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By Larry Mann, 
UTU Rail Safety Coordinator – 

The FRA amended its conductor certification rules in February, delaying the time for testing conductors, extending the time for formulating training programs and amending the territorial qualification requirements.

By Sept. 1, 2012, each railroad shall have grandfathered as “certified conductors” all persons who were performing conductor duties as of Jan. 1, 2012. This includes conductors on Class I, Class II, Amtrak and commuter railroads, and means they must have issued “certified conductor” certificates to those conductors. 

After Sept. 1, Class I and Class II railroads, as well as Amtrak and commuter railroads, must designate and issue certificates to all persons authorized to perform as conductors between Jan. 1, 2012, and Dec. 1, 2012.

Class III railroads, after Sept. 1, must designate and issue certificates to all persons authorized to perform as conductors between Jan. 1, 2012, and April 1, 2013.

After Dec. 1, 2012, Class I and Class II railroads, as well as Amtrak and commuter railroads, may not initially certify or recertify a person as conductor unless that person has been tested and evaluated in accordance with FRA conductor certification rules.

For Class III railroads, that date is after April 1, 2013.

In all cases, testing and evaluation must be conducted under FRA-approved carrier certification programs. Class I and Class II railroads, as well as Amtrak and commuter railroads, have until Sept. 30 to submit to FRA for approval their programs for training, testing and evaluation of conductors. The programs must be approved by the FRA no later than Dec. 1. For Class III railroads, the submission date is Jan. 31, and the approval date is April 1.

General chairpersons have 45 days to file comments, objections, and alternative plans with the FRA.

The railroads are required to conduct annual reviews of their programs and respond to detected instances of poor safety conduct by certified conductors.

If a conductor lacks territorial qualification on mainline track physical characteristics, that conductor shall be assisted by a person who meets the territorial qualification requirements.

For a conductor who has never been qualified over the particular territory, the assistant shall be a certified conductor who is not an assigned crew member.

If the conductor was previously qualified, but such qualification has expired for one year or less, and who has not regularly traveled over the territory prior to the expiration, the assistant may be any person, including an assigned crew member who meets the territorial qualification requirements.

If the qualification expired more than one year, the assistant may also be any person, so long as the duties of the assistant do not conflict with his safety duties and he is qualified for the main track physical characteristics and that person is not the assigned locomotive engineer.

Delivering on the theme of the 2012 regional meetings – “We will not back down” – UTU International President Mike Futhey told more than 1,000 attendees at the Memphis meeting how the UTU is using every tool available – negotiations, legislative and legal — to defend its members’ jobs and workplace safety.

* On the Belt Railway of Chicago, where the carrier is demanding contract changes to permit one person crews at carrier discretion, the UTU has asked the National Mediation Board to declare a bargaining impasse. Belt Railway General Chairperson Chris Votteler’s negotiating team, assisted by International Vice President Delbert Strunk, faces a carrier that refuses to take crew consist changes off the table – three years following start of negotiations — even though the carrier is party to a moratorium on the issue.

“We will take every action necessary to protect our members’ jobs. We will not stand down on crew consist,” Futhey said.

* As to conductor certification — mandated by Congress and put into regulatory language by the Federal Railroad Administration – Norfolk Southern has filed an FRA-required certification plan without discussion and coordination with general chairpersons.

The NS proposed plan seeks to provide a pilot for remedial training only for conductors who have not traveled over a territory for 36 months, rather than the 12 months required in current agreements; and then seeks to place the burden of notification solely on the conductor rather than tracking the time period electronically. Additionally, the NS plan does not discuss procedures it will follow in an investigation even though FRA regulations require railroads to provide all documents and the list of witnesses prior to a hearing.

Futhey said the UTU will not permit “a tortured interpretation” of congressional and FRA intent, and will work to ensure every railroad follows the letter and intent of the law and regulations prior to the required Sept. 1 deadline for certifying conductors.

* In Pennsylvania, Norfolk Southern is attempting to disregard state safety laws and regulations through federal preemption affecting workplace safety at hump yards. “We will take every action necessary to prevent railroads from weakening workplace safety protections, whether at the state or federal level,” Futhey said.

* Pointing to millions of dollars in fines assessed by the Occupational Safety and Health Administration against railroads that have harassed, intimidated, disciplined and fired workers for reporting injuries and workplace safety concerns, Futhey reminded members that UTU designated legal counsel is pledged to assist in bringing and pursuing such complaints. Information on filing these complaints is available at the UTU website at www.utu.org by searching “OSHA.”

