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The following article appeared in the August/September 2020 edition of the SMART Transportation Division News and is referred to by President Ferguson in the video above.
Dear Brothers and Sisters,
With the 2020 general election right around the corner, we are dedicating a large portion of this edition of the SMART-TD News to what may be the most-critical question we’ve ever been faced with: Who should serve as President of the United States for the next term?
Divided and contentious as this subject can be, I am asking that you take the time to read through with an open mind, and think critically about what we have riding on the outcome of this election as unionized essential transportation workers.
In determining who SMART and its Transportation Division should endorse, first and foremost we listened to what our members had to say. I want to sincerely thank each and every one of you who responded to our surveys and emails, called our office, and wrote to us to express your viewpoints. Your opinion matters to us above all else. With that being said, we also considered external sources and blocked out those that misrepresented the candidates and their intentions, or were biased towards one end of the political spectrum or the other.
Problem is, there is an abundance of misinformation coming from all directions. In a world where it’s difficult to trust virtually every source of information, where should we turn?
Fortunately, in this election we have a race where both candidates have set precedent in the White House; President Trump as the incumbent with nearly four years of experience under his belt, and Joe Biden with eight years of experience as our former Vice President. We also examined the promises that each candidate has made on the campaign trail, and compared those to their actions while holding elective office. As the saying goes, actions speak louder than words.
Below are some examples that you can trust, because they are based on objective fact – no conjecture, no spin, no bias, and no BS:

Federal Railroad Administration (FRA) appointments

In March 2009, the Obama/Biden administration nominated Joseph C. Szabo for the position of FRA administrator; a career railroader, SMART-TD member and Illinois State Legislative Director. Brother Szabo was the first FRA administrator to come from a rail labor background, and he served until 2015 when the Obama/Biden administration appointed Sarah Feinberg to the position.
Under Szabo’s tenure, accidents, injuries, and fatalities dropped to record-low levels, and the FRA improved its rules pertaining to fatigue mitigation and training requirements. Under Feinberg’s tenure, the FRA issued notice of a proposed rulemaking which would have required two-person train crews.
In July 2017, the Trump/Pence administration nominated Ronald Batory, the former CEO of Consolidated Rail Corporation, for the position of FRA administrator. Within one year of Batory’s nomination, the FRA had begun allowing Kansas City Southern to utilize Mexican train crews to cross our southern border and operate trains into Laredo, Texas.
SMART-TD and other rail labor unions had to sue the FRA to rectify this issue – a process which took more than two years to resolve.
During that time, the Trump administration ignored rail labor’s pleas to secure our southern border and prevent American jobs from being lost to foreign countries; both of which were campaign promises of his.
In May 2019, the FRA withdrew its proposed two-person crew rulemaking, claiming that research didn’t support implementing such a rule, and that two-person crews would unnecessarily impede the future of rail innovation and automation.

More on two-person train crews, and National Mediation Board (NMB) appointments

With Mr. Batory leading the FRA and its withdrawal of the proposed two-person crew rule, the nation’s rail carriers saw opportunity and in October 2019, eight (8) railroads filed a lawsuit against SMART-TD, attempting to force us to bargain over crew consist on a national level. To better their chances, the railroads filed their lawsuit in the Northern District of Texas, which is notoriously one of the least labor-friendly courts in the country.
The case was assigned to a Trump-appointed judge who in February 2020 ruled in favor of the rail carriers and ordered us to negotiate over crew consist, despite the fact that moratoriums are in place barring such negotiations.
At the same time they filed the above lawsuit, the railroads turned to the NMB, requesting that they begin the process of forcing SMART-TD into binding arbitration over the same crew-consist issues. The NMB is controlled by a 2/3 majority of Trump-appointed members, as follows:
■ Mr. Gerald W. Fauth III, a former consultant and president of a company that railroads hire for mergers, acquisitions, time studies, cost analyses and traffic analyses.
■ Ms. Kyle Fortson, a former labor policy director for Republicans on the Senate Health, Education, Labor, and Pensions Committee.
Despite SMART-TD’s objections, in January 2020, the NMB granted the railroads’ requests and voted by a 2/3 majority in favor of moving forward with the binding arbitration process.
In stark contrast to the above, Joe Biden has met with SMART’s leadership and committed to defending two-person crews. For more than 30 years, Biden commuted for several hours per day on Amtrak. To this day, he remains on a first-name basis with some of our members.
With respect to the NMB, the lone Obama/Biden appointee, Linda Puchala, is the former president of the Association of Flight Attendants. In the crew-consist binding arbitration
decision, Ms. Puchala wrote nearly three pages in dissent objecting to the NMB’s decision.

