On July 28, 2021, a Neutral appointed by the National Mediation Board issued his ruling finding that on certain railroad properties, the current moratoria in those crew consist agreements do not prohibit the railroads from serving a Section 6 Notice regarding crew size. The properties affected or having no current moratorium include certain properties at BNSF, UP, NS and CN Railroads. Other properties not currently affected or involved may also be included in the future as moratoriums naturally expire. Please contact your local chairperson or general chairperson for specific details regarding your terminal or district.
The ruling comes after a nearly two-year battle between SMART-TD and the National Railway Labor Conference over the moratoria provisions and their effect. The arbitration was one of the largest conducted by SMART-TD and its predecessor union, UTU, in decades.
The ruling does not eliminate any current crew consist provision or requirement. The only thing it does is to open the door for bargaining to occur. The moratoria that previously prevented any mandatory bargaining on crew consist were predicated on the last remaining employees having hired on the railroad previous to the 1980’s. Today, less than 100 of these employees remain nationwide, and most are at, or near retirement age.
Once a Section 6 is served, the Railway Labor Act requires both parties to engage in mandatory bargaining. The Act, however, does not mandate any particular outcome in such negotiations, it merely provides a process. In the event parties reach an impasse, the Act contains methods to avoid disruption to commerce through mandatory mediation and possibly intervention from the President of the United States and the U.S. Congress.
SMART-TD remains committed to protecting the jobs of today, as well as securing the jobs of the future. While only some General Committees will be involved in bargaining, the full support and effort of the International in assisting those Committees will continue.
On June 15 and 16, 2021, the simmering dispute between the SMART Transportation Division and carriers over crew consist finally reached arbitration before neutral party John LaRocca in Sacramento, Calif.
Class I railroads BNSF, UP, NS and KCS initiated a claim in October 2019, just prior to the opening of the current round of national contract handling, that asserted the moratorium provisions of various local agreements no longer barred the service of a Section 6 notice regarding the topic of crew consist.
At the arbitration, 13 SMART-TD General Committees presented their arguments against the National Railroad Labor Conference (NRLC), which represented the railroads involved.
The arbitration hearing was a result of a long court battle in which it was determined that the question of whether the moratorium language in the various agreements barred serving a notice was a “minor dispute” within the meaning of the Railway Labor Act and would have to be arbitrated.
The moratoriums were a result of negotiations in the late 1970s and early 1980s when the parties involved decided to lay to rest negotiations over crew consist until the last covered employee voluntarily separated. Despite the fact that the event has not occurred, the carriers have taken the position that the language of the moratoriums cannot be read to now bar negotiation over crew consist.
The railroads are seeking to bypass the agreed-upon wait time that bars such negotiation and to seek crew size changes now. SMART-TD argued that the language and intent of the moratoriums clearly bars any negotiation on crew consist until the last person standing is gone.
The arbitration was the largest conducted by the union in decades and was presented by a combined team of the SMART-TD International, SMART-TD Legal Department and multiple General Committees. A decision on the issue is expected by September 2021.
A ruling by LaRocca in favor of SMART-TD would leave current crew-consist agreements closed from negotiations until the expiration of the moratoriums. A ruling by LaRocca in favor of the carriers would open these agreements up for negotiation on the respective properties as the current round of national contract discussions continues.
Georgetown University Law Professor and Arbitrator Michael H. Gottesman has issued a second ruling in the arbitration proceedings between two divisions of the International Association of Sheet Metal, Air, Rail and Transportation Workers as they work to create a single constitution.
Earlier this year, the two divisions entered into arbitration proceedings regarding reconciliation of differences between the two constitutions. The arbitrator issued his findings on Nov. 4, 2013, and the parties have been meeting to incorporate those findings into a final document that would be published along with the award. The consolidation discussions are continuing, but due to a high level of interest, it has been decided to release the award before the conclusion of those talks.
First Student Bus Company/William Penn School District in Darby, Pennsylvania went to arbitration against the SMART Transportation Division and lost. Representing SMART TD was Bus Department Alternate Vice President Calvin Studivant who went to bat for local 172.
Studivant didn’t do it alone; he had help from General Chairperson Theresa Costantini, Vice Local Chairperson Denise Hall and Local 172 Secretary Kathleen Sitongia along the way. Both Costantini and Sitongia testified in the case against First Student.