“We are not going to allow carriers to continue their pattern of harassment and intimidation of workers who are injured on the job,” Futhey said. “The FRA and OSHA recently signed a letter of intent to investigate jointly all complaints of carrier harassment and intimidation, and the FRA has informed each carrier of its intent to work with OSHA to end the long-standing practice of carriers disciplining injured workers “where the facts fail to support the charges. We are lawyered up, too, and will take this to wherever we must to protect the interests of our members.”

* Recalling the horrific murder of a UTU-member bus driver in Los Angeles, the fatal shooting of a train-crew member near New Orleans, and assaults on bus operators and intrusions into locomotive cabs by armed robbers elsewhere, Futhey said the UTU is working with lawmakers and regulators to implement better safeguards for its air, bus and rail members. The FRA recently imposed a requirement that all new and remanufactured locomotive cabs be equipped with secure cab locks.

“I promise every member that the UTU will stand shoulder-to-shoulder with our members to ensure their safety. Our voice will be heard,” Futhey said.

As to the state of the union, Futhey said the International’s general fund balance is improving as carriers bring back furloughed workers, that the UTU Insurance Association now has a $28 million surplus and is financially strong, and the Discipline Income Protection Plan (DIPP) is financially sound with more than $10 million in assets.

Futhey emphasized that while competing plans often seek ways to deny payment of claims, the UTU’s DIPP is aggressive in paying claims. Futhey cited an example of two workers on the same assignment on CSX – one covered by the UTU’s DIPP and the other by a competing plan – who were both suspended. “Where the competing plan denied the claim, DIPP paid the claim. End of story.”

As for the UTU’s disability insurance plan covering bus and rail members, Futhey said it has paid out more than $22 million in disability benefits for off-duty injuries and is proving to be a valuable benefit.

As to organizing, Futhey said that since January 2008, when he took office, the UTU has an unprecedented record of organizing one new property every seven weeks. One of the first post-merger coordinations has been the joint strengthening with the Sheet Metal Workers International Association of organizing efforts, which makes greater resources available for organizing transportation, building trades and production workers.

Futhey also explained how the UTU negotiating strategy in national handling has already paid off for rail members covered by the national rail contract.

“When we entered  national rail contract negotiations, our strategy was to hold the monthly cost sharing premium under $200 — rather than allow it to escalate to $300 or more — in exchange for somewhat higher copays,” Futhey said. “The Affordable Care Act now eliminates many of those copays, saving affected members out-of-pocket for many health care services while those members enjoy one of the lowest cost-sharing premiums in the public and private sectors.”

UTU International President Mike Futhey

WASHINGTON – Responding to petitions for reconsideration to its Nov. 9, 2011, final rule on conductor certification, the FRA has delayed for six months the testing implementation dates and clarified other mandates affecting territorial qualifications and the definition of hostlers.

The FRA, in a Feb. 8 Federal Register notice, said that because its final rule was published Nov. 9, 2011, six months later than contemplated, carriers were not permitted sufficient time to formulate training programs and have them approved by the FRA in time for testing to begin March 1, 2012.

Therefore:

* By Sept. 1, 2012 (rather than March 1, 2012), each railroad (other than Class III) shall designate as “certified conductors” all persons authorized by the railroad to perform the duties of a conductor as of Jan. 1, 2012; and issue them certificates of certification.

* Class I and Class II (regional) railroads, Amtrak and railroads providing commuter services, will have until Sept. 30, 2012, to submit to the FRA for approval their programs for training, testing and evaluation. Class III (shortlines, switching and terminal) railroads will have until Jan. 31, 2013 to do so. The programs submitted by railroads will require collaboration with UTU general chairpersons.

* After Sept. 1, 2012, each railroad (other than Class III) shall designate as a “certified conductor” those authorized by the railroad to perform the duties of a conductor subsequent to Jan. 1, 2012, upon successful completion of testing, training and evaluation.

* After Dec. 1, no Class I or Class II railroad, Amtrak or railroad providing commuter service shall initially certify or recertify a conductor unless that conductor has been tested and evaluated. For Class III railroads, that date is April 1, 2013.

* No later than March 31 of each year (beginning in calendar year 2014), all railroads other than Class III railroads, shall conduct a formal annual review and analysis concerning the administration of its program for responding to detected instances of poor safety conduct by “certified conductors” during the prior calendar year.

* If a conductor lacks territorial qualifications on main track physical characteristics, that conductor shall be assisted by a person who meets the territorial qualification requirements.

* For a conductor who has never been qualified on main track physical characteristics of the territory over which the conductor is to serve, the assistant shall be a “certified conductor” who is not an assigned crew member.

* For a conductor who was previously qualified on main line physical characteristics of the territory over which the conductor is to serve, but whose qualification has expired for one year or less. and who regularly traversed the territory prior to the expiration of the qualification, the assistant may be any person, including an assigned crew member, who meets the territorial qualification requirements for main track physical characteristics.

