On December 5, 2016, SMART Transportation Division issued a press release to announce that the unions participating in the Coordinated Bargaining Group (CBG) had requested that the National Mediation Board (NMB) mediate the group’s negotiations with the National Carriers Conference Committee (NCCC).
The decision to move the process forward with a request for mediation was made after our last negotiating session with the NCCC, when it became apparent that the prospect of reaching a voluntary agreement had grown significantly less likely, due in large part to the outcome of November’s elections. During negotiations, the organizations submitted a proposal that would provide the framework of an improved wage, work rule and benefit package that we believe our members have earned.
The carriers responded with an offer that was significantly less in every regard. Your negotiating team found the carriers’ demands for certain work rule changes unacceptable. In our opinion, these changes would compromise safety by creating a negative impact on rest and predictability. In addition, the carrier proposed unsatisfactory wage increases and dramatic cuts to our health care benefits, both of which were also unacceptable.
We have negotiated in good faith because we believe a voluntary agreement is in the best interests of our members and will continue to do so while in mediation. However, we stand firm in our conviction that our members deserve a better outcome than the carrier’s proposal and we will exhaust every avenue available to achieve a contract settlement with equitable compensation and benefit improvements that reflect the employees’ contributions to the carriers’ success. Additionally, we will not accept or propose a contract that adds to the already intolerable levels of unpredictability and rest deprivation that our members currently endure.
What’s next? The parties will engage in mediation as part of the dispute resolution process required by the Railway Labor Act. If a voluntary agreement is not reached in mediation, the process provides for a proffer of arbitration by the NMB, which, if refused by either participant, will then release the parties to engage in self-help (strike/lockout).
Moving through the Railway Labor Act to a strike is a long and arduous process, and requires that the parties exhaust every opportunity for settlement before a work stoppage disrupts the nation’s transportation system. However, the right to strike is a part of the process and the only person who can take away your right to strike is the President of the United States, who may intervene and appoint a Presidential Emergency Board.
In the event that we reach that point, I will be calling on all of our members to reach out to the White House and request that our newly elected President not interfere with our right to exercise self-help in our quest for a fair and equitable contract settlement.
Washington, D.C. – Today (July 15, 2015), President Barack Obama signed an Executive Order creating a Presidential Emergency Board to investigate and to make recommendations for settlement of the current disputes between the New Jersey Transit Rail and the NJT Rail Labor Coalition.
The Executive Order established the Presidential Emergency Board effective July 16, 2015, and the Emergency Board will report its findings and recommendations for settlement to the President within thirty (30) days of its creation.
President Obama also announced that he intends to appoint the following members to Presidential Emergency Board No. 248:
Elizabeth C. Wesman – Chair, Presidential Emergency Board No. 248
Barbara Deinhardt – Member, Presidential Emergency Board No. 248
Ann Kenis – Member, Presidential Emergency Board No. 248
President Obama said, “The transit rail system is vital to our nation’s economy, and it’s crucial that we ensure it runs smoothly. That’s why I’m grateful these talented individuals have agreed to serve the American people by helping to swiftly and appropriately resolve these labor-management disputes.”
SMART Transportation Division Vice President Doyle Turner reports that the PEB will begin Monday, July 27 and will most likely go through Friday, July 31. Although the BLET, also part of the NJT Rail Labor Coalition, has sent out a strike vote that has been approved by their members, SMART Transportation Division has taken no such action and will only do so if necessary after the PEB gives its ruling.
Dr. Elizabeth C. Wesman, Appointee for Chair, Presidential Emergency Board No. 248
Dr. Elizabeth C. Wesman has been a full-time labor and employment arbitrator since 2000 and has practiced arbitration and mediation since 1981. She has arbitrated disputes in a wide array of industries, including railroad, aerospace, police and fire departments, and public and private universities. Dr. Wesman was Associate Professor of Strategy and Human Resources/Industrial Relations at the Whitman School of Management at Syracuse University from 1981 to 2000. She was also an Adjunct Professor at the Rochester, New York, Extension Division of Cornell University from 1990 to 2000. She was a lecturer in the Department of Human Resource Studies at the New York State School of Industrial and Labor Relations at Cornell University from 1980 to 1981 and an Instructor in the Department of Economics at Le Moyne College from 1970 to 1975. Dr. Wesman is a member of the National Academy of Arbitrators. She is on the arbitration rosters of the American Arbitration Association, the Federal Mediation and Conciliation Service, and the National Mediation Board. Dr. Wesman has been on a number of permanent panels, including the New York State/Public Employees Federation Panel, the Oregon Employment Relations Board, and the Washington State Public Employment Relations Commission. She is the immediate past-President of the National Association of Railroad Referees. Dr. Wesman received an A.B. from Smith College, an M.A. from Northwestern University, and a Ph.D. from the New York State School of Industrial and Labor Relations at Cornell University.
