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An arbitrator’s recent decision in a Public Law Board case brought by the SMART Transportation Division against BNSF resulted in a victory over the carrier.

In September 2017, BNSF unilaterally altered the working conditions for SMART-TD members in GO-386, who serve in and around Superior, Wisconsin, under the guise of Article IX of the 1985 UTU National Agreement (ID service notice), after the parties were unable to reach an amicable agreement. The changes included consolidating many Thru-Freight Service Pools into a single pool, as well as altering working rules under the collective bargaining agreement.

General Chairperson Larry Miller (GO-386) initiated Section 3 arbitration with the assistance of SMART-TD Vice Presidents John Whitaker and Jamie Modesitt. The union argued that BNSF’s ID Notice and changes to the working conditions were improper under the conditions allowed by Article IX of the 1985 National Agreement.

After hearing the case Dec. 14, 2021, arbiter Joshua M. Javits issued his decision April 14, 2022. He found:

  • that BNSF utilized the Article IX process to make efficiency changes, even though there was no new Interdivisional Service established;
  • that all of the evidence presented at the hearing suggested that BNSF was attempting to alter existing rules and agreements between the parties in a manner not intended by Article IX; and
  • that BNSF’s unilateral changes to employees’ negotiated working conditions were unreasonable, or justified under the Article IX process, and that the BNSF’s actions had improperly altered the work conditions of previous collective bargaining agreements.

Javits directed BNSF to reinstate the rules and working conditions that were in effect prior to the carrier’s imposition of the changes in October 2017.

“GC Miller and the rest of GO-386, as well as Vice Presidents Whitaker and Modesitt, should hold their heads high and be proud of this win,” SMART Transportation Division President Jeremy Ferguson said. “These types of victories are the building blocks for labor’s future success. These battles surely are not glamorous and they take time. We need to remain focused, persistent and maintain our determination that we all will hold carriers accountable while battling as a unit against their unjust impositions such as these. This is a huge success for SMART-TD once again and shows we are defending the agreements and protecting members rights to a fair and reasonable interpretation of agreements, especially as we start down the same path of arbitration for the Hi-Viz attendance policy.”

In response to the decision, members of SMART-TD Local 832 (Superior, Wis.) and 1175 (Duluth, Minn.) issued the following letter:

We would like to take a moment to thank General Chairperson Larry Miller and 1st Vice Chairperson of GCA 386 Tim Flynn for their unwavering hard work which resulted in a favorable ruling for our members regarding the contested Article IX that was imposed upon us in Superior, Wis.

Our local membership as a collective felt we were being unfairly disenfranchised from longstanding agreements put in place to create equitable outcomes for all parties tasked with supporting the multiple customers who depend on our ability to service their needs year-round, 24/7. Whether it’s spring flooding events or 45 degrees below zero, the agreement stated all parties would work together to create a reliable pact that our customers and community could count on.

Somewhere along the way, that alliance was broken, and with it our resolve. A feeling of isolation, dismay and resentment fell over the membership, yet we carried on for multiple years. So did Larry, Tim and others to make our voices heard. It would be easy to dwell on the negative impacts and feelings of animosity that soon arose after and during this time. Looking forward, hopefully with collaboration this ruling creates an opportunity to once again bring everyone into the fold and create an environment of inclusivity instead of isolation.

To Larry, Tim and everyone behind the scenes we haven’t named, we want to thank you for never losing sight of what this favorable outcome would mean for the working environment and overall mental well-being of the Superior, Wis., terminal and their families. Once again THANK YOU!

We are proud to have you in our corner and grateful for your representation throughout this time.

Sincerely,

Your Brothers and Sisters

SMART-TD Locals 0832 Superior WI & 1175 Duluth, MN

The full case, Public Law Board 7986, Award No. 1, is available to view below in PDF form.

PLB_7986_Award_1Download

SMART-TD, BLET protest outside of BNSF shareholder meeting in Omaha

The five highlighted areas are where protestors were allowed to congregate outside of the CHI Health Center where the BNSF shareholder’s meeting was being held.

While Berkshire Hathaway shareholders sat April 30 in comfort and national cable-news networks live-streamed and deified wealth hoarder Warren Buffett and his executive cronies at the company’s annual meeting, BNSF railroad workers, as always, were out in the elements doing the hard things – this time protesting.

