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WASHINGTON, D.C., (August 28, 2020) — A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit has vacated Federal Railroad Administration (FRA) approval of the Kansas City Southern Railway (KCSR) certification program under which locomotive engineers employed by a contractor of Kansas City Southern de México (“KCSM”) have been permitted to operate over Texas Mexican Railway (Tex-Mex) tracks in the United States since July 10, 2018. Under the decision, the matter has been remanded to FRA “either to ‘offer a fuller explanation of the agency’s reasoning at the time of the agency action,’ or to ‘deal with the problem afresh by taking new agency action.’”
This ruling followed a challenge by 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) to the agency’s actions in approving the certification program.
The court agreed with the unions’ position, holding that FRA “fail[ed] to provide a reasoned explanation for its approval of the materially altered engineer certification program administered by one of the railroads.” The court further held that KCSM was under a statutory and regulatory obligation to have its own engineer certification program, which requirements FRA failed to enforce, finding that:
“By virtue of the Railroad Administration’s passive approval system and the complete absence of any accompanying explanation for the agency’s approval of [KCSR’s] modified engineer certification program, the administrative record is devoid of any explanation or reasoning for the administrative steps taken and legal determinations made by the agency in approving the engineer certification program. Likewise, in searching the administrative record for the rationale by which the agency allowed [KCSR] to certify the engineers of another railroad, despite the former’s apparent lack of control over [KCSM’s] crew members, we come up empty-handed. And in a hunt for the reason that service under a foreign regulatory system was credited to allow an abbreviated certification program, we hear only crickets.

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“… what we confront in this case is a total explanatory void. There is no reason — not one word — in the administrative record for the Railroad Administration’s material and consequential decisionmaking on important matters of railroad safety. Not even [KCSR’s] certification program itself, as submitted to the agency, provides an explanation for the relevant determinations that the Agency presumably reached.”
However, the Court declined to rule on several other objections made by the unions that related to conductor certification, transfer of the air brake testing waiver in place for northbound trains, and inadequacy of hours-of-service recordkeeping, finding that there had been no final agency action so the Court lacked jurisdiction to address these objections. In doing so, the Court acknowledged FRA’s “shadowy and unwritten processes make it difficult for aggrieved parties to navigate the … jurisdictional constraints.”
SMART–TD President Jeremy R. Ferguson and BLET National President Dennis R. Pierce applauded the decision.
“We congratulate the court for exposing just how much FRA has become captive to the railroad industry,” the presidents said. “This is a significant victory for Tex-Mex crewmembers, but is just one skirmish in the war to preserve well-paying American jobs. We also thank all the counsel who worked so hard on this case, especially Special Counsel Kathy Krieger for an outstanding job.”