Barbara Deinhardt, Appointee for Member, Presidential Emergency Board No. 248
Barbara Deinhardt has been a full-time labor and employment arbitrator and mediator since 1995. She served as Chair of the New York State Employment Relations Board from 2007 to 2009 and as Member and Chair of the New York State Workers’ Compensation Board from 1991 to 1995. Ms. Deinhardt was the Deputy Commissioner for Legal Affairs and General Counsel to the New York State Department of Labor from 1986 to 1991. From 1984 to 1986, she was General Counsel to the Workers’ Compensation Board, and she was a Partner at Kestell, Pogue & Deinhardt from 1980 to 1984. She was a trial attorney with the National Labor Relations Board in Boston from 1976 to 1980. Ms. Deinhardt served as a member of the Foreign Service Grievance Board from 1999 to 2005. She is a member of the National Academy of Arbitrators, the College of Labor and Employment Lawyers, the National Advisory Board of the Berkeley Journal of Employment and Labor Law, the Labor and Employment Relations Association, and the New York State Bar Association. Ms. Deinhardt received a B.A. from Yale University and a J.D. from the University of California, Berkeley, Boalt Hall School of Law.
Ann Kenis, Appointee for Member, Presidential Emergency Board No. 248
Ann Kenis has been a professional arbitrator for the Federal Mediation and Conciliation Service and American Arbitration Association since 1992 and a hearing officer for the Illinois State Board of Education since 1994. She has arbitrated hundreds of disputes in a wide array of industries, including the railroad, manufacturing, automotive, education, transportation, postal service, public sector, service industries, trucking and transportation. From 1984 to 1991, she was an associate attorney for Arbitrator Elliott H. Goldstein. Ms. Kenis began her career as an attorney representing clients in matters of employment and education at Kerr & Longwell from 1981 to 1984. She has been on the arbitration roster of the National Mediation Board for 20 years. Ms. Kenis has been appointed to permanent panels for the State of Illinois Department of Central Management Services and its various unions, the Chicago Transit Authority and ATU Locals 241 and 308, and Caterpillar and the United Auto Workers. She is a member of the National Academy of Arbitrators and has served as Secretary/Treasurer of the National Association of Railroad Referees. Ms. Kenis received a B.S. from University of Illinois, an M.A. from Northwestern University, and a J.D. from Loyola University.
SMART Transportation Division’s General Committee of Adjustment GO 610 representing conductors and trainmen, General Committee of Adjustment GO 340 representing yardmasters and SMART Sheet Metal Mechanical and Engineering Local 396 representing mechanical workers have joined the New Jersey Transit Rail Labor Coalition in asking the National Mediation Board (NMB) to proffer arbitration to its members after reaching an impasse in contract negotiations with New Jersey Transit (NJT).
The 10 unions in the NJTRLC have requested that NMB release them from further mediation.
In the requests to the NMB, the coalition wrote, “… the Coalition’s proposal is consistent with all other commuter railroad settlements this round. The company’s proposal … calls for employee health insurance contributions well above the level at every other commuter railroad, while offering wage adjustments far below those achieved at every other commuter railroad during this round … It is clear an impasse exists.”
On March 23, the NMB forwarded the coalition’s release request to NJT and sought a response by April 6.
If the NMB agrees to release the coalition unions, it will proffer binding arbitration to the unions and NJT. When either side notifies the NMB that it rejects binding arbitration, that will begin a process that could take as long as 270 days if no voluntary agreement is reached, including two Presidential Emergency Boards. The first PEB would be appointed within 30 days of either side’s rejection of the proffer of arbitration. At the end of the 270 days, both sides may resort to self-help.
