forcing them to mark off for union business. When they do so, the railroad warns that their use of union business mark-offs is excessive and they, too, may fall subject to that Carrier’s intensified attendance policy.
“Shame on BNSF for expanding their anti-worker attendance policy in a way that is plainly anti-family,” Ferguson and Pierce said. “In no event will our union representatives be intimidated into not performing the duties of their offices. Our members should keep in mind that Election Day in November will determine whether these examples of unconscionable corporate misbehavior will continue to receive the approval of federal government officials at the highest levels.”
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.
Gregg B. Weaver, a retired member of SMART-TD Local 898 who rode with former Vice President Joe Biden many times during the longtime senator’s commute from Delaware to Washington D.C., was featured in a video presented Monday, Aug. 17, during the first night of the Democratic National Convention.
In the video, the former vice president’s respect and empathy toward the SMART members who served him as he traveled on Amtrak were highlighted.
“I think he’s most comfortable around everyday, working-class people,” Weaver said. “He makes you feel like you belong.”
SMART-TD member Gregg Weaver, right, introduces Vice President-elect Joe Biden at the Wilmington, Del., Amtrak station in January 2009.
Another instance of Biden’s concern came after he heard that Weaver had had a heart attack, Weaver recalled in the video.
“I was in a barber shop in New York City and the phone rings,” Weaver said. “And sure enough, it’s Vice President Biden asking how I’m doing — wanted to know the whole story. Kind of funny that you’re talking to the Vice President of the United States, but if I would have told the people in the barber shop, I don’t think they would have believed me.
“I’m not saying like it was me and I’m anything special. Everyone was special to him. We have heroes all over this country … the average guy is important to him.”
The SMART Transportation Division was among the 36 signatories in a letter sent Aug. 4 calling on leaders in Congress to provide $36 billion in emergency aid to public transportation agencies as the economy continues to be staggered by the COVID-19 pandemic.
The letter delivered a stark warning to lawmakers: without at least $32 billion in emergency funding, transit systems in both urban and rural areas face irreversible harm. In the letter, the organizations explained that physical distancing measures, including stay-at-home orders, have taken a serious toll on demand for public transportation services. This, in turn, has placed a major strain on funding sources public transportation agencies traditionally rely on, including farebox revenue and sales tax receipts.
The text of the letter appears below:
Dear Speaker Pelosi, Leader McConnell, Leader McCarthy, and Leader Schumer:
On behalf of the millions of Americans who rely on public transportation every day, the 435,000 frontline workers who operate and maintain those systems, and the public transportation agencies that serve communities across America, we urge you to include at least $32 billion in funding for public transportation in the next COVID-19 emergency response bill.
As you know, physical distancing measures, including stay-at-home orders, have taken a serious toll on overall demand for public transportation services. This has placed a major strain on the revenue sources public transportation agencies count on for continued operations, including farebox revenue and sales taxes. Nonetheless, throughout this crisis, millions of Americans have continued to depend on reliable and safe public transportation to get to and from work and for other essential services.
Without robust public transit systems in our urban and rural communities alike, the national economy will not be able to recover. As recently reported in The New York Times, some public transit systems are in danger of heading into a “transit death spiral” where evaporating revenues lead to cuts in services, which in turn cause riders to find alternative means of transportation if they can, further incapacitating transit systems to the point where they become insolvent and inoperable. Communities and transit agencies of all sizes are hurting, and critical emergency funding must be made available immediately to avoid a worsening crisis.
Millions of essential workers bravely fighting on the front lines of this pandemic have no other means of transportation. Healthcare, grocery, and other workers will be put at risk of losing their jobs and livelihoods. And families who rely on transit for transportation to pick up food, get to work, and meet their health care needs will be left stranded. Likewise, Americans who depend on paratransit service and Medicaid recipients who receive medical transportation for critical care services will lose their only transportation lifeline. Seniors, communities of color, and other groups who disproportionately rely on transit will be particularly hard-hit, further weakening our country at the worst possible time.
Unfortunately, if Congress does not provide the necessary funding for public transportation in the immediate future, the traveling public will suffer. Allowing vital transportation services to lapse in the middle of a global pandemic will guarantee more harm to our communities and place the economic well-being of the American public in jeopardy.
Our communities across the country are depending on you to act swiftly and decisively to save public transit. This will require an immediate investment of at least $32 billion in our transit systems. We urge you to include this funding in the next aid package.