Federal Motor Carrier Safety Administration (FMCSA) appointments

Similar to the other regulatory agencies mentioned in this article, the FMCSA’s stated purpose is to establish policies governing carriers and ensure their compliance, thereby reducing accidents and protecting our bus members and the passengers we carry.
Under the Trump administration, the post of FMCSA administrator was vacant until February 2018, when Raymond P. Martinez was nominated and confirmed by the U.S. Senate. Martinez’s nomination was lauded by carrier-sponsored lobbying groups such as the American Trucking Associations, the American Bus Association and the United Motor Coach Association.
In October 2019, Martinez resigned as FMCSA administrator and Jim Mullen assumed the position of acting administrator. Mullen served in that capacity until his resignation in August 2020, which left Wiley Deck to act as FMCSA administrator.
This frequency in turnover has largely resulted in an agency without clear direction or leadership.
However, there has been one consistent theme over the last few years; the FMCSA has lent a sympathetic ear to the carrier-sponsored lobbying groups that endorse President Trump, while largely ignoring organized labor and the general public. This is evidenced by the FMCSA’s waiving of hours-of-service requirements for Mexican carriers, which already have inadequate regulations when compared to their U.S.-based counterparts. FMCSA has also turned a blind eye to carriers’ efforts to eliminate drivers’ breaks, including meal and restroom breaks, and they have allowed outsourcing of school bus drivers to third-party rideshare companies with questionable practices for conducting the requisite, thorough background checks for drivers.

National Labor Relations Board (NLRB) appointments

Similar to the NMB’s structure, the NLRB is required to have five members with a simple majority appointed by the president. To clarify the importance of these positions, these are the individuals who are in charge of investigating and remedying unfair labor practices with the carriers, as nominated by the Trump/Pence administration:
■ John F. Ring (chairman), a former management and labor relations attorney, appointed in 2018.
■ Marvin E. Kaplan, former chief counsel of the Occupational Safety and Health Review Commission, whose 2017 appointment was supported by a number of business special-interest groups.
■ William Emanuel, a former labor law attorney for transportation, logistics, and manufacturing companies, who was appointed in 2017.
With respect to the other two NLRB seats normally held by minority party appointees, President Trump has stated his intention to re-appoint Lauren McFerran, although he has yet to follow through. It is also apparent that he intends to leave vacant the seat that had been occupied by Democratic appointee Mark Gaston Pearce, resulting in a board with three Republican members and no or perhaps eventually a
single minority party member.
Since the law requires only three NLRB members for a quorum to conduct its business, the agency has pressed forward with its two vacant seats and issued a series of decisions, rulemakings and initiatives that
heavily favor corporations and repeal myriad existing worker protections. Under President Trump’s direction, the NLRB has acted on every single item on a top-10 corporate interest “wish list” that was published by the Chamber of Commerce in early 2017.

Department of Labor (DOL) appointments

President Donald Trump’s decision to nominate Eugene Scalia as the new labor secretary is driving wide rifts among HR and benefits professionals, with some praising his industry knowledge as a boon to businesses. Others decried the choice, saying he’d hurt the American worker. Scalia has spent his career fighting for the interests of financial firms, corporate executives and shareholders rather than the interests of working people.
In another example of stark contrast, in 2009 the Obama/Biden administration nominated Hilda Solis for the position of labor secretary. At the same time, Solis joined Vice President Biden’s Middle Class Task Force, and pressed ahead with a clear and unapologetic agenda to aggressively enforce workplace protection laws, and enact new rules and regulations intended to grant more power to unions and workers. Corporate interest groups, antiunion organizations, and Republican Congress members adamantly opposed Solis’s nomination. Following Solis’s resignation in 2013, the Obama/Biden administration praised her accomplishments and chose Tom Perez, a former civil rights attorney who dedicated much of his efforts to increased protections for the elderly, war veterans, and labor unions, as her successor. Perez was known for regularly making house calls and onsite trips to obtain personal feedback from workers.

Legislation affecting all TD members

In July 2020, SMART-TD and other rail labor unions were successful in getting the U.S. House of Representatives to pass H.R. 2, which contains:
■ Two-person freight crew requirements;
■ Bus and transit operator safety measures;
■ Blocked rail crossing enforcement measures;
■ Cross-border solutions;
■ Hours of service requirements for rail yardmasters;
■ Additional funding for Amtrak;
■ Requirements for carriers to meet CDC guidelines for providing personal protective equipment and cleanliness standards for essential employees.
When passed to the U.S. Senate as a part of the Moving Forward Act, President Trump threatened to veto the bill. Following suit, Senate majority leader Mitch McConnell called the bill “nonsense,” “absurd,” “pure fantasy,” and vowed that it will die before ever getting to the White House.
As previously noted, Joe Biden has met with SMART leadership and pledged his support for these issues.

