Washington, D.C. (Aug. 7, 2020) — On August 5, 2020, 12 rail unions whose members and their families are covered by the NRC/UTU Plan and the Railroad Employees National Health and Welfare Plan filed suit against the nation’s Class I railroad carriers in the United States District Court for the District of Columbia.
The suit asks the court to force the carriers to bargain in good faith with the unions over mandatory subjects of bargaining. The involved issues have been the subject of collective bargaining for decades and are in fact part of the carriers’ bargaining notices served on November 1, 2019, pursuant to Section 6 of the Railway Labor Act (RLA). At issue are carrier attempts to restrict access to certain medications and to forcibly reconfigure health care networks.
The unions are: the American Train Dispatchers Association; the Brotherhood of Locomotive Engineers and Trainmen; the Brotherhood of Maintenance of Way Employes; the Brotherhood of Railroad Signalmen; the International Association of Machinists and Aerospace Workers; the International Association of Sheet Metal, Air, Rail and Transportation Workers, Mechanical Division; the International Association of Sheet Metal, Air, Rail and Transportation Workers, Transportation Division; the International Brotherhood of Boilermakers; the International Brotherhood of Electrical Workers; the National Conference of Fireman & Oilers District, Local 32BJ, SEIU; the Transportation Communications Union/IAM; and the Transport Workers Union.
The rail carriers are: BNSF Railway Company; Kansas City Southern Railway Company; CSX Transportation; Grand Trunk Western Railroad Company; Norfolk Southern Railway Company; Soo Line Railway Company; and Union Pacific Railway Company. Also named in the suit is the National Railway Labor Conference (NRLC), whose National Carriers’ Conference Committee (NCCC) is the designated bargaining agent of the railroads.
The unions have asked the court to:
issue a declaratory judgment that the carriers are obligated to bargain in good faith with the unions on proposed health and welfare changes in accordance with the collective bargaining procedures outlined under the RLA;
issue a declaratory judgment that health and welfare plan design changes are a mandatory subject of collective bargaining pursuant to the RLA;
issue a declaratory judgment that the NRLC may not force plan design changes upon its employees without the agreement of the unions, to be achieved through the mandatory dispute resolution process of the RLA;
issue an order enjoining the NRLC from trying to force these health and welfare changes via arbitration rather than addressing them in collective bargaining; and
issue an order requiring the NRLC to engage in good faith negotiations with the unions over their proposed health and welfare changes through the RLA’s major dispute resolution procedures.
The chief executives of the 12 unions issued the following statement concerning the lawsuit:
The railroads’ attempt to evade their legal obligation to bargain on these issues of great importance to our members has left us with no choice but to enforce these legal rights in court. If implemented without successfully negotiated application, the carriers’ proposals could be extremely harmful to our members and their families. Even more outrageous, the process they are attempting to impose would allow rail carriers to reduce employees’ access to medicines and doctors in the middle of a pandemic. When they should be rewarding the contributions of their essential employees with hazard pay, the rail carriers instead attempt to reduce medical benefits when they are needed most. Events like these are why railroad managers were labeled as “Robber Barons” over a century ago; their actions today are proof positive that the label still applies. Unfortunately for working class Americans, this is the way of many corporations across the country in Donald Trump’s America; essential employees are treated as expendable employees. We will not stand idly by while management attacks the core legal rights our members enjoy.
A jury found Norfolk Southern liable last month for a 2010 breach in contract with Drummond Coal Co., meaning that the carrier could end up paying back the Alabama-based coal company millions in penalties.
The contract between the coal supplier and NS required that Drummond’s operations use the carrier to move a minimum amount of coal from a terminal in Charleston, S.C., to a number of power plants in the southeastern United States. When those levels were not met due in part to the closure of 13 plants because of federal Environmental Protection Agency regulations, NS collected penalties from Drummond to the tune of $35 million with another $40 million yet to be paid, Al.com reported.
After Drummond filed a suit against NS in 2016, the jury found in favor of Drummond, which has requested a refund of the $35 million in penalties levied against it, plus interest.
The AFL-CIO Transportation Trades Department (TTD), in conjunction with SMART Transportation Division and 13 other unions associated with the railroad and aviation industries, filed suit in federal court in the District of Columbia against the National Mediation Board (NMB) regarding their recent rule that changes the decertification process.
