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.
On July 28, 2021, a Neutral appointed by the National Mediation Board issued his ruling finding that on certain railroad properties, the current moratoria in those crew consist agreements do not prohibit the railroads from serving a Section 6 Notice regarding crew size. The properties affected or having no current moratorium include certain properties at BNSF, UP, NS and CN Railroads. Other properties not currently affected or involved may also be included in the future as moratoriums naturally expire. Please contact your local chairperson or general chairperson for specific details regarding your terminal or district. The ruling comes after a nearly two-year battle between SMART-TD and the National Railway Labor Conference over the moratoria provisions and their effect. The arbitration was one of the largest conducted by SMART-TD and its predecessor union, UTU, in decades. The ruling does not eliminate any current crew consist provision or requirement. The only thing it does is to open the door for bargaining to occur. The moratoria that previously prevented any mandatory bargaining on crew consist were predicated on the last remaining employees having hired on the railroad previous to the 1980’s. Today, less than 100 of these employees remain nationwide, and most are at, or near retirement age. Once a Section 6 is served, the Railway Labor Act requires both parties to engage in mandatory bargaining. The Act, however, does not mandate any particular outcome in such negotiations, it merely provides a process. In the event parties reach an impasse, the Act contains methods to avoid disruption to commerce through mandatory mediation and possibly intervention from the President of the United States and the U.S. Congress. SMART-TD remains committed to protecting the jobs of today, as well as securing the jobs of the future. While only some General Committees will be involved in bargaining, the full support and effort of the International in assisting those Committees will continue.
On June 15 and 16, 2021, the simmering dispute between the SMART Transportation Division and carriers over crew consist finally reached arbitration before neutral party John LaRocca in Sacramento, Calif. Class I railroads BNSF, UP, NS and KCS initiated a claim in October 2019, just prior to the opening of the current round of national contract handling, that asserted the moratorium provisions of various local agreements no longer barred the service of a Section 6 notice regarding the topic of crew consist. At the arbitration, 13 SMART-TD General Committees presented their arguments against the National Railroad Labor Conference (NRLC), which represented the railroads involved. The arbitration hearing was a result of a long court battle in which it was determined that the question of whether the moratorium language in the various agreements barred serving a notice was a “minor dispute” within the meaning of the Railway Labor Act and would have to be arbitrated. The moratoriums were a result of negotiations in the late 1970s and early 1980s when the parties involved decided to lay to rest negotiations over crew consist until the last covered employee voluntarily separated. Despite the fact that the event has not occurred, the carriers have taken the position that the language of the moratoriums cannot be read to now bar negotiation over crew consist. The railroads are seeking to bypass the agreed-upon wait time that bars such negotiation and to seek crew size changes now. SMART-TD argued that the language and intent of the moratoriums clearly bars any negotiation on crew consist until the last person standing is gone. The arbitration was the largest conducted by the union in decades and was presented by a combined team of the SMART-TD International, SMART-TD Legal Department and multiple General Committees. A decision on the issue is expected by September 2021. A ruling by LaRocca in favor of SMART-TD would leave current crew-consist agreements closed from negotiations until the expiration of the moratoriums. A ruling by LaRocca in favor of the carriers would open these agreements up for negotiation on the respective properties as the current round of national contract discussions continues.
On January 8, 2021, Arbitrator Wendell Bell issued his arbitration award regarding the process and procedure in arbitrating the Carriers’ (UP, BNSF, NS & KCS) attack on the Crew Consist Moratoria. The arbitration, known as a “Procedural Public Law Board,” had the purpose of determining the terms of how any primary arbitration should proceed. Procedural PLBs 7959, 7960, 7961 & 7962 were a result of SMART-TD’s efforts disputing the improper action of the Railroads to prematurely re-open crew consist negotiations before the appropriate moratorium expired. SMART-TD argued the Carriers improperly served their Notice to Arbitrate and failed to properly conference their suddenly new-found interpretations of the moratoria. SMART-TD not only prevailed in these arguments, it also secured a ruling ensuring the terms of the next round of arbitration will be conducted properly. In a fairly dense 35-page award, which cited U.S. Supreme Court and numerous lower-court decisions along with several arbitration awards, the Procedural Arbitrator set May 1, 2021, for the next round of arbitration, dependent upon funding approvals by the National Mediation Board. As currently constructed, the National Mediation Board consists of two Republican members appointed by President Donald Trump and one Democrat member. It is expected the make-up of the Board will change shortly once the nominations by President-elect Biden are confirmed by the U.S. Senate. Whether those changes will be able to take place prior to the selection of the next arbitrator or May 1st is unknown. The railroads’ efforts to swiftly force a change to crew consist while still under the railroad-friendly Trump Administration is now unlikely due to the unwavering effort of SMART-TD. Since October 2019, when the railroads first ignited this fight, SMART-TD has defended our agreements against this attempted subversion by the carriers. We have and continue to tirelessly fight for our members’ livelihoods. SMART-TD members can rest assured that their union will continue to fight to protect your crew consist agreements and livelihood, while seeking to secure the opportunities of the future in the rapidly changing and technology-laden railroad industry.