Protesters gathered in the early-morning hours – some as early as 4 a.m. when the parking garages opened – to split up evenly to protest in five different areas outside of the CHI Health Center in Omaha, Neb. Doors opened to the shareholder meeting at 7 a.m., and the picketers wanted to be outside as the shareholders arrived. They were joined by two LED video billboard trucks slamming Buffett and BNSF CEO Katie Farmer for their Hi-Viz attendance policy.

LED video billboard trucks joined in the protest by driving in a loop around the health center to help gain attention for the picketers.

Carrying signs saying “They use us and abuse us,” “Fair wages, fair treatment,” and “Railroaders’ lives matter,” outside of the site of the so-called “Woodstock for Capitalists,” as members of the SMART Transportation Division, the Brotherhood of Locomotive Engineers and Trainmen (BLET), their respective auxiliaries and other members of rail labor mobilized in the rain outside CHI Health Center.

SMART-TD Auxiliary President Kathryn Seegmiller holds up signs outside of the meeting.

“We had a great turnout despite the weather. We were able to cross paths with I’d say around 90% of the participants that were walking into the building,” Alternate National Legislative Director Jared Cassity said of the around 60 protestors present.

“The crowd was fired up – it was divide and conquer. A very lively crowd,” said Vice President Chad Adams who joined in the two-hour protest.

Vice President Joe Lopez, Texas State Legislative Director Kamron Saunders, Colorado State Legislative Director Carl Smith, Missouri State Legislative Director Jason Hayden and New Mexico State Legislative Director Don Gallegos joined Adams, Cassity and SMART-TD Auxiliary President Kathryn Seegmiller at the protest.

Mobilizing our members as well were General Chairpersons Mike LaPresta (GO 001); Scott Swiatek (GO 009); and Luke Edington (GO 953).

“It was great seeing spouses and family involved in today’s protest showing their support,” Seegmiller said. “We want change and won’t be going away or backing down.”

Cassity echoed this sentiment saying, “It was great to see labor standing in solidarity, members shoulder-to-shoulder and fighting for what’s right for the membership. We’re taking the fight to the railroads and we’re not going to back down. The shareholders that were present at the meeting were there discussing the progress that they have made off of the backs of our members and it’s important that they understand that we won’t back down and we won’t go away until the right thing has been done.”

According to the Informational Protest – Omaha NE 2022 Facebook page, the picketers were regrouping and being joined by more supporters who could not make the morning session in the afternoon around 2:30 p.m.

Adams said that today’s movement is just the beginning.

“The group was talking about getting back together at the UP shareholders meeting next month – one thing builds another, just keep the pressure on and that’s what we can do,” he said.

According to the Facebook page, the group is in the early stages of planning another protest outside of the North American Rail Shippers Association annual meeting on May 9 – 11 in Kansas City, Mo., where CEOs from CP, BNSF and CSX are featured speakers.

Top left: A large crowd of SMART-TD and BLET members and their supporters gathered in solidarity. Top middle: Missouri SLD Jason Hayden (left) and National Safety Team Assistant Director Dan Bonawitz join in the protest. Top right: SMART-TD members come together in solidarity to picket. Middle left: Rallying speeches were made by leadership. Middle right: Picketers stand in the rain trying to get their message across to BNSF shareholders and the public. Bottom left: The rain did not deter picketers from getting their message across. Bottom middle: SMART-TD Vice President Chad Adams (left) and Texas SLD Kamron Saunders (second left) picket with SMART-TD members. Bottom right: BLET member Megan Lundy, BLET Vice President Rachel Pharris and SMART-TD Auxiliary President Kathryn Seegmiller band together for the first time to protest BNSF’s Hi-Viz attendance policy. Photos courtesy of VP Chad Adams and Auxiliary President Kathryn Seegmiller.

CLEVELAND, Ohio (March 23, 2022) — After thoroughly examining all possible avenues to best continue the unions’ fight against the BNSF Hi-Viz attendance policy, SMART-TD and the BLET announced today that they will proceed as expeditiously as possible to arbitration over the policy.

