Monday, August 18, 2014

BLET in catbird seat over crew consist

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News item: Vouchsafed to work jointly in gaining legislation or regulation mandating two crew members on every freight train are the Sheet Metal, Air, Rail and Transportation Union (SMART) and the Brotherhood of Locomotive Engineers and Trainmen (BLET).

The joint quest for minimum crew consist is in response to soon-to-be-implemented Positive Train Control (PTC)—modern technology leaving the role of a second crew-member conductor largely redundant, and whose $12 billion cost screams for offsetting savings by reducing unnecessary crew size if the industry is to meet investor and shipper expectations.

Current collectively bargained crew consist provisions require a conductor and engineer aboard most freight trains, but as those provisions expire, carriers gain managerial prerogative to staff trains based on their interpretation of operational needs, which in many cases could mean engineer only.

The sought-after legislation has almost a nil chance given anti-union Republican numbers in Congress, while a regulatory edict faces a difficult court challenge assuming the Obama administration even permits a union-inspired Federal Railroad Administration proposed rulemaking to go forward, and could be erased in future years by a new federal railroad administrator.

Indeed, data has yet to be presented demonstrating two crewmembers are needed for safe operation of PTC equipped trains, and labor leaders candidly concede, with regard to new technology, "The industrial landscape is littered with discarded jobs once performed by human beings." Passenger and commuter trains largely operate safely with a lone engineer in the cab, and BLET has long-standing engineer-only agreements with regional railroads on non-PTC equipped lines.

But assuming a legislative or regulatory edict does succeed, it is BLET that most likely will reap the spoils, to the chagrin of SMART's senior leadership and the financial pain of SMART members.

We hesitate to term the two unions' non-belligerence promise in quest of the two-crew-member mandate equivalent to a Molotov-Ribbentrop pact only because of the infamous foreign ministers—Soviet Vyacheslav Molotov and Nazi Joachim von Ribbentrop—for which the World War II non-aggression treaty is named. But the signing—and violation when Germany attacked the Soviets—well describes the historic relationship between SMART and BLET. These two organizations have broken a truce more often than Israelis and Palestinians.

Even BLET's name drips with sinister rivalry past—the organization having added "trainmen" to its name following uncompromising combat more than a decade ago over whose members would operate remote control locomotives in yards. When UTU won that bitter battle via an arbitration decision, BLET commenced an effort to convince SMART members (then United Transportation Union, or UTU, as the merger creating SMART had not occurred) to defect to its fold, and so changed its name to make it more hospitable to UTU represented trainmen (also known as ground service workers, which are a collection of operating crafts other than engineer).

Because of that and other hot-tempered exchanges, few with a grasp of history expect the current era of good feelings and cooperation to endure. A sober assessment places BLET in the catbird seat—holding the upper hand and likely to play it, to the benefit of engineers BLET represents and the detriment of conductors SMART represents.

This is why a general committee on SMART has negotiated a tentative agreement (currently out for ratification) to protect the financial security of members and their families if current crew consist levels nose-dive south in the wake of PTC implementation.

If such occurs, SMART's senior leadership has made a strategic error in not backing strongly—and suggesting its expansion elsewhere— this tentative agreement offering career-long unprecedented income protection to SMART members on northern lines of BNSF. (See "BNSF, SMART seek historic crew consist revision" and "When you get a good deal, take it").

Note that both SMART and BLET are so structured that bargaining units on individual railroads (called "general committees" within SMART; "divisions" within BLET) have autonomy to negotiate agreements affecting only employees of those railroads represented by such SMART general committees or BLET divisions.

In failing to give its backing to the general committee that used its autonomy to negotiate this protective agreement on certain BNSF northern lines, SMART's senior leadership made a promise it may not be able to keep—that is, to deliver, legislatively or through regulation, a two-person-crew mandate.

Even if the legislation or regulation succeeds against strong negative odds, SMART faces another undesirable outcome: BLET succeeding in representing the second mandated crew member—a co-engineer—rather than a SMART-represented conductor lacking engineer qualifications. (Keep reading, as this has to do with BLET's upper hand, as mentioned. And, yes, it's complicated, as most significant economic issues are).

