Minnesota Governor Tim Walz on May 24 signed a two-person crew bill into law, making his state the 12th to do so. The requirement, introduced earlier this year by State Rep. Jeff Brand and State Sen. Jen McEwen, is included in HF 2887, the Transportation Omnibus Bill, which earlier had passed in the legislature with bipartisan support. Walz, Brand and McEwen are all DFL (Democratic-Farmer-Labor Party) members.
The final version of HF 2887 passed the Minnesota House chamber by a 69-61 vote and passed out of the Senate by a 34-32 vote.
In addition to two-person crews, HF2887 addresses other rail safety issues supported by the BLET (Brotherhood of Locomotive Engineers and Trainmen) Minnesota State Legislative Board and that of the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD): addition of two new state rail safety inspectors, and $194.7 million in state funding for the Northern Lights Express, a proposed 152-mile higher-speed passenger rail service between Minneapolis and Duluth using BNSF right-way.
Can states legislate crew size? The answer is “yes,” but specific conditions are required before such a law becomes effective.
“Crew size is not determined by national bargaining,” explains Railway Age Capitol Hill Contributing Editor and former labor official (UTU/SMART-TD) Frank N. Wilner, author of Understanding the Railway Labor Act.
“The issue of minimum train-crew size currently is moot because each Class I railroad has individual agreements with the UTU/SMART-TD mandating two-person crews (one conductor and one locomotive engineer) until the last protected conductor on each of the Class I signatories departs service. That event is drawing closer, as the two-person crew agreements date back decades after being negotiated in exchange for reducing crew size from as many as five to just two.
“In the absence of federal law or regulation (and there currently is neither), states have authority under the 10th amendment (States’ Rights) to regulate rail safety—the 1995 ICC Termination Act having prohibited states from regulating railroad rates and practices and leaving economic regulation solely with the ICC/STB. Minnesota is now the 12th state to enact a two-person minimum crew law.
“When a so-called ‘last person standing’ agreement expires on a Class I, a state law would take effect, although federal courts might find such a state law an impediment to interstate commerce under the Dormant Commerce Clause, an 1886 Supreme Court decision serving as an implicit prohibition against states passing legislation discriminating against, or unduly burdening, interstate commerce, even in the absence of federal legislation regulating that activity.
“Thus, Class I railroads have been seeking—unsuccessfully, so far—to have SMART-TD agree to negotiate crew size in a national agreement (abrogating the individual Class I agreements), while SMART-TD has been lobbying Congress to impose a nationwide minimum crew size law.
“The FRA has been toying with—but has yet to formalize—a two-person minimum crew regulation dating to the Democratic Obama Administration and continuing now under the Democratic Biden Administration, while Republican President Trump’s Federal Railroad Administrator, Ronald Batory, scrapped the effort and urged, instead, that crew size be negotiated on a national basis. FRA Administrator Amit Bose, who succeeded Batory, resurrected the two-person crew mandate effort begun under President Obama’s FRA Administrator, Joseph Szabo
“Notable is that the Brotherhood of Locomotive Engineers and Trainmen has an agreement with just BNSF allowing for engineer-only operations when the BNSF agreement with UTU/SMART-TD expires, with engineers gaining a pay additive in exchange. Although UTU/SMART-TD and BLET are currently in lockstep supporting a minimum national crew size law or regulation, the two unions have a history of being scorpions in a bottle.
“The UTU/SMART-TD some two decades ago negotiated a yard operation RCL (remotely controlled locomotive) agreement with the Class I railroads that cost thousands of BLET-represented engineer jobs, with the BLET losing an arbitration challenge that found a conductor operating a remote-control device in place of an engineer at the locomotive controls was directing the remote-controlled locomotive in the same manner a conductor instructs an engineer. The BLET, meanwhile, in previous years, advocated eliminating the conductor position in exchange for higher engineer pay.”