Brothers and Sisters of our unions:

Presidential Emergency Board (“PEB” or “the Board”) 250 conducted hearings in Washington, D.C. this past week, concluding on July 28th. We both were honored to represent our unions and, by extension, the memberships of the dozen strong United Rail Unions as we presented and testified in support of our unified case to the PEB. We are sharing this joint message to ensure that our members are up to date on all of the bargaining round issues.

For the first time in history, the 12 United Rail Unions, representing 115,000 members in every craft in the industry, presented a unified case on wages, healthcare, sick leave and holidays to the Board. Also for the first time in history, SMART-TD and BLET presidents made joint presentations on our unions’ proposals to eliminate carrier-imposed attendance policies, provide for voluntary rest days for road crews, and to increase away-from-home terminal meal allowances. In addition, BLET Director of Benefits Dan Cook, who also serves as the Cooperating Railway Labor Organizations’ administrator, testified in support of the United Rail Unions’ unified Health and Welfare proposal and SMART-TD VP Brent Leonard testified in opposition to the crew consist issues that the carriers attempted to improperly raise in this proceeding.

At the conclusion of the first day of hearings on July 24, and in an effort to keep our memberships current on the status of the bargaining round, the United Rail Unions released summaries of our final proposals before the Board, as well as the carriers’ final proposals. Those proposals are still available on our union websites. We encourage all members to take the time to review them, and more importantly, realize just how far apart the two sides remain after more than two and a half years of negotiations.

As has been said since an update from the Coordinated Bargaining Coalition in January 2021 and in every update from rail labor since, it is also important to remember who is responsible for the absence of an acceptable National Rail Contract settlement. By reviewing the carriers’ final proposal presented before the PEB, it remains all too evident that they continue to refuse to make a realistic and worthy proposal that our voting members would ratify. That is why our contract dispute has reached a PEB, one of the final steps under the Railway Labor Act.

Regarding the unions’ final presentation before the PEB, it’s important to see how the union leadership arrived at their final proposal. Both parties served Section 6 notices in this round of bargaining at the start of negotiations in late 2019. Those notices are a mandatory starting point in the bargaining process, and generally include every item on which each individual union seeks to negotiate. As the parties negotiate, each side’s list of issues is prioritized to ensure that the most important ones are addressed in the ultimate contract settlement.

This bargaining round was no different. Based on membership feedback, several items were initially identified early on as key priorities including, increasing wages, rejecting concessions on healthcare, addressing unreasonable attendance policies and paid sick leave, and establishing predictable time away from work. The need for paid sick leave without penalty became even more evident with the pandemic and the manpower shortages caused by carriers’ continued mismanagement.

Leadership of the SMART-TD and BLET collaborated on presenting our craft-specific issues throughout negotiations and collaborated with our entire bargaining coalition on our shared issues. But, as is now obvious, the carriers refused to engage in meaningful bargaining on our most important issues. Multiple proposals were exchanged over these last two and a half years, including varying wage proposals, all in an effort to come to a voluntary agreement worthy of ratification by the membership.

Nowhere else was the distance between the sides more evident than in the discussion of wages. Contracts of both five- and six-year durations were proposed and discussed, driving differing values for the wage package. Our last unified wage proposal as we were released from mediation in June contained a six-year proposal with wage increases occurring July 1st of each year totaling 40%, with 36% of that payable in the first five years. In contrast, in January of 2022, the carriers’ proposed wage increase totaling 11% and their last proposal as we were released from mediation was a five-year proposal with wage increases occurring on July 1st of each year totaling 14%.

With a gap that wide, it was no surprise that voluntary efforts, as well as mandatory government-sponsored mediation, failed to reach an agreement. Once the parties were released from mediation, the United Rail Unions immediately began work preparing their final unified proposal to be presented to the PEB. That process included union leaders, the unions’ collective legal counsel, health care experts, and an expert economist. In the end, the unions agreed to present the summarized proposal shared with our memberships on July 24 at the close of the first day of hearings.