Handling of the ongoing COVID-19 pandemic

Beginning in February 2020, before it was known that the virus had reached this country, we began making myriad preparations for a worst-case scenario, including modifications to our Health & Welfare Plans and a legislative agenda that make sure our members are protected. As a part of those efforts, in early March when there were fewer than 200 confirmed cases in the U.S., we wrote to the railroads, the FRA, the FMCSA, OSHA, and the Department of Transportation demanding that mandates be issued requiring essential employers to comply with basic CDC guidelines for COVID-19 cleanliness, including providing essential employees with the proper protective equipment and social-distancing measures.
As you can probably surmise by now (if you are not already aware) the response from the rail carriers, bus carriers and transit agencies was that the responsibility of adhering to CDC guidelines was entirely up to the employee. In the instances where a few regulatory agencies, such as the FRA, bothered to respond, we were told that they essentially trust the carriers to do the right thing, and in their
view, it isn’t necessary or appropriate to issue mandates.
Instead, we had to take matters into our own hands by cataloging the carriers’ violations and shortcomings via an online reporting tool, which continues to serve its purpose to this day.

What about the booming economy and increased rail traffic?

As is usually the case, over the last decade the number of carloads originated by U.S. Class I railroads has fluctuated with the economy, usually varying by single-digit percentages from year to year. Despite this relative consistency, the railroads’ operating ratios and revenues have gone up by double-digit percentages, while at the same time tens of thousands of rail labor employees have been furloughed.
This is mostly due to the fact that Wall Street investors have taken an interest in our nation’s railroads, and they are obsessed with so-called “Precision Scheduled Railroading” practices, which have resulted in (among other detrimental effects) the doubling and tripling of train length and tonnage, and thus, the reduction of crews.
Under the Trump administration, the White House, FRA, Department of Transportation and other regulatory authorities have refused our requests to mandate the train length limitations and issue safety regulations that we, and the general public, deserve.
It’s also worth noting that, according to the Association of American Railroads, there has been no significant increase in coal shipments from 2016 to today. President Trump’s promises to revive this business would have been hugely beneficial to our brothers and sisters whose livelihoods depend on these shipments, and it was a part of Trump’s policy that had our full support.
Instead, we’ve been handed broken promises.
But my 401(k) is at an alltime high, doesn’t that count for anything?
Of course it does. However, more important than the inevitable ebb and flow of the stock markets is the very real threat of bus and rail automation, train crew consist changes, reduction of federal subsidies for certain carriers such as Amtrak, and the funding and administration of the Railroad Retirement Board and Social Security Administration.
Every single budget from the Trump administration proposed the reduction or elimination of funding that not only employs our members, but protects their retirement and health & welfare benefits. If not for the hard work of our Legislative Department and the support of certain members of Congress, Amtrak would have gone bankrupt under the Trump administration. This single event would deal a devastating blow to the solvency of our Railroad Retirement benefits.
In addition to the above, automation of trains and buses, and the elimination of crew members and operators alike would have compounding effects that reach far beyond the obvious unemployment issues and the solvency of our retirement funds. As we all know, furloughs tend to hit our youngest members (not just in seniority, but also in age) the hardest. From a healthcare and benefits perspective, these are our healthiest members with the lowest frequency of major medical, dental, vision, short-term disability and long-term disability claims. There is a direct correlation between extensive furloughs and the already difficult-to-manage rising cost of our benefits.
The downstream consequences of Trump’s policies can easily extend to our higher seniority members who are immune to furlough.
We’re all in this together!

