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.
Tag: Transportation Division President Jeremy Ferguson
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.
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.
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.
While this year’s Memorial Day will be different — the parades may be canceled, the family picnics and social gatherings pushed back because of the pandemic — yet it remains important to pause in respect and in remembrance for those members of the U.S. military who have made the ultimate sacrifice.
Our servicemen and -women, past and present, no longer with us and still living, have made and continue to make immeasurable sacrifices on behalf of our country. This holiday draws attention to those whom we have lost. Let them never be forgotten, and let us remember them this weekend for their selflessness in fighting for the simple freedoms we take for granted.
Those freedoms exist because of our brothers and sisters of the United States Armed Forces who served our country.
Be safe and thank you.
In solidarity,
Jeremy R. Ferguson
President, Transportation Division
Learn more about Memorial Day
SMART-TD resources for veterans
CLEVELAND, Ohio, (May 20) — The U.S. Department of Transportation (U.S. DOT) Volpe National Transportation Systems Center (Volpe), in partnership with the SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET), is launching a survey in mid-May to learn more about Information and Communications Technology (ICT), which relates to the technology and tools that railroaders use to share, gather and communicate information. The purpose of the survey is to understand how best to communicate important safety-related information to union members and across the railroad industry.
The ICT survey, approved by both SMART-TD and BLET leadership, is being sent to a randomly selected sample of active train, yard, and engine railroaders. Everyone included in this sample is strongly encouraged to respond.
“We support this effort because we believe it will help us to better serve our members. We are collaborating with the Volpe team to reach our members for this survey. Please make time to complete the ICT questionnaire if you receive it,” SMART-TD President Jeremy R. Ferguson and BLET President Dennis R. Pierce explained.
Participation is voluntary and means only completing the questionnaire, which should take no more than 20 minutes. Unique codes for each questionnaire are assigned randomly to participants to keep responses strictly confidential.
Interested parties can learn more about the ICT Survey by contacting Dr. Heidi Howarth, the Volpe project lead, at heidi.howarth@dot.gov or 617-494-2522. This project is sponsored by the Office of Research, Development, and Technology of the Federal Railroad Administration.
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The U.S. DOT established Volpe in 1970 to serve as a federal resource positioned to provide world-renowned, multidisciplinary, multimodal transportation expertise on behalf of U.S. DOT’s operating administrations, the Office of the Secretary, and external organizations.
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.
WASHINGTON, D.C. – SMART Transportation Division President Jeremy R. Ferguson and National Legislative Director Gregory Hynes met with U.S. Rep. and Transportation and Infrastructure Chairman Peter DeFazio (D-Ore.) earlier this week, alerting him to carriers’ inadequate efforts to protect essential transportation workers during the coronavirus pandemic.
Federal agencies also have not taken substantial regulatory action to protect our members who are deemed essential workers through this national emergency, they told DeFazio.
Ferguson made particular note to the chairman about the freight rail industry, where the Federal Railroad Administration (FRA) activated an emergency docket pushed by Class I carriers and the American Short Line and Regional Railroad Association (ASLRRA) that cuts corners on inspections and safety measures in reaction to the pandemic.
Ferguson informed DeFazio that these measures are intended to be enacted in the event there is a workforce shortage caused directly by COVID-19. However, worker furloughs are “at the highest level ever,” and none of those emergency provisions should take effect until all furloughed workers are activated, our leadership said.
Chairman DeFazio was “attentive to our requests and is acutely aware of transportation workers’ needs” through the pandemic, NLD Hynes said.
“He’s fully aware of the shortcomings of the carriers’ and federal agencies’, especially FRA’s and FTA’s failed response to our COVID-19 requests for action through our Emergency Order petition,” Hynes said.
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.
The Defense Production Act (DPA) was invoked April 2 by President Donald Trump to expedite the manufacture and eventual distribution of supplies, especially ventilators, necessary to fight the COVID-19 pandemic.
The first step in getting the products — including surgical masks, disinfecting agents and medical devices — to those who need them is to create and package them.
Right now. Sheet metal workers across the United States are fabricating new equipment and supplies to support our nation’s response to this pandemic. Volunteers have even stepped up to supply groups with vital parts in the production of new protective gear while union sheet metal workers from New York to Detroit and Wisconsin and everywhere in between are on the front lines constructing new medical facilities to handle the surge of new COVID-19 patients.
While members are busy producing supplies as fast as they can, these supplies also need to be transported to the places that are most in need.
This is where the United States freight railroad network comes in. The full scope of the DPA must be employed to strongly and decisively react in the quickest way possible, including the engagement of railroads’ nationwide reach. The greatest volume of goods and material needed to help the country recover in the least amount of time will be delivered by the men and women operating the trains that travel America’s railroad network.
Thousands of rail workers have been furloughed by the country’s largest rail carriers in recent years. These people must be put to work to deliver life-saving equipment to major metropolitan areas struggling to contend with the coronavirus. Any half-measure will result in more lives being lost.
Sheet metal and transportation workers stand at the ready to assist. All that is needed is full invocation of the DPA and a wave of labor will help to first fight the pandemic and then to wipe out the economic devastation it has created.
Sincerely,
| Joseph Sellers, Jr. | Jeremy R. Ferguson | |
| General President, SMART | President, SMART Transportation Division |