Before we get into the wage proposal numbers, it is important to understand the status of our negotiations as we went before the PEB. The PEB is not the start of negotiations. As explained above, the start of the negotiations happened when our lengthy Section 6 notices were served in 2019. Further, the PEB hearing is not a negotiation; it is an opportunity for both sides to present their final proposals, which must be supported with extensive economic data through live testimony. In this case, the hearing spanned five days, where both parties made presentations by expert witnesses to support their proposals. 

In crafting the unions’ final wage proposal, and knowing that those proposals had to be supported by our expert economist, an in-depth analysis was conducted — taking into account long-term wage growth, past and present, as well as increases in the cost of living for the years covered by the agreement. Consideration also had to be given to the financial value of the other non-wage proposals going before the PEB as part of crafting a final proposal that we believe the Board would recommend.

In the period between the close of NMB mediation in June and the PEB hearings in July, and after consultation with the unions’ economic expert, the unions determined that the wage proposal that could be best supported by our economic data was a final, unified proposal totaling a 28% gross wage increase (GWI), uncompounded, over five years. While some saw that move from our previous position of 36% over five years as too big, it is not certain that they understood the proposal’s other terms.

One other component of our final proposal was to move from the July 1 annual wage increase dates in our 36% proposal, to annual January 1 wage increases. The effect of this change is fairly simple math — paying each raise six months sooner doubles the value of each wage increase in the year it is applied.  In fact, on a base salary of $100,000, advancing the GWI schedule by six months each year generates additional compensation of over $15,000 during the term of the agreement as compared to July 1 annual increases. For someone with a base salary of $75,000, the advancement generates additional compensation of over $11,000 during the term of the Agreement — vastly reducing the financial gap between the 28% and prior 36% proposals. On the same base salaries, the unified proposal with the earlier effective dates would also generate in excess of $20,000 and $16,000, respectively, in back pay for the years 2020, 2021 and 2022. 

While we do not agree that it should impact the PEB decision, the history of wage increases in our National Agreements was part of the carriers’ presentation in opposition to not only our proposed wage increase values, but also against the earlier annual increase dates. That history is straightforward; no National Agreement in the past 45 years has included GWIs totaling over 18% for a five-year period. Regardless of that history, our economist clearly laid out the economic support for the 28% wage proposal presented to the PEB. 

Our health and welfare experts also made the case that no additional health and welfare costs should be pushed onto employees. We made the case for needed sick days and additional holidays for all involved Unions. We made a joint case for eliminating all non-negotiated attendance policies, allowing General Committees to serve notice to compel on-property bargaining for voluntary rest days, and improvements to our held away meal allowances.

All in all, the United Rail Unions made a sound, reasonable case before the PEB.  We must thank our team’s legal counsel, health care experts, expert economist and all of the witnesses who gave testimony on behalf of our United Rail Unions. In the coming weeks, we will receive the PEB’s recommendations for settlement of our dispute and then consider them.

While it was not possible, we also wish every member of every union could have attended the hearings before PEB 250 and to have had a chance to testify on their own behalf about the conditions, the struggles, and the situations that carriers have created for the people whose work brings them profit. Through their actions, and in the case of these drawn-out negotiations, their inaction, the carriers’ cavalier and pay-no-heed attitude toward our brothers and sisters who did the work through a pandemic, through job cuts and through an ongoing supply chain crisis could not be clearer. They do not care to either understand or respect their employees. Some of their assertions, such as how happy their employees are, were beyond belief — even to those of us that have heard their spin before. We refuted them all.

Following the recommendations of the PEB, the parties have another 30-day cooling off period to consider the recommendations and reach an agreement. If the carriers continue to refuse to make a ratifiable proposal, very critical decisions will have to be made during that period. As has been said time and again, do not listen to the carrier moles and trolls that attempt to blame this situation on the employees or their Unions. They are only attempting to divide us as we close in on the final months of this round of bargaining. Among our unions, our solidarity is our strength. Please do not allow those attempting to divide us to succeed.