* For a conductor who previously qualified on main track physical characteristics of the territory over which the conductor is to serve, and whose qualification has been expired for one year or less, but who has not regularly traversed the territory prior to the expiration of the qualification, or a conductor whose territorial qualification on main track has been expired for more than a year, the assistant may be any person, including the assigned crewmember other than the locomotive engineer, so long as the serving assistant would not conflict with that crewmember’s other safety sensitive duties and who meets the territorial qualification requirements for main track physical characteristics.

* As for qualification, and since territories differ in their complexity, railroads will be given discretion to determine how many times a conductor must pass over a territory to be considered to have regularly traversed a territory.

* Each of these territorial qualification issues will be included in each railroad’s plan filed with the FRA and will contain the input from general chairpersons.

Hostler Type Assignments Not Covered

* A person who moves a locomotive or a group of locomotives within the confines of a locomotive repair or servicing area — or moves a locomotive or group of locomotives for distances of less than 100 feet, and this incidental movement of a locomotive or locomotives is for inspection or maintenance purposes — is not subject to conductor certification requirements.

Theproposed new minimum training standards for those in in safety sensitive positions, announced by the FRA in aFeb. 7 Notice of Proposed Rulemaking (see link, below), will also apply to conductor certification training programs. “With many thousands of new employee coming on board in the near future, the new training standards will help provide adequate training,” said UTU National Legislative Director James Stem.

Click here to read the changes to conductor certification as published Feb. 8 in the Federal Register.

Click on the following link to read the proposed new minimum training standards for those in safety sensitive positions (that will also apply to conductor certification training):

https://www.smart-union.org/news/fra-proposes-new-minimum-training-standards/

Click on the following link to read about the Nov. 9, 2011, final rule on conductor certification:

https://www.smart-union.org/news/conductor-certification-clear-track-for-jan-1/

WASHINGTON – It’s now official. Conductor certification, mandated by the Rail Safety Improvement Act of 2008, became effective Jan. 1.

In a final rule, published by the Federal Railroad Administration Nov. 9, railroads were ordered to implement, by Jan. 1, a formal training program for certifying conductors and a formal process for training prospective conductors, thus ensuring job competency.

The FRA’s final rule on conductor certification follows many of the provisions of locomotive engineer certification, with a number of improvements the UTU, joined by the BLET, was able to obtain.

Following are highlights of the final rule, which ran almost 300 pages in the Nov. 9 Federal Register.

* While the railroad and its employees must comply with the final rule, there is no limitation on any rights the employee may have under a collective bargaining agreement

* Conductors currently employed will be grandfathered for from one to three years, with one-third of those conductors required to be tested for certification in 2012, 2013 and 2014. Beginning in 2015, one-third of the total conductor workforce will be recertified each year.

* Each railroad, in submitting its proposed certification program to the FRA for approval, must simultaneously submit it to the presidents of the UTU and BLET, which will have 45 days to comment. The intent is to encourage coordination by carriers with local union officers in formulating the certification program, and to gain a supporting statement from the general committee of jurisdiction.

* A conductor losing certification may work as an assistant conductor, brakeman, yard helper, switchman or utility employee, but cannot work as a locomotive engineer. If that individual holds both conductor and engineer certification, and the engineer certification is revoked, they may not work as a conductor.

* If the conductor certificate is revoked because of failing to control a train, violation of train speed, violation of brake test requirement, occupying main track without proper authority, tampering with safety devices, or an alcohol or drug violation, the decertified conductor may not work as a locomotive engineer. However, if the decertification is for violation of a rule covering shoving or pushing movements, or equipment left out to foul track, switches and derails, the decertified conductor may work as a locomotive engineer.
 
* The conductor must be trained by a qualified person on the territory over which that conductor will operate. If the certified conductor lacks territorial qualification, and has never been qualified on main track physical characteristics, that conductor shall be assisted by a person who is a certified conductor qualified on the territory, and NOT a member of the crew.

* If the conductor has been previously qualified over the main track territory, and the time limits have expired on their qualification, the conductor may be assisted by any knowledgeable person, including a member of the crew, other than the locomotive engineer on the crew, so as not to conflict with other safety sensitive duties.

* If the conductor lacks territorial qualification on other than main track, the conductor, where practical, shall be assisted by a certified conductor meeting the territorial qualifications. Where this is not practical, the conductor shall be provided an appropriate job aid, which includes maps, charts or other visual aids of the territory. This applies to all tracks on each territory.