“First let me say this case was very important. We arbitrated this case on July 30th which caused me to miss the regional in Anaheim,” Studivant said. “Prior to arbitration we had done mediation and the mediator had informed the company that they were wrong, but since mediation was not binding we pursued it through arbitration. I was the presenter of the union’s case and all the aforementioned were witnesses that together hold over 70 years of experience, therefore I was very confident in the case that we presented.”
Arbitrator Thomas G. McConnell Jr., found that the company was in violation of the Collective Bargaining agreement and ordered the bus company to pay it’s employees back-pay.
“I am ecstatic that we prevailed because it represents a substantial amount of money in back wages and wages going forward,” Studivant exclaimed. “First Student delayed us as long as they could but we refused to be denied. It took a year to hear the case and get an award but the victory was worth the wait.”
According to Costantini, Sitongia and management, members could bid on runs based on the run and the time it took to do the runs. Up until 2012 (the union has had a contract with the bus company since 2008, the most recent contract voted in lasts from 2011 to 2014), members were always paid by the estimated time listed on the job plus any extra time it took to do the run.
If a job was estimated to take two hours and 20 minutes but only took two hours, the member would be paid the two hours and 20 minutes that he or she bid on. If it took the driver two hours and 30 minutes, the driver would be paid the full two hours and 30 minutes.
In 2012, it was decided by management, without union approval, that members would be paid the actual time it took to do the job rather than the estimated time. According to this new policy, the member would only get paid for the two hours instead of the two hours and 20 minutes.
Members choose their runs based on seniority and have two concerns when choosing a run:
How much will I be paid?
When will I get home?
When First Student changed the way drivers are paid, this negatively impacted the seniority system and made these questions null because drivers could no longer have a guarantee of how much money they would be making per run.
Management of the company admits that no dry runs are ever done to determine the estimated times and that the company relies on VersaTrans system to estimate the times for them. VersaTrans is a software routing system that defines a bus route based on parameters put in by the District, including bell times and location of the schools. The VersaTrans system then provides an approximate time of how long the run will take.
Although the contract states that hours stated for a job are estimates and not exact times and that hours are not guaranteed, the contract does not state that actual times instead of the estimates would be used for payroll purposes.
McConnell found that since the company had followed the practice of paying the drivers by estimated times throughout the 2008-2011 contract the company would need to have negotiated a contract change in the 2011-2014 contract as precedence had already been set, which they did not do. It was therefore found that the company violated the collective bargaining agreement and was directed to return to their prior practice of paying by times estimated and not by actual time. The company was also ordered to pay members any lost wages due them.
“I would like to thank GC Theresa Costantini along with secretary Kathy Sitongia who kept meticulous records and chairperson Denise Hall,” Studivant said.
Arbitrator Michael H. Gottesman will hear presentations by the UTU and the Sheet Metal Workers International Association during five days of arbitration in June to determine whether the merger agreement between the UTU and the SMIWA is an enforceable agreement.
Gottesman, a law professor at Georgetown University in Washington, D.C., was named to arbitrate the dispute by AFL-CIO President Rich Trumka following a March 4 ruling of Federal District Court Judge John Bates.
The choice of Gottesman was jointly approved by UTU International President Mike Futhey and SMWIA National President Mike Sullivan.
Judge Bates, in his March 4 ruling, said a separate action brought by several UTU members challenging the validity of the merger — alleging violations of Titles I and V or the Labor Management Reporting and Disclosure Act — is not within the arbitrator’s jurisdiction and that he would delay a ruling on that complaint pending the outcome of the arbitration.
Gottesman will hear evidence from each organization June 7-9 and June 14-15. There is no deadline on his issuing a ruling.
SAN FRANCISCO — In response to UTU International President Mike Futhey announcing the flawed merger attempt with the Sheet Metal Workers International Association “dead,” some 800 UTU members at a western regional meeting here July 8 responded with thunderous applause, foot-stomping, cheering and whistling.
“There will not be a merger today. There will not be a merger tomorrow. There will never be a merger with the Sheet Metal Workers,” Futhey told the loudly supportive International vice presidents, general chairpersons, state legislative directors, delegates, local officers and leaders in training while delivering his state of the union message.
Futhey described 18 painful months of frustrating talks with the Sheet Metal Workers International Association (SMWIA) leadership, and hundreds of thousands of dollars in court costs incurred as a result of the flawed merger that was initiated by a previous administration.