Brothers and Sisters, It’s time to set the record straight. I am certain many of you have seen the recent anti-labor articles that have been published regarding our recent win in the U.S. Court of Appeals for the 5th Circuit. That win has apparently struck a raw nerve with the carriers and the minions who eagerly await their master’s call. Make no mistake, that decision struck a fatal blow to the carriers’ plans to put you on the unemployment line. Rather than accept defeat, their apologists are trying to spin this loss into something that it is not. The long history of crew consist cannot be denied. For decades, we have battled with the carriers over their fevered attempts to cut costs and put your life at risk by down-sizing crews. This current round of negotiations is no different. They sought to eliminate your job and operate trains in perhaps the most dangerous way possible. Standing up for you, that’s what this case was about. They have severely underestimated the fight in each and every one of us; the sheer grit and determination that we have to defend our families, our jobs, and the overall welfare of our co-workers and the general public alike. The truth that these apologists fear to admit is that in this Union, the dues-paying members are the Union — period. There is no divide between the “Union” and the “dues-paying members.” There is only a “Union.” We stand together now more than ever. To salve their masters’ wounds, those “commentators” try to spin this as union officers protecting their own jobs. They know not of what they speak and their ignorance is evident in the web that they weave. They used nameless sources in an attempt to add credibility to a tall tale that anyone with true insight would know is far from factual. The fact remains that all officers in this newly elected SMART-TD administration are firmly united. The Railway Labor Act protects agreements from being changed except through the processes provided for in Section 6 of the Act. The carriers had agreed to crew consist provisions years ago. Not only that, but to end the constant battle over crew consist, the carriers also agreed to moratoria provisions that barred any Section 6 Notice over crew consist until the last protected employee voluntarily left service. That event has not yet happened. These are the facts, but they are nowhere to be found in any recounting in the carriers’ favored publications. Rather, what you are treated to is the old worn song of the anti-unionist. The apologist who says trust the carriers, they only want what was best for you. Right. The carriers want to give you lifetime protections? At what cost? And when they decide they don’t like that deal any more, will they ignore it just like they have tried to ignore our moratoria provisions and put you on the street? These apologists assert that they have some inside scoop, yet I have never witnessed any “commentator” at the bargaining table. They are outsiders. What else is missing? Acknowledgement of the only thing the carriers care about — their bottom line. Money comes before all else. That is evidenced by the unbelievable lengths they will go to argue that you are paid too much, that your insurance is too expensive, and that they are going broke as a result of the costs of our Agreements. You are the target in their zeal to improve their stock price. That is a sad fact that you will not find in any of those articles. Another fallacy that is being sold — technology will do everything more safely. That simply is not true. Their technology is fallible. It doesn’t work like they wish it would nor as advertised. In fact, it’s not a matter of if it will break down, but when. We have collected thousands of Failure Reports across all Class Is and the data is terrifying. Never has the human element been more important in railroad operations. Engineers spend more time with their faces in multiple screens trying to manipulate and interpret the ambiguous systems than they do focusing on the territory ahead. Conductors are relied upon now more than ever, as they are the eyes and ears of the train crew, and we have the stories to prove it. The articles also attempt to scare you by asserting that the carriers will unilaterally reduce crews at the end of the last-person-standing moratorium. That is not how the Act works. The expiration of the moratoria does not sunset crew consist. Rather, moratoria bar either party from serving a Section 6 notice to amend or change the current Crew Consist Agreements until the last protected employee leaves. Once that happens, then a Section 6 Notice can be served and the long and drawn-out process of the RLA engaged to negotiate the next generation of agreements. Railroad workers have all been lied to long enough by management, and we can smell lies coming from a mile away. As a word of advice to Railway Age, I would caution them against living in the past and trying to play SMART-TD against the BLET. We are working closely together in the Coordinated Bargaining Coalition (CBC) in national handling and on the various other disputes that the carriers have forced us into. Brothers and Sisters, do not be discouraged, and do not be swayed by those with ulterior motives. We are in this fight together, and we are moving forward.