Amalgamated Transit Union Active Transit Alliance (Chicago, IL) American Public Transportation Association American Federation of State, County and Municipal Employees Better Bus Coalition (Cincinnati, OH) Brotherhood of Railroad Signalmen Central Ohio Transit Authority (Columbus, OH) Center for Disability Rights (Rochester, NY / Washington, DC) Central Maryland Transportation Alliance Chicago Transit Authority (Chicago, IL) Circulate San Diego Coalition for Smarter Growth (Washington, DC) International Association of Machinists and Aerospace Workers International Association of Sheet Metal, Air, Rail and Transportation Workers – Transportation Division (SMART-TD) International Brotherhood of Electrical Workers International Brotherhood of Teamsters Investing in Place (Los Angeles, CA) Los Angeles County Metropolitan Transportation Authority (Metro) (Los Angeles, CA) Metropolitan Transit Authority of Harris County (Houston, Texas) Metropolitan Transportation Authority (New York, NY) National Conference of Firemen & Oilers, SEIU Pittsburghers for Public Transit Riders Alliance (New York, NY) San Francisco Transit Riders Southeastern Pennsylvania Transportation Authority (SEPTA) Sound Transit (Seattle, WA) The Street Trust (Portland, OR) Transit Forward Philadelphia Transit Matters (Boston, MA) Transportation for America Transportation Communications Union/IAM Transport Workers Union Tri-State Transportation Campaign (NY, NJ, CT) Transportation Choices Coalition (Seattle, WA) Transportation Trades Department, AFL-CIO Washington Metropolitan Area Transit Authority (Washington, D.C.)
The SMART Transportation Division (SMART-TD), Brotherhood of Locomotive Engineers and Trainmen (BLET) and the Academy of Rail Labor Attorneys (ARLA) have filed a joint motion and brief urging the United States Supreme Court to prevent railroads from seeking property damages from their employees who are involved in railroad accidents.
The joint amicus curiae brief was filed in the case of Melvin Ammons and Darrin Riley v. Wisconsin Central, Ltd. Following a 2014 derailment, Conductor Ammons and engineer Riley filed suit under the Federal Employers’ Liability Act (FELA), claiming the carrier had failed to provide a safe place to work resulting in injuries to them. In its counter claim, Wisconsin Central blamed Ammons and Riley for causing the accident. The carrier further argued that the crew acted in a negligent manner and sought damages from the employees in excess of $1 million for damage to railroad property.
In their brief, SMART-TD, BLET and ARLA argue that to allow a railroad to recover property damages from employees following an accident is an unlawful device that permits the railroad to evade its own legal liability, and will create a potential catastrophe in the railroad industry because the safety-reinforcing purpose of FELA will be destroyed.
“No tactic by the railroads has more potential for destroying employees’ rights — the exclusive remedial recourse available to railroad employees — under the Federal Employers’ Liability Act (‘FELA’ or the ‘Act’) than allowing a railroad to seek property damages from an employee arising out of an accident,” the group wrote in its amicus brief.
Congress created the FELA in 1908 with the “twin objectives of providing effective relief to railroad workers injured or killed because of their employer’s negligence and giving railroads an economic incentive to improve the safety of this nation’s railroads.” This remedial purpose was underscored by amendments to the Act in 1908 and numerous times thereafter.
The FELA prohibits a railroad from utilizing “any device whatsoever” to exempt itself from liability. SMART-TD, BLET and ARLA contend that seeking property damage from employees in the event of accidents is such a device, and one that would basically exempt railroads from liability.
It was explained to the Supreme Court that “[i]t was not the intention of Congress in enacting FELA, with the inclusion of ‘any device whatsoever,’ that by the device of a claim for property damages, a railroad may avoid financial liability for its negligence, collect damages from an employee or drive an employee to bankruptcy, and whether it be the collection of damages or employee bankruptcy, dissuade other employees from filing FELA claims.”
SMART-TD, BLET and ARLA also argue that allowing employees to be sued for property damages would jeopardize safety in the railroad industry and discourage future safety improvements. In its brief, the group wrote: “Congress’ purpose in enacting FELA was to shift the cost of the ‘human overhead’ of railroading from the injured employees to their railroad employers. Allowing railroads to offset their FELA liability by shifting these losses back to the employees through property damage claims frustrates that Congressional design and jeopardizes the safety of the nation’s rail system.”
Larry Willis, president of the AFL-CIO Transportation Trades Department, of which the SMART Transportation Division is a member, sent the following letter on July 27 petitioning Transportation Secretary Elaine Chao to issue a regulation requiring passengers to wear masks as the COVID-19 national emergency continues. The letter is reproduced below. The request also has been detailed in an article by The Washington Post.
Dear Secretary Chao:
On behalf of the Transportation Trades Department, AFL-CIO (TTD) and our 33 affiliated unions across the transportation industry, I write today to petition the Department of Transportation (DOT) to expeditiously promulgate regulation to mandate the usage of masks or face coverings for passengers traveling with DOT-regulated commercial transportation providers during the course of the Presidential Declaration of Emergency for COVID-19.
