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The UTU and the Sheet Metal Workers International Association (SMWIA), along with two other rail labor organizations, have filed a complaint with the Department of Labor’s Occupational Safety and Health Administration (OSHA), alleging BNSF has expanded its harassment and intimidation of injured workers to include the targeting of witnesses.

In recent months, OSHA has imposed millions of dollars in sanctions against railroads – including BNSF – for violating federal laws that provide protections for injured rail workers and those reporting safety violations.

The UTU and the SMWIA – now combined as the Sheet Metal, Air, Rail and Transportation Workers (SMART) — along with the International Brotherhood of Electrical Workers and the Brotherhood of Locomotive Engineers and Trainmen — filed a complaint with OSHA July 31 alleging that BNSF officials in Montana are attempting “to interfere with an OSHA investigation into possible violations of the Federal Rail Safety Act” as reported by BNSF employees.

BNSF has written to possible witnesses, asking if they would “object” to having a BNSF representative present during their interview by OSHA investigators.

“Plainly,” states the rail organizations’ complaint, “any employee receiving a communication like this, however innocently couched from the company, will be intimidated by the knowledge that the company is looking over his/her shoulder insofar as providing information to OSHA is concerned.”

The Federal Railroad Safety Act of 2007 extended whistleblower protection to employees retaliated against for reporting injuries, illnesses or safety concerns. 

The complaint filed with OSHA says, “We do not know how BNSF was able to identify these employees as witnesses,” as OSHA previously rejected a BNSF demand that OSHA disclose to BNSF the names of employee witnesses. OSHA told BNSF that “such requests are wholly inappropriate and that OSHA will not comply with them.”

OSHA previously has made clear that “the safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation.”

The rail labor organizations urged OSHA to “immediately contact BNSF and sternly rebuke the carrier for this inappropriate conduct. The confidentiality protections in the Federal Railroad Safety Act’s governing regulations and OSHA’s Whistleblower Investigations Manual require nothing less.”

Additionally, the rail organizations cited a June 1 OSHA letter to BNSF stating that “OSHA assumes that BNSF [legal] counsel would be well aware of the conflict of interest that would inevitably arise if BNSF’s attorney were to represent both the corporation and non-managerial employees in a whistleblower case.” The complaint says, “Apparently, BNSF did not see fit to explain that conflict of interest when approaching these employees and offering to be their ‘liaison’ with OSHA.

“No railroad employee [should be] intimidated from filing a complaint initiating an OSHA investigation or from participating in such an investigation, or in any way retaliated against by his/her employer for doing so,” said the rail organizations in their complaint.

Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the Federal Rail Safety Act.

BNSF has a history of attempting to violate federal laws protecting workers. In March, following a complaint by the UTU and the SMWIA to the Equal Employment Opportunity Commission (EEOC), BNSF rescinded a proposed new rule that would have required its employees to provide highly personal medical information.

The UTU and the SMWIA told the EEOC that the BNSF would be in violation of the Americans with Disabilities Act, the Civil Rights Act and other federal statutes by requiring employees provide the railroad with doctor’s notes, diagnostic test results and hospital discharge summaries that could disclose non-workplace injuries and illnesses. BNSF rescinded the proposed new rule prior to EEOC action.

England

More than 170 bus operators, mechanics, service employees and store keepers employed by the Los Angeles area Montebello (Calif.) Bus Lines are now UTU members after overwhelmingly voting, “UTU, yes.”

In the Los Angeles area, the UTU also represents employees of Los Angeles County Metropolitan Transportation Authority (LACMTA) and Santa Monica Municipal (Big Blue) Bus Lines.

Montebello Bus Lines transports some eight million passengers annually in the communities of Alhambra, Bell Gardens, Boyle Heights, Commerce, downtown Los Angeles, East Los Angeles, La Mirada, Montebello, Monterey Park, Pico Rivera, Rosemead, South Gate and Whittier.

UTU Alternate Vice President John England said, “Since International President Mike Futhey took office in January 2008, the UTU has set a record in organizing, with 29 new air, bus and rail properties organized and two raids on UTU properties turned back.”