Jeremy Ferguson President — Transportation Division
Today, Aug. 28, the U.S. Court of Appeals for the 5th Circuit issued its decision in BNSF et al v. SMART-TD (Case No. 20-10162) concerning crew consist. This decision is a long-awaited victory for the Union. The appellate court vacated the injunction that forced SMART-TD General Committees to bargain over crew consist, despite the existence of moratoria which bar such negotiation. SMART-TD has always read those moratoria clauses to bar the service of Section 6 Notices to negotiate over crew consist until the last protected employee voluntarily separated from service. Indeed, that is the very reason for their existence. But despite the long-standing nature of these clauses, the carriers presented a new and novel theory that the moratoria did not actually bar crew-consist negotiations. The carriers tested this theory out by filing suit against SMART-TD in October 2019 and moving for a preliminary injunction in December 2019. In their request for an injunction, the carriers asked a district court in Texas to force SMART-TD to bargain now in spite of the moratoria. That court issued its decision on February 11, 2020, finding that even though the dispute over the moratoria was minor, and no arbitral determination had been made, SMART-TD was required to bargain now. Under the RLA, minor disputes must be resolved through arbitration, not Section 6 bargaining. In the 22-page opinion, the appellate court walked through the various bases on which an injunction can be issued in Railway Labor Act (RLA) disputes. The 5th Circuit Court found that none existed here. Rather, it concluded that the carriers had failed to exhaust the administrative remedy provided under the the RLA arbitration regarding the moratoria clauses.
Sometimes it takes something major to happen for people to sit up and take notice. A wake-up call, if you will.
From the standpoint of our national contract negotiations, our union got another wake-up call even before our first session that is scheduled for the last week in February.
On February 11th, a U.S district judge, who was appointed by President Donald Trump last year, ruled against our union in a lawsuit over crew-consist moratoriums. We’re now appealing that decision.
The court ignored the Railway Labor Act strictures with regard to the moratorium provisions which have been upheld for decades. We are being pushed down the tracks where the carriers want this to go.
This fight is not over, and we have another that is about to begin.
There’s a lyric that Anne Feeney wrote that gets at the heart of this matter and that unions have embraced: “United, we bargain. Divided, we beg.”
We now have a coalition of 10 rail unions about to begin negotiating together in this upcoming round of bargaining. I have been in close contact with the Brotherhood of Locomotive Engineers and Trainmen (BLET) President Dennis Pierce throughout as carriers have tried to attack two-person crews.
Our two unions are linked in the courts. We’re linked in the halls of Congress. We’re linked in the locomotive cabs. We are now linked at the bargaining table.
Our attorneys are working together on behalf of both our organizations to fight the ongoing court cases as carriers try to manipulate the system with their deep pockets by attempting to get long-standing precedents and legislation overturned.
Legislative representatives from both our organizations are meeting with members of Congress and state legislatures to get the word on for two-person crew laws. The carriers, however, are using every means to fight to try to get two-person crew laws of seven states thrown out, which we have opposed.
Members from both organizations are sitting in cabs of freight trains staying alert and keeping one another safe through each and every shift, ready at a moment’s notice to respond when things go wrong. We need to carry this effort on in crew consist.
BLET President Pierce recently stated in a message to his union:
“I share this information to make it clear to BLET’s membership that our proud Union stands with our Brothers and Sisters in SMART’s Transportation Division in the fight to preserve two-person crews,” Pierce wrote. “Be it on the regulatory front, the legislative front, in court or at the bargaining table, BLET is working with SMART-TD to protect the interests of all operating employees.”
I, as President of the SMART-TD, want to make it clear to our union that we stand united with the BLET.
Any attempt to drive a wedge between our organizations in order to get officers and members alike to disregard the goal at hand — preserving two on the operating crew — plays into the carriers’ hands. It gets them closer to what they want: Fewer workers, more money in their pockets, a less-safe (cheaper) work environment and weakens all of rail labor. Two unions with members and with leadership going in opposite directions would make it easier for carriers to accomplish their goal of eradicating jobs in favor of their idea of “innovation.”