In solidarity,

President Jeremy Ferguson

SMART Transportation Division

President Dennis Pierce,

Brotherhood of Locomotive Engineers and Trainmen

To receive text messages and the latest alerts regarding the BNSF Hi-Viz policy, please text HiViz to 67336.

Today the judge considering the case between BNSF and the SMART-TD and BLET unions over the carrier’s new “Hi-Viz” attendance policy ruled that the dispute was “minor” under the provisions of the Railway Labor Act (RLA).

What does this mean?

It means that any further action to pursue a strike would be illegal, exposing the unions and their members to serious legal attacks as well as carrier discipline up to and including dismissal. But this is only the first round in our fight against the Hi-Viz policy. In the coming days, the unions will determine if the best course of action is to appeal today’s decision, or to move swiftly to arbitrate the policy before it can be used to terminate any employees. An arbitrator can strike down the policy. If that path is chosen, the unions will move swiftly to make their case there instead of in the courtroom or on the picket lines.

Rest assured that we are all infuriated. One of the largest and richest corporations in America has been given a free pass to continue forcing its employees to work even when they or their families are sick, and when they are fatigued beyond the point of being able to work safely. BNSF is essentially thumbing its nose at the employees who make them billions of dollars in revenue.

SMART-TD and BLET are considering all legal possibilities to continue to challenge BNSF and its anti-worker, anti-family and unsafe attendance policy. In the coming weeks, the unions’ options are:

  • ​Appeal the District Court decision, but delay arbitration of the policy by doing so.
  • Aggressively pursue arbitration to challenge every possible aspect of the “Hi-Viz” policy. This is where the actual impact of the policy will become crucial to the unions’ case.
  • Demand that state and federal lawmakers pass laws which would protect employees from retaliation for laying off for legitimate reasons.
  • Work with federal agencies to end draconian attendance policies on ALL railroad carriers — not just BNSF.
  • Call on Congress to amend the RLA to give rail workers freedom to fight back against the carriers’ abuse.

What can you do?

— Contact your General Chairperson. Your union needs to be able to explain how and why this attendance policy affects real workers. Examples of how this policy could affect you and your family, or how it did affect you after February 1 should be shared with your General Chairperson. These will empower your union to make its best case possible in arbitration.

— Contact your Congresspeople and Senators. Click here to find your members of Congress and demand that they hear the concerns of the rail workers who are the backbone of this nation’s supply chain​ and that they should back the people who do the work rather than the financial overlords who have implemented these draconian policies.

— Sign up for action alerts. Our strength is in our collective voice. Action alerts from your union will send you to petitions to sign, elected officials to email, and social media posts to share. Text HiViz to 67336 for text alerts or click here to sign up for emails. ​We are all angry, but we need to channel that anger into effective and legal action. Both the SMART-TD and the BLET will make sure that members are informed, educated, and empowered, just as rail unions have done in this country for more than a century.

If you have questions, do not hesitate to reach out to your union leadership.

In solidarity,

Jeremy Ferguson and Dennis Pierce
President, SMART-TD and National President, BLET

CLEVELAND, Ohio, (February 1, 2022) — By letter dated January 31, 2022, SMART-TD and the BLET are seeking review by both the Department of Labor and the U.S. Department of Transportation of all Class I attendance policies. In a joint letter to Labor Secretary Martin Walsh and Transportation Secretary Pete Buttigieg, SMART-TD President Jeremy Ferguson and BLET President Dennis Pierce ask the secretaries to immediately investigate all carrier attendance policies that refuse to provide exceptions for fatigue-related absences, as well as those that refuse to provide exceptions for illness-related absences.