The coalition elected to seek release after it became clear that NJT would not make a reasonable offer. The coalition has proposed a settlement patterned after the contracts achieved this round on Long Island Rail Road and Metro-North Railroad. NJT insists on concessionary contracts, with employees with families paying more than four times what they currently pay for health benefits.
The coalitions’ goal is to achieve a fair, voluntary agreement. It believes it has a strong case to present to a PEB. In most commuter railroad labor disputes in the past, the PEB’s recommendations led to a voluntary agreement. However, unlike arbitration, a PEB’s recommendations are not binding.
The coalition formed over the last several months after three years of each union bargaining unsuccessfully with NJT. The member unions believe working together maximizes their potential power. The coalition unions represent 88 percent of NJT unionized workers.
WASHINGTON — A five-member Presidential Emergency Board was appointed by President Obama Oct. 6 to investigate and make non-binding recommendations in a dispute between 11 rail labor unions and the National Carriers’ Conference Committee, which represents BNSF, CSX, Kansas City Southern, Norfolk Southern, Soo Line, Union Pacific and numerous smaller railroads.
Neither the carriers nor any of the 11 unions may engage in self-help at least until Dec. 7 as a result of the PEB’s creation.
The UTU is not affected by creation of the PEB as it reached – and ratified – a new five-year agreement with the NCCC covering conductors, yardmen, brakemen, engineers (where UTU represents engineers), firemen/hostlers and yardmasters this past summer.
The other unions, unable to reach a voluntary settlement with the NCCC since talks began in January 2010, were released from mediation Sept. 6 by the National Mediation Board, which resulted – under provisions of the Railway Labor Act – in a 30-day cooling off period while President Obama considered appointing a PEB.
Creation of PEB No. 243 now begins a second 30-day cooling off period while the PEB commences its fact-finding investigation and makes non-binding recommendations no later than Nov. 6.
At that point, a third and final 30-day cooling off period will commence — and end Dec. 6 — while the two sides consider the PEB recommendations and seek a voluntary settlement based on those recommendations.
If no settlement occurs, the Railway Labor Act has run its course and the parties are free to engage in self-help – a work stoppage by labor, a lockout by one or more of the carriers, or unilateral promulgation of carrier Section 6 notices.
At that point, Congress typically enters the fray and issues a back-to-work order, effectively imposing a third-party settlement on the involved carriers and their unions.
The 11 unions affected by the Obama-created PEB have been negotiating in two separate coalitions:
One coalition includes the Transportation Communications Union, the American Train Dispatchers Association, the International Association of Machinists, the International Brotherhood of Electrical Workers, and the Transport Workers Union.
A second coalition still negotiating with the NCCC includes the Brotherhood of Locomotive Engineers and Trainmen, the Brotherhood of Maintenance of Way Employes, the Brotherhood of Railroad Signalmen, the Brotherhood of Boilermakers and Blacksmiths, the National Conference of Firemen and Oilers, and the Sheet Metal Workers International Association.
The members of the PEB No. 243 are: Ira F. Jaffe, chair; Roberta Golick; Joshua Javits; Gil Vernon; and Arnold Zack.
Their biographies, as provided by the White House, follow:
Ira F. Jaffe has been an arbitrator and mediator of labor and employment disputes since 1981 and has presided over more than 4,000 cases in a wide variety of industries in the private and public sectors. Mr. Jaffe serves on over 60 permanent arbitration panels and has served on three separate PEBs, one in 2001 and two in 2007. Mr. Jaffe is also a Vice-President of the National Academy of Arbitrators (NAA) and has been a frequent contributor at the NAA Meetings and at other professional conferences. Mr. Jaffe served as the National President of the Society of Federal Labor Relations Professionals in 1990. As an Adjunct Professor at the George Washington University Law School in the 1980s, Mr. Jaffe taught courses in labor law, collective bargaining and labor arbitration, and agency and partnership. He is a Charter Fellow in the American College of Employee Benefits Counsel and has arbitrated and mediated a wide variety of employee benefits disputes. He is also a Fellow in the College of Labor and Employment Lawyers. Mr. Jaffe is a graduate of the Cornell University School of Industrial and Labor Relations and of the George Washington University Law School.