Implementation of the merger was halted by a federal district court in December 2007, prior to Futhey taking office.
In issuing, first, a temporary restraining order against the merger, and then a preliminary injunction, the federal court ruled that the UTU membership had not been permitted an informed vote when the merger question first was put out for ratification in mid-2007.
If the merger were to be restarted, said Federal Judge John Adams, a constitution for the merged organizations would have to be written and then submitted to the UTU membership for ratification — a process that was ignored when the initial merger ballot was sent to the membership in 2007 by a previous administration.
Among crucial facts withheld from the membership was that UTU’s cherished craft autonomy would be eliminated upon implementation of the merger.
In an attempt to lawfully restart the merger process — as suggested by the federal court — Futhey sought to engage the SMWIA to write the constitution that would govern a merged SMWIA and UTU.
“I have gone to the SMWIA time and time again to put a constitution together and protect the interests of UTU members,” Futhey said. “I met a stone wall each time.” He said the UTU’s insistence that craft autonomy be preserved in any merger was met by a SMWIA response that craft autonomy “can’t be accepted.”
Futhey said that when he took the UTU Board of Directors to a meeting with the SMWIA leadership in Washington — asking, “What will it take to put the constitution together” — the UTU was again rebuffed. The UTU board “overwhelmingly” said, “let’s walk away,” Futhey reported.
The federal court injunction against the merger is currently on appeal before the U.S. Sixth Circuit Court of Appeals, with no time limit on when a decision might be reported out.
UTU: A UNION MOVING FORWARD
Futhey, in his state of the union message, said that in the 18 months since his administration has taken office, the finances, organizing efforts and image of the UTU have improved markedly.
The balance of the UTU general fund has almost doubled over the past 18 months, Futhey said, while the UTU Insurance Association surplus has climbed to $23 million, the Discipline Income Protection Plan is back in the black, the strike fund has grown by 45 percent, and necessary funds will be available for the 11th quadrennial convention in 2011.
Futhey reported that more than 300 pilots and flight attendants employed by Great Lakes Airlines have voted to be represented by the UTU; that more than 80 percent of some 110 pilots with Lynx Aviation have signed authorization cards seeking UTU representation; and the UTU is working to organize an even larger airline.
Increased organizing among bus-industry employees is further improving the UTU’s image — especially within the AFL-CIO — as a transportation union “moving forward,” Futhey said.
The UTU especially has gained stature among other transportation unions as a result of President Obama nominating two UTU officials for senior federal agency leadership roles, Futhey said.
Former UTU Illinois State Legislative Director Joe Szabo was confirmed by the Senate as the nation’s federal railroad administrator, and UTU Associate General Counsel Dan Elliott was nominated by President Obama July 7 to be chairman of the U.S. Surface Transportation Board.
COLLABORATING WITH TRANSPORTATION LABOR
The UTU, Futhey said, also worked jointly with other transportation unions on behalf of successful Senate confirmation of former Association of Flight Attendants President Linda Puchala to be a member of the National Mediation Board, and former Air Line Pilots Association President Randy Babbitt to be federal aviation administrator.
The UTU PAC is essential to gaining labor- and UTU-friendly legislation, Futhey said, pointing to efforts underway to achieve new bus- and airline-safety legislation, and passage last year of the most comprehensive rail safety bill in more than a generation.
“The [rail safety] bill goes farther than we wanted [in some respects] and we may need further legislation to fix what wasn’t contemplated,” he said. And, once again, the UTU PAC will play a crucial role in that effort, Futhey said.
MESSAGE FOR CARRIERS
Futhey also had a message for carriers seeking unilaterally to change labor contracts using elements of the safety bill as an excuse, rather than negotiate changes as contemplated by the legislation. “We will defend our contracts,” Futhey said.
He also said the UTU would “not tolerate” carrier intimidation and harassment of members, and is moving on multiple fronts — in collaboration with the Brotherhood of Locomotive Engineers and Trainmen — to ensure a minimum of two crew members on all trains, including switching operations in conventional and, especially, remote control modes.
UPCOMING SECTION 6 NOTICES
Futhey said that in advance of Railway Labor Act Section 6 notices being served in November — to begin a new round of national rail negotiations on wages, benefits and working conditions — UTU members will soon be asked for contract-change suggestions, and that a draft of Section 6 demands will be prepared for final determination in October by the autonomous UTU Association of General Chairpersons.