SMART TD, TTD, and the other plaintiffs assert that the final rule, which was approved by the NMB over the summer in a 2-1 vote, violates the Railway Labor Act by adopting a new decertification procedure, including an “unjustified” two-year moratorium on employees seeking union representation after a decertification vote. The change is “an arbitrary and capricious departure from long-standing Board practice,” the complaint states.
The complaint also says that the NMB overstepped limitations set by Congress that have for eight decades governed the board’s jurisdiction to resolve representation disputes in the aviation and rail industries.
“This action is in excess of the Board’s limited jurisdiction and is a ‘gross violation’ of the Railway Labor Act and should be enjoined,” the complaint states.
“The NMB’s rule is an attempt by government officials to hand even more power to corporations at the expense of working people,” TTD President Larry Willis said after the NMB vote July 26. “Not only is this rule unnecessary, but it is ill-timed and tone deaf to the needs of aviation and rail workers, who face unprecedented pressure from industry giants.
“A union contract is the most effective tool workers have to make life better for themselves and their families. Yet, the two Republican board members supporting this decision just made it easier to decertify unions in the rail and aviation sectors and bar employees from being able to vote for union representation for two years after decertification.”
The NMB is comprised of Chair Linda A. Puchala, who was appointed by President Barack Obama in 2009, and members Gerald W. Fauth III and Kyle Fortson, who were both appointees of President Donald Trump and confirmed by the Republican-controlled U.S. Senate in November 2017. Puchala was the dissenting vote.
NORTH OLMSTED, Ohio (October 3, 2019) — Today, the nation’s Class I rail carriers, along with a few other railroads, filed suit in federal district court in the Northern District of Texas in an attempt to undermine our collective bargaining agreements as well as the bargaining process under the Railway Labor Act.
The suit, filed just ahead of the beginning of the next round of national handling scheduled to begin with the Section 6 notice filing November 1, asserts that the carriers’ position that “the existing moratoriums do not bar their crew-consist-related proposals” is a minor dispute subject to arbitration.
As detailed in their complaint, this is not the first time that the rail carriers have attempted an attack on crew consist. SMART Transportation Division President Jeremy Ferguson, noting the carriers’ history of unsuccessful attacks on crew consist, stated, “this latest attempt is nothing new, and it will once again be met with a vigorous defense.”
The suit, denoted as BNSF Railway et al, v, Internat’l Assn. of Sheet Metal, Air, Rail and Transportation Workers—Transportation Division, has not yet been served on the SMART Transportation Division.
Indiana Rail Road, with the backing of the major rail carrier organizations, has filed suit challenging a law requiring two people on freight crews in Illinois, the Courthouse News Service reported.
“The recent history of railroads confirms the wisdom of FRA’s expert determination that minimum-crew-size laws are neither necessary nor appropriate,” the carriers said in their filing. “In recent decades, technological breakthroughs have allowed railroads to gradually decrease average crew sizes—from about five in the 1960s to just two today—while compiling an ever-improving record of safety. Now, the nation’s railroads are poised to deliver even safer and more efficient service.”
The filing repeatedly referenced the Federal Railroad Administration’s withdrawal of its Notice of Proposed Rulemaking (NPRM) that occurred in late May. In the NPRM, FRA Administrator Ron Batory announced that his agency was acting with the intention to pre-empt any state laws regarding rail crew size. Indiana Rail Road, a regional railroad that operates over 250 miles of track in Illinois and Indiana, began using one-person crews in 1997.
The FRA’s NPRM withdrawal is being challenged in the Ninth Circuit Court of Appeals in Nevada by SMART TD, Illinois and a number of other states. Illinois on Aug. 9 became the seventh state overall and third this year to enact two-person crew legislation. The Illinois law is scheduled to take effect on Jan. 1, 2020.
A Florida judge has dismissed a lawsuit that three CSX shareholders had filed last summer against the carrier regarding the 2017 hiring of late CEO E. Hunter Harrison.
The matter was settled by Virginia state law, which required that the suit be dismissed after a committee of “disinterested” CSX board members determined that the suit, which involved the company suing itself, should not go forward.
The shareholders who filed the lawsuit, John Robertson, James Ekis and George Triefenbach, have the option of filing an amended derivative complaint 30 days after the June 3 dismissal by Judge Kevin Blasz of Florida’s Fourth Judicial Circuit Court.