On February 22, 2022, a U.S. District Court ruled that the unions’ dispute over the policy constituted a “minor dispute” under the terms and conditions of the Railway Labor Act. The court’s use of “minor” does not signify the importance of the issue, but is only a legal term which provides that resolution of the matter must be by arbitration. In considering a potential appeal of the District Court’s ruling, it was determined that an appeal could take another one to two years, and likely not result in a different decision. An appeal would not be the quickest, or most effective way, to stop the BNSF policy. The quickest and most direct way to challenge this policy is through a Public Law Board or Special Board of Adjustment, properly constituted under Section 3 of the Railway Labor Act. That board will have the authority to strike down either the entire policy or the most egregious parts of the policy much more quickly. The time frame will be months as opposed to years.

As a result, BLET and SMART-TD general chairpersons have notified BNSF of their intent to move the dispute forward pursuant to Section 3 of the Railway Labor Act. Additional details will be provided to all involved union officers and members as they become available.

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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 57,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.

Talking SMART: TD President Jeremy Ferguson Discusses ‘Hi-Viz’ Policy, National Rail Contract

CLEVELAND, Ohio (April 5) — Five Republican U.S. representatives have contacted the BNSF Railway and encouraged its CEO to reengage with its operating unions to alter the highly-restrictive and punitive “Hi-Viz” attendance policy.

From left, Brotherhood of Locomotive Engineers and Trainmen President Dennis Pierce, U.S. Rep. Don Bacon of Nebraska and SMART-TD President Jeremy Ferguson meet April 4 at the Transportation Trades Department AFL-CIO Executive Committee meeting in Washington, D.C.

In a letter to Brotherhood of Locomotive Engineers and Trainmen (BLET) President Dennis Pierce, SMART Transportation Division (SMART TD) President Jeremy Ferguson and BNSF CEO Katie Farmer, the representatives encouraged a reengagement over the punitive policy, which docks employees for taking time off for medical appointments or funerals.

“We write today out of concern for BNSF Railway’s recently established absenteeism policy, called ‘Hi-Viz,’ and the growing number of resignations that have occurred since its implementation,” the representatives wrote. “Even a modest number of those resignations may pose additional stress to our already strained supply chain.”

Among the letter’s signatories were Rep. Don Bacon of Nebraska, who met with President Pierce and President Ferguson on April 4 at a meeting of the Transportation Trades Department, AFL-CIO (AFL-CIO TTD) Executive Committee, the nation’s largest transportation labor coalition. Others signing included Brian K. Fitzpatrick of Pennsylvania, David McKinley of West Virginia, Jeff Van Drew of New Jersey and Chris Smith, also of New Jersey.

The Hi-Viz attendance policy requires rail workers to be available to work 29 of 30 days or risk being penalized. Thousands of well-paying unionized railroad jobs have been cut since implementation of the PSR strategy began in 2017. The Hi-Viz policy by BNSF and draconian attendance measures used by Class I railroads have led to additional attrition and a worker shortage as carriers try to undo the self-inflicted reductions they’ve made. President Pierce and President Ferguson said more than 700 BNSF operating employees have resigned since implementation of Hi-Viz on February 1, 2022.

The representatives concluded their letter by urging the BNSF to reengage in good-faith discussions with its unions to develop a more mutually acceptable attendance policy.

“We urge both sides to reengage in good-faith discussions to achieve a policy that works for all,” they wrote. “Only by working together can meaningful policies be developed, and mutual resolutions achieved … We view this as a crucial priority to maintaining a robust transportation system and a healthy supply chain.”

A PDF of the five representatives’ letter regarding Hi-Viz is available.

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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 57,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters

On Friday, April 1, the SMART Transportation Division sought Surface Transportation Board Administrator Martin Oberman’s intervention in ending the precision scheduled railroading (PSR) onslaught that has caused continual havoc in the United States’ supply chain and gutted the rail workforce.

SMART-TD President Jeremy Ferguson detailed the anti-worker attendance policies implemented by the nation’s largest freight rail carriers while echoing concerns expressed March 24 by the head of the National Grain and Feed Association (NGFA), a group representing more than 8,000 facilities and firms that provide goods and services to the nation’s grain, feed, and processing industries.

“We believe intervention from the STB is critically warranted and necessary to right the ship,” Ferguson wrote. “Simply put, the railroads cannot sustain the same level of production they had to prior to the advent of PSR given the number of drastic cuts they’ve made across their systems.”

Railroads have cut thousands of workers since the onset of PSR in 2017, placed thousands of locomotives in storage and have been running longer and slower trains to drive down their operating ratios (OR). NGFA President Mike Seyfert said this has led to “significant service disruptions,” for its represented companies served by BNSF, Union Pacific and Norfolk Southern, in particular.