England was joined in the organizing drive by Bus Department Vice President Bonnie Morr and Bus Department Alternate Vice President Brian Donald, along with Sheet Metal Workers International Association (SMWIA) organizers Manuel Gonzalez and Ernesto Tolentino. The UTU and SMWIA are now merged as the International Association of Sheet Metal, Air, Rail and Transportation (SMART) Workers.

Praised for their efforts in organizing fellow Montebello Bus Lines employees were bus operators Rachel Burciaga and Frank Garcia. “Rachel and Frank were an integral part of making this organizing campaign a success and it would not have been possible without their assistance,” England said.

After BNSF announced it would demand highly personal information from employees relating to off-duty medical procedures and issues, the UTU and the Sheet Metal Workers International Association (SMWIA) asked the Equal Employment Opportunity Commission (EEOC) to investigate.

The proposed new carrier rule, said the UTU and SMWIA, is discriminatory and violates federal law by requiring workers to provide highly personal medical information.

Within days, BNSF rescinded the policy rather than face an EEOC investigation.

As the UTU and SMWIA documented in its complaint to the EEOC, BNSF had no statutory right to view the information – that its proposed rule was in violation of the Americans with Disabilities Act, the Genetic Information Nondisclosure Act, the Civil Rights Act and the Pregnancy Discrimination Act by requiring that employees provide the railroad with doctor’s notes, diagnostic test results and hospital discharge summaries.

“Each day that BNSF’s policy remains in effect, more employees face the likelihood of having their statutory rights violated,” the UTU and SMWIA told the EEOC.

“And once an employee’s rights are violated – that is, once BNSF has been notified of the away-from-work medical condition or event and has obtained the employee’s statutorily-protected medical information – there is no way to undo the violation,” the UTU and SMWIA told the EEOC.

Additionally, said the UTU and SMWIA, the medical information that BNSF sought was likely to reveal a disability that is neither job related nor consistent with business necessity, and is likely to result in BNSF obtaining genetic information.
 
Moreover, the proposed BNSF rule would have discriminated against women affected by pregnancy and/or related medical conditions, the UTU and SMWIA told the EEOC.

Other labor organizations filed similar complaints with the EEOC.

U.S. Capitol Building; Capitol Building; Washington D.C.Public transportation funding, transportation jobs, workplace safety, Railroad Retirement and Medicare are under a mean-spirited and sustained attack by congressional conservatives who are trying to muscle their agenda through Congress prior to the November elections.

The UTU and Sheet Metal Workers International Association – now combined into the Sheet Metal, Air, Rail and Transportation Workers (SMART) – along with other labor organizations, public interest groups, congressional Democrats and moderate Republicans are working on Capitol Hill to block these attempts, which could be devastating to working families.

UTU National Legislative Director James Stem and SMWIA Director of Governmental Affairs Jay Potesta outlined the conservatives’ agenda that has surfaced in proposed congressional transportation reauthorization and budget legislation:

* Cut $31.5 billion in federal transportation spending, which would threaten some 500,000 American jobs.

* Eliminate federal spending for Amtrak and expansion of intercity rail-passenger service and high-speed rail, with a direct impact on jobs associated with that service.

* Gut federal spending for the Alaska Railroad, which would force elimination of scores of train and engine workers represented by the UTU.

* Delay implementation of positive train control, which is a modern technology to reduce train accidents and save lives and limbs.

* Eliminate federal spending for expansion of local and regional transit service as Americans scramble to find alternatives to driving in the face of soaring gasoline prices. The federal spending cut would prevent the return to work of furloughed workers from budget-starved local transit systems and likely cause layoffs of still more transit workers.

* Encourage privatization of local transit systems, which would open the door for non-union operators eager to pay substandard wages and eliminate employee health care insurance and other benefits.

* Remove any requirement for shuttle-van operators, whose vehicles cross state lines, from paying even minimum wage or overtime – a proposal, which if enacted, could lead to applying that legislation to interstate transit operations.

* Eliminate Railroad Retirement Tier I benefits that exceed Social Security benefits even though railroads and rail employees pay 100 percent of those benefits through payroll taxes, with no federal funds contributing to Tier I benefits that exceed what is paid by Social Security.