In conclusion

While this edition of SMART-TD News might not change your mind about who you’re going to vote for this November, we certainly hope it will help to shed some additional light on the importance of this election and what we all have at stake. When casting our ballots, we’re making the choice between better protections and job security for our members, or leaving our regulatory agencies in control of the very Wall Street investors, CEOs and corporations that they are intended to protect us from.
We’re making the choice between tough bargaining with the nation’s rail carriers that leads to the best possible deal in our next contract, or risking letting President Trump make carrier-friendly appointments to a Presidential Emergency Board that will determine our fate.
We’re making the choice between protecting our working class or continuing on our path of worshipping the almighty dollar, while throwing caution and safety to the wayside.
One thing is certain — on our current trajectory the rich will continue to get richer, while unionized labor and other hard-working citizens are left behind to pick up the scraps.
So, I ask all of you today: Are you ready to stand up to the abuse we’ve been dealt for these last several years? Are you prepared to cast a vote that will help to ensure that your family and future generations have the ability to earn a living wage, with choice health-care and retirement benefits? Are you ready to begin rebuilding an America that works for all of us, and not just our most wealthy and elite citizens?
Regardless of the outcome, I pledge that we will continue to fight for the protections, pay, benefits and retirement that we deserve. Without your support, however, this becomes exponentially more difficult, if not impossible. It’s going to take ALL of us to make this happen.
Thank you, and God bless.
Fraternally,
 

 
 
 

Jeremy Ferguson
President — Transportation Division

In yet another example that elections have consequences, the Trump-appointed FRA administrator’s actions have potentially minimized both public and employee safety on the railroad.
In September 2019, after the State of Illinois enacted a law requiring that trains operated in Illinois be operated with a certified conductor and certified engineer, the Indiana Rail Road, which often operates with one-person crews over 250 miles of track in Illinois and Indiana, sued the Illinois Commerce Commission in U.S. District Court for the Northern District of Illinois Eastern Division.
Backed by the Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA), the carrier challenged that newly signed state law.
In May 2019, just days after the Illinois Legislature had passed the law, Federal Railroad Administrator Ron Batory, who was appointed by Trump and confirmed by the Republican-controlled Senate, withdrew a Notice of Proposed Rulemaking (NPRM) on crew size and declared that any state law regarding crew size was preempted.
In the Indiana Rail Road lawsuit, the carrier and lobbying groups repeatedly referred to “the wisdom” of Batory’s declaration of federal preemption. The Trump appointee has followed up with other FRA choices such as safety waivers for railroads during the COVID-19 pandemic and refusing to issue an emergency order on faulty air brake components.
“Ron Batory’s notice withdrawal absolutely paved the way for the district court to rule,” SMART Transportation Division President Jeremy Ferguson said. “We must keep in mind, however, that this issue is not yet settled. A larger discussion in court remains ahead, as the judgment states.”
Indeed, the district court noted that the issue of validity of the FRA’s action, which was raised by SMART-TD and the Brotherhood of Locomotive Engineers and Trainmen, was not properly before it and as such, the action stood for the time being.
The court went on to note that those issues are currently pending before the U.S. Ninth Circuit Court of Appeals involving a challenge by the states of California, Washington and Nevada, along with SMART-TD and BLET, as to the FRA’s compliance with the required APA procedures and its ability to declare state law preempted.
Oral argument was heard in that case Monday, October 5, 2020. The court has taken the matter under advisement and will issue a decision hopefully in the near future.
“It is worth noting that if the Ninth Circuit later holds that the FRA Withdrawal Order is invalid, then the Illinois Commerce Commission may move to vacate the judgment,” the district court ruling stated regarding the Illinois case.
The Illinois Commerce Commission, which would have enforced the law, was joined by SMART-TD and the BLET in defending the two-person crew law.
The court’s ruling effectively voids enforcement of the law, which took effect in January.
Read the ruling.

Oct. 5, 2020

Brothers and Sisters:

Shortly before I joined the union in the mid 1990s, I served with the U.S. Army for three years in service to our country. I know I am not alone in this distinction as many of our union brothers and sisters in the SMART Transportation Division served in the military, and some continue to bravely serve.

Sharing that bond with the veterans in our union, and long before I was elected president of our union, I noticed that some recognition of our veterans’ service was long overdue. SMART-TD has not accumulated any definitive records about our members who have served in the military — whether they served, what branch they served, when they served. This is an oversight we are looking to correct by asking our members to update their veteran’s status by using a new Member Info Update form on the union website.

By updating your information, as a veteran, you will be eligible for future exclusive programs and information focused on veterans. The first step of this process was taken April 20 of this year with the addition of a Veteran Services page to the TD website. There will be more steps to come, but we first need to record who our veterans are in order to get the information out there and to better target our communications.

This project is close to my heart and a long time coming. I hope you will voluntarily participate by updating your information. Your union wants to recognize the sacrifices of all of our veterans and to better serve all those who served our country.

Thank you for your time. Thank you for your service. And please stay safe!