“The service issues that our member companies are raising indicate that the problem is a network problem affecting entire regions of the country,” Seyfert said. “NGFA members have done as much as possible to keep animals fed, but the ability to stretch resources is exhausted.”

Rail carriers such as the Warren Buffett-owned BNSF, the Union Pacific and Norfolk Southern enjoyed record profits in 2021, even as rail traffic and carloads fell short of previous high marks. A main source of this revenue has been through tens of thousands of workforce cuts implemented well before and during the COVID-19 pandemic. With the service difficulties reported by NGFA, rail carriers have been doing less with less and reaping higher rewards at the expense of customers and workers.

“Not only has morale dropped to an all-time low, but employees are leaving the industry in unprecedented numbers,” Ferguson wrote to Oberman. “The freight rail network is at a breaking point. It cannot sustain any more reductions. Substantial changes must be made and they must be made quickly.”

According to union-collected data, Ferguson wrote, more than 500 employees have quit the industry since BNSF implemented a points-based policy Feb. 1. The “Hi-Viz” policy requires workers to be available to work 29 out of 30 days a month in order to avoid punitive deductions on their attendance records that eventually would lead to suspension and dismissal.

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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.

BNSF “Hi-Viz” Attendance Policy and National Rail Contract Negotiations Were Focus of Discussion

For the March 2022 episode of Talking SMART, we sit down with SMART TD President Jeremy Ferguson to talk about a subject that is foremost on the minds of many members. In February 2022, BNSF arbitrarily changed its attendance policy and took advantage of a pro-management judge to force (as of now… this episode was recorded in early March), a draconian “Hi-Viz” attendance policy upon the very members who have kept the company operational through the pandemic – and who earned BNSF record profits in 2021.

President Ferguson also provides an update on contract negotiations with the national rail carriers.  

Jeremy Ferguson

Brother Ferguson, a member of Local 313 in Grand Rapids, Mich., started railroading in 1994 after serving in the United States Army and attending college, beginning as a conductor on CSX at Grand Rapids, before earning a promotion to engineer in 1995. Ferguson was elected local legislative representative in 1995; local chairperson in 1996; and secretary of the CSX/B&O General Committee, GO 049 in Jacksonville, Fla., in 2007. He was elected second vice general chairperson in 2008 and first vice general chairperson in 2011. At the first SMART Transportation Division Convention in 2014, Ferguson was elected to the position of vice president, and at the second convention in August 2019, he became president of the SMART Transportation Division.

In addition, listen for the open mic segment with SMART General President Joseph Sellers at the end of this episode. He responds to a member question about what labor and management are doing to work together in the sheet metal trade and outlines the stakes for the unionized industry.

Return to Talking SMART index page.

Talking SMART is a member of the Labor Radio Podcast Network — working people’s voices, broadcasting worldwide 24 hours a day.

Class I railroad carriers BNSF and NS declared an impasse this week in the mandatory bargaining over crew size under Section 6 of the Railway Labor Act (RLA). In declaring an impasse, the two railroads, represented by the National Railway Labor Conference (NRLC), seek federal mediation as required by the RLA. Union Pacific Railroad is not seeking mediation at this time.

Beginning in October 2019, most Class I carriers served notice under Section 6 of the RLA to force the SMART Transportation Division to bargain over crew size. Today crew size is determined by collective bargaining agreements implemented by Presidential Emergency Board 219 under then-President George H.W. Bush.

SMART-TD and the involved General Committees intend to continue to demonstrate the significant problems with the carriers’ plans and the current technology that carriers believe allows for a redeployment of conductors to ground-based positions.

SMART-TD General Committees and union leadership will continue to fight to protect the jobs of today as well as the jobs of the future and to ensure protection for SMART-TD members.

In the current episode of Talking SMART, we sit down with SMART TD President Jeremy Ferguson to talk about a subject that is foremost on the minds of many members. In February 2022, BNSF arbitrarily changed its attendance policy and took advantage of a pro-management judge to force (as of now… this episode was recorded in early March), a draconian “Hi-Viz” attendance policy upon the very members who have kept the company operational through the pandemic – and who earned BNSF record profits in 2021. President Ferguson also provides an update on contract negotiations with the national rail carriers.