* Territorial qualification is not required for short movements of one mile or less where track speed is 20-mph or less and movement is required to be at restricted speed, and the track grade is less than 1 percent.
 
Prior to revoking conductor certification, a railroad must:

* Provide notice of the reason for suspension, and an opportunity for a hearing before a person other than the investigating officer. Written confirmation of the notification shall be in accordance with the collective bargaining agreement. Additionally, the hearing shall be in accordance with the collective bargaining agreement, but shall be convened within 10 days after the certificate is suspended, unless the conductor asks for a delay.

* Provide, no later than convening the hearing and notwithstanding any collective bargaining agreement, a copy of the written information and a list of the witnesses the railroad intends to present at the hearing. The railroad shall grant a recess if the information is provided just before the hearing. If the information is provided through written statements of an employee, the railroad shall make that employee available for examination during the hearing.

* Not revoke certification or recertification if there is sufficient evidence that an intervening cause prevented or materially impaired the conductor’s ability to comply with requirements.

Additionally, with regard to conductor certification:

* The appeal procedures largely mirror engineer certification regulations.

* The training requirements for new conductors are significantly improved from current requirements. In addition to improved initial training, this rule requires recurrent training for all conductors every three years during the recertification process. The recurrent training must be identified in the certification plan filed with FRA, including changes in operating rules, operating practices, new federal regulations and new equipment in service.

“The implementation of conductor certification enhances the skills and safety performance of freight and passenger conductors, provides a federal license ensuring proper training of conductors, and establishes a new basis for resisting management pressure to violate operating rules and federal regulations,” said UTU International President Mike Futhey.

The final rule is a result of input from all affected parties, including labor, through the FRA’s Rail Safety Advisory Committee (RSAC).

The UTU was represented on this RSAC Conductor Certification Working Group by Local 645 Chairperson Vinnie Tessitore, Local 1470 Chairperson David Brooks, General Chairperson (GO 049) John Lesniewski, Local 528 Legislative Representative Ron Parsons, Alternate National Legislative Director John Risch, National Legislative Director James Stem, and UTU Rail Safety Coordinator for Designated Legal Counsel Larry Mann.

Click here to read the 278-page final rule on conductor certification.

Click here for more information on conductor certification.

WASHINGTON — The Federal Railroad Administration will soon publish final rules instituting conductor certification and imposing new hours-of-service limitations on intercity passenger-train and commuter employees in safety sensitive positions.

FRA Associate Administrator for Safety Jo Strang made the announcement at the UTU’s regional meeting June 21 in San Antonio, Texas.

She observed that since former UTU Illinois State Legislative Director Joe Szabo became FRA administrator, the partnership between the UTU and the FRA in seeking improved workplace safety “has certainly been strengthened.”

Conductor certification, which becomes effective Jan. 1, 2012, “recognizes the level of professionalism required by our conductors today,” Strang said.

A notice of proposed rulemaking on conductor certification was published in November and is the product of a collaborative effort through the FRA’s Rail Safety Advisory Committee, which includes carriers, rail labor and the FRA.

UTU members serving on the RSAC Conductor Certification Working Group include Local 1470 Chairperson David Brooks, General Chairperson (CSX, GO 049) John Lesniewski, Local 538 Legislative Rep Ron Parsons, Local 645 Local Chairperson Vinnie Tessitore, National Legislative Director James Stem, Alternate National Legislative Director John Risch, and UTU safety consultant Larry Mann.

Strang said the passenger hours-of-service regulation will apply sleep science and fatigue management to railroad hours-of-service, “which is the first time in our industry’s history that this has been done. It recognizes the inherent differences between freight and passenger service.”

For example, intercity passenger and commuter railroads operate on fixed schedules. Commuter railroads operate primarily during daylight hours, and most commuter employees return to their home terminals every night.

The passenger hours-of-service regulation will “balance the need to manage fatigue with the need to maximize income,” Strang said. “The rule also recognizes the significant safety contribution that a defined start time has for the employees involved. When the employee knows when they must report for service, they can manage the necessary lifestyle adjustments. The outstanding safety record of our passenger and commuter rail operations is an excellent example of just what it means to have a regular start time.”

Strang also mentioned risk reduction programs, acknowledging that their FRA-sponsored implementation on some railroads “have earned a bad reputation. Let me be clear about FRA’s viewpoint,” Strang said. “Building strong safety cultures can only be accomplished through the establishment and nurturing of voluntary risk mitigation policies and procedures — setting realistic benchmarks and milestones, and favoring constructive corrective behavior over punitive discipline. To be clear, both railroads and labor have to define boundaries since compliance with the rules is at the heart of safety.

“Railroads have had the same culture for 180 years,” Strang said. “We have been trying to change it for five years.”