The U.S. Court of Appeals for the 5th Circuit, Judge Kurt D. Engelhardt presiding, on Aug. 28 issued its decision in BNSF et al v. SMART-TD (Case No. 20-10162) concerning crew consist size, vacating an injunction that forced Sheet Metal, Air, Rail Workers-Transportation Division (SMART-TD) General Committees to bargain over crew consist size and redeployment, despite the existence of moratoria that bar such negotiation. The National Railway Labor Conference (NRLC), which represents the carriers, while acknowledging the court’s decision, countered that the union’s objections are subject to arbitration, and as such bolster the railroads’ efforts to negotiate over crew size. One industry observer, who has been on both sides of the bargaining table, says SMART-TD leadership is not acting in the best interests of the membership they represent.
“This decision is a long-awaited victory for the union,” SMART-TD said. “The appellate court has always read those moratoria clauses to bar the service of Section 6 Notices to negotiate over crew consist until the last protected employee voluntarily separated from service. Indeed, that is the very reason for their existence. But despite the long-standing nature of these clauses, the carriers presented a new and novel theory that the moratoria did not actually bar crew-consist negotiations.”
“The carriers tested this theory out by filing suit against SMART-TD in October 2019 and moving for a preliminary injunction in December 2019,” the union noted. “In their request for an injunction, the carriers asked a district court in Texas to force SMART-TD to bargain now in spite of the moratoria. That court issued its decision on February 11, 2020, finding that even though the dispute over the moratoria was minor, and no arbitral determination had been made, SMART-TD was required to bargain now. Under the RLA (Railway Labor Act), minor disputes must be resolved through arbitration, not Section 6 bargaining. In its opinion, the appellate court walked through the various bases on which an injunction can be issued in RLA disputes. The 5th Circuit Court found that none existed here. Rather, it concluded that the carriers had failed to exhaust the administrative remedy provided under the RLA arbitration regarding the moratoria clauses.”
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The NRLC noted that the court “agreed with the railroads that the union’s objections to bargaining must be arbitrated, providing a clear path forward in the industry’s efforts to negotiate over crew size.”
“In the current bargaining round, which began Nov. 1, 2019, the freight rail industry is seeking to leverage new safety and operational technologies to facilitate redeployment of train conductors,” NRLC said. “With the implementation of Positive Train Control, a set of technologies designed to automatically stop a train before certain accidents related to human error occur, the conductor can be safely redeployed from riding in the locomotive cab to a ground-based position. Bargaining over the railroads’ redeployment and staffing proposals had been ongoing for the past several months under the now-vacated injunction, and the court’s ruling allows for SMART-TD to suspend those negotiations.”
“The union has claimed that decades-old labor agreements prohibit mandatory negotiations on this topic,” NRLC noted. “The court’s ruling confirms that the union’s objections to bargaining are subject to arbitration, a process that the railroads initiated some months ago but SMART-TD has been resisting. Consistent with the ruling, the previously initiated arbitration process must now move forward.
“While the railroads are disappointed in the appeals court’s reversal of the prior injunction, they are optimistic arbitration decisions should be issued by early 2021. The railroads expect these decisions will confirm that SMART-TD is required to negotiate over this important aspect of modernizing freight rail operations and look forward to engaging with SMART-TD in further negotiations over crew size. The railroads believe a prompt resolution of the arbitrations and settlement of the negotiations will best position the industry to modernize its operations and better compete for freight traffic.
“Crew size in the railroad industry is a matter of collective bargaining and a subject the railroads and SMART-TD and its predecessor unions have historically resolved through negotiations. These negotiations have typically occurred when technological and operational changes allow for the consideration of new and safe, streamlined procedures and staffing models for the operation of trains. In addition to the crew staffing and redeployment proposals, the railroads and the 12 major rail labor unions that represent approximately 125,000 rail employees are presently engaged in a round of national collective bargaining addressing wages, benefits and many other work rules.”
Railway Age Capitol Hill Contributing Editor Frank N. Wilner, who has sat on both sides of the bargaining table—management and labor—and who is author of Understanding the Railway Labor Act, offers this insight into the court decision:
“This is a significant defeat for the railroads, but an equally significant defeat for conductors represented by SMART-TD, which hasn’t been so ‘smart’ in representing its dues-paying members. The reasons are not so complicated if one recognizes there are three stakeholders at the bargaining table—railroads, their union (represented by elected union officers) and the dues-paying union members.
“A branch of economics is public choice theory, which holds that even those representing others will first protect their own self interest. The self interest of the unions at the bargaining table is to protect the elected officers whose salaries and benefits—up to and into retirement—depend on union dues. As railroads have consolidated and eliminated redundancy in past decades, most rail unions have retained a bloated structure from days when membership roles were double and even triple today’s. This is where the self-interest of the dues paying members and their union officers collide.
“The carriers were in a position to provide lifetime income protection in exchange for pilot programs leading to one-person crew operation. All things being equal, it should have been a deal immediately embraced. Who wouldn’t want a lifetime income guarantee? But SMART-TD, especially, would hemorrhage the most financially, threatening layoffs of union officers and consolidation of numerous general committees and locals—fraught with internal political danger. So SMART-TD put its own interests ahead of its members.
“SMART-TD has refused to negotiate over labor-saving technology that no labor organization in the history of labor-management relations has ever stopped. This makes its current victory a Pyrrhic win, because the time is fast approaching that the ‘last-person-standing’ moratorium on which the appellate court decision turned will end, and the carriers, rather than offer incentives, will merely cut crew size and turn the adversely affected workers loose into a job market that, no matter how strong, doesn’t have many opportunities for the skill sets of career railroad conductors.
“Some of SMART-TD’s more forward-thinking officers attempted some years ago to negotiate with BNSF a one-person-crew pilot project in exchange for lifetime income protection for those adversely affected. SMART-TD’s senior officers convinced those members to vote ‘no.’ In hindsight, many of those who voted ‘no’ soon realized they may have voted against their own self interest, and were pressing—so far unsuccessfully—for another opportunity to vote.
“Now, those BNSF conductors who had an opportunity for lifetime income protection—a gold-plated insurance plan against job loss or demotion—now face layoffs associated with more aggressive implementation of Precision Scheduled Railroading (PSR), where there are no job-loss or demotion benefits beyond defined-period unemployment.
“And while SMART-TD’s senior leadership has preserved, for the time being, its own employment and benefits security paid through union dues, its rival union, the BLET (Brotherhood of Locomotive Engineers and Trainmen) stands eventually to be the biggest winner. It already has in place an agreement with BNSF to pay engineers a higher wage when—not if—crew size is reduced to one. When the carriers unilaterally reduce those crews at the end of the last-person-standing moratorium, it will be the engineers in the catbird seat with higher wages, and SMART-TD conductors out of work with only memories of what could have been. How ironic that a union mocking Donald Trump’s The Art of the Deal would do one worse.”