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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 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, (August 21, 2020) — As freight rail traffic levels rebound strongly from the economic slowdown caused by the coronavirus (COVID-19) pandemic, railroad management has unleashed an unprecedented barrage of measures to manipulate recalls from furloughs, make already draconian attendance policies even more punitive and interfere with union representatives who fight to protect their members from this abuse.
SMART Transportation Division and the BLET’s National Division both have received multiple reports from their General Committees of Adjustment on various Class I railroads indicating two specific types of recall-related conduct that could jeopardize tens of thousands of dollars in unemployment benefits. These benefits are paid pursuant to the Railroad Unemployment Insurance Act (RUIA), which is administered by the U.S. Railroad Retirement Board.
At least one carrier is disputing unemployment claims for all days later than the date of a recall notice, regardless of when the furloughed worker actually received the notice and irrespective of collective bargaining agreement provisions that provide the employee with a certain number of days within which to report. These provisions allow furloughed railroad workers to make necessary arrangements to settle personal and family obligations, such as child care, to accommodate a return to work without being penalized economically for the position in which the carrier’s furlough originally placed them.
The GCAs have also reported that one or more carriers have recalled furloughed employees who, after reporting for work, are then furloughed for a second time. In at least one instance, an employee quit other employment he had found, only to be kicked to the street again by the railroad without ever having performed service. And, for workers receiving RUIA benefits, a one-week waiting period during which no benefits are paid could be triggered, depending upon the timing and duration of this second furlough.
The leaders of both unions expressed outrage over these actions.
“Just when one thinks the carriers can’t possibly stoop any lower, they try to game the RUIA system to their benefit,” said SMART-TD President Jeremy R. Ferguson and BLET National President Dennis R. Pierce. “Since RUIA tax rates are experience-based, maybe the carriers are looking to minimize next year’s hit. But cutting their losses on the backs of union members and their families in this fashion is reprehensible.”
In an August 14 letter, SMART-TD and BLET General Chairpersons jointly blasted BNSF management for changes to that Carrier’s attendance policy. According to the letter, the changes would be implemented via a blitz of threatening letters to workers who took off from work on what are now, but were not then, viewed by the Carrier as being “high impact” days. Most of these are family-friendly days, including national holidays, and letters apparently are being sent even in cases where permission to take the time off had been granted to workers.
“The Carrier continues to remain inflexible when it comes to respecting workers’ attempts to have lives outside of work,” the union presidents said. “If a worker happens to have chosen to engage in a family event, to enjoy a holiday or some sort of emergency cropped up on one of these unknown-until-now ‘high-impact’ days, he or she can now expect to receive a threatening letter and have a watchful eye just waiting to issue punishment if they dare have off time that coincides with another of these days.”
The unions’ General Chairpersons also pointed out that thousands of BNSF operating employees remain furloughed, and that this reserve is more than sufficient to meet any service needs on “high impact” days while, at the same time, allowing reasonable time off from work. Further, they report that the Carrier continues to do nothing to address long-standing problems with poor lineups, denial of reasonable vacation and personal leave requests, excessive held away-from-home terminal times during holidays, excessive on-duty times and denied holiday pay claims. As a reminder, even in the midst of a pandemic-stricken U.S. economy, BNSF reported second-quarter earnings of more than $1.13 BILLION in net earnings and a 61.1% operating ratio thanks to the essential work done by employees who are being targeted for discipline and punishment by this policy.
BNSF also is attempting to pressure working local union representatives to not take time off from work to represent their members. In some cases, local representatives are invited to conferences with the railroad, then are denied the time off work to attend the conference, forcing them to mark off for union business. When they do so, the railroad warns that their use of union business mark-offs is excessive and they, too, may fall subject to that Carrier’s intensified attendance policy.
“Shame on BNSF for expanding their anti-worker attendance policy in a way that is plainly anti-family,” Ferguson and Pierce said. “In no event will our union representatives be intimidated into not performing the duties of their offices. Our members should keep in mind that Election Day in November will determine whether these examples of unconscionable corporate misbehavior will continue to receive the approval of federal government officials at the highest levels.”
The joint letter from the SMART Transportation Division and BLET General Chairpersons to BNSF objecting to that Carrier’s attendance policy changes is available here.

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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 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 (May 27, 2020) — The Federal Railroad Administration (FRA) extended safety waivers granted to the Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA) in the early stages of the coronavirus pandemic recently, again favoring the material concerns of the carriers over the safety of America’s rail workers and of the general public.
The extension runs until the earlier of when the emergency declaration is lifted, or 60 days from letters dated May 21 to the AAR and ASLRRA by the agency governing safety on America’s railroads. The broad waivers concerning numerous safety regulations and training requirements were initially set to expire beginning May 24, 29 and June 9.
The leaders of two of America’s largest rail unions, the SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET), objected to the lengthening of these waivers that they had described as “alarming” when first initiated.
“The agency continues a pattern of FRA appeasement to the carriers,” said SMART-TD President Jeremy R. Ferguson and BLET President Dennis R. Pierce. “Essential safety tasks once again are being deferred with regulators’ blessings while the agency could not be bothered to enact an emergency order to hold carriers accountable to Centers for Disease Control and Prevention minimum health and safety standards for employees during the COVID-19 pandemic.”
The waiver extension, granted nine days after the AAR’s petition to renew, cover regulations governing:

  • Periodic track inspections
  • Training
  • Quick tie-ups
  • Locomotive and conductor certification
  • Territorial qualifications

Conversely, SMART-TD and the BLET jointly petitioned FRA to respond to the pandemic multiple times in March seeking emergency orders to improve working conditions and to better protect workers from potential infection by requiring carriers to adhere to basic CDC protocols. The agency, however, declined to put its full regulatory power on the side of protecting essential transportation workers.
“The continued pattern of rubber-stamping requests by carriers while unabashedly coming up short for the essential workers who have continued to show up and work through the pandemic shows where FRA’s priorities are,” the union presidents said.

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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 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 (April 15) — The Federal Railroad Administration (FRA) on April 10 denied requests submitted by labor Organizations which, if approved, would have provided critical protections for railroad employees during the ongoing national COVID-19 (coronavirus) pandemic, according to the SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET).
“Although FRA believes that many safety precautions included in the Petitions could constitute best practices that should be applied in the railroad industry…” said FRA Administrator Ronald Batory in his response to the Organizations, “…FRA does not believe that an emergency order is justified.” Meanwhile, FRA is standing behind its decision to approve sweeping emergency relief requests submitted by rail carriers.
Previously, in an April 2 letter to SMART-TD President Jeremy Ferguson and BLET President Dennis Pierce, FRA Administrator Batory defended his agency’s approval of a wide-ranging 60-day waiver that suspends or delays scores of critical safety regulations. Yet, nowhere in his letter did Administrator Batory even acknowledge receipt of the unions’ separate requests for Emergency Orders for freight rail service and for passenger/commuter rail service — which were filed jointly by the two unions before the railroads filed their waiver petitions. A copy of his letter is available here (PDF).
In late March, the FRA granted a sweeping petition for a 60-day waiver of scores of critical safety regulations. On March 31, the unions called the waiver “alarming” and demanded clarification from the FRA.
“In their Emergency Relief requests, the carriers placed a strong emphasis on claims that manpower shortages either exist, or may exist, regardless of the fact that thousands of rail employees remain in furlough status,” SMART-TD President Ferguson said. “The FRA’s decision to issue waivers based on these bogus claims is disturbing, especially when the waivers apply to territorial qualifications, hours of service, and scope rules for certain crafts. It’s time to begin recalling furloughed employees and preparing for a worst-case scenario, rather than jeopardizing the safety of our crews, their households, and our communities.”
“It appears that the FRA has done nothing more than rubber-stamp a wish list from the rail carriers, absolving them from enforcing critical safety rules,” BLET President Pierce said. “Regardless of how Administrator Batory now describes FRA’s waiver, it has given a carte blanche invitation to the industry to ignore rules, and it will have a substantial chilling effect on safety if fully applied.”
The FRA has yet to mandate safety protocols to protect the health of railroad workers amid the national COVID-19 (coronavirus) outbreak. In letters dated March 6 and March 20, SMART-TD and the BLET urged the FRA to issue an Emergency Order implementing Centers for Disease Control and Prevention (CDC) guidelines to help mitigate the potential spread of the coronavirus among rail workers. In his April 10 response, FRA Administrator Batory acknowledges that his administration is authorized to issue Emergency Orders when an “unsafe condition or practice, or combination of unsafe conditions and practices, causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment.” Nonetheless, Batory goes on to advise “…[COVID-19] challenges are not unique to the railroad industry, and thus not the type of rail safety issue where FRA would typically exercise its emergency order authority….” Rather than grant the Organizations’ requests for an Emergency Order, FRA published a Safety Advisory recommending that the railroads develop and implement practices consistent with Federal recommendations and CDC and OSHA guidelines.
“Over the centuries, our nation’s railroads have proven to us time and time again that they are incapable of responsible self-regulation,” President Ferguson said. “The FRA’s Safety Advisory is merely a recommendation to the railroads to provide our members the safe and sanitary working environment that they and their families deserve. This does not inspire confidence that the railroads will actually comply with these guidelines as written, and it will apparently now be up to us as labor to hold them accountable to those standards.”
“This Administration’s refusal to regulate worker safety stands in stark contrast to its actions to appease the railroad industry,” President Pierce said. “On a daily basis, railroad crews are being subjected to conditions that violate the CDC’s best practices for social distancing, sanitation, and cleanliness, and they are not provided the necessary tools to keep themselves safe, such as sanitizers, disinfectants and personal protective equipment. Our members put their lives on the line every day when they go to work, and the FRA must do more to protect their lives and their livelihoods.”