Roberta Golick is President of the National Academy of Arbitrators, one of the leading North American organizations of neutral arbitrators of labor-management and employment disputes. With more than 35 years’ experience in the profession, Ms. Golick has handled thousands of cases in both the private and public sectors during the course of her career. Ms. Golick was the 1996 recipient of the Cushing-Gavin Award, given annually by the Boston Labor Guild to a single neutral each year for “Excellence in Labor-Relations, Exemplifying Moral Integrity, Professional Competence and Community Concern.” She received her B.A. from Barnard College, Columbia University and her J.D. from Boston University School of Law.
Joshua M. Javits is a neutral mediator and arbitrator and serves on numerous permanent arbitration panels. He served on a Presidential Emergency Board in 2007. From 1993 to 2001, Mr. Javits was a Partner at Ford & Harrison LLP where he also served as executive director of the Labor Relations Association of Passenger Railroads. He was also an adjunct professor at the Georgetown University Law Center where he taught courses in labor arbitration, transportation labor law, and alternative dispute resolution. He was Chairman and Member of the National Mediation Board from 1988 to 1993. He began his career as a trial attorney with the National Labor Relations Board. Mr. Javits has represented both labor unions and management, at different times, and is on the rosters of the American Arbitration Association, the Federal Mediation and Conciliation Service, and the National Mediation Board. He has been rated “AV” – the highest rating – by Martindale Hubbell’s “Best Lawyers in America” since 2001. Mr. Javits is a graduate of Yale College and Georgetown University Law Center.
Gil Vernon has been engaged in the practice of labor arbitration and dispute resolution since 1979. From 1979 to 1983, he was also an instructor in the Department of Business Administration of the University of Wisconsin, Eau Claire, teaching labor relations, labor law, personnel, compensation administration and management. Prior to that, Mr. Vernon was a carrier member of the National Railroad Adjustment Board in Chicago, Illinois. Previously, he was a Labor Relations Officer, and before that a Crew Dispatcher and union member, for the Chicago, Milwaukee, St. Paul and Pacific Railroad in Chicago. He was appointed to a Presidential Emergency Board in 1996. Mr. Vernon is the immediate past President of the National Academy of Arbitrators. He is on the Major League Baseball Salary Arbitration panel, the National Railroad Adjustment Board, and more than 15 airline arbitration panels, among others. He previously served on seven multi-year railroad arbitration panels as well as the Protective Benefits Panel of the Railroad Retirement Board. Mr. Vernon received his B.A. from Hope College and his M.A. from the University of Chicago.
Arnold M. Zack has been an arbitrator and mediator of over 5,000 labor disputes since 1957 and a Member of four Presidential Emergency Boards, serving as Chair twice. He is currently the President and Chief Judge of the Asian Development Bank Administrative Tribunal. Mr. Zack was the President of the National Academy of Arbitrators from 1994 to 1995. From 1990 to 2000 he was the Chair of the Essential Industries Dispute Settlement Board in Bermuda, and the Chair of the Essential Services Dispute Settlement Board there from 1998 to 2001. Mr. Zack has also served and taught as a senior research associate at the Labor and Worklife Program at Harvard Law School since 1985. He was a Fulbright Scholar, a Wortheim fellow, and is a member of the College of Labor and Employment Lawyers. Among his awards is the Distinguished Service Award of the American Arbitration Association and the Pioneer Award and Willoughby Abner Award of the Association on Conflict Resolution. Mr. Zack holds degrees from Tufts University, Yale Law School and Harvard University’s Kennedy School of Government.
Following is the White House executive order appointing the PEB:
THE WHITE HOUSE Office of the Press Secretary For Immediate Release October 6, 2011 EXECUTIVE ORDER – – – – – – – ESTABLISHING AN EMERGENCY BOARD TO INVESTIGATE DISPUTES BETWEEN CERTAIN RAILROADS REPRESENTED BY THE NATIONAL CARRIERS’ CONFERENCE COMMITTEE OF THE NATIONAL RAILWAY LABOR CONFERENCE AND THEIR EMPLOYEES REPRESENTED BY CERTAIN LABOR ORGANIZATIONS
Disputes exist between certain railroads represented by the National Carriers’ Conference Committee of the National Railway Labor Conference and their employees represented by certain labor organizations. The railroads and labor organizations involved in these disputes are designated on the attached list, which is made part of this order.