* Replace direct federal spending on Medicare in favor of handing out vouchers to be used to purchase private insurance, which will undercut the viability of Medicare.

* Provide large tax breaks to millionaires and preserve tax breaks for Wall Street hedge funds that cater to the wealthy, while cutting by two-thirds federal assistance to veterans and public schools.

The UTU member-supported political action committee (PAC) is helping to fund election campaigns by labor-friendly candidates, and a labor-wide “get out the vote” drive will go door-to-door across America in support of labor-friendly candidates in advance of November elections.

In the meantime, UTU and SMWIA legislative offices will continue their education campaign on Capitol Hill, visiting congressional offices to explain the economic devastation the current conservative agenda would impose on working families.

On behalf of members employed by BNSF, the UTU and the Sheet Metal Workers International Association (SMWIA) have asked the Equal Employment Opportunity Commission (EEOC) to investigate the railroad’s new medical reporting policy, which the organizations say is discriminatory and violates federal law by requiring workers to provide highly personal medical information.

BNSF is demanding employees report off-duty medical procedures and issues. This highly personal information is protected, and BNSF has no statutory right to view the information, the UTU and SMWIA said in  their complaints.

The discrimination complaints filed with the EEOC allege BNSF is in violation of the Americans with Disabilities Act, the Genetic Information Nondisclosure Act, the Civil Rights Act and the Pregnancy Discrimination Act by requiring, since Jan. 1, 2012, that employees provide the railroad with doctor’s notes, diagnostic test results and hospital discharge summaries.

“Each day that BNSF’s policy remains in effect, more employees face the likelihood of having their statutory rights violated,” the UTU and SMWIA told the EEOC. “And once an employee’s rights are violated – that is, once BNSF has been notified of the away-from-work medication condition or event and has obtained the employee’s statutorily-protected medical information – there is no way to undo the violation.”

Additionally, said the UTU and SMWIA in their complaint, the medical information that BNSF requires employees to provide is information likely to reveal a disability and is neither job related nor consistent with business necessity, and is likely to result in BNSF obtaining genetic information. Moreover, the BNSF policy discriminates against women affected by pregnancy and/or related medical conditions.

Other labor organizations have filed a similar complaint with the EEOC.

By UTU International President Mike Futhey

“Stay calm and carry on” has always been the best advice during challenging times.  It is appropriate advice for UTU members and employees as we move forward following the October 10 merger arbitration award.

That arbitration ruling makes the merger look very similar to the merger we were initially promised — the merger the UTU membership and I voted for in 2007.

The arbitrator recognized that maintaining the historical governance of the UTU was important by ruling that the UTU’s cherished craft autonomy, along with general committee autonomy, be preserved post-merger; and that changes to the UTU Constitution not be unilaterally made by the SMWIA executive council.

As required by the arbitration decision, I met with new SMWIA General President Joe Nigro, who took office July 1. The meeting was productive and positive.

At a meeting in early November of all incoming UTU International officers — a meeting traditionally held between a quadrennial convention and those officers being seated — we discussed the events of the past four years. 

We agreed unanimously that UTU members’ interests have been vigorously defended, and it is now time to move forward — discussing with the SMWIA the rights and traditions of both organizations, and to collaborate constructively in finding the most efficient and equitable means of resolving any further outstanding differences, including pending litigation.

I know that I speak for Joe Nigro, as well, when I say that the leadership of both the UTU and the SMWIA has, as our highest priority, the delivery to our members of the wages, benefits and working conditions they expect and deserve.  We also share a commitment to our loyal employees, who serve our members on a daily basis.

In the meantime, I assure you that our United Transportation Union and our United Transportation Union Insurance Association are each financially strong and are continuing to grow stronger notwithstanding this deep and lengthy recession.

As we put substantial merger-related litigation expenses behind us, and continue managing our other costs wisely, the UTU’s monthly surplus will continue to grow and allow for improved member representation.

The UTU and its predecessor unions have persevered and prospered for nearly a century and a half by being resolute in representing our members and flexible in the face of changing demands and events. It is a formula that has served our members well and will continue to serve us well.

An arbitrator has ruled that a merger between the UTU and the Sheet Metal Workers International Association (SMWIA) be implemented and that the presidents of the two unions – or their designees — meet to decide how the implementation is to proceed.