A ruling is expected in January on whether a lawsuit by a trio of CSX shareholders who have sued the carrier’s board over the hiring of late CEO E. Hunter Harrison in 2017 can advance, the Florida Times-Union reports.
E. Hunter Harrison became CEO of CSX in March 2017.
The 72-year-old Harrison sought an $84 million financial package when brought aboard from Canadian Pacific to lead the Jacksonville, Fla.,-based carrier in March 2017. Harrison began implementing his Precision Scheduled Railroad (PSR) strategy at CSX, resulting in reports of service disruption that led to a hearing before the federal Surface Transportation Board (STB).
Harrison died at age 73 in December, nine months after his hiring and just two days after the carrier had placed him on medical leave.
“CSX board failed to properly vet Harrison’s medical condition before agreeing to his demands involving compensation, reimbursement arrangements to be made with Mantle Ridge, and the addition of conflicted Board members,” the lawsuit claims. “Knowing that Harrison’s demands were extraordinary and outrageous, couple with their overriding fears concerning Harrison’s poor health, the Board resolved to see guidance from its shareholders and called a special meeting to do so.”
However, the lawsuit claims, after being influenced by CSX minority shareholder Mantle Ridge, the carrier’s board went ahead with the hiring and took the decision out of shareholders’ hands.
“Instead of taking proper steps to protect CSX and offload some of the financial risk of Harrison’s hiring, the board instead approved and disseminated false and misleading proxy statements to shareholders, and in doing so ensured that the outcome of the shareholder vote regarding the reimbursement arrangement was predetermined to favor Harrison and Mantle Ridge…” the lawsuit states.
More than 90 percent of CSX shareholders voted to support the reimbursements at the annual shareholder meeting in June.
“CSX’s Board knew about, hid and outright deceived shareholders about Harrison’s ill health and physical infirmities,” the lawsuit states.
The shareholders’ suit was originally filed in April 2018, dropped and then re-filed in mid-July. If Judge Kevin Blazs of Florida’s Fourth Judicial Circuit Court rules in favor of the shareholders, their lawsuit could move ahead to a jury trial, the Times-Union reported.
INDEPENDENCE, Ohio, January 9 — Two railroad labor unions have jointly filed a lawsuit to overturn a punitive New Jersey law that prohibits New Jersey Transit locomotive engineers from operating trains if their personal motor vehicle driver’s license is suspended.
The unions argue that the state law, signed by Governor Chris Christie in late August of 2016, is preempted by Federal law, specifically, the Rail Safety Improvement Act of 2008, and also by existing Federal Railroad Administration (FRA) certification requirements for locomotive engineers.
The lawsuit was filed jointly on January 9 by the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD).
“Current federal law and existing federal rail safety regulations already thoroughly address the treatment of railroad workers who have their personal motor vehicle licenses revoked for operating under the influence of alcohol or other banned substances,” BLET National President Dennis R. Pierce said. “The New Jersey state law is incompatible with the federal law and is a solution in search of a problem. It does nothing to make the railroad safer.”
Federal law provides for safety checks and regular re-checks on locomotive engineers’ personal driving records, and mandates counseling and/or treatment for locomotive engineers who are diagnosed as having an active substance abuse disorder. Workers who refuse or fail to comply with the federal law have their certification suspended. Those who comply with the federal law and the terms of federally-mandated substance abuse program are permitted to continue working in a safe manner.
The state law reads in part: “A person whose driver’s license is suspended or revoked for a violation of R.S.39:4- 50, section 2 of P.L.1981, c.512 (C.39:4-50.4a), or a law of a substantially similar nature in another jurisdiction shall not operate, during the period of suspension or revocation, a locomotive or train provided by the New Jersey Transit Corporation, or any public or private entity under contract to the corporation.”
“Safety of our members and the traveling public is our top priority,” said SMART-TD President John Previsich. “But this matter is heavily regulated in the Federal arena, with science-based programs and systems already established to address such issues. Introducing another layer of bureaucracy, with overly punitive measures that conflict with Federal law, will only serve to disrupt and interfere with the very effective programs already in place.”
# # #
The Brotherhood of Locomotive Engineers and Trainmen represents more than 55,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.