The disputes have not heretofore been adjusted under the provisions of the Railway Labor Act, as amended, 45 U.S.C. 151-188 (RLA).
I have been notified by the National Mediation Board that in its judgment these disputes threaten substantially to interrupt interstate commerce to a degree that would deprive a section of the country of essential transportation service.
NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States, including section 10 of the RLA (45 U.S.C. 160), it is hereby ordered as follows:
Section 1. Establishment of Emergency Board (Board). There is established, effective 12:01 a.m. eastern daylight time on October 7, 2011, a Board composed of a chair and four other members, all five of whom shall be appointed by the President to investigate and report on these disputes. No member shall be pecuniarily or otherwise interested in any organization of railroad employees or any carrier. The Board shall perform its functions subject to the availability of funds.
Sec. 2. Report. The Board shall report to the President with respect to the disputes within 30 days of its creation.
Sec. 3. Maintaining Conditions. As provided by section 10 of the RLA, from the date of the creation of the Board and for 30 days after the Board has submitted its report to the President, no change in the conditions out of which the disputes arose shall be made by the parties to the controversy, except by agreement of the parties.
Sec. 4. Records Maintenance. The records and files of the Board are records of the Office of the President and upon the Board’s termination shall be maintained in the physical custody of the National Mediation Board.
Sec. 5. Expiration. The Board shall terminate upon the submission of the report provided for in section 2 of this order.
BARACK OBAMA THE WHITE HOUSE, October 6, 2011.
Union Pacific Railroad Company BNSF Railway Company CSX Transportation, Inc. Norfolk Southern Railway Company The Kansas City Southern Railway Company Alton & Southern Railway Company The Belt Railway Company of Chicago Brownsville and Matamoros Bridge Company Central California Traction Company Columbia & Cowlitz Railway Company Consolidated Rail Corporation Gary Railway Company Indiana Harbor Belt Railroad Company Kansas City Terminal Railway Company Longview Switching Company Los Angeles Junction Railway Company Manufacturers Railway Company New Orleans Public Belt Railroad Norfolk & Portsmouth Belt Line Railroad Company Northeast Illinois Regional Commuter Railroad Corporation Oakland Terminal Railway Port Terminal Railroad Association Portland Terminal Railroad Company Soo Line Railroad Company (Canadian Pacific) South Carolina Public Railways Terminal Railroad Association of St. Louis Texas City Terminal Railway Company Union Pacific Fruit Express Western Fruit Express Company Wichita Terminal Association Winston-Salem Southbound Railway Company
Rail Labor Bargaining Coalition consisting of: Brotherhood of Railroad Signalmen Brotherhood of Locomotive Engineers and Trainmen Brotherhood of Maintenance of Way Employes International Brotherhood of Boilermakers, Blacksmiths, Iron Ship Builders, Forgers and Helpers Sheet Metal Workers’ International Association National Conference of Firemen & Oilers Bargaining Together: Transportation-Communications International Union American Train Dispatchers Association International Association of Machinists and Aerospace Workers International Brotherhood of Electrical Workers Transport Workers Union of America
BOSTON — A coalition of Massachusetts Bay Commuter Railroad (MBCR) unions, including those representing clerks, carmen, supervisors, signalmen and shopcraft workers, have been released by the National Mediation Board (NMB) from mediation.
The release paves the way for appointment of a Presidential Emergency Board (PEB) to make settlement recommendations for a wage, benefits and work-rules contract settlement under provisions of the Railway Labor Act.
The coalition unions rejected an NMB offer of binding arbitration.
The UTU and the Brotherhood of Locomotive Engineers and Trainmen are negotiating separately with the MBCR and are not included in the release. BLET members previously failed to ratify a tentative agreement, and the BLET and MBCR returned to the bargaining table.
Under special commuter railroad provisions of the RLA, a second PEB is possible if the sides cannot accept the recommendations of the first PEB. Self-help is not permitted until 30 days after a second PEB (should it be appointed) has made its recommendations.
(Note that Amtrak and freight railroads are governed by another provision of the RLA that provides for just a single PEB.)