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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 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.

SMART Transportation Division President Jeremy R. Ferguson and Brotherhood of Locomotive Engineers and Trainmen (BLET) President Dennis Pierce sought clarification today from the Federal Railroad Administration (FRA) after the agency granted 60-day emergency waiver requests to railroads on March 25, ostensibly to maintain their operations during the COVID-19 pandemic.
“As you are already aware, SMART Transportation Division, Brotherhood of Locomotive Engineers and Trainmen, and other rail labor Organizations take strong exception to certain aspects of FRA’s seemingly absolute and unconditional approval of such requests,” the presidents wrote in a letter to Administrator Ron Batory. “We find the sweeping nature of these approvals alarming, especially in view of the fact that the rules waived are written with the safety of our members, and the general public, in mind.
“Notwithstanding the unfounded nature of some of the carriers’ claims in their applications, our immediate concerns are founded in our firm belief that if the carriers understand and apply FRA’s waiver to be carte blanche invitation to ignore rules, it will have a substantial chilling effect on safety.”
The waivers, granted by Batory and signed by Karl Alexy, associate administrator for railroad safety for FRA, were held for a number of days by the agency, which limited the ability of labor organizations to comment and seek a public hearing.
Meanwhile, an emergency order request sought by SMART-TD and the BLET seeking sanitation of areas frequented by frontline rail workers through the course of performing their “essential” duties remains under consideration on the desks of FRA officials.
The waivers grant the Association of American Railroads (AAR), American Short Line and Regional Railroad Association (ASLRRA) and American Public Transportation Association (APTA) as well as other railroad entities the ability to temporarily circumvent established federally mandated requirements for:

  • Track inspection
  • Operational tests and inspections
  • Restrictions on utility employees
  • Locomotive and conductor certifications
  • Territorial qualifications

The reason cited by carriers in their petition was to cope with potential workforce shortages the railroads may experience during the coronavirus pandemic.
“Petitioners assert that a reduction in availability of employees due to the COVID-19 pandemic will affect railroads’ ability to keep freight trains carrying critical goods and materials necessary for the country’s welfare operating during this emergency, and that compliance with all Federal railroad safety regulations, with the expected workforce shortage, would significantly hinder railroads’ ability to operate,” the FRA said in its response granting the waivers.
But thanks in part to their adoption of Precision Scheduled Railroading (PSR) practices since 2017, the total employee headcount for Class I freight carriers – including administration/management, maintenance and transportation crew, as reported by the federal Surface Transportation Board (STB), has been axed by roughly 14,000 people in 2019 and by 33,000 since 2000.
STB says that in February 2020 that Class Is had 56,767 transportation crew employees, down from a three-year peak of 68,980 in November 2018.
“There is also a concern that the carriers would use the excuse of a ‘downturn in business’ to artificially create a shortage of manpower to exploit the use of the waivers,” Ferguson and Pierce wrote.
Numbers provided to the union show that approximately 15 percent of T&E personnel are furloughed at the time. SMART-TD leader also have knowledge that carriers recently contacted the Railroad Retirement Board (RRB) in anticipation of offering voluntary furloughs to employees during the pandemic, which incidentally would make the employee ineligible for RRB unemployment benefits.
Among the most-dangerous aspects of this set of waivers is carriers being permitted to allow employees who are unqualified in the territory and uncertified to operate trains as long as Positive Train Control (PTC) technology is present and engaged.
The federally mandated deadline for full PTC implementation is Jan. 1, 2021, and full interoperability among railroads has not been achieved, yet these waivers make the assumption that PTC functionality is sufficient to allow for unqualified crew members to operate over America’s railroads.
The union has received numerous reports of the technology not working as intended and top FRA leadership has indicated in a conversation that PTC was in a “shakedown” phase.
Information provided by the railroads in December 2019 to FRA reported Class I PTC system interoperability at 48 percent.
The FRA waivers of regulations also allow for:

  • Verbal quick tie-ups
  • Shortened time intervals for required locomotive maintenance and inspections
  • The movement of defective equipment to the “nearest available” repair location
  • 95% operative brakes to be permissible for trains leaving their initial terminal
  • Trains can travel 1,200 miles without an intermediate Class IA brake inspection
  • Extended haul trains can travel 2,000 miles without an intermediate Class IA brake test
  • The four-hour off-air time is extended to 24 hours and 48 hours with FRA permission
  • Transfer test requirements are relaxed
  • The ability to combine two operating trains without additional inspections other than a Class III brake test
  • Relaxation of yard air source testing and calibration requirements and of requirements for single-care air brake tests
  • Relaxation of required testing and calibration of telemetry equipment

“These regulations were written with the public’s safety in mind,” SMART-TD President Jeremy Ferguson said. “A number of these waivers are not in the interest of safety and could be creating a recipe for disaster to rail workers and for the public.”
If particular properties do not have a demonstrated reduction of personnel directly related to the COVID-19 pandemic, for instance, illness or self-quarantine, and these waivers are being employed, members are asked to report it to union leadership immediately.
Read the unions’ letter to FRA.
Read FRA’s letter that grant the waivers to the railroads.

CLEVELAND, Ohio (March 20, 2020) — On the heels of their joint petition to the Federal Railroad Administration (FRA) requesting an Emergency Order (EO) to address employee safety conditions in response to the national COVID-19 (coronavirus) outbreak, the SMART Transportation Division and the Brotherhood of Locomotive Engineers and Trainmen (BLET) are now asking for a similar EO for Amtrak and passenger/commuter lines.

“Therefore, it is necessary that Amtrak and all railroads providing passenger and commuter rail service to take immediate and appropriate precautions to mitigate against the spread of the virus amongst their workforces and passengers, to minimize the exposure of their employees to the virus during the performance of their duties, and to maintain sufficient staffing levels to compensate for reduced headcounts caused by sick employees and family members until the virus begins to subside,” SMART-TD President Jeremy R. Ferguson and BLET President Dennis R. Pierce wrote in their petition.

The unions’ request for an EO basically calls for an action plan to help address the potential spread of the coronavirus among rail workers by using protocols established by the Centers for Disease Control and Prevention (CDC). To date, the FRA has failed to enact such an action plan. Several components of the unions’ passenger rail EO request mirror those requested in their joint freight petition, which includes: locomotive sanitation, common room sanitation, employee temperature observation protocols, away-from-home terminal procedures, crew transportation sanitation, what to do if an employee develops symptoms, and furlough recall procedures. The unions’ petition for a passenger EO covers: coach/passenger car sanitation standards, sleeper car sanitation, and directives in case a passenger develops symptoms.

The unions suggest that 25% of furloughed rail personnel should immediately be recalled to service to deal with anticipated shortages and staffing needs, in accordance with President Trump’s invocation of the Defense Production Act.

“In order to standardize and define the best protocols across the industry for mitigation of the spread of the virus and the protection of both passengers and employees, there exists a number of safety precautions that need to be immediately ordered by FRA,” Presidents Ferguson and Pierce stated.

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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 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.