Fraternally,

Jeremy R. Ferguson
President – Transportation Division
U.S. Army: 1988-1991

Brothers and Sisters,
It may not be common knowledge to many Americans who have the opportunity to kick back and relax on Labor Day what the true genesis of the holiday is.
In the early 1880s, Labor Day was initiated by strong local union leadership in the New York-New Jersey region and was later adopted by some states.
President Grover Cleveland then signed Labor Day into federal law on June 28, 1894, to appease angry union workers engaged in the Pullman railroad labor strike that had been going on since May. Among the leaders of that strike was Eugene Debs, who later served as an officer of one of SMART-TD’s ancestor unions.
After a federal injunction against the workers, Cleveland sent thousands of armed troops into Chicago to break up the strike July 3, 1894. Days later, the situation turned deadly, with more than a dozen workers killed and many other people injured. The federal Department of Labor’s official history of Labor Day leaves out the part about blood being shed.
It was an election year in 1894. Even with the establishment of the holiday, Cleveland, a longtime foe of organized labor, was not re-elected.
In the present day, 126 years later, the circumstances of this year’s Labor Day are unusual to say the least. Much like prior holidays this year, we continue to deal with the risks of a global pandemic — the events that many of our members engage in to celebrate the labor movement and to show solidarity have been restricted or outright canceled.
Please do your best to enjoy those freedoms and, if you are lucky enough to have it, a day off. Please keep your safety and health in mind, along with this:
Unions changed the fate of the American worker. At a time when workers were devalued and mistreated, they provided a brotherhood to stand against big industry. This Labor Day, let us celebrate those who fought for and who continue to fight for a better life while working hard and pursuing their American dream. It is their and our perseverance in pursuit of fair treatment and the sacrifices we, the essential American worker, make on a daily basis that have resulted in the benefits that we enjoy.
Your SMART Transportation Division wishes you and your families a safe and enjoyable Labor Day.
Be safe and thank you.

Fraternally,

Jeremy R. Ferguson
President, Transportation Division

Brothers and Sisters,
It’s time to set the record straight. I am certain many of you have seen the recent anti-labor articles that have been published regarding our recent win in the U.S. Court of Appeals for the 5th Circuit. That win has apparently struck a raw nerve with the carriers and the minions who eagerly await their master’s call. Make no mistake, that decision struck a fatal blow to the carriers’ plans to put you on the unemployment line. Rather than accept defeat, their apologists are trying to spin this loss into something that it is not. The long history of crew consist cannot be denied. For decades, we have battled with the carriers over their fevered attempts to cut costs and put your life at risk by down-sizing crews. This current round of negotiations is no different. They sought to eliminate your job and operate trains in perhaps the most dangerous way possible. Standing up for you, that’s what this case was about.
They have severely underestimated the fight in each and every one of us; the sheer grit and determination that we have to defend our families, our jobs, and the overall welfare of our co-workers and the general public alike. The truth that these apologists fear to admit is that in this Union, the dues-paying members are the Union — period. There is no divide between the “Union” and the “dues-paying members.” There is only a “Union.” We stand together now more than ever.
To salve their masters’ wounds, those “commentators” try to spin this as union officers protecting their own jobs. They know not of what they speak and their ignorance is evident in the web that they weave. They used nameless sources in an attempt to add credibility to a tall tale that anyone with true insight would know is far from factual. The fact remains that all officers in this newly elected SMART-TD administration are firmly united.
The Railway Labor Act protects agreements from being changed except through the processes provided for in Section 6 of the Act. The carriers had agreed to crew consist provisions years ago. Not only that, but to end the constant battle over crew consist, the carriers also agreed to moratoria provisions that barred any Section 6 Notice over crew consist until the last protected employee voluntarily left service. That event has not yet happened. These are the facts, but they are nowhere to be found in any recounting in the carriers’ favored publications. Rather, what you are treated to is the old worn song of the anti-unionist. The apologist who says trust the carriers, they only want what was best for you. Right. The carriers want to give you lifetime protections? At what cost? And when they decide they don’t like that deal any more, will they ignore it just like they have tried to ignore our moratoria provisions and put you on the street? These apologists assert that they have some inside scoop, yet I have never witnessed any “commentator” at the bargaining table. They are outsiders.
What else is missing? Acknowledgement of the only thing the carriers care about — their bottom line. Money comes before all else. That is evidenced by the unbelievable lengths they will go to argue that you are paid too much, that your insurance is too expensive, and that they are going broke as a result of the costs of our Agreements. You are the target in their zeal to improve their stock price. That is a sad fact that you will not find in any of those articles.
Another fallacy that is being sold — technology will do everything more safely. That simply is not true. Their technology is fallible. It doesn’t work like they wish it would nor as advertised. In fact, it’s not a matter of if it will break down, but when. We have collected thousands of Failure Reports across all Class Is and the data is terrifying. Never has the human element been more important in railroad operations. Engineers spend more time with their faces in multiple screens trying to manipulate and interpret the ambiguous systems than they do focusing on the territory ahead. Conductors are relied upon now more than ever, as they are the eyes and ears of the train crew, and we have the stories to prove it.
The articles also attempt to scare you by asserting that the carriers will unilaterally reduce crews at the end of the last-person-standing moratorium. That is not how the Act works. The expiration of the moratoria does not sunset crew consist. Rather, moratoria bar either party from serving a Section 6 notice to amend or change the current Crew Consist Agreements until the last protected employee leaves. Once that happens, then a Section 6 Notice can be served and the long and drawn-out process of the RLA engaged to negotiate the next generation of agreements.
Railroad workers have all been lied to long enough by management, and we can smell lies coming from a mile away.
As a word of advice to Railway Age, I would caution them against living in the past and trying to play SMART-TD against the BLET. We are working closely together in the Coordinated Bargaining Coalition (CBC) in national handling and on the various other disputes that the carriers have forced us into.
Brothers and Sisters, do not be discouraged, and do not be swayed by those with ulterior motives. We are in this fight together, and we are moving forward.
 

