Rail Union Ordered to Bargain on Crew Consist

Written by Frank N. Wilner, Capitol Hill Contributing Editor
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“IT IS THEREFORE ORDERED that Defendant SMART-TD (including its divisions, lodges, locals, general committees, and officers) is hereby permanently enjoined from refusing and/or failing to bargain in good faith with each of the Railroads over the November 2019 Crew Consist Proposals in the manner required by the RLA; IT IS FURTHER ORDERED that Defendant SMART-TD (including its divisions, lodges, locals, general committees, and officers) is hereby permanently enjoined Case 4:19-cv-00789-P Document 42 Filed 02/11/20 Page 21 of 22 PageID 1169 22 from refusing and/or failing to bargain in good faith with the multi-carrier group of Railroads with respect to the Railroads’ November 2019 Alternative Wage Proposal. SO ORDERED on this 11th day of February, 2020.”

This is about a railroad labor union committed to serving its dues paying members, and a rail industry losing its core revenue traffic—coal—and now facing off against omnipresent low-cost, non-union truckers for the trailers and containers comprising much of the railroads’ future traffic base. It’s about new technology—the product of knowledge that for centuries has transformed the nature, quality and quantity of work. In this instance, the technology is Positive Train Control (PTC), a safety overlay system substituting artificial intelligence for engineer inattention or distraction. PTC, as does most new technology, creates job redundancies.

This also is about a failed 2014 tentative labor-management agreement on BNSF allowing PTC-equipped trains to operate with but a single locomotive engineer, with conductors reassigned to supervisory posts—in exchange for improved conductor wages and career income protection.

Notwithstanding that new technology has never been blocked by adversely affected workers, and that this tentative agreement was termed by all involved as “the most lucrative ever in exchange for work rules reform,” it was rejected by the rank-and-file at the urging of the union’s national leadership, which prefers not to negotiate crew size in hopes of preserving the status quo.

So mostly this is about adapting to change; and, as will be seen, it is not now going well for the labor union—and eventually may not for its members if the comparison is to be the rejected BNSF tentative agreement.

But before further probing a dilemma that may eventually be decided by a third party such as an arbitrator, a court or Congress—which in every labor-management playbook is the worst possible outcome—a narrative is in order.

History records that the savviest labor leaders subscribe to the aphorism, “If you get a good deal, take it.” The former United Transportation Union (UTU)—now the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD)—has a history of such pragmatism. Or did.

When labor’s staunchest congressional allies in 1991 voted to end an economy-crippling UTU rail strike, and prepared to impose a pro-management amended contract, the UTU returned to the bargaining table and settled. It wasn’t the “best” deal. It was a “good” deal—and certainly better than the third-party solution looming.

2003: BNSF Switchman Wayne Reynolds moves trains via remote control at Stacy Street yard in Seattle. Photo: Mike Urban/Seattle Post-Intelligencer

Many years later, faced with losing conductor jobs to new remote-control switchyard operations, the UTU again chose to control its own destiny and negotiate a mutually beneficial outcome. In exchange for embracing the new technology, no affected member lost income, and many gained higher wages. “We are better off negotiating rather than having a third party make decisions for us,” UTU leaders told members, who again ratified a “good” deal.

With the introduction of still newer technology—PTC—UTU successor SMART-TD had another opportunity to choose pragmatism, but flubbed the dub.

Stay patient with this background, as it is important to understanding the present.

In 2014, a SMART-TD general committee representing some 6,000 BNSF conductors negotiated a tentative agreement allowing PTC-equipped trains to operate over defined routes on a portion of BNSF’s system with a lone engineer and no conductor.

Paul Thompson

In moving to engineer-only operation under that tentative agreement, safety compliance would be monitored by a newly designated “master conductor” working from a fixed or mobile location other than the locomotive cab. There would be contract ratification bonuses, boosts in pay, career income protection and other sweeteners, causing former UTU President Paul Thompson to call it “a home run … a grand slam … providing job security decades into the future.”