Referencing the most recent “Hi-Viz” policy on BNSF set to go into effect today, the presidents said: “The new policy also potentially subjects employees to disciplinary action when they request time off because they are ill or when they need to tend to sick family members. This includes time off under the Family Medical Leave Act (FMLA), as this policy disincentivizes employees from utilizing this protected leave by prohibiting ‘Good Attendance Credit’ from ever being gained because of its use.”

Addressing fatigue concerns, the presidents said: “The only tool these engineers and trainmen have to prepare for their unscheduled work shifts are so-called ‘train lineups,’ which are managed solely by the railroad. Moreover, BNSF has openly admitted that the quality of these lineups and the related predictability for the on-duty times is far from adequate. As a result, engineers and trainmen are routinely called for duty without having any knowledge or awareness of the potential for work (at that particular time), thus subsequently preventing them from the ability to be physically rested prior to their being called to work. For example, it is commonplace for these employees to be suddenly called into work for an evening shift when they didn’t expect to be called in until the morning according to the available train lineups. Under BNSF’s new Hi-Viz policy, even though they may be fatigued, they are not allowed to refuse the unpredicted call for duty without potentially being subjected to employer discipline, up to and including dismissal. Forcing these employees to choose between their job or their safety in the workplace is in complete contradiction to BNSF’s obligation to protect public safety and to provide a safe workplace environment.”

The presidents said the harsh policies fly in the face of railroad safety laws and government regulations. The policies also would negatively impact already-diminished workforce staffing and would contribute to an increase in the “already historic levels of mid-career resignations.”

President Ferguson and President Pierce concluded: “It is imperative that the Department of Transportation and Department of Labor act to address this most egregious railroad policy, as well as those implemented by NS, CSX, Union Pacific, and any other railroad with similar policies. The safety and health of the engineers and trainmen who are employed at BNSF, and the safety of the general public, stands in the balance.”

Read the presidents’ letter to the DOT and DOL secretaries.

###

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.

CLEVELAND (Nov. 23, 2021) — The Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) are challenging Amtrak over its actions in implementing its COVID-19 vaccine policy without the bargaining mandated by the Railway Labor Act. The unions filed suit today against the nation’s passenger railroad in the United States District Court for the Northern District of Illinois, Eastern Division.

The suit is similar to claims filed by the SMART-TD and BLET against Union Pacific (UP) and Norfolk Southern (NS) and the BNSF Railway (BNSF) regarding their vaccine policies. The unions have taken the position that Amtrak has no authority to unilaterally implement and enforce a COVID vaccination mandate among its employees, and that its actions in failing to negotiate terms of implementation violate the status quo requirement of the Railway Labor Act, thus engendering a major dispute.

SMART-TD President Jeremy Ferguson and BLET National President Dennis Pierce issued the following joint statement regarding their action:

“Amtrak has ordered all employees to submit proof prior to December 8, 2021, that they have received at least one vaccine shot, and submit proof by January 4, 2022, that they have received their final vaccine shot, or they will be subject to termination of employment. Amtrak is directly dealing with its employees instead of negotiating with us over its unilateral mandate.

“We have several objections to Amtrak’s unilateral implementation of its policies mandating them and illegally dealing directly with its represented employees. We will continue to fight on behalf of all SMART–TD and BLET members in an effort to stop Amtrak’s lawlessness in its tracks.”

###

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.

