LEGISLATIVE UPDATE – JUNE 2010

National Mediation Board Rule Change re: Representation Voting

The National Mediation Board issued its final rule on May 10, 2010, that changed how workers could unionize at companies covered by the Railway Labor Act. Previously, any workers who did not vote in a representation election were counted as “no” votes. Under the new rule, if a majority of workers who cast votes vote in favor of forming a union, the property will be unionized. Those who fail to vote will not count for either side, which, by the way, is the way votes are counted in Congress and in our national election system.

The proposed rule change received widespread support. The NMB reported that they received letters from 39 Senators, 179 Democratic House Members, and 13 Republican House Members. However, it is not without opposition—Senator Johnny Isakson (R-GA) has stated that the NMB had no authority to make this change without congressional authorization and has threatened to use the Congressional Review Act to overturn the decision. This rarely-used Act allows lawmakers to overturn regulations issued by any executive branch agency; however, in order to overturn a rule requires a resolution of disapproval approved by both the Congress and the President in the few months after the rule is issued.

A copy of the NMB Rule is on the BLET website at:
http://www.ble-t.org/pr/pdf/NMB_Final_Rule.pdf

FRA Proposed Rule re: Ban of Electronic Devices

The BLET and UTU filed a joint Petition for Review on November 14, 2008, requesting that the FRA make specific exceptions to Emergency Order 26 (EO 26), “the cell phone ban,” published August 7, 2008. In a Proposed Rule published in the May 18 Federal Register, the FRA seeks to codify EO 26 into a federal regulation. The specific exceptions requested by the BLET and UTU include: (1) permitting the use of electronic devices by deadheading employees traveling in the body of a passenger train or railroad business car, or inside the cab of a locomotive that is not the controlling locomotive for that train; (2) permitting the use of a camera to document safety violations and hazards; (3) permitting the use of calculators for train handling purposes; and (4) permitting the use of GPS tracking devices to verify the accuracy of the speed indicator in a controlling locomotive.

With regard to GPS devices, the FRA denied the request for exemption, stating that they present a high risk of distraction. Regarding the other requests, the proposed rule states that, while in the cab of a moving train, the locomotive engineer would be prohibited from using any electronic device under any circumstances; however, with regard to operating employees who are deadheading in the lead locomotive, the proposed rule would allow those deadheading employees or other crew members to use a mobile phone or remote computing device for an approved business purpose if all crew members first conduct a safety briefing and conclude that it is safe at that time to such a device. The proposed rule also would permit the use of an electronic device to photograph or video a safety hazard or violation of a rail safety law if: (1) the device’s primary function is as a camera (i.e., use of a cell phone or other multi-functional electronic device is not included in the exception); (2) the camera, unless otherwise permitted, is turned off immediately after documentation has been made; and (3) if the camera is used in the cab of a moving train, the use is by a crew member other than the locomotive engineer.

The FRA proposed rule also states that an operating employee, other than a locomotive engineer at the controls of a moving train, would be permitted to use the following if it does not interfere with any employee’s performance of safety-related duties:

· digital storage and display function of an electronic device to refer to a railroad rule, special instruction, timetable, or other directive, if such use is authorized under a railroad operating rule or instruction

· an electronic device as necessary to respond to an emergency situation involving the operation of the railroad or encountered while performing duty for the railroad.

· a medical device that is consistent with the railroad’s standards for medical fitness for duty, such as a hearing aid or a glucose monitor.

The proposed rule would also continue in effect an exemption for some shortline railroads under which the use of wireless communication devices to conduct train or switching operations is permitted if the railroad operating employee is part of a crew assigned to a train that is exempt from the requirement of a working radio when the employing railroad has fewer than 400,000 annual employee work hours.

The BLET praised the FRA for publication of the proposed rule and is grateful to the FRA for taking into consideration their concerns regarding this issue.

Hours of Service

Late last year, the BLET and the UTU asked the FRA to reconsider its interpretations of the new laws created by the passage of the Rail Safety Improvement Act (RSIA) on October 17, 2008. We maintain that it is of utmost importance that changes be made to address the hardships and dangers that have resulted from the changes in the hours of service regulations that railroad crews are now subjected to as a result of that action. Although it was the intent of Congress to provide a predictable and defined work-rest period for these employees, the resulting law, as interpreted by the carriers, has created some serious situations for our engineers and conductors.

Currently, when at an away-from-home terminal, employees may not be called for a return trip until ten hours after their arrival at that terminal. While this measure was intended to give them an undisturbed rest period at the away-from-home terminal, it is a problem because oftentimes many more hours have passed following the 10-hour rest period before they are called for a return trip. This results in the employees having been awake for a very long time before they begin their return trip, which could require them to be awake and alert for another 12 hours or more, creating a dangerous situation with regard to fatigue. We would like to see the mandatory rest period at the away-from-home terminal reduced from 10 hours to 8 hours.

As we have always maintained, a 10-hour call for all unassigned road service is an absolute necessity and, with all the technology available today, this should be feasible. If road crew employees knew at least 10 hours in advance of when they were to be called to duty, then they could plan their lives accordingly and get the proper rest. The unions have also asked the FRA to (1) reaffirm the “fresh-start lookback period” analysis that was in place for almost for 40 years before the RSIA, (2) limit the number of excess limbo time hours an employee can have in a duty tour to two hours, and (3) require notification of the crew before going off duty in the event of an interim release.

If the FRA fails to adequately address these issues in their reconsideration, then the BLET will be asking Congress to make some amendments to the RSIA.

Family Medical Leave Act Amendment

The