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.
Tag: moratorium
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.
A federal court in Texas ruled in favor of rail carriers this week, directing the SMART Transportation Division to negotiate over crew-consist without regard to moratoriums barring such negotiation.
U.S. District Court Judge Mark T. Pittman, a January 2019 Trump appointee, issued his ruling on February 10, 2020.
The case was filed Oct. 3, 2019, by BNSF, CSX, Kansas City Southern, Grand Trunk Western, Norfolk Southern, Illinois Central, Union Pacific, and the Belt Railway Company of Chicago asserting that the moratoriums in the various crew-consist agreements did not bar the carriers from reopening crew consist.
The judge, following the carriers’ arguments and ignoring any counter by the union, found that any dispute over whether the moratoriums barred reopening was a minor dispute, then nonsensically concluded that the union would have to negotiate while arbitrating over whether the union even had to negotiate in the first place.
“Unfortunately, this decision comes as no surprise. The court ignored the provisions of the RLA,” SMART-TD President Jeremy Ferguson said. “The judge sided with the carriers on every issue, not even recognizing our arguments or providing any real analysis. It is simply infuriating.”
Carriers are attempting to replace one of the crew members in the cab of the train with technology and to establish one-person operations. The crew-consist agreements that have been negotiated by the SMART-TD and its predecessor unions over many years stand in the way but are being undermined by this and other actions.
“As a group we are going to work together to correct the course that this ruling has put us on,” Ferguson said.
SMART-TD filed an appeal with the 5th Circuit Court of Appeals in New Orleans, La., on February 12, the day after the judge’s ruling was released.
In a related matter, the National Railway Labor Conference (NRLC), which represents the carriers, has requested that the National Mediation Board (NMB) appoint an arbitration board member to force a single arbitration over the more than two dozen crew-consist agreements that have been negotiated locally by various General Committees.
SMART-TD, and nearly two dozen of its GCs, have sued the NMB challenging the Republican members’ 2-1 decision granting the carriers’ request to appoint an arbitrator.
Judge Pittman’s ruling is available for review here.
Brothers and sisters of the SMART Transportation Division,
I wanted to take this opportunity to explain what the crew consist lawsuit that has been filed in federal court in Texas is about. From the questions we have received, it appears that there is some confusion.
The lawsuit, filed on October 3, 2019, by BNSF, CSX, Kansas City Southern, Grand Trunk Western, Norfolk Southern, Illinois Central, Union Pacific, and the Belt Railway Company of Chicago, attempts to challenge the crew consist moratoriums of various local agreements and force the Organization to bargain over crew consist on a national level in this upcoming round of national negotiations. As a bit of background, when the crew consist agreements were negotiated, the carriers agreed to a “moratorium” on negotiating over this topic. Under the Railway Labor Act, a moratorium serves to bar negotiations over topics for a defined period of time. The carrier is now insisting that we arbitrate the meaning of the moratorium provisions.
This is not the first time that the carriers have attempted to challenge the crew consist agreements they have entered into over the years. It seems that in each round of bargaining they raise this issue anew. And in each round, they have lost the argument. Although we have not yet been served with the lawsuit, we are ready to defend our agreements.
Interestingly, the lawsuit was filed on the same day we were holding the Association of General Chairpersons District 1 meeting. When notified of the suit, all 56 General Chairpersons, without exception, pledged to act in solidarity as we embark on the upcoming round of National Railroad contract talks. The signing of the resolution is but one example of the inseparability that we will exhibit going forward as we negotiate.
I have attached the lawsuit for your review, and I will keep you apprised as matters develop. With all the various media avenues that can be full of misinformation, I feel that it is extremely important that our members be aware of the facts of the situation.
In solidarity,
Jeremy Ferguson
President — Transportation Division