 
 
 

Jeremy Ferguson
President — Transportation Division

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.

* * *

“… 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.”

###

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.

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.

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.

H.R. 2, the Moving Forward Act, a massive $1.5 trillion infrastructure bill that contains provisions important to members of all crafts in the SMART Transportation Division and to sheet metal workers, passed through the U.S. House of Representatives by a 233-188 vote on July 1.
A major component of this bill is the INVEST in America Act that passed the U.S. House Transportation and Infrastructure Committee in late June.
H.R. 2 contains:

  • a two-person freight crew requirement
  • bus and transit operator safety measures
  • blocked-rail-crossing enforcement
  • a cross-border solution
  • yardmaster hours of service
  • additional funding for Amtrak
  • requirements for carriers to meet CDC guidelines and to provide personal protective equipment (PPE) to transportation workers

“This is an unprecedented step ahead for many of our union’s major issues through the legislative process,” SMART Transportation Division President Jeremy R. Ferguson said. “Our concerns were heard and addressed by the writers of this bill — safety for workers and communities alike in the bus and transit operator safety measures and in the crew-size provision, funding for Amtrak, and a number of other provisions intended to rebuild and transform the nation’s roads and rails.
“Federal agencies and big-pocketed lobbyists have tried to obstruct the essential protections that this bill provides to our members and to the people who work on, live near and use our nation’s transportation network. These representatives all had the foresight and initiative to move them forward.”
Ian Jefferies, CEO of the Association of American Railroads (AAR), earlier in the week had an op-ed published that was highly critical of the legislation, targeting the two-person crew portion and one that dealt with study of potential rail transport of Liquid Natural Gas (LNG) specifically, saying the bill “woefully missed the mark.”
In the column, Jefferies also argued that legislators were “putting their collective thumbs on the scale” regarding railroad safety in regulating the crew-size safety issue.
The INVEST in America component of the Moving Forward Act was shepherded by House T&I Chairperson Peter DeFazio, an Oregon Democrat, through the committee June 18. He commented on July 1 after the bill’s passage:
“Passage of this bold, forward-thinking infrastructure bill is proof that finally, there is a majority of us in Congress who won’t accept the status quo and instead are willing to fight for a new vision that invests in our communities, addresses the climate crisis, and creates better opportunities for all. And we get there by putting millions of people to work in jobs that cannot be exported, while harnessing American-made materials, ingenuity, and innovation,” he said. “With the Moving Forward Act, we make it clear that our infrastructure does not have to be a product of the past, with crumbling roads and bridges, unreliable transit and rail networks, inequitable outcomes, and little regard to our changing climate and our changing economy. I challenge my Senate colleagues to join the House in thinking big and being bold on long-overdue investments not only in our infrastructure, but also in the communities and the people we all represent.”
Leaders in the SMART-TD National Legislative Department thanked DeFazio and the bipartisan group of Democrats and a trio of Republicans who supported H.R. 2.
“As if we need any additional evidence that elections matter, this result shows that the 2018 change of party control in the House made a difference,” National Legislative Director Greg Hynes said. “We appreciate those legislators who supported this legislation in its journey through the House. There is more work to be done and a path to be cleared for this legislation, and our membership is more than willing to put in the time to make legislators understand why the bill provisions are necessary.”
The Moving Forward Act now moves to the United States Senate, where, according to Politico.com, Republican U.S. Sen. Mitch McConnell of Kentucky, the majority leader, called the bill “nonsense,” “absurd,” “pure fantasy” and vowed that it will die before getting to the White House, where the president has threatened to veto the bill.

