BLE Focus

Spring 2000
Volume 107 - No. 1

BLE Focus

UTU dead wrong

The Brotherhood of Locomotive Engineers was founded on May 8, 1863. Our 137th anniversary came and went without much celebration or fanfare.

In this issue of the Locomotive Engineers Journal, we take a snapshot of five major issues facing our members today.

Talks between the AFL-CIO affiliated rail unions and the National Railway Labor Conference (NRLC) to end the practice known as "cram down" collapsed in late March. These negotiations were prompted by a February agreement between the NRLC and the United Transportation Union (UTU) that would institutionalize, rather than end "cram down," and would grant the industry broader powers than it currently enjoys.

Background

In 1920, the Interstate Commerce Act was amended to empower the Interstate Commerce Commission (ICC) to preempt, or override, any state or federal laws that conflicted with ICC oversight of railroad mergers. In 1936, rail labor and rail management signed the Washington Job Protection Agreement (WJPA), which established rules for reaching merger implementing agreements, including, ultimately, binding arbitration.

Congress built on the WJPA in passing the Transportation Act of 1940, which mandated that the ICC impose employee protective conditions as a prerequisite for merger approval. However, none of the statutory language made any reference to preemption of collective bargaining agreements (CBAs), and - through at least the mid-1950s - no railroad ever tried to use the preemption language to run around the requirements of the WJPA and force unfavorable changes in working conditions.

In 1958, the ICC rejected a carrier's request to "cram down" changes to a CBA, holding that "Congress has not conferred upon us the power to determine the disputes which are subject to the Railway Labor Act." This reasoning also appeared throughout a line of ICC decisions issued over the ensuing quarter century.

Beginning with a 1983 ruling by the ICC, nearly 65 years of preemption law was turned on its head. When the U.S. Supreme Court placed its stamp of approval on the Reagan-appointed ICC's reversal in 1991, open season was declared on our CBAs.

The situation became qualitatively worse after President Clinton's 1994 appointment of Linda Morgan to the ICC - and the Surface Transportation Board (STB), the federal agency that succeeded the ICC in the mid-1990s. Although the authority to preempt, or permit a carrier to "cram down" changes is discretionary, the ICC/STB in the Morgan era was incapable of telling a carrier "no."

This permissive attitude on the part of the ICC/STB has led to the forced consolidation of seniority districts, and the elimination of entire CBAs, by reaching back decades after a merger was approved.

In fact, there is not a single reported case over the past 17 years in which either the ICC or the STB overruled an arbitrator who decided a "cram down" case in a carrier's favor.

Because of the STB's track record, the AFL-CIO Executive Council took an extraordinary step and unanimously passed a resolution on May 5, 1999, opposing Chairwoman Morgan's renomination, because of her role as an agent of destruction of CBAs. The entire rail labor movement fought Morgan's renomination, with one exception: the UTU. This prompted leaders of the House and Senate committees from both political parties to urge labor and management to try to negotiate an end to "cram down."

By mid-September of last year, with no "cram down" agreement in sight, Republican Senator Mike Crapo of Idaho introduced a bill (S. 1590) providing that the "(Surface Transportation) Board shall not, under any circumstances, have the authority... (to) break, modify, alter, override, or abrogate, in whole or in part, any provision of any collective bargaining agreement or implementing agreement made between the rail carrier and an authorized representative of the employees of the rail carrier under the Railway Labor Act... or... provide th(is) authority... to any other person, carrier or corporation." In other words, the Crapo Bill would make "cram down" illegal.

October brought the collapse of the "cram down" negotiations, and the stalemating of the Morgan nomination. Then, the Association of American Railroads (AAR) agreed to a 36-month moratorium on New York Dock notices - and "cram down" - while labor and management negotiated new terms. However, AAR reneged on the deal that its President Edward Hamberger had made with AFL-CIO Secretary-Treasurer Richard Trumka the moment that the logjam over Morgan's reconfirmation had been broken.

Update

By the second week of December, the UTU - who had not yet dropped out of the AFL-CIO - told the rest of rail labor that the carriers had indicated they wanted to return to the table to resume negotiations. Our response was simple... "Sign the deal that you made with Rich Trumka." In January, Brother Trumka offered to remove himself from the talks, if the Rail Chiefs believed that it would help the situation. The consensus reached at that meeting was to stay the course, and unite behind our double-crossed leader.

UTU President Little then launched a personal attack on Brother Trumka, and tried to drive a wedge between Rich and the rail unions. When that failed, he went to the table by himself and cut the February deal to "end cram down."

In reality, the UTU agreement made cram down worse. It would: take today's STB discretionary preemption power and convert it into a legal right; permit the use of the new "cram down" to establish a single, system-wide CBA; allow unlimited expansion of the size of seniority districts; and permit the carrier to "cram down" uniform "administrative" procedures and practices on a systemwide basis, with no duty to bargain. The latter provision would include what was vaguely termed as "uniform crew calling practices." This is significant, because it provides carriers with rights and powers that they lack today, even under the present "cram down."

What's in Store?

Negotiations with the carriers broke down over differences concerning unrestricted seniority district sizes, the ability to use the new rules to transfer agreement workers into non-agreement facilities to remove them from under their CBAs, and the ridiculously broad powers to "cram down" uniform system-wide "administrative procedures."

On the bright side, however, despite deep divisions over railroad retirement reform, the AFL-CIO rail unions have stood shoulder-to-shoulder on "cram down" remarkably well, in no small measure because the UTU is not at the table to prod anyone to engage in a race to the bottom.

The fact that Burlington Northern Santa Fe and Canadian National have agreed not to use "cram down" against the BLE in the event they merge shows that this is something the carriers "want" far more than they "need."

If the industry respected its contracts with rail labor as much as it respect its contracts with others there would be no dispute; but the carriers won't, unless we force them on the issue.

For these reasons, rail labor must continue to hang tough and remain united on this issue. While the potential for resuming negotiations is there, the only ultimate success will be the passage of an abolition of "cram down," such as contained in the Crapo Bill. A legislative mobilization by the Rail Labor Division of AFL-CIO's Transportation Trades Department is expected for the spring and summer, which will require your active participation and support, because our agreements are only as secure as we are prepared to make them.

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