Since the pandemic began, over four million Americans have been infected with COVID-19, and approximately 150,000 have tragically lost their lives. Despite this, thousands of workers in the passenger transportation industry have continued to go to work on planes, buses, ferries, and trains in increasingly dangerous conditions. Regrettably, these employees have not been spared the effects of the disease, and each TTD union involved in passenger transportation has reported infections and deaths among their frontline workers.
While these bus drivers, pilots, flight attendants, train crews, ferry operators, and others are faced with an impossible choice every day between risking their health and losing their livelihood, we acknowledge that the irreplaceable services they provide must continue to keep the U.S. economy running. Unfortunately, efforts to protect these employees from inherently hazardous workplaces and the threat of deadly communicable disease have been limited to a patchwork of state or local mandates, and a deeply inadequate federal response consisting of non-mandatory guidance.
These limited mandates from non-federal jurisdictions are helpful, but are limited in scope and impact. To date, barely half of states have enacted mandatory mask requirements in public, while the country is continuing to set global records on new infections per day.  The COVID-19 pandemic has become a national crisis, and it is time that it receives a strong national response. The federal government is uniquely positioned to address this problem, particularly as it relates to a multimodal transportation system stretching coast to coast, connecting millions of travelling Americans. Not only does DOT have the ability to ensure uniform safety standards across transportation workplaces, it also provides enforcement capabilities that cannot be replicated by public or private transportation providers alone.
As cases continue to soar, it is thus incumbent on DOT to take decisive action to protect frontline transportation workers from the spread of COVID-19 through a regulatory mandate on passenger mask usage. DOT has already acknowledged the utility of such prophylactic measures, including recommending that transportation providers follow CDC guidelines  and additional publications of modal-specific recommendations. Today we request that DOT move beyond guidance and adopt actual mandates to keep transportation workers safe on the job. This regulation should require that passengers wear masks covering the nose and mouth while on board buses, trains, airplanes, and passenger vessels, as well as in boarding areas and associated facilities including airports and stations. The regulation should also make clear that a transportation provider has an obligation to refuse to transport any passenger who is unwilling to comply for reasons unrelated to a disability that would prevent them from doing so.
Established and non-rebuttable scientific evidence makes clear the value in a passenger mask mandate. Many passenger transportation workers work in high-risk enclosed environments, like airplanes, airports, buses, stations, and trains, where the benefits of social distancing or outside airflow are impossible. For these employees, mandated masks are the best available defense against COVID-19 transmission.
A recent study in the New England Journal of Medicine found that speaking just two words, less than a passenger might speak to a flight attendant or Amtrak conductor taking tickets, generates numerous particle droplets between 20 to 500 micrometers, but that the use of a covering blocked nearly all of them. In another study, researchers determined that widespread mask use, even the use of homemade masks, could drastically reduce COVID-19 transmission and prevent future “waves”. 
Topically, a letter to the editor from a pair of Chinese researchers discusses a case study of a COVID-19 positive passenger utilizing bus services. In the case, an individual began to feel symptoms while riding a motorcoach but did not don a face mask. Following this trip, at least five other passengers out of 39 tested positive. The individual then boarded a minibus, this time wearing a mask. Out of 14 passengers on that bus, zero tested positive. While anecdotal, this and a number of further epidemiological case studies point to the efficacy of wearing a mask to reduce transmission from COVID-19 positive individuals.
This research and these findings hardly stand alone—the scientific community writ large has nearly universally come to the determination that extensive use of face masks provides extremely meaningful protection from transmission. The efficacy of mask usage is also borne out by the mitigation successes of several countries with high levels of mask compliance, such as Japan, South Korea, and Thailand. It is therefore unsurprising that this level of mask use is now recommended in numerous CDC guidance documents.
However, non-mandatory guidelines and a patchwork of mandates or additional guidelines from private companies, states, and other jurisdictions have failed to achieve the level of mask usage that is necessary. A recent Gallup poll found that only 44% of Americans reported always using a mask while outside the home, while 30% reported never doing so. Continuing to put transportation employees in harm’s way by failing to promulgate mandates will only ensure additional spread of COVID-19 and the preventable deaths of members represented by TTD unions. For this reason, DOT must immediately proceed with a mandate.
We believe strongly that DOT has the broad authority to take this action to improve workforce health and safety for thousands of workers. Further, examples of regulatory and statutory authorities for a mandate to protect workers from dangerous health conditions exist across modal agencies.
The Federal Aviation Administration (FAA) has clear statutory authority for promoting safe flight of civil aircraft in air commerce, including mandates to protect occupants of aircraft from risks and hazards (49 USC 44701, 44703, 44507). FAA also has existent regulation concerning passengers traveling with communicable diseases, and as recently as 2006 explicitly stated that “in light of the statutory duties described above, the FAA has determined that it is a public health authority.” In totality, these and other items speak to the appropriateness of the actions we request in this petition.