The BNSF “Hi-Viz” attendance policy drew the attention of the U.K.-based Guardian media organization March 14.

“We feel stabbed in the back, completely demoralized with the work we did through the pandemic, understanding the situation, going the extra mile, and doing what we’re asked to do, and then some without complaint,” an engineer for the Class I carrier told Guardian reporter Michael Sainato about the punitive points-based policy, described in the article as “arcane.”

Transportation Trades Department, AFL-CIO President Greg Regan also was quoted in the article as well:

“This is a policy that, frankly, is just blind to the moment,” he said.

SMART Transportation Division and the Brotherhood of Locomotive Engineers and Trainmen (BLET) are both members of the AFL-CIO TTD.

BNSF earned record profits last year and implemented the Hi-Viz policy on Feb. 1.

Read the full article.

An NBC News report released March 7 detailed a nonprofit’s analysis that looked into how America’s largest railroads profited during last year’s supply chain crisis in conjunction with the continued enactment of their Precision Scheduled Railroading (PSR) scheme.

Nonprofit group Accountable.US delved into the reasons why — namely that the Class Is collected more than $1.1 billion in demurrage fees thanks to supply-chain bottlenecks. The two largest carriers in the western U.S., BNSF and Union Pacific, also reported record profits in 2021 in their end-of-year earnings reports.

“Before the rail industry’s fees set a record during the pandemic, they had already increased by over 30% since 2000, all while railroads’ costs have only increased by 3%,” the Accountable.US report stated. “Railroads have used market power to cut costs — known as lowering their Operating Ratios — spending about $46 billion more on shareholder handouts than on maintenance and equipment since 2010.”

In addition to diving in on the details of the stock buybacks and other components of PSR, the Accountable.US analysis also went into additional details about the extent of the railroads’ lobbying efforts — all told, Class Is spent a combined total of $15.5 million to influence policy on Capitol Hill.

CLEVELAND, Ohio (March 7, 2022) — In conjunction with the Transportation Trades Department, AFL-CIO (TTD), the SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) urge all members to engage in a petition drive to bring attention to the draconian and punitive attendance policies that have forced rail workers to live in constant fatigue.

This effort comes simultaneously with a letter by AFL-CIO TTD President Greg Regan to the federal Departments of Labor and Transportation in support of both unions’ request in late January for an investigation into all rail carrier attendance policies, not just BNSF’s recently imposed “Hi-Viz” policy that has sparked outrage among all affected employees.

The petition is available here.

“We speak with one voice, shoulder-to-shoulder, in saying enough is enough. Congress must act to end these unsafe and life-sapping policies that punish workers with job loss. These severe and excessively harsh policies also penalize families by taking away what precious little time they have with their loved ones, leaving them dead tired and drained,” SMART-TD President Jeremy Ferguson and BLET President Dennis Pierce said. “We thank TTD President Regan as our organizations continue to oppose draconian carrier attendance policies, such as the BNSF ‘Hi-Viz’ policy. These policies are clearly designed to further maximize carrier profits at the workers’ expense. Our unions will work jointly with TTD to raise awareness of these issues; they have gone unchallenged by our legislators and regulatory agencies for much too long.”

A case in point— according to a report in Business Insider published on March 4, five Democratic political leaders want an investigation by the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) into Amazon’s attendance policies, and we have one question for them:

When do railroad workers get their turn?

Warren Buffett, while not as rich as Jeff Bezos, was crowing about BNSF’s record 2021 profits. It just so happens that his railroad, which happens to be the largest in the nation, imposed the draconian and punitive “Hi-Viz” policy that is absolutely in line with what Amazon is doing — points, permanent records and punishment for people if life gets in the way of work. Other Class I railroads have similar attendance policies. All of these need to be examined closely so that all workers receive the stable work-life balance that they DESERVE.

We’ve seen members’ posts on the internet, we have taken the calls and we have read and responded to the emails from our memberships. This is a top priority for SMART Transportation Division and BLET leaders. We need to work together and unite for a positive change instead of directing anger and discontent inward. As we continue to work with our elected leaders for the same help and support, it stands to reason that we will be reminding Senators Elizabeth Warren, Bernie Sanders and Richard Blumenthal as well as Representatives Alexandria Ocasio-Cortez, Cory Booker and Cori Bush that they should push for answers from BNSF and other railroads with the same energy and focus that they are placing on Amazon.

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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 57,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.