CLEVELAND, Ohio, (Oct. 29, 2021) — The Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) have responded to the suit Norfolk Southern Railway (NS) filed against them on Oct. 21, 2021, in the United States District Court for the Northern District of Illinois, Chicago Division. The two Organizations not only answered NS’ allegations, they also filed counterclaims challenging NS actions in implementing their vaccine policy without the bargaining mandated by the Railway Labor Act.
The railroad has taken the position that it has the right to implement and enforce a COVID vaccination mandate among its employees, and requests the court to issue a declaratory judgment holding that the dispute between the railroad and the unions is a “minor” dispute, which must be arbitrated if the parties cannot come to a satisfactory settlement.
The unions have countered that NS has no such authority, and their actions in failing to negotiate terms of implementation violate the status quo requirement of the Railway Labor Act, thus engendering a major dispute.
SMART-TD President Jeremy Ferguson and BLET National President Dennis Pierce issued the following joint statement regarding their action:
“NS has ordered all employees to report that they are fully vaccinated by December 8th, or they will be unable to continue working. And, instead of negotiating with us as the law requires, the Carrier is directly dealing with its employees by offering a payment for compliance with its unilateral mandate.
“We generally support our members getting the vaccine. However, we have several objections to NS’s unilateral implementation of their policies mandating them and illegally dealing directly with its represented employees. The members of our Unions — including members who already are vaccinated — are irate over NS’s outrageous conduct.
“We have been in contract negotiations with NS since November of 2019, and federal law absolutely bars railroads from changing rates of pay, rules and working conditions while negotiations are ongoing. Not only is NS in violation of the law, it has explicitly spurned our demands that these matters be bargained. We will continue to fight on behalf of all BLET and SMART–TD members in an effort to stop NS’s lawlessness in its tracks.”

###

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.

CLEVELAND, Ohio (Oct. 28, 2021) — The SMART Transportation Division (SMART–TD) and Brotherhood of Locomotive Engineers and Trainmen (BLET) escalated their fight against Norfolk Southern Railway (NS) to stop the railroad from forcing locomotive engineers to work as conductors, and for disciplining those who don’t. The two unions each filed motions for preliminary injunctions yesterday against NS in the United States District Court for the Northern District of Ohio, Eastern Division.
SMART–TD seeks an injunction ordering NS to return to the status quo that existed prior to the dispute, which would require that the railroad use only SMART–TD-represented train service employees to fill jobs in those crafts and classes.
The BLET seeks an immediate injunction forbidding NS from forcing engineers to work as conductors, including disciplining members for failing or refusing to comply with directives to work as conductors, and requiring that NS immediately reinstate BLET members who were disciplined as a result of the dispute, expunging all discipline records, and making each engineer whole.
Following a hearing on the motions, the court will issue its decision. If the court grants the motions and issues the requested orders, any continued misconduct by the carrier could trigger a strike.
“This situation is identical to the September 2013 dispute that led to a BLET strike on the Wheeling and Lake Erie,” said SMART–TD President Jeremy R. Ferguson and BLET National President Dennis R. Pierce. “The Sixth Circuit Court of Appeals, which also has jurisdiction here, held that the 2013 dispute was, indeed, a major dispute. Multiple ground employees on NS have sustained injuries in switching operations in recent weeks. We have made it clear to NS that forcing engineers to work ground assignments that they are not currently qualified on or familiar with is an invitation for more incidents. While NS’s current business model may accept responsibility for that risk to its employees, our Unions do not. We will do everything in our power to prevent that risk to our collective memberships. The General Chairmen, the assigned Vice Presidents and we thank our NS memberships for their continued strong support in this struggle.”

###

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.

CLEVELAND, Ohio (Sept. 30, 2021) — The Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) have joined forces to defeat efforts by Norfolk Southern Railway to supplant the train service crafts of conductors and brakemen by calling locomotive engineers to work their assignments.
SMART-TD President Jeremy Ferguson and BLET National President Dennis Pierce issued the following joint statement regarding their action:
“On October 24, 2018, Norfolk Southern Railway announced plans to implement Precision Scheduled Railroading. PSR is an operational scheme that makes irrational cuts to employment, maintenance and service levels to generate artificially higher profit rates for hedge funds and similar investors.
“Because of PSR, NS has eliminated the jobs of over 35% of its operating crew members since December 2018. NS also has been fighting since the summer of 2019 to cut the size of operating crews by half.
“As part of its plan to simply eliminate the train service crafts of conductor and brakeman, NS has willfully depleted its train service workforce. The shortage of conductors and brakemen is so severe that NS started ordering locomotive engineers — under threat of termination for insubordination — to work conductor positions even though both the BLET Agreement and the SMART-TD Agreement prohibit the use of locomotive engineers in train service positions.
“Today, our unions have initiated legal actions that are intended to compel NS to follow our contracts and obey the laws of our land. NS cannot lawfully lay off roughly 4,000 conductors and brakemen, and then give their work to another craft. Nor can NS lawfully deprive locomotive engineers of the jobs, wages and working conditions to which they are contractually entitled by forcing them to perform the work of other crafts.”

