Posts Tagged ‘cross border crews’

Court vacates FRA approval of KCSM engineer certification

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

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

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

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

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

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

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

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

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

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

SMART TD, TTD ask nation’s trade representative to protect U.S. rail jobs

A letter co-signed by SMART Transportation Division President Jeremy R. Ferguson and AFL-CIO Transportation Trades Department (TTD) President Larry Willis asked the United States’ chief trade representative to re-examine policies that leave American rail workers at a disadvantage.

The United States–Mexico–Canada Agreement (USMCA), planned to be a trade pact to replace the North American Free Trade Agreement (NAFTA), does not address certain issues covering cross-border traffic between Mexico and the U.S., the union leaders wrote.

Since 1931, Mexican railway companies have had a policy that they only employ Mexican rail workers. This policy has endured through the decades and was “enshrined” through NAFTA in the mid 1990s.

In the summer of 2018, Kansas City Southern began to allow Mexican crews to cross the U.S. border and operate within the country’s borders, drawing strong objections from both SMART TD and the TTD.

“Allowing workers from Mexico to operate in the United States while U.S. workers are prohibited from operating in Mexico is a direct and existential threat to the jobs of thousands of conductors and locomotive engineers represented by SMART TD,” the letter stated.

A reciprocal measure requiring U.S. crews to operate the trains was not included in the USMCA amid objections from the Mexican government, Ferguson and Willis stated.

“Without its inclusion, the agreement fails domestic rail workers and their sector, and further fails to uphold principles of parity between the U.S. and Mexico on the issue of rail service,” they wrote, calling upon Trade Representative Robert Lighthizer to fix the disparity.

“SMART TD and TTD strongly agree with the Administration that NAFTA has failed working people and that the impacts of a trade agreement that was not written for their benefit are still being felt,” they stated. “We call on you to not abandon freight rail workers.”

Read the letter in its entirety (PDF).

House members send letter to DOT opposing KCS cross-border waiver

House Committee on Transportation and Infrastructure Ranking Member Peter DeFazio (D-OR) and House Subcommittee on Railroads, Pipelines, and Hazardous Materials Ranking Member Michael Capuano (D-MA) sent a letter signed by 27 bipartisan members of Congress to Secretary of the Department of Transportation (DOT) Elaine Chao expressing opposition to a petition filed by Kansas City Southern Railway (KCSR) requesting a waiver of critical federal safety and inspection requirements on Tuesday, Sept. 18.

This petition is the latest in a series of actions taken by KCSR to allow Mexican workers, who are not subject to Federal Railroad Administration (FRA) regulations regarding pre-employment screening and random drug and alcohol testing, to operate trains in the United States— moving U.S. rail jobs to Mexico.

“Freight railroads have long sought the ability to allow Mexican crews to operate trains in the United States. We oppose any groundwork that the FRA might be laying toward that effort… We strongly urge you to deny the May 31 petition and to rescind the process of allowing Mexican rail crews to operate within the United States,” the members wrote.

SMART Transportation Division and the Brotherhood of Locomotive Engineers and Trainmen have filed a court petition challenging KCSR’s actions.

The letter was signed by DeFazio, Capuano, as well as Representatives John Katko (R-NY), Eleanor Holmes Norton (D-D.C.), Brian Fitzpatrick (R-PA), John Garamendi (D-CA), Daniel Lipinski (D-IL), Grace F. Napolitano (D-CA), Donald M. Payne, Jr. (D-NJ), William Keating (D-MA), Tom O’Halleran (D-AZ), Albio Sires (D-NJ), Seth Moulton (D-MA), James P. McGovern (D-MA), Richard M. Nolan (D-MN), Brian Higgins (D-NY), Alan Lowenthal (D-CA), Zoe Lofgren (D-CA), Jacky Rosen (D-NV), Charlie Crist (D-FL), C.A. Dutch Ruppersberger (D-MD), Andre Carson (D-IN), Peter Welch (D-VT), Michael Doyle (D-PA), David P. Joyce (R-OH), Don Young (R-AK), and Gene Green (D-TX).

Visit this link to read the full press release from the committee.

Visit this link to view the letter.

Unions file petition against FRA over cross-border crews

CLEVELAND, Ohio (Sept. 5, 2018) – The Brotherhood of Locomotive Engineers and Trainmen (BLET) and the International Association of Sheet Metal Air, Rail and Transportation Workers Transportation Division (SMART TD) have filed a joint petition challenging actions of the Federal Railroad Administration (FRA) that allow crews comprised of Mexican nationals employed by a Mexican rail company to operate trains across the United States border and into the U.S. instead of American crews employed by American railroads.

Since July 9, the FRA has allowed foreign crews from Kansas City Southern de Mexico (KCSM), a railroad based in Mexico and subsidiary of Kansas City Southern (KCS), to cross into the U.S. and run trains on the Texas Mexican Railway Company (“Tex-Mex”) line in Laredo, Texas. BLET and SMART TD maintain that this violates long-established federal laws and regulations regarding safety, training, crew qualifications and conduct of locomotive engineers and conductors operating freight trains in the U.S. The FRA is an agency of the U.S. Department of Transportation (DOT), which also is named as a respondent in the petition.

“The Petitioners challenge this conduct as arbitrary and capricious, an abuse of discretion, in excess of the Respondents’ statutory authority and otherwise contrary to law,” the petition states.

There has been no order, waiver, public notice or documentation published by the FRA regarding the actions being challenged. The unions seek to set aside the agencies’ actions and to require that they divulge all internal records detailing the authorization of the practice, including the vetting of the non-U.S. crewmembers by FRA, and the decision to allow KCSM, a foreign company not incorporated in the United States, to operate across the border into this country.

“FRA’s conduct has generated significant safety concerns,” BLET National President Dennis R. Pierce said. “U.S. crews are held to the highest safety standards while crews coming in from Mexico are held to much lower standards in terms of certification, testing and operating experience. This degradation in safety is unacceptable. Beyond that, while American companies outsourcing jobs to foreign countries is nothing new, all Americans should be angered by this job giveaway on our own soil.”

“We deem it to be unsafe, we deem it to be a threat to American jobs. FRA has not been able to answer simple questions regarding certification and qualification of the foreign crews. Nor have they explained in any way how they plan to enforce American safety rules to hold the foreign crews to the same high safety standards that govern all American railroad workers,” SMART Transportation Division President John Previsich said. “We are not going to let FRA stand aside and ignore their responsibilities while a Class I carrier allows foreign crews to cross the border and jeopardize the safety of our members and the American public.”

The petition was filed in U.S. Court of Appeals for the District of Columbia Circuit.

Follow this link to view this release in PDF form.