Washington, D.C. – Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-Ore.) last week officially introduced the Investing in a New Vision for the Environment and Surface Transportation in America (INVEST in America) Act during a pro forma session in the House. The INVEST in America Act, a 5-year, nearly $500 billion investment in our nation’s infrastructure, is a key component of the Moving Forward Framework that House Democrats released earlier this year. After Committee leaders unveiled the bill text Wednesday, June 3rd, support started pouring in from a diverse array of transportation, environmental, worker, and safety advocates.

DeFazio

What advocates from around the country are saying about the INVEST in America Act:

“We applaud Chairman Peter DeFazio for listening to the needs of workers represented by SMART Transportation Division, and responding accordingly. By providing robust funding for infrastructure, passenger rail, and transit, as well as the inclusion of smart transportation policy, the Invest in America Act represents a bold step forward for our members,” said Jeremy Ferguson, president of SMART-TD.

“Title V of the INVEST in America Act is the most significant piece of railroad legislation since the Rail Safety Improvement Act of 2008,” BLET (Brotherhood of Locomotive Engineers and Trainmen) National President Dennis R. Pierce said.

“Past reauthorizations have been an exercise in spending more money and magically wishing for better outcomes with outdated policy, which was always foolish,” said Beth Osborne, director of Transportation for America. “With this new proposal from Chairman DeFazio, the INVEST in America Act, the House is charting a welcome course toward updating our country’s 1950’s approach to transportation.”

“The American Public Transportation Association (APTA), on behalf of the entire public transportation industry, would like to thank House Committee on Transportation and Infrastructure Chair Peter A. DeFazio (D-OR), Chair of the Subcommittee on Highways and Transit Eleanor Holmes Norton (D-DC), and Chair of the Subcommittee on Railroads, Pipelines, and Hazardous Materials Dan Lipinski (D-IL) for their extraordinary leadership in crafting the INVEST in America Act. We strongly support the bill and its critical investments for surface transportation infrastructure, including $105 billion for public transportation and $60 billion for commuter rail, Amtrak, and other high-performance rail.”

“For too long, the needs of professional drivers and others who work in the transportation sector have been ignored by lawmakers,” Teamsters General President Jim Hoffa said. “This legislation will set the nation on the right path by making badly needed infrastructure improvements while also ensuring that workers are protected on the job.”

“On behalf of ATA members helping move 71 percent of our nation’s freight, we applaud Chairman DeFazio for fulfilling his commitment to produce a comprehensive infrastructure bill, and we look forward to working with House Ways & Means Chairman Neal to fund it—with real money,” American Trucking Association President and CEO Chris Spear.

“The National League of Cities thanks Rep. Peter DeFazio, Chair of the House Committee on Transportation and Infrastructure, for proposing legislation that eases the impacts of COVID-19 on critical transportation projects in our cities, towns, and villages. The INVEST Act would provide increased federal support for next year’s transportation projects, grow strategic transit and rail investments over the next five years and improve intergovernmental collaboration.”

“Mothers Against Drunk Driving (MADD) applauds House Transportation and Infrastructure Chairman Peter DeFazio for today’s introduction of the INVEST in America Act. Chairman DeFazio is a traffic safety champion and has made saving lives a priority in this legislation.”

Stephanie Gidigbi, director of policy and partnerships for NRDC’s (Natural Resources Defense Council) Healthy People & Thriving Communities Program: “For too many years, funding from Washington has built roads and highways that divided low-income communities and communities of color without offering the transportation alternatives all of us can use. The INVEST Act offers a different path, one that leads to a more just, equitable, and climate-resilient future. Crucially, this bill ensures all communities have access to pedestrian, biking and transit options. It also will help us slash carbon pollution by investing in electric-vehicle charging stations, while ensuring that roads, bridges and transit lines are able to withstand the stronger storms and floods we must prepare for because of climate change.”

“The National Safety Council applauds House lawmakers for the INVEST in America Act, the reauthorization of the Fixing America’s Surface Transportation (FAST) Act. For too long, the United States has consistently avoided the hard choices needed to save lives on the roadways. This proposal is an opportunity for us to start making the right choices so we can save lives, because we know that all traffic deaths are preventable.”