I also agree with President Pierce when he stated:
“The bottom line is this: In order to preserve two-person crews, each Union must protect and preserve its member of those crews. With only a few exceptions, BLET cannot bargain nationally for Conductors. The same is true in reverse; with only a few exceptions, SMART-TD cannot bargain nationally for Engineers,” he wrote. “For these reasons, and regardless of the fearmongering going on, BLET cannot ‘sell’ Conductor positions to benefit Engineers in national negotiations, and the same in true in reverse for SMART-TD. Again, each Union must protect its half of our two-person crews for all operating employees to prevail.”
Brothers and sisters, this is an uneasy time for every member of every labor organization involved in these negotiations as the carriers continue to cut personnel. The operating craft unions have the buzzsaw of technological threats from the carriers aimed straight down the middle of the locomotive cab. Don’t be persuaded by the fearmongering that attempts to divide us.
You are going to hear rumors out there. You are going to hear speculation. You are going to have people beating their chests and criticizing decisions made years ago by prior leaders for putting us in what could be a critical — maybe the most critical — moment in rail labor’s history with the in-cab role of the conductor in the balance. Ignore all of that noise. We are moving forward, not backward!
This is not the time for anyone to give in to anxiety or paranoia or “what-if” scenarios. When all SMART-TD members put our names on the dotted line to pledge for membership to this organization, we pledged to fight for each other in solidarity. When elected president of the Transportation Division last August, I took an oath to act in solidarity for the best interest for the organization and for all whom we represent. When I signed our organization on as a member of the 10-union Coordinated Bargaining Coalition, I pledged to bargain in solidarity with those other rail labor organizations in national talks.
All of us need to be focused on the situation that lies ahead and the decisions to be made for the future of rail labor and the crews who operate freight trains. We need to reinforce our lines of defense and prepare to go on the offense by reaching out to the public and to the media. Instead of wondering “what’s the union doing for us?” it’s time to get to the local union meetings and get involved. It’s time for the spouses to join the SMART-TD Auxiliary and get involved. It’s time to up your SMART-TD PAC contributions, then get with your state and U.S. legislators, so they hear your voice this election year. It’s time to get involved in the SMART Army. It’s time to stand strong!
Brothers and sisters, BLET President Pierce and I are united. We will work in solidarity, together, to keep two on the crew as we bargain. We will work together to keep you informed. We know this issue is too important to our memberships and for the public’s and our safety not to.
In solidarity,
Jeremy Ferguson President — Transportation Division
Previsich SMART Transportation Division President John Previsich and Brotherhood of Locomotive Engineers and Trainmen (BLET) President Dennis Pierce, issued a joint statement, following their submission of their comments to the Federal Railroad Administration (FRA) on train crew size. “Operating freight trains with one-person train crews is unsafe and must be prohibited. That is the message we delivered yesterday in the comments filed with federal rail safety regulators,” Previsich and Pierce said. “Our comments provide a clear rationale for the FRA to finalize a rule this year and to close loopholes included in the agency’s initial proposed rule that could permit the limited use of one-person crew freight operations.” Pierce Click here to read the official press release from both unions. Click here to read the comments submitted to the FRA, followed by the polling results of 11 individual states on two-person crews conducted by DFM Research on behalf of SMART TD (see page 18 for polling results).
Previsich SMART Transportation Division President John Previsich and Brotherhood of Locomotive Engineers and Trainmen (BLET) President Dennis Pierce, issued a joint statement, following their submission of their comments to the Federal Railroad Administration (FRA) on train crew size. “Operating freight trains with one-person train crews is unsafe and must be prohibited. That is the message we delivered yesterday in the comments filed with federal rail safety regulators,” Previsich and Pierce said. “Our comments provide a clear rationale for the FRA to finalize a rule this yearDennis Pierce, President, BLET and to close loopholes included in the agency’s initial proposed rule that could permit the limited use of one-person crew freight operations.” Click here to read the official press release from both unions. Click here to read the comments submitted to the FRA, followed by the polling results of 11 individual states on two-person crews conducted by DFM Research on behalf of SMART TD (see page 18 for polling results).
A tentative agreement to reduce train crew size on one of the nation’s largest rail carriers has failed, according to the labor union whose members voted on it this week.
The pact would have eliminated on-board conductors on 60 percent of BNSF Railway, which spans the western two-thirds of the country.