Read the emergency petition filed to FRA. (PDF)

CLEVELAND, Ohio (March 20) — The SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) today filed a joint request urging the Federal Railroad Administration (FRA) to issue an Emergency Order (EO) to address employee safety conditions in response to the national COVID-19 (coronavirus) outbreak.
“The employees we represent are essential to the health, safety, and security of the nation. Therefore, it is necessary that the railroads take immediate and appropriate precautions to mitigate against the spread of the virus amongst their workforces, to minimize the exposure of their employees to the virus during the performance of their duties, and that Class I railroads maintain sufficient staffing levels to compensate for reduced headcounts caused by sick employees and family members, as well as to seamlessly handle predicted increases in volume once the virus begins to subside,” SMART-TD President Jeremy R. Ferguson and BLET President Dennis R. Pierce wrote in their petition.
Although emergency relief procedures were activated by FRA Administrator Ron Batory on March 13, many rail carriers have been slow to adopt, or in some cases have neglected to adopt, Centers for Disease Control and Prevention (CDC) measures to mitigate the spread of COVID-19. An action plan to help address the potential spread of the coronavirus among rail workers has not been issued by FRA and reports that Class I employees, both administrative and over-the-road personnel, have confirmed or suspected COVID-19 illnesses have been received.
The emergency request from the unions follows a letter their presidents sent on March 6 that requested, among other emergency remedial measures, thorough sanitation efforts in railroad facilities and on locomotives to prevent the infection of workers.
The unions’ request includes that railroads adhere to CDC guidelines in the following areas:
• Locomotive sanitation
• Sanitation of common areas used by employees
• Monitoring of employee temperatures
• Sanitation of crew transportation vehicles
The unions also seek that accommodations for meals, including long waits for food, be made in the documentation of hours of service reports for away-from-terminal personnel, including an additional 30 minutes to report in response to a call to work.
Procedures on how to handle employees who develop symptoms of the coronavirus requested by the unions reflect CDC guidelines, which include isolation, personal protective equipment, transport, and self-quarantine.
Finally, the presidents wrote, 25% of furloughed rail personnel should immediately be recalled to service to deal with anticipated shortages and staffing needs, in accordance with President Trump’s invocation of the Defense Production Act.
“To standardize and define the best protocols across the industry for the mitigation of the spread of the virus and the protection of employees, these safety precautions need to be immediately ordered by FRA,” Presidents Ferguson and Pierce stated.
Read the petition (PDF)

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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 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 (March 6) — SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) jointly petitioned the Federal Railroad Administration (FRA) on March 6 to take action in responding to the rapidly spreading COVID-19 (coronavirus) in the United States.

“With at least 231 patients treated in 22 states, and at least 14 deaths at the present time … we and other rail labor Organizations take this issue very seriously, and we have been monitoring it closely,” wrote SMART-TD President Jeremy Ferguson and BLET President Dennis R. Pierce in a letter to FRA Administrator Ronald J. Batory.

The two union presidents pointedly questioned the FRA’s lack of an action plan to help address the potential spread of the coronavirus among rail workers.

“As you are likely already aware, over the last several weeks multiple departments within the Department of Transportation … have issued guidelines to employers on how to approach this issue, along with statements and guidelines focused on educating and protecting the crew members, passengers, and consumers who may be impacted by this deadly disease,” the union presidents wrote. “To our knowledge, the FRA has overlooked, or perhaps outright disregarded, its responsibility to get involved with this matter.”

The presidents urged FRA to issue guidelines directed at U.S. rail carriers, employees and passengers similar to those issued by other departments within the DOT.

Those would include:

  • Sanitizing equipment such as (but not limited to) locomotive cabs, computers, remote control boxes and communal areas such as passenger cars, offices, crew staging areas, company provided ground transportation, and away-from-home lodging facilities.
  • Providing crews and passengers with personal protective equipment, alcohol-based hand sanitizer strong enough to kill viruses, and other cleaning supplies as deemed appropriate.
  • Encouraging employees to stay home if they have respiratory symptoms (such as coughing, sneezing, shortness of breath, and/or fever) that are similar to those associated with the coronavirus and to leave if they develop such symptoms while working.
  • Strongly encouraging rail carriers to relax current attendance policies which can be described as unforgiving, at best, to employees who miss work due to illness.
  • Educating all rail employees (including supervisory staff) on the appropriate guidelines for self-monitoring of their health, as well as monitoring and addressing others who appear to be symptomatic.
  • Reporting to appropriate health departments where employees have shown aforementioned symptoms that prevent them from carrying out their assigned duties.
  • Developing plans for employees who reside with, and/or come into direct contact with individuals who are symptomatic.
  • Encouraging carriers to develop health programs and practices which exceed FRA’s recommended guidelines.
  • Encouraging all parties to understand and comply with other such guidelines issued by the Centers of Disease Control and Prevention (CDC).