Some suggest that if SMART members reject this tentative protective agreement—in expectation of favorable legislation or regulation—they will have subsequent opportunity to ratify a similar agreement.

Think again. BNSF and other carriers are unlikely to repeat so lucrative an offer as has been proffered this summer by BNSF—lifetime income protection and wage and benefits enhancements in exchange for union acquiescence to operate, where safe, one-person crews. BNSF Chairman Matt Rose, according to sources, told one union officer that other carriers considered his offer "too rich." (A BSNF spokesperson would neither confirm nor deny the conversation.)

More important, as each year passes, fewer conductors are protected by the existing crew consist agreement, which was limited to those employed when negotiated decades ago. SMART International Representative John Babler, who helped negotiate the general committee's tentative protective pact now out for ratification, says, "I suspect that once the number of protected employees gets to be a small minority, [railroads will] buy out the remaining protected trainmen [and remove from assignment those not taking the buy-out] triggering a strike and ultimately a Presidential Emergency Board [that could be appointed by a Republican president with a congressional Republican majority standing ready to impose a carrier-friendly recommendation for settlement].

But let's back up for a moment and understand the historic volatile relationship between BLET and SMART (UTU became SMART in 2012 after being merged into a larger building trades union) and why BLET is in the catbird seat no matter what happens.

UTU was the product of a 1969 merger among rail unions representing brakemen, conductors, firemen, flagmen, switchmen and other trainmen or ground-service workers; while BLE, before adding the "T" for trainmen to its name, primarily represented locomotive engineers. UTU's history should have taught its current leaders and members about the impact of new technology, which had eliminated half the jobs represented by UTU predecessors and made necessary the merger creating UTU, and a subsequent one creating SMART.

The open warfare between BLE and UTU over the years largely explains why seven attempts at a UTU-BLET merger failed. Organizations engaged in perpetual warfare find it difficult to exchange vows of love.

The warfare exists because craft lines are blurred—but in favor of BLET. Conductors are promoted to engineer. But while a laid-off engineer may use seniority to flow back to a conductor position, conductors must await training and certification to become engineers. Further complicating the relationship between the two organizations is that the Railway Labor Act permits workers in train and engine service to satisfy their union-shop agreement through membership with either union. This has resulted in fierce competition between BLE and UTU for members, numerous allegations of raiding of each other's membership, and even clandestine attempts by UTU to eliminate BLET through a winner-take-all representation.

Some examples.

• In 1966, BLE engineers crossed a UTU predecessor's picket lines.

• In 1985, when railroads were seeking to reduce crew size from five to two—owing to technological advancements—BLE put forth an unsuccessful plan that the second crewmember be a co-engineer represented by BLE rather than a conductor represented by UTU.

• In retaliation, UTU launched an unsuccessful attempt to convince engineers on Norfolk Southern to forsake BLE and choose UTU as their bargaining representative.

• In 1994, BLE engineers crossed UTU picket lines.

• UTU responded by seeking a winner-take-all representation election on Union Pacific, where UTU held greater numbers, but an arbitration panel initiated by the National Mediation Board declined to permit the vote, saying the time was not ripe for such consolidation of crafts.

• UTU then sought unsuccessfully to have a rider attached to a congressional bill instructing the National Mediation Board to conclude that workers represented by BLE and UTU constitute a single craft, which—because of UTU's greater numbers on almost all railroads—would have resulted in UTU capturing all engineer contracts, engineer representation and engineer dues.

• In 2001, BLE entered into an agreement with Montana Rail Link to displace the conductor craft with two qualified engineers in the cab.

• Subsequent BLET press releases compared a locomotive cab to an airplane flight deck—the reference being to two qualified engineers (think pilots) in the cab (rather than a conductor and an engineer).

• In 2002, UTU won an arbitration decision allowing conductors to operate remote control belt packs in yards, displacing BLE-represented engineers. BLET subsequently made an agreement with BNSF that if remote control operations are expanded outside yards, engineers—not SMART-represented conductors—will perform all such remote control tasks.

• Also in 2002, UTU sought a winner-take-all representation election on Kansas City Southern, but the request was denied by the National Mediation Board for the same reason as the previous request on Union Pacific.

