Recently, Amtrak, Union Pacific and Norfolk Southern announced that they will require their employees, including those represented by SMART Transportation Division, to be vaccinated against the COVID-19 virus. It is anticipated that many of the remaining, if not all Class I rail carriers, will eventually implement similar policies, citing their status as government contractors and federal mandates as their reasons. In accordance with current guidelines, the deadline for Amtrak employees to be fully vaccinated is November 22, while the deadline for Union Pacific and Norfolk Southern employees is set for December 8. In order to be considered fully vaccinated, a 14-day period must transpire following the administration of the single-dose Johnson & Johnson vaccine, or the second dose of the Pfizer or Moderna vaccines.
Under certain circumstances, some carriers are allowing regular testing as an alternative to vaccination, although federal law, guidelines and most collective bargaining agreements do not require them to do so. SMART-TD has taken the position that beyond the applicable deadlines, all carriers should allow unvaccinated employees to provide proof of regular testing as an acceptable alternative.
In every instance to date, the carriers implemented their policies without first meeting with SMART-TD to bargain over the provisions of their mandates. In attempts to correct and address these exclusions, SMART-TD President Jeremy Ferguson advised all SMART-TD general committees of adjustment to schedule meetings with the carriers to discuss the implementation of any new, planned or existing policies. In his letter, he also noted that federal law provides exemptions for certain circumstances where individuals have religious objections or medical conditions that prevent them from being vaccinated. Based on initial conversations, it was determined that additional methods of appeal would be required.
Due to the unilateral actions of Union Pacific, on October 15, 2021, SMART-TD filed a lawsuit in the United States District Court for Northern District of Illinois, Eastern Division, challenging the carrier’s attempt to avoid its obligation under the Railway Labor Act to bargain over terms and conditions of employment. While this action at Union Pacific is likely to set precedent for other carriers, it does not prevent SMART-TD from taking similar action against other like-minded carriers, including Amtrak and Norfolk Southern. While each policy will have nuances that the affected organizations will have to navigate, respond to, and appeal on an individual basis, SMART-TD has made it clear that any attempt by the carriers to circumvent their obligations under the Railway Labor Act will be met with strong resistance.
“While vaccinations are not a collective bargaining issue, as they have not been negotiated into our agreements, we still believe that the carriers must engage with us about these policies prior to any implementation and we, in an effort of good faith, will continue our attempts to do so. We believe this is the best approach,” said President Ferguson. “We are going to let the outcome of those meetings and the advice of our general chairpersons guide our next steps. However, when these conversations with the carriers prove to be unsuccessful, then we must appeal our issues to the courts.”
President Ferguson also stated “SMART-TD is a very diversified union, encompassing members of different ethnicity, age, religion, gender, sexual orientation, political affiliation and viewpoints. We are proud of that diversity and represent all members regardless of these distinctions. We lead from the front, keeping emotions in check while evaluating every issue and concern along the way. We also must research the potential outcome of these actions prior to making any formal decisions. With that being said, I will continue to encourage our members to get vaccinated, however, I respect those who have pointed out that it is a personal choice. Whatever your beliefs or vaccine status is, I want to make it clear to our members that you will be represented to the fullest extent of our authority.”
As additional information becomes available and this situation continues to evolve, SMART-TD will continue to evaluate and assess its position on these issues. Updates will continue to be posted to the SMART-TD website at smart-union.org/td.