Presidents Ferguson and Pierce concluded by again urging prompt action from FRA to protect the safety of railroad workers and the traveling public.

“Further, we ask that you provide continual updates to these guidelines, as other departments have done. Please advise of your plans pertaining to this very serious situation,” they wrote.

Read the letter to FRA Administrator Batory.

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

By John Previsich, SMART TD President, and Dennis Pierce, BLET National President
On Thursday, May 23, 2019, we were informed that the Federal Railroad Administration (FRA) had released a notice, withdrawing a 2016 notice of proposed rulemaking establishing a minimum train crew size for most rail freight operations in the United States. This news was not surprising.
What is shocking, however, is the degree to which FRA has chosen to subordinate the safety of BLET and SMART TD members, other railroad workers, and the American public to the interests of the nation’s major railroads.
FRA’s reference to current crew sizes, which have existed for decades, as mere “crew redundancy” displays an astonishing ignorance of the findings of the agency’s own research studies, which establish — in detail and beyond dispute — the unique and specific duties of each crewmember.
FRA also disappointingly engages in self-serving fact selection in its attempts to negate the importance of the 2013 Lac-Mégantic tragedy and the Casselton, North Dakota, oil train derailment — and subsequent explosion and fire — to the crew size debate. And it simply ignores several subsequent accidents where a two-person crew saved the public from an even more horrific outcome.
In its rush to diminish the safety impact of common-sense crew size regulations, FRA also points to various regulations requiring risk analyses and the adoption of risk reduction plans by railroads. While our Organizations fully support such plans, we note that Congress mandated regulations governing these subjects more than a decade ago, but they have yet to be promulgated because of industry recalcitrance and obstructionism.
Also, the argument that two-person crews have not been proven safer — because of FRA’s failure to collect crew size data — while the data support a conclusion that single-person crews are not demonstrably less safe is mystifying in its logic, to be charitable.
Moreover, the federal rail safety regulator hints that there is no “specific requirement that would prohibit autonomous technology from operating a locomotive or train” in the absence of any human crewmember whatsoever as a means of “reducing accidents caused by human error.” If the ongoing grounding of the Boeing MAX aircraft has taught nothing else, FRA and the Department of Transportation should be mindful of the danger of transferring the risk of a human factors accident from operator to programmer when autonomous technology is implemented. For this reason, FRA’s declared “support [for] the integration and implementation of new automation technologies” on the nation’s locomotives should give everyone pause.
Lastly, the Agency’s invocation of the negative preemption doctrine is incredible. Both the industry and the Agency reject prescriptive safety regulations as a philosophical matter, because they supposedly require a “one size fits all” approach; indeed, this was part of the industry’s argument against the proposed rule.
In stark contrast to this philosophy, FRA’s invocation of negative preemption seeks to promulgate a prescriptive prohibition, regardless of the implications of its action on federalism. In so doing, the valid safety concerns expressed by supporters of the proposed rule such as National League of Cities — representing more than 19,000 cities, villages, and towns — and the Western Organization of Resource Councils are dismissed out of hand.
We frankly did not expect this Administration to complete this rulemaking, but we did afford the new Federal Railroad Administrator a fair opportunity to demonstrate that safety was his primary objective. Given the scope of this withdrawal, the Administrator has clearly failed the test, because he has placed corporate profits above public safety. Railroad safety has taken a giant step backward today, but our Organizations do not intend to let this development go unchallenged.

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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 over 57,500 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.