But Thompson’s successors urged SMART-TD members not to ratify it—and they didn’t, accepting promises that the union would gain federal regulations and/or federal laws mandating a two-person minimum crew size (crew consist) nationwide.

This was promised, even though data shows no demonstrated safety benefit to two-person crews vs. single-person crews; that the National Transportation Safety Board does not object to elimination of the on-board conductor when PTC is installed; that passenger railroads and many smaller freight railroads long have operated safely with single-person crews; and that the Federal Railroad Administration has ruled that “no regulation of train crew staffing is necessary or appropriate for railroad operations to be conducted safely at this time.”

With PTC to become fully implemented by Dec. 31, 2020, railroads say that to compete in a tightening global economy where, domestically, truck-competitive freight is replacing coal as the railroads’ bedrock traffic, new efficiencies must be implemented, including work rules reform.

When this new collective bargaining round opened in November 2019, railroads sought to negotiate crew consist. SMART-TD maintained that the existing moratorium and prior court cases testing it prohibited such negotiations on a national level, and declined to negotiate railroad-by-railroad, as had been tried once on BNSF in 2014—and failed at the urging of SMART-TD’s national leadership. Railroads told the court that the moratorium closed off talks on workforce reductions, not bargaining over crew size requirements.

The railroads, meanwhile, filed suit in federal court asking that SMART-TD be compelled to negotiate on crew consist. The court was not asked to direct a specific outcome. Separately, the railroads served notice on SMART-TD, as part of national negotiations, that if they declined to negotiate over crew consist, then the railroads wanted wages reduced to recover the cost of crew size redundancies.

On Feb. 11, the Federal District Court for the Northern District of Texas in Fort Worth “permanently enjoined” SMART-TD “from refusing and/or failing to bargain in good faith with each of the railroads over [crew consist].” The court also directed SMART-TD to bargain on a national basis over the carriers’ alternative wage proposal; and that any continuing objection by SMART-TD should be resolved through binding arbitration.

United States District Judge Mark T. Pittman

“Because the Court has made findings and conclusions that the underlying dispute is minor and that SMART-TD has refused to engage in good-faith bargaining as required by the RLA (Railway Labor Act), the Court finds that the Railroads have not only demonstrated a likelihood of success but actual success,” United States District Judge Mark T. Pittman wrote in his decision. “Indeed, there was nothing in the record at the preliminary injunction hearing or from the briefing indicating there is any factual development necessary regarding SMART-TD’s refusal to bargain on the issue of crew consist. It does not seem that this fact has ever been in dispute, and there was nothing in the record at the preliminary injunction hearing or from the briefing that would indicate that SMART-TD would be able to dispute this fact. Accordingly, the Court finds that the Railroads have demonstrated actual success and that the preliminary injunction should be converted to a permanent injunction and final judgment entered.”

SMART-TD has appealed to the U.S. Fifth Circuit Court of Appeals.

Notable is that while SMART-TD has achieved legislation from a number of state legislatures mandating minimum crew size solely within those states, the issue is moot owing to an existing contractual moratorium that has yet to run its course. Moreover, those state laws would fall, should Congress write a crew consist law, or order the Federal Railroad Administration to regulate crew consist, as the Constitution’s Commerce Clause prohibits states from imposing laws in conflict with federal law.

Download the Federal District Court for the Northern District of Texas decision:

Capitol Hill Contributing Editor Frank N. Wilner is author of six books, among them Amtrak: Past, Present, Future; Understanding the Railway Labor Act; and Railroad Mergers: History, Analysis, Insight, all published by Simmons-Boardman Books. Wilner 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. Wilner drafted the railroad section of the Heritage Foundation’s Mandate for Leadership (Volumes I and II), which were policy blueprints for the two Reagan Administrations; and was a guest columnist for the Cato Institute’s Regulation magazine.

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