LEGISLATIVE UPDATE – APRIL 2011

FRA Regulations on Cell Phones

The new Federal Railroad Administration (FRA) regulations on cell phones and other electronic devices went into effect on March 28, 2011. The new rule enforces the same ban on personal electronic devices that was established in Emergency Order 26: the use of electronic devices, including cell phones, while engaged in any safety sensitive duty is strictly prohibited. Electronic devices may be used by crew members while deadheading provided that they are not being used in the cab of the controlling locomotive and such use does not compromise the safety of any operating employee including themselves, and does not interfere with the performance of the safety duties of any operating employees. Use of a camera to take a photograph of a safety hazard or a violation of rail safety law, regulation, order, or standard is allowed only if it is a stand-alone camera and not part of a cell phone or other electronic device, is not being used by a locomotive engineer on a moving train, and is turned off immediately after use.

A one-page flyer from the FRA summarizing the new regulations can be found at http://www.blet-org/pr/pdf/FRA_Electronic_Devices_Chart.pdf.

Attack on Labor and the Middle Class

The attack on unions by ultra-conservative politicians that began in Wisconsin with Governor Scott Walker’s relentless goal to strip public sector unions of their collective bargaining rights continues to spread to other states. BLET members are joining in to help public employee unions fight to protect their collective bargaining rights, by participating in rallies in Wisconsin, Ohio, Kansas, California, Arizona, Minnesota, Iowa, Indiana, and Texas. The 24/7 info-entertainment news media is having a heyday with all of this, whipping up more excitement and exaggerated controversy.

Several states have introduced legislation to enact “right to work” policies that would cripple the right to organize, and in Texas, already a right-to-work state where public employees do not have collective bargaining rights, a bill has been introduced that aims to outlaw the expenditure of union dues money for political purposes and criminalizes activities such as lobbying for legislation, participating in events that are both social and political in nature, creating political communications, and all other activities that involve a political purpose, if dues money is spent either directly or indirectly. Americans across the nation are fighting back because they understand that if you want a strong middle class, you need organized labor… after all it was the unions that created the middle class in this country.

In some cases, the protests and demonstrations of working people and those who support them are causing the ultra-conservatives to back down. Following the passage of Indiana’s right-to-work bill out of a House Committee, the Republican governor of that state recommended that the bill, which brought the Indiana House to a standstill for two days and imperiled other measures, should be dropped. In Florida, Republican Governor Rick Scott refused to endorse Walker’s anti-union bill for his state, saying, “My belief is as long as people know what they’re doing, collective bargaining is fine.” Pennsylvania’s right-wing Governor Tom Corbett has stated that he has no plans to enact a Wisconsin-style law. And in Michigan, although its governor (Snyder) does plan to take aim at public worker compensation, he has stated that he is “not interested in making Michigan a right-to-work state or going wholesale after the bargaining rights of unionized workers.”

It is apparent that at least some of these conservatives are realizing that Main Street America is against their anti-middle class agenda. Van Jones, Senior Fellow at the Center for American Progress, states: “It is up to Americans to ensure that states do not balance their budgets by gutting important services and attacking public workers in order to deal with the effects of a recession caused by Wall Street’s misdeeds, not those of policemen, firefighters, teachers, students, and other hard working middle class Americans.”

As I am working on this update, I just learned that Wisconsin Republican State Senator Dan Kapanke is one of eight Republicans targeted for recall in that state because of his support for Governor Walker’s anti-union legislation. The movement to remove the eight senators eligible for recall has collected enough signatures for a recall election on Kapanke. The petitions were delivered on April 1 to the Government Accountability Board for review. If the petitions are found to be in order by the board, a recall election could take place in July or August.

H.R. 658, The FAA Reauthorization and Reform Act of 2011

On February 11, Representative John Mica (R-FL), Chairman of the House Transportation and Infrastructure Committee (T&I Committee) introduced the FAA Reauthorization and Reform Act of 2011. That bill contained language that would repeal the ruling of the National Mediation Board finalized last year that made union representation elections among airline and railroad workers covered by the Railway Labor Act the same as all other elections in America… where the majority of those who vote make the decision as to whether or not there will be union representation. Prior to last year’s rule change, the NMB rules governing representation elections in the railroad and aviation industries counted workers who did not vote in these elections as having voted against representation. This undemocratic method of conducting the elections meant that widespread apathy and/or carrier intimidation almost always spelled defeat for these organizing efforts.

On March 31, Representative Steve LaTourette (R-OH) offered an amendment to H.R. 654 to strike Section 903 from the bill. Unfortunately, the amendment failed to pass by a recorded vote of 206 - 220.

In the week prior to the final vote on H.R. 658, which passed in the House 223-196 on April 1, the Communication Workers of America released a report that shows that not one member of Congress would have won election if they had to play by the same rules that Representative Mica and his corporate cronies in the transportation industry want to impose on airline and railroad workers.

While the bill was still in committee, Jerry Costello (D-IL) had introduced an amendment similar to the LaTourette amendment to strip the anti-union language from H.R. 658. T&I Committee member Candice Miller (R-MI) voted in favor of the Costello amendment which failed by one vote. In committee, Ms. Miller argued that union votes should be tallied democratically, stating to her fellow committee members, “It’s not pro-union, it’s not anti-union, it’s about fairness.” She went on to say, “Before I came to Congress, I spent eight years as Michigan's Secretary of State. In that job, one of my prime responsibilities was to serve as my state’s chief elections officer. I'd like to think I know a little something about conducting free, open, and fair elections….  Each of us who has the honor to serve in this House does so with the consent of those we serve in free elections.  All we have to do to win this privilege is to receive more votes than our opponent.  That is the fundamental caveat of our democracy, and how we conduct elections. Why should a union election be any different?" Interestingly, however, when the bill was brought before the entire House for debate on March 31, Ms. Miller joined her Republican colleagues and voted against the LaTourette amendment.

