NS Requiring COVID-19 Vaccinations for All Employees (UPDATED)

Norfolk Southern (NS) on Oct. 20 notified all employees that it will require them to receive the COVID-19 vaccination by Dec. 8; on Oct. 22, the railroad filed suit to block its unions from suing and its employees from striking over the mandate; now, the unions have countersued.

The mandate stems from an Executive Order and associated guidance mandating that federal contractors require vaccinations for all employees.

“We haul tanks, Humvees, and jet fuel for the U.S. Department of Defense and deliver coal to the federally run Tennessee Valley Authority,” NS wrote in an internal memo to employees, obtained by Railway Age. “After reviewing the order carefully to be certain, we determined that we are covered under the mandate.” (See full memo below.)

NS follows Union Pacific (UP) in taking action. UP on Oct. 13 announced on its website that it is “complying with the executive order requiring employees of federal contractors be fully vaccinated by Dec. 8.” UP and its unions are suing each other over that requirement.

NS has now sued the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART) and two other unions that represent its employees, according to Reuters. The Class I railroad “filed a petition in Chicago federal court on Thursday [Oct. 21] claiming the unions’ objections to the mandate must be brought in arbitration and not in court because they involve the interpretation of an existing bargaining agreement rather than changes to one,” the multi-media news service explained. Due to the executive order, NS said it “reserves the right under its agreements with the unions to impose a mandate in order to comply.”

According the NS petition, Reuters reported, “the unions contend that imposition of a mandate constitutes a unilateral change to bargaining agreements in violation of the federal Railway Labor Act.

“But Norfolk Southern said that because its bargaining agreements allow it to make changes in order to comply with new laws, including Biden’s executive order, it has not violated the RLA.

“The RLA distinguishes between ‘minor disputes’ involving interpretation of terms of a CBA, which must be heard in arbitration, and ‘major disputes’ over changes to agreements. The law also bars strikes and similar conduct by workers in cases involving minor disputes.

“Norfolk Southern says the case presents a minor dispute because its bargaining agreements do not bar the railroad from adopting a vaccine mandate.”

The unions—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)—reported on Oct. 29 that they have filed counterclaims challenging NS’ actions in implementing the vaccine policy without the bargaining mandated by the Railway Labor Act.

As part of a joint statement, SMART-TD President Jeremy Ferguson and BLET National President Dennis Pierce noted:

“We have been in contract negotiations with NS since November of 2019, and federal law absolutely bars railroads from changing rates of pay, rules and working conditions while negotiations are ongoing. Not only is NS in violation of the law, it has explicitly spurned our demands that these matters be bargained. …”

Railway Age reproduces the Oct. 20 NS memo, in full, below:

“Federal Vaccine Mandate Will Require Change in NS Policy

“From the start of the pandemic, we’ve put a priority on maintaining safe and healthy workplaces as we pull together to keep our economy moving.  We’ve encouraged employees to follow guidance from public health experts regarding vaccination, but we haven’t mandated vaccination as some companies have done. Our employees have diverse and often deeply held views on this topic, and we respect those differences. 

“Our approach has worked. We’ve kept the trains moving and our business strong, while limiting workplace spread. Our people rose to the challenge.

“Now the situation has changed. The Biden Administration has issued an executive order and associated guidance mandating that federal contractors require vaccinations for all employees. We haul tanks, Humvees, and jet fuel for the U.S. Department of Defense and deliver coal to the federally run Tennessee Valley Authority. After reviewing the order carefully to be certain, we determined that we are covered under the mandate. 

“That means we are obligated by law to require vaccinations for our employees. 

“For some, this news will require a difficult individual choice. We don’t want anyone to leave the company because of this new mandate. If you’ve been vaccinated, please share your status through the confidential process.  If you need an accommodation, please seek one.  

“Here’s how the new requirement affects us:

• “All employees need to provide their status by November 8, regardless of whether they are vaccinated, and even if they shared their status previously. This is critical for us to meet the compliance deadline and plan for potential impacts. 
• “You can do this by updating your “Personal Information” on SuccessFactors. If you aren’t fully vaccinated by November 8, you should still share your status and update your record later.
• “This information will be treated as confidential medical information and handled as such.
• “The federal deadline for employees to be fully vaccinated is December 8. To find a location offering vaccination in your community, we’ve created a resource page with links to search by zip code. 
• “If you have a medical condition or sincerely held religious belief that prevents you from receiving the COVID-19 vaccine, you should apply for an accommodation by November 8. You can apply at the same place you share your vaccination status – by choosing “Personal Information” on SuccessFactors.
• “You can find more information by visiting a new COVID-19 resource page.

“Whether you support the mandate or have concerns about vaccination, let’s rise to the challenge by showing each other the mutual respect that is such an important value in our culture. 

“Your efforts to keep the trains rolling through this pandemic have been nothing short of heroic. Thank you for all you do to serve our customers and communities.”