Arbitrator Michael H. Gottesman said the merger agreement to create the Sheet Metal, Air, Rail and Transportation (SMART) Workers Union is an enforceable agreement. Gottesman was named by AFL-CIO President Rich Trumka to decide the question of enforceability after binding arbitration was ordered by Federal District Court Judge John Bates.

Gottesman acknowledged that there is pending before Judge Bates another merger related case – a complaint by several UTU members that Titles I and V of the Labor Management Reporting and Disclosure Act (LMRDA) were violated. When Judge Bates ordered binding arbitration to determine if the UTU-SMWIA merger agreement is enforceable, he said the LMRDA claims were beyond the purview of the arbitrator, and that he would decide those claims following the outcome of the arbitration.

Although the SMWIA asked Gottesman to allow the SMWIA to, in Gottesman’s words, “effectively micromanage the implementation of the merger, complete with timelines and very detailed instructions for the behavior of UTU officials,” Gottesman denied the request.   

Ruled Gottesman: “It is far better that the parties decide how to implement the merger than to have an arbitrator do so.” Accordingly, the award simply directs the presidents of UTU and SMWIA (or their designees) to meet “to discuss any and all issues pertinent to implementation of the merger … and to continue meeting on a regular basis until all such matters have been resolved.”

A decision by an arbitrator to determine whether the merger agreement between the UTU and the Sheet Metal Workers International Association is an enforceable agreement is not expected before September.

The UTU and the SMWIA made presentations before arbitrator Michael H. Gottesman in early and mid-June. Briefs by both sides are to be delivered to Gottesman July 29.

Gottesman was named to arbitrate the dispute by AFL-CIO President Rich Trumka following a March 4 ruling of Federal District Court Judge John Bates.

Judge Bates, in his March 4 ruling, said a separate action by several UTU members challenging the validity of the merger is not within the arbitrator’s jurisdiction and he would delay a ruling on that complaint pending the outcome of the arbitration.

Arbitrator Michael H. Gottesman will hear presentations by the UTU and the Sheet Metal Workers International Association during five days of arbitration in June to determine whether the merger agreement between the UTU and the SMIWA is an enforceable agreement.

Gottesman, a law professor at Georgetown University in Washington, D.C., was named to arbitrate the dispute by AFL-CIO President Rich Trumka following a March 4 ruling of Federal District Court Judge John Bates.

The choice of Gottesman was jointly approved by UTU International President Mike Futhey and SMWIA National President Mike Sullivan.

Judge Bates, in his March 4 ruling, said a separate action brought by several UTU members challenging the validity of the merger — alleging violations of Titles I and V or the Labor Management Reporting and Disclosure Act — is not within the arbitrator’s jurisdiction and that he would delay a ruling on that complaint pending the outcome of the arbitration.

Gottesman will hear evidence from each organization June 7-9 and June 14-15. There is no deadline on his issuing a ruling.

Pursuant to a March 4 ruling of a federal district court judge, an arbitrator has been named to determine whether the merger agreement between the UTU and the Sheet Metal Workers International Association (SMWIA) is an enforceable agreement.

Georgetown University law professor Michael H. Gottesman has been named by AFL-CIO President Rich Trumka as the arbitrator — a choice approved jointly by UTU International President Mike Futhey and SMWIA National President Mike Sullivan.

In his March 4 ruling, Federal Judge John Bates said a separate action brought by several UTU members, challenging the validity of the merger — alleging violations of Titles I and V or the Labor Management Reporting and Disclosure Act — is not within the arbitrator’s jurisdiction and that he would delay a ruling on that complaint pending the outcome of the arbitration.

Arbitrator Gottesman earned an undergraduate degree at the University of Chicago and his law degree from Yale University.

He teaches labor law, constitutional law and civil rights at Georgetown University.

Gottesman held an appointment from President Jimmy Carter to review hundreds of candidates for federal court vacancies, and has published numerous articles for law journals. His latest article, “The Role of Labor in the 21st Century,” will be published later this year by the Columbia University Law Review.

As matters develop, further information will be posted at www.utu.org.