Similarly, FRA’s recent System Safety Program rulemaking sets requirements for passenger rail carriers to create plans to reduce hazards for employees, defined as “as any real or potential condition that can cause injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment”.  The Federal Transit Administration uses a similar definition within the context of its Public Transportation Agency Safety Plans contained at 49 C.F.R. 673. In both circumstances, the established role of DOT in combating illness in the workplace is evident.
While the listed citations and agencies are not meant to be exhaustive, they are clear demonstrations that various justifications for a passenger mask mandate exist across DOT agencies, and that any determination otherwise is based in a deliberate and improperly narrow reading of both statute and regulation.
In recent testimony to a House of Representatives panel, GAO’s Director of Physical Infrastructure Heather Krause also offered the opinion that DOT has a clear leadership role to play in combating COVID-19, when speaking on the subject of the DOT/FAA’s efforts in the development of a national aviation-preparedness plan, stating that:
“We continue to believe that DOT would be in the best position to lead the effort because FAA and DOT have stronger and deeper ties to, as well as oversight responsibility for, the relevant stakeholders that would be most involved in such a broad effort, namely airlines, airports, and other aviation stakeholders”.
We agree strongly with the Government Accountability Office’s statement, and believe that DOT is the appropriate body to implement a passenger mask mandate, stemming from both its existing authorities and its particular knowledge of, and connection to, the affected sectors.
While it is our hope that DOT accepts our petition, we also note that due to the realities of the COVID-19 pandemic, proceeding expeditiously in order to reduce spread and fatalities is of the utmost importance. Unlike in normal circumstances, it is simply not viable to proceed with a standard rulemaking process over the course of months, if not years. Therefore we also call for DOT to exercise its authority under Section 553(b)(3)(B) of the Administrative Procedure Act (APA), suspending notice and comment period and proceeding to an immediately effective Interim Final Rule. As required by the APA, we believe a rapid response to the pandemic meets the statutory threshold of a “good cause” and that going through normal procedures would be “impracticable, unnecessary, or contrary to the public interest.”
To date, TTD and our affiliate unions have filed a number of petitions and requests with DOT and its modal agencies on numerous issues related to the COVID-19 pandemic. We are disappointed that the Department has not taken affirmative actions on these items and continue to believe that these requests are warranted by existing conditions in the transportation industry. We appreciate DOT’s consideration of this petition and hope that the Department will begin to take the necessary steps to protect transportation workers. We look forward to working with the agency to protect the frontline workforce and the traveling public from COVID-19 infection.
Larry I. Willis
President, AFL-CIO Transportation Trades Department
 Attached is a list of TTD’s 33 affiliated unions.
 To include, but not limited to travel provided by an air carrier (as defined in 49 USC 40102), a passenger vessel operator, a commuter authority or intercity passenger railroad, a transit agency, a school bus operator or a motorcoach operator, and at related facilities such as airports and stations.
 TTD acknowledges reasonable exceptions for individuals who are unable to wear a mask due to a disability or documented medical condition.
 For example, FRA Safety Advisory 2020–01; FTA Safety Advisory 20-01
 For example, FTA’s COVID-19 Resource Tool; FAA’s May 2020 Safety Alert for Operators
 Anfrinrud, Phillip, et al, Visualizing Speech-Generated Oral Fluid Droplets with Laser Light Scattering, New England Journal of Medicine, May 21, 2020.
 Stutt, Richard, et al, A modelling framework to assess the likely effectiveness of facemasks in combination with ‘lock-down’ in managing the COVID-19 pandemic, Proceedings of the Royal Society, June 10, 2020.
 Liu X, Zhang S. COVID-19: Face masks and human-to-human transmission, Influenza Other Respir Viruses. April 5, 2020.
 71 FR 8042
A letter issued from the Labor Member of the Railroad Retirement Board, John Bragg, addressed criticism by White House staff leveled toward RRB regarding investments in Chinese enterprises. Bragg’s response is reproduced below and links to supporting documentation are also available in the text below.
July 9, 2020
Brothers and Sisters:
As many of you may know, our retirement trust fund is one of the healthiest in the country. The National Railroad Retirement Investment Trust (NRRIT), manages and makes the investment decisions of the railroad retirement funds and to date has helped produce returns that secure our trust fund well into the future. NRRIT is an independent non-federal entity governed by a seven-member Board, with three selected by rail management, three selected by rail labor, and one independent trustee selected by the six rail trustees. The best interest of the trust fund and the security that it provides to the rail community is always at the forefront of their duties.
However, just this week, the Chairman of the RRB received a letter from Larry Kudlow, Director of the National Economic Council, along with National Security Adviser Robert O’Brien expressing concerns over NRRIT’s investment in Chinese companies. The letter alleged that NRRIT was investing in two Chinese companies specifically that pose an economic risk to the trust funds of railroad employees. NRRIT had already assured us last month that it did not hold any interest in the companies named in the letter.