###

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.

Nevada Gov. Steve Sisolak has issued a proclamation praising America’s railroaders, declaring Wednesday, April 28, 2021, as “A Day In Honor of Railroad Workers.”
A portion of the proclamation reads: “The safe and efficient movement of the trains transporting… freight and… passengers through Nevada is due foremost to the dedication and professionalism of those employees who are directly involved in train movements, including Train and Crew Dispatchers, Maintenance of Way personnel, Signal Maintainers, Mechanical personnel, and train crews.”
The SMART Transportation Division Nevada Legislative Board and BLET Nevada State Legislative Board worked jointly to lobby Gov. Sisolak regarding the proclamation. The two boards issued a joint statement, which reads in part:
“Every day, front-line railroad workers report for duty as required and perform the tasks of their jobs in a manner which ensures that the movement of freight and passengers by rail which is needed to keep this nation’s economy functioning is accomplished. In spite of various objectives and circumstances which create hurdles to be crossed in providing this vital service, the work which you do continues to deliver for those counting on it… On this special day, we salute and thank you for the work that you do, while encouraging you to stay focused on safety in the course of your work. We also ask that you join us in remembering those workers who have passed on before us, some in the line of duty, while committing to continue fighting for all still among us with whom we share struggles.”
SMART-TD President Jeremy R. Ferguson and BLET National President Dennis R. Pierce said, “Our unions thank Governor Sisolak for honoring railroaders with this proclamation and for recognizing the important role SMART-TD and BLET members play in keeping our economy strong. We also thank Jason Doering, SMART-TD Nevada State Legislative Director, and Matt Parker, BLET Nevada State Legislative Board Chairman, for their efforts in helping to secure this proclamation and for their dedication to railroad safety.”
A copy of Governor Sisolak’s proclamation can be found here (PDF).

# # #

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 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.

CLEVELAND, Ohio (Feb. 23, 2021) — Two of the country’s largest freight railroad unions achieved a favorable decision in the Ninth Circuit Court of Appeals on Tuesday regarding an attempt by the Federal Railroad Administration (FRA) to preempt legislation passed by a number of states that established a minimum of two-person operating crews on freight trains.
The case, brought by the states of California, Washington and Nevada and by the International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET), challenged former FRA Administrator Ron Batory’s attempt to cancel the laws of those and other states while at the same time attempting to authorize nationwide one-person crews. The unions and states argued that Batory’s May 2019 order violated the comment-and-notice procedures of Administrative Procedures Act (APA) and that his agency could not implicitly preempt the state safety rules.
The Court of Appeals ruled that FRA’s order was “arbitrary and capricious,” taking particular note that the assertions by FRA and the rail carriers that reducing the number of crew members in the cab to one person could improve safety “did not withstand scrutiny” and “was lacking.” The court also criticized the order as not being a “logical outgrowth” of the two-person crew proposal, because “[t]here was nothing in the [proposed regulation] to put a person on notice that the FRA might adopt a national one-person crew limit.”
The court chided FRA for basing its negative preemption decision on “an economic rationale” instead of what is its main obligation — safety.
The court also found the order’s “real and intended effect is to authorize nationwide one-person train crews and to bar any contrary state regulations.” In that it utterly failed to address the safety concerns raised by nearly 1,550 commenters who support two-person crews, the court found the order’s rationale was arbitrary and capricious, thus violating the APA.
Likewise, the court eviscerated the lack of a sound factual basis in the order, which merely cited a study funded by the Association of American Railroads, holding that “a single study suggesting that one-person crew operations ‘appear as safe’ as two-person crews seems a thin reed on which to base a national rule.”
“First, we thank the more than 1,500 BLET and SMART–TD members who took the time to comment on the need for two-person crews, because you have made a difference,” said SMART-TD President Jeremy R. Ferguson and BLET President Dennis R. Pierce. “We also congratulate the judges in this case for recognizing the former Administrator overstepped his bounds, and we look ahead to working with the FRA when crew size is again considered on a national level by the agency as a matter of public and operational safety.”
“We assert, and will continue to assert, that having two sets of eyes and two people working in concert together with any improvements in technology, will be the best way to serve public safety and to continue the effective and efficient movement of our nation’s railroads,” the union presidents said.
The court ruling, in vacating and remanding the FRA order, sends the matter of a potential rulemaking for freight railroad crew size back to FRA for the agency’s consideration. It also means that two-person crew legislation in the states that had been targeted by FRA’s order remain in effect.
A copy of the Ninth Circuit Court of Appeals ruling is available here (PDF).