The SMART Transportation Division is headquartered in the Cleveland suburb of North Olmsted, Ohio. It is a broad-based, transportation labor union representing about 125,000 active and retired railroad, bus, mass transit and airline workers in the United States. It is a division of the International Association of Sheet Metal, Air, Rail and Transportation Workers based in Washington, D.C.
On Friday, April 8, Amtrak filed a lawsuit against Cimarron Crossing Feeders, LLC, claiming “gross negligence” as the alleged cause of a derailment last month that left 32 passengers injured. The National Transportation Safety Board (NTSB) found in their investigation that one of the feed company’s trucks had struck the side of the railroad trucks, shifting the alignment of the tracks. The lawsuit alleges that Cimarron Crossing Feeders failed to notify BNSF, the owner of the tracks, or Amtrak, of the damage. Click here to read more from The Hutchinson News. Click here to read SMART TD’s March 14 report on the derailment.
A mining and natural resources company, Oxbow Carbon and Minerals, has filed an antitrust suit against BNSF and Union Pacific, alleging the railroads have illegally fixed freight rates, in violation of the Sherman Antitrust Act, “to gouge customers.” Oxbow mines and ships coal and petroleum coke.
The lawsuit, before the federal District Court for the District of Columbia, was filed the same day the Association of American Railroads and the American Short Line and Regional Railroad Association urged members of Congress to oppose legislation introduced in the Senate earlier this year by Sen. Herb Kohl (D-Wis.) to bring railroads more fully under the nation’s antitrust laws. That bill is S. 49, the Railroad Antitrust Enforcement Act of 2011.
There is no direct connection between the Oxbow lawsuit and S. 49, although they both deal with antitrust law. The lawsuit alleges violations of the Sherman Antitrust Act of 1890.
Oxbow, controlled by industrialist William Koch, is asking the federal court to order BNSF and UP “to stop their illegal practices that restrain competition,” and is seeking unspecified damages that would be tripled under antitrust law if the lawsuit is successful.
The lawsuit also alleges BNSF and UP “have colluded” with CSX and Norfolk Southern, with the four railroads “[conspiring] since 2003 to use the deceptive concept of a ‘fuel surcharge’ to raise prices charged to their customers. The so-called ‘fuel surcharge’ has little to do with the actual cost of fuel and is simply a mechanism to increase rail shipping prices,” alleges Oxbow.
An attorney for one of the law firms representing Oxbow said, “This lawsuit will finally force Union Pacific and BNSF to account, in federal court, for their long history of breaking American antitrust laws. The complaint filed today describes how the railroads have used monopolization and price-fixing illegally to drive up the price of shipping coal and many other products, and those higher prices affect every business and consumer in the country.
“Only the power of the federal court can compel the freight railroad industry to fundamentally reform its business practices and stop abusing customers, consumers and the national economy,” said the attorney representing Oxbow.
Additionally, the Oxbow complaint alleges that since passage of the Staggers Rail Act of 1980, which partially deregulated railroads, mergers have resulted in only four major rail carriers – BNSF, CSX, NS and UP — and that the four “control shipping in the western states and agreed not to compete with each other or encroach on each other’s service territories by offering lower prices to potential customers.”
A BNSF spokesperson told Bloomberg news, “BNSF has not colluded or conspired in violation of any law.” UP said in a prepared statement that Oxbow had long warned of litigation unless the railroad came through with “exceptional commerical concessions.”
In its letter to congressional lawmakers June 7, the Association of American Railroads and the American Short Line and Regional Railroad Association said S. 49 “purports to repeal the railroads’ antitrust exemptions in order to treat the railroads like all other industries. However, the bill goes much further than repealing the limited antitrust exemptions the railroads currently have. It would subject railroads to discriminatory provisions that do not apply to other regulated industries.
“Railroads are already generally subject to the same antitrust laws as other businesses,” said the railroad associations in regard to S. 49. “The limited exemptions that the railroads do have exist only where the Surface Transportation Board regulates the same matter or activity. There is no gap in government regulatory oversight.
“Going beyond the antitrust laws, the bill limits the application to the railroads of the judicial doctrine which allows courts to defer to the primary jurisdiction of an administrative agency on matters that are within the agency’s areas of expertise and oversight,” the railroad associations told lawmakers.
“This doctrine is common for all regulated industries and for all legal matters,” said the railroad associations. “However, [S. 49] singles out only the railroads for hostile treatment in a manner which has nothing to do with an antitrust exemption.”