“The Coalition for America’s Gateways & Trade Corridors (CAGTC) applauds the INVEST in America Act’s continuation of dedicated investment in our nation’s freight assets, first through the Nationally Significant Freight and Highway Program (INFRA) in Fiscal Year 2021, then through the Projects of National and Regional Significance Program (PNRS) through the remaining years of the proposal. Competitive grant programs are essential to funding large-scale goods movement infrastructure projects, which are difficult to fund through traditional distribution methods such as formula programs.”

“Unfortunately, we do not yet have a cure for COVID-19. But, we do have proven and available safety solutions to address the preventable fatalities and injuries occurring on our Nation’s roadways year after year,” said Cathy Chase, President of Advocates for Highway and Auto Safety (Advocates). “We commend Chairman DeFazio, Highways and Transit Subcommittee Chairman Eleanor Holmes Norton (D-DC) and Railroads, Pipelines and Hazardous Materials Subcommittee Chairman Dan Lipinski (D-IL) for sponsoring the INVEST in America Act and advancing important safety countermeasures.”  Advocates looks forward to working with the Committee as our review of this legislation continues.

ITS America President and CEO Shailen Bhatt: “As the association that promotes technology to reduce fatalities, congestion and emissions, ITS America is gratified to see so many positive aspects in the bill that will lead to more research in and deployment of technology, including increasing access to mobility services by making Mobility on Demand an eligible activity under transit programs.”

 “We commend Chairman Peter DeFazio (D-OR) and Eleanor Holmes Norton (D-DC) for leading the effort to address our nation’s transportation needs, including the costly backlog of transportation projects in our parks,” said Emily Douce of the National Parks Conservation Association. “Together we want to ensure park visitors can continue to experience and enjoy these places now, and for years to come.”

“The INVEST Act reflects more than a year of advocacy by the League, our partners, and our members to push for a future where our transportation system works better for all people, especially people biking and walking,” said Bill Nesper, executive director of the League of American Bicyclists.

“We know that the INVEST Act can make a difference in transportation equity across the country and the Safe Routes Partnership looks forward to supporting its passage and implementation for Safe Routes to Schools, to parks, to healthy food, and so many other essential parts of our lives,” said Cassandra Isidro, executive director of Safe Routes Partnership.

Railway Supply Institute (RSI) President Mike O’Malley: “This legislation will provide over $60 billion in much-needed funding to support substantive improvements to rail infrastructure across the country, including $29 billion for Amtrak and $19 billion for passenger rail improvement, modernization, and expansion projects. We also commend inclusion of strong funding levels for federal transit and grade crossing safety programs.  These investments will enhance safety for millions of passengers, preserve thousands of jobs, and support our domestic supply chain at this critical time.”

“On behalf of The Bus Coalition (TBC) and its members, I applaud the historic level of bus transit funding included in Chairman DeFazio’s reauthorization proposal. Buses are the backbone of transit service across America providing more than one-half of all trips on public transportation. Our customers rely on buses daily to access jobs, health care, education, and other critical destinations. The level of investment included in the bill will go a long way toward upgrading and replacing our aging and shrinking bus fleets, boost economic growth and help enhance bus service in all communities across the country,” said The Bus Coalition President Bill Carpenter.

“CTAA [Community Transportation Association of America] members provide critical trips and support their vulnerable populations by acting as a lifeline. The record level of investment proposed in this bill would not only allow our rural, tribal, specialized and small-urban transit providers to continue meeting demand, but explore new and innovative ways to better serve their communities, said Scott Bogren, Executive Director of CTAA. “We applaud this bill’s important emphasis on improved bus operations and capital investment, the incorporation of meaningful improvements to procurement and vehicle disposition, and the focus on transit services for low-income and persistent poverty communities.”

“Through the INVEST in America Act, the House T&I Committee tackles many of the most critical issues facing America’s transportation system—including safety, climate and maintenance,” said Kevin Mills, Rails-to-Trails Conservancy’s vice president of policy. “The bill recognizes and advances policies to address the tragic and growing number of pedestrian and bicyclist fatalities that occur on our roads and it creates incentives to cut carbon emissions.  It makes active transportation eligible for many programs and increases dedicated investment in trails, walking and biking programs to more than $1.5 billion a year—allocating resources to the nation’s fundamental active transportation funding programs like Transportation Alternatives and the Recreational Trails Program, while ensuring that Transportation Alternatives funding remains dedicated to its intended purpose in all states. Especially exciting is a new investment to connect walking and biking facilities within our communities and between regions.”

For a running list of supporters and more information about the INVEST in America Act, click here.