###

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 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.

Amtrak’s financial situation and the freight rail industry’s continued use of Precision Scheduled Railroading (PSR) practices were the focus of a U.S. Senate Commerce Committee hearing Oct. 21.
Amtrak President and CEO William Flynn repeated his plea for almost $5 billion in emergency funding to help the nation’s passenger carrier weather the continued downturn in ridership caused by the COVID-19 pandemic. The carrier has made drastic long-distance service cuts, going from daily to three trips per week on many routes. Furloughs for almost 2,000 Amtrak employees are scheduled to take effect in November.
“Virtually all of the CARES Act money has been spent,” Flynn told the committee. “These workforce adjustments are essential with current financial funding.”
A number of legislative actions, including the HEROES Act and the INVEST in America Act, while passed by the U.S. House of Representatives, have been stalled by Majority Leader Mitch McConnell in the GOP-controlled Senate. The emergency funding provided by such legislation would help the carrier rebound, Flynn said.
“Once the pandemic eases, Amtrak plans to grow,” he said.
A second panel featured a discussion of PSR.
Rudy Gordon, CEO of the National Grain and Feed Association, expressed concerns from a shipper perspective about the redeployment of furloughed railroad workers, saying that he fears delays in service and shipments on the part of rail carriers when the economy rebounds.
PSR has caused “a tipping point” at the expense of customer service, Gordon said, and said that if rail service erodes further at the expense of the carriers obtaining lower operating ratios (ORs) that the Surface Transportation Board should intervene.
Larry Willis, president of the AFL-CIO Transportation Trades Department (TTD), of which the SMART Transportation Division is a member, offered written testimony concerning PSR.
“Across the sector, the pandemic continues to wreak havoc, threatening both the health and livelihoods of employees,” Willis stated. “At the same time, freight railroads, at the insistence of Wall Street investors and hedge fund managers, have pursued operating practices that undermine basic tenets of rail safety, ask frontline workers to do more with less, and threaten the reliable and efficient customer service that should be the hallmark of this industry.”
The lone labor representative invited to testify in person was Dennis Pierce, president of the Teamsters Rail Conference.
Other industry stakeholders appearing were:

  • Paul Tuss, executive director, Bear Paw Developing Corporation and Member, Montana Economic Developers Association
  • Frank Chirumbole, vice president global supply chain, Olin Corporation on behalf of American Chemistry Council
  • Kent Fountain, chairman, National Cotton Council
  • Ian Jefferies, president and chief executive officer, Association of American Railroads

Watch the hearing by following this link.