• In 2007, a BLET division made an agreement with BNSF that when the UTU agreement requiring a conductor on every train expires, BLET would operate trains with a lone engineer in exchange for a higher wage. SMART's Babler calls this a "last-man-standing" agreement, meaning that "when the last crew consist protected trainmen leaves service, all trainmen work goes to the craft of engineer."

• In July, a BLET division on BNSF Northern Lines obtained a SMART home-address mailing list and solicited SMART members to join BLET.

• And the Teamsters, with which BLET is now affiliated, have engaged in raids on motor coach properties where SMART represents drivers and/or mechanics.

Out of this unpredictably explosive environment comes now BLET and SMART pledging solidarity in pursuing legislation or regulation mandating a two-person crew.

Only BLET knows its end-game strategy, but let's consider possible outcomes—all of which explain why this era of good feelings and cooperation between BLET and SMART cannot endure, and why BLET is in the catbird seat:

• Both the legislative and regulatory proposals inspired by BLET and SMART contain language to mandate "two-person" crews without specifying a conductor and an engineer. This portends, when the time is ripe for BLET to pounce, an airline flight-deck model as BLET has on Montana Rail Link—an engineer and co-engineer to relieve each other, which is not possible with a conductor, as conductors typically are not engineer-qualified. Thus, even the legislative or regulatory remedy could work against SMART and its conductors.

• If the legislative or regulatory mandate fails—the more likely outcome—BLET has in place on BNSF its agreement by which it would operate engineer-only freight trains. It is realistic to expect BLET would expand to other railroads this "last-man-standing" agreement in exchange for higher wages. On Canada's VIA Rail, BLET made such an agreement that eliminated hundreds of conductor and assistance conductor jobs.

• SMART eventually could balk at the bargaining table, but such unresolved Railway Labor Act disputes wind up with Congress. Consider that the House is expected to remain under Republican control, and pollsters give Republicans a better than even chance to regain control of the Senate. Moreover, there is growing expectation a Republican will win the White House in 2016, when these disputes would become ripe for a White House appointed Presidential Emergency Board. Carriers are assumed to fare better under Republican political leadership. More pointedly, a carrier-friendly Congress also has the power to reverse regulatory rulings mandating crew size.

This is why SMART General Committee Chairman Randy Knudson told his BNSF-employed members, "We all know a collectively bargained sure thing is far better than relying on a law that has no chance of passing or a wishful regulation that will certainly result in years of litigation [before it is implemented—if it even is allowed to be implemented by the courts or Congress].

"Untold ground service positions have already been lost to what are, by today's standards, somewhat primitive technological advancements," said Knudson. "Neither the Protective Department nor the Legislative Department were able to stop any of these job losses. With Positive Train Control and other technological advancements on the horizon, it is the text-book definition of insanity to employ the same old 'fight-'em-till-you-can't fight-'em-no-more' strategy and expect a different result."

Several attempts were made to interview SMART Transportation Division President John Previsich, who declined to respond. Attempts to interview BLET President Dennis Pierce were met with a request by the Teamsters that questions be put in writing, but neither the Teamsters nor Pierce responded.

In the meantime, a squabble has broken out between the SMART general committee that negotiated the tentative protective agreement and the SMART Legislative Department over the role of a trade union: Is it to put a priority on protecting members' financial security as the general committee's tentative agreement with BNSF seeks to do, or pursue a battle in Washington, D.C., where a defeat could have a devastating impact on SMART's dues paying members and their families?

If the past is prologue, Positive Train Control is going to affect crew consist, with only the timing of changes, and the BLET response, uncertain. Difficult challenges, indeed, for SMART's senior leadership and its members as BLET bides its time in the catbird seat.

Frank N. Wilner

Frank N. Wilner is author of six books, including, Amtrak: Past, Present, Future; Understanding the Railway Labor Act; and, Railroad Mergers: History, Analysis, Insight. He earned undergraduate and graduate degrees in economics and labor relations from Virginia Tech. He has been assistant vice president, policy, for the Association of American Railroads; a White House appointed chief of staff at the Surface Transportation Board; and director of public relations for the United Transportation Union. He is a past president of the Association of Transportation Law Professionals.