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NMB nominees and labor talks advance

Written by Frank N. Wilner, Capitol Hill Contributing Editor
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Senate confirmation of two new Republican members to the three-member National Mediation Board (NMB), and confirmation of a Democrat to a third NMB term, is anticipated in the next few weeks. The NMB will then be under Republican control for the first time since 2009.

The confirmations may coincide with emergence of a tentative new agreement on wages, benefits and work rules between most major railroads and one of the three labor-union coalitions with which the carriers are bargaining. The major railroads include BNSF, CSX, Kansas City Southern, Norfolk Southern and Union Pacific. Amtrak, Canadian National and Canadian Pacific bargain separately, but many smaller railroads are included.

Republicans Gerald W. (Trey) Fauth III and Kyle Fortson were nominated by President Trump earlier this year, but Senate action has been on hold pending nomination of a Democrat. That came Sept. 15, with nomination of Linda A. Puchala to a third term. She had been nominated twice previously by President Obama, with the first of her two previous Senate confirmations coming in 2009.

Separately, an outline of a new five-year wage, benefits and work rules agreement between the railroads’ collective bargaining arm, the National Railway Labor Conference, and one of the three labor-union coalitions with which railroads have been bargaining is said to have emerged from contract talks that began in January 2015. The Railway Labor Act provides that existing agreements remain in force until new ones are forged.

The 13 rail labor unions, bargaining as part of three separate coalitions, represent some 145,000 rail workers. The coalitions have bargained under what many of their leaders consider a dark cloud of national politics. Absent a voluntary settlement, the NMB could declare a bargaining impasse. That would allow President Trump to name a Presidential Emergency Board to make non-binding settlement recommendations that could be converted to a legislatively-imposed result by a conservative Republican- controlled Congress – a potential especially unsettling to unions.

The outline of a tentative agreement with the largest of the three labor-union coalitions – representing almost 60% of affected employees including train and engine workers, signal workers and dispatchers – is said to provide a wage boost over five years and impose greater employee cost-sharing of healthcare insurance premiums. All three coalitions have been bargaining with the aid of NMB mediators.

Even with a tentative agreement with one of the union coalitions, two other coalitions remain in negotiations. And craft-by-craft membership ratification is required of every tentative agreement, which is a multi-month process. There has not been a national rail work stoppage since 1992.

If confirmed by the Senate, Fauth would succeed Democrat Harry Hoglander, who was first nominated to the NMB by President George W. Bush in 2002, making Hoglander the third-longest serving NMB member in the agency’s 83-year history. Fortson would succeed Republican Nicholas Gaele, who voluntarily departed the NMB earlier this year to become chief of staff to Labor Secretary R. Alexander Acosta.

Fauth has been associated with railroad economics and consulting since 1978 at G.W. Fauth & Associates, founded in 1957 by his late father, and of which he is now president. For four years, he was chief of staff to Surface Transportation Board Republican member Wayne O. Burkes, where he was involved with labor arbitration and dispute resolution arising from rail mergers and the resultant harmonizing of separate collective bargaining agreements. He earned an undergraduate degree in history and government from Hampden Sydney College.

Fortson has been labor policy director and labor counsel for the Senate Health, Education, Labor and Pensions (HELP) Committee since 2004. She previously was a policy analyst for the Senate Republican Policy Committee, and legislative counsel to Sen. Tim Hutchinson (R-Ark.) and Rep. Spencer Bauchus (R-Ala.). She earned an undergraduate degree in history from the University of Colorado, and a law degree from The George Washington University.

Puchala was a NMB senior mediator for 10 years prior to becoming a Senate-confirmed member in 2009, and has skills in alternative dispute resolution. Previously, she was president of the Association of Flight Attendants. Puchala earned an undergraduate degree in business from Cleary University.

The HELP Committee is not expected to hold a public confirmation hearing. Instead, the nominees will meet informally with senators who extend such invitations. The HELP Committee will then vote on whether to send the three names – which is expected owing to no interest in a formal committee hearing – to the Senate floor for a confirmation vote.

As an independent (from the Executive Branch) regulatory agency, the NMB administers the Railway Labor Act that applies equally to interstate freight, passenger and commuter railroads, and interstate airlines. The NMB provides mediation in collective bargaining disputes, voluntary alternative dispute resolution programs, binding arbitration to resolve contract interpretation and employee discipline disputes, and establishes rules for conducting union representation elections.

One controversial issue the NMB could face is whether to establish a fee schedule for resolving contract interpretation and employee discipline disputes. Where airlines and their unions share those costs of such arbitration, taxpayers fund those activities for railroads and their unions, at an estimated $1.2 million annual cost for arbitrator fees, travel, meals and lodging. Advocates say shifting those costs to the users will eliminate the filing of frivolous grievances.

In 2004, a Republican controlled NMB issued a Notice of Proposed Rulemaking proposing such fees. Railroads were supportive; rail labor unions opposed. While Republican member Read Van deWater voted to finalize the rule, Democrat Hoglander voted “no.” For 18 months, until he departed the NMB, Republican Edward Fitzmaurice abstained from voting. The rule was never finalized. It could be advanced again by the incoming Republican majority.













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