The anti-union language is not included in the Senate version of the bill, so hopefully it will be stripped out in conference committee. Additionally, the Obama administration has announced that the President’s senior advisors will recommend that he veto the bill if the final version is presented to him with the provision to overturn fair and democratic election rules for air and rail workers. Will that mean that the FAA will go unfunded due to yet another attempt to break unions?

Federal Employers’ Liability Act Under Attack

Oral arguments were heard on March 28 in the most important FELA case to reach the Supreme Court in the last 50 years, CSX Transportation Inc. v. McBride. Locomotive engineer Robert McBride was seriously injured on the job in 2004 while employed by CSX Transportation, Inc. Mr. McBride, represented by BLET-designated attorney John Kujawski, sought compensation for his injuries under the Federal Employers’ Liability Act and was awarded $184,250 in damages by a jury who found that his injuries were caused by negligence on the part of the railroad. The trial judge had instructed the jury that CSX caused or contributed to McBride’s injury if its negligence “played a part no matter how small, in bringing about the injury.”

CSX filed an appeal with the 7^th Circuit Court of the United States Court of Appeals, arguing that McBride should have been required to prove that the company’s alleged negligence was the cause of the injury. The 7^th Circuit Court affirmed the trial court jury’s verdict on March 16, 2010. CSX then appealed the ruling of the 7^th Circuit to the Supreme Court of the United States, and that court agreed to hear the case.

FELA was enacted in 1908 to promote safety within the railroad industry and is the exclusive law that protects rail workers who are injured or killed on the job. Railroad workers are not covered by workers compensation laws and, when injured at work, must prove that the railroad was negligent and that the negligence was a “cause in whole or in part” of the injury in order to lawfully recover.

At stake in the Supreme Court’s review of the case of CSX v. McBride is whether the FELA’s long-recognized standard of relaxed causation will be overturned and replaced with a much higher standard of proximate cause, as requested of the Court by the railroads through the Association of American Railroads. If the Supreme Court rules in favor of the railroads, it will be much harder for an injured railroad worker to make a case. The Academy of Rail Labor Attorneys (ARLA) and many of the rail unions, including the BLET, are fighting back and have filed Amicus briefs with the Supreme Court requesting that the standard not be changed. The court’s decision is expected to be handed down by June 2011.

Locomotive Safety Standards

The BLET and the UTU have called on the Federal Railroad Administration (FRA) to improve locomotive cab security, establish climate control regulations in locomotive cabs, and establish safety regulations governing the operation of remote control locomotives. In their joint comments filed on March 14, the unions expressed a number of safety concerns in response to the FRA’s Notice of Proposed Rulemaking that was filed in January of this year.

With regard to cab security, the unions pointed out that the lack of air conditioning in hot weather causes crews to choose between their safety and their security, referring to the June 20, 2010, incident in which a conductor was shot to death and the locomotive engineer was severely injured during an armed invasion and robbery of their locomotive cab. The unions maintain that crews must be able to close, lock, and seal the doors and windows of the cab in order to ensure their safety.

In their comments about locomotive cab temperatures, the unions explained the negative effect of extreme heat as it causes fatigue and lethargy, slows reaction time, and therefore diminishes safety. They argued that the FRA rule should require that newly purchased or reconstructed locomotives, as well as those locomotives already equipped with air conditioning, must be capable of maintaining a climate between 60 and 80 degrees Fahrenheit.

The unions urged the FRA to issue enforceable regulations governing the operation of remote control locomotives (RCLs) and to prohibit the operation of RCLs on mainline tracks. They asked that the FRA’s proposed rules for regulation of remote control operator units require these units to be simple in design and uncluttered with any function not necessary for safe operations. In addition, the unions asked the FRA to develop an improved electronic record keeping system to maintain accurate records of employee on-duty hours in remote control service so that a fair comparison of the number of accidents, incidents, and fatalities that occur during remote control switching operations versus conventional switching operations can be made.

And finally, with regard to locomotive seats, the unions expressed their extreme disappointment that the FRA did not even mention anything about locomotive seats in their Notice of Proposed Rulemaking on Locomotive Safety Standards. They pointed out unions alleged that “improper and unsafe seats and seat securements have caused many injuries and illnesses to operating crews,” and asked the FRA to “accept the scientific facts and offer requirements for specifications of locomotive seats on occupied locomotives.”

A copy of the complete joint comments can be found at http://www.ble-t.org/pr/pdf/FRA-2009-0094-0015.1.pdf.

Damaged Hazmat Containers Pose Health Risk to Rail Employees

Seven rail labor unions have jointly petitioned the FRA for enhanced safety standards to protect rail workers and the public from hazmat contamination. In their comments filed on March 24, the unions cite that the number of damaged or leaking hazardous materials containers shipped by rail has more than doubled in the past four years. The FRA routinely grants special permission for railroads to transport damaged hazmat containers on mainline tracks to repair facilities. The number of requests from railroads has been steadily increasing over the last 16 years and the unions are concerned about rail workers being subjected to an unacceptable risk of exposure. That risk will only increase if the current rate of movement approvals continues. The unions are asking for advance notification to rail workers who will be called to work in the vicinity of damaged containers transporting hazmat, as well as the provision of protective gear for those employees, including emergency escape breathing apparatus.