Thursday, August 08, 2013

Crew-consist debate heating up once again

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Trick question: How many persons are needed to operate a freight train?

It could be two or it could be one—and some may even argue “none, eventually, as technology advances.” There is no correct response to this vexatious question because the answer depends on—and they are not necessarily mutually exclusive—the success of Positive Train Control (PTC) technology, congressional whim, a regulatory edict, collective bargaining, and even federal court oversight.

Currently, collective bargaining agreements between the major railroads and their two operating unions—the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the United Transportation Union (UTU)—require that a conductor and engineer operate all trains traversing main line track.

In fact, the UTU has in place, separately on each major railroad, a contract provision mandating a conductor be aboard every main line freight train, and the provision provides for a moratorium on reopening that provision for negotiation until the last conductor affected by that provision retires—and that could be many years in the future.

An attempt by the major railroads in 2004 to negotiate, in national handling, an industry reduction in crew-consist to engineer-only was halted by a federal court in 2006—the court ruling the matter of crew consist historically has been negotiated railroad-by-railroad, and because of the moratorium, the matter is not appropriate for national handling.

In the wake of the calamitous July tank-car accident at Lac-Mégantic, Quebec, which killed 47, legislation was introduced in the U.S. House of Representatives to mandate, in perpetuity, a minimum crew size of two (even though the cause of the Canadian accident has yet to be determined). However, the bill is likely doomed as it was introduced by two relatively obscure Democrats from Maine, and shows no support among Republicans who control the House, or even Democrats in House leadership positions.

Maine House Democrats Mike Michaud and Chellie Pingree introduced the Safe Freight Act at the request of the BLET and UTU. That the BLET, a division of the Teamsters, and the UTU, long a powerful presence on Capitol Hill owing to the magnitude of its congressional political contributions, were unable to coax a Democrat in a House leadership position to join in introducing the legislation, or recruit a moderate Republican as an initial co-sponsor, is instructive.

The BLET and UTU—especially in the current atmosphere of public fear following the Lac-Mégantic tragedy—could look to the Federal Railroad Administration to mandate minimum two-person crews on, for example, hazmat trains under the FRA’s broad congressional authority to issue emergency orders to abate an unsafe condition or practice that “causes an emergency situation involving hazard of death, personal injury or significant harm to the environment.” The FRA historically has steered clear of the crew-consist debate, but is aware that its Canadian counterpart, following the Lac-Mégantic tragedy, issued an emergency order, under similar broad authority of Parliament, banning one-person crews on all trains in Canada carrying hazmat.

Closer to home, the Federal Aviation Administration established commercial airline crew-consist requirements, and federal courts, (see, Chevon USA Inc. v. Natural Resources Defense Council), concede great deference to administrative orders of expert regulatory agencies (absent a showing of arbitrary or capricious intent), and likely would not interfere should the FRA require two-person train crews into the future. While there is no indication the FRA intends to do so, it can’t be ignored that FRA Administrator Joseph Szabo is the UTU’s former Illinois state legislative director, a post from which he advocated a minimum of two crew members on all freight trains.

Indeed, following the Lac-Mégantic accident, the FRA issued an emergency order instructing railroads to implement additional procedures regarding unattended trains on main line track or main line sidings and terminals outside of yards, and took the additional step of declaring that “railroad safety is enhanced through the use of multiple crew members.”

Thus, any carrier initiative to permit one-person crews on U.S. main line track may hinge on collective bargaining tied to the success of PTC, which is a safety overlay backing up engineers who fail to obey signals, exceed maximum speed limits, or otherwise violate operating rules. That currently is the role of the conductor.

The BLET and UTU contend two sets of eyes and ears are required for safe operation of all freight trains, yet there are numerous instances where two-person—and even more-person—crews failed in their duties, resulting in accidents. Whether PTC is a fail-safe technology is debatable, but the $8 billion estimated cost to railroads in developing and implementing PTC by its late-2015 deadline for main line track carrying hazmat and passenger trains is a commanding inducement to eliminate a train’s expensive second crew member, even if initially only on non-hazmat trains.

The carriers’ bargaining arm—the National Railway Labor Conference—has yet to formulate its bargaining objectives for the next round of national negotiations scheduled to commence in 2015. Carrier demands regarding changes in crew consist will have to be negotiated railroad-by-railroad, rather than in national handling (recall, from above, the 2006 federal court ruling), unless a union—and in this case, the UTU, owing to its individual major railroad conductor-mandate agreements and moratorium—agrees to negotiate in national handling changes to crew consist.

Former UTU President Byron Boyd, perhaps the most visionary rail union president of his generation, preached that technology never has been stopped by labor unions, and the best course for unions in protecting their members’ long-term job security is to engage in interest-based bargaining with carriers, and jointly to manage technological change to the benefit of both parties.

Boyd used interest-based bargaining to negotiate agreements with major railroads permitting money-saving and safe remote-control operation of trains in yards while providing his members with job security. Previously, the BLET rejected that approach in Canada, a stance that did not halt implementation of remote control and resulted in the loss of thousands of BLET-represented jobs. Boyd said, at the time of his agreement, “I’d rather explain why we have the remote-control jobs rather than why we lost them.” His comment echoed former National Mediation Board member Robert Harris, who warned in 1991 that failing to make voluntary agreements subjects both parties to “the oldest established permanent floating crap game in Washington”—third party intervention and decision making.

By agreeing to national handling of crew-consist, however, the UTU would face the most harm were two-person crews scrapped, as the overwhelming number of its members are conductors, whose jobs would be eliminated were engineer-only trains to operate. But as Boyd observed, the job-reducing impact of new technology cannot be halted, and failure to negotiate could, eventually, lead to adverse third party action, such as a Republican controlled Congress (possible in 2016 while national negotiations are in progress) that chooses to legislate an end to the UTU moratorium should a bargaining impasse develop.

Economics can be as potent a force as technology, and as the carriers advised in 2004 when they first sought to renegotiate crew consist, “clearing the path for healthy capital investment through labor model reform” is essential for “steady business growth, new job opportunities in the long run, and a stronger, more balanced national transportation system.” As all rail labor unions and their members sourly learned during the railroads’ darkest days of the 1970s, jobs and competitive wages and benefits are most dependent on the railroads’ healthy bottom line.

For sure, the crew-consist issue has been a thorny one for generations, and shows no signs of abating.

Once upon a time, as many as seven men made up a freight train crew, including a locomotive engineer, a fireman to tend the firebox generating steam, up to four brakemen who manually engaged and disengaged primitive train brakes atop moving trains, and a conductor in charge of the entire crew. Even following post-World War II widespread introduction of diesel-electric locomotives and automatic train brakes ending any requirement for a fireman or brakemen, labor unions successfully preserved into the 1970s a requirement for up to five-person crews on each train.

It was not until 1991 and a presidential emergency board’s recommendations that crew-size was reduced to a near universal two on major U.S. railroads—third-party intervention. The Lac-Mégantic tragedy has prematurely reignited the crew consist debate. How it plays out and where—before Congress, the FRA, the negotiating table, or even the federal courts—cannot be foretold. Over time, the Lac-Mégantic tragedy and public fears in its wake will have a diminished impact on opinion leaders and decision makers, who will more properly focus on technological progress and economics. Unions historically can best serve the interests of their members through voluntary interest-based bargaining rather than having third parties—such as a labor-hostile Congress—make the decision.

Second trick question: Were two crewmembers per train to prevail, which union would represent the two?

If you responded that the BLET and the UTU already each represent conductors and engineers, and that engineers and conductors typically ebb and flow between the crafts as operational needs change, and that the Railway Labor Act allows conductors and engineers to belong to either of the two unions in satisfying their union shop agreement, you are correct—but missing additional drama.

Notwithstanding that the BLET and UTU are fellow travelers in favor of a mandatory crew-consist of two, roiling beneath the surface are hidden motives fueled by festering deep wounds inflicted through decades-long competition for members.

Not lost among those steeped in crew-consist history is a recent BLET press release making reference to an airplane’s flight deck and two qualified pilots—a veiled reference to a former BLET goal that two qualified engineers, rather than an engineer and conductor, be required on each train.

Consider the acrimonious history between the BLET and UTU:

• There have been seven failed attempts at merger between the BLET and the UTU.

• The UTU, with more members than the BLET on most major railroads, twice unsuccessfully attempted to sneak through Congress a legislative provision requiring a winner-take-all ruling by the National Mediation Board (no representation election necessary) based simply on which union represented the most employees on each railroad.

• The UTU is resentful that, in 1985, in the midst of a then-raging crew-consist fight, the BLE (before adding “Trainmen” to its name) suggested establishing a “co-engineer” position—a two-person BLE-represented crew of engineer and co-engineer (the flight-deck model)—in exchange for eliminating all UTU-represented jobs aboard the train.

• More recently, some BLET officers who negotiate with individual carriers over contract provisions affecting individual railroads or portions of it, agreed to operate engineer-only trains if the carriers were successful in eliminating the conductor position.

• Although the BLET also represents conductors, it is bitter over a 2002 binding arbitration decision allowing conductors to use remote control in yards in place of a qualified engineer at the locomotive throttle.

• With regularity, BLET and UTU organizers raid each other, each seeking to recruit membership from each other’s ranks.

Oh my, what a dull world it would be without railroads and their unions. Indeed, what Supreme Court Justice William O. Douglas said in 1966 of the crew-consist debate remains spot-on today:

“[It is] a controversy that years of collective bargaining, study, informed analysis, persuasion, and debate [have] not been able to resolve.”

(Frank N. Wilner is author of “Understanding the Railway Labor Act,” published by Simmons-Boardman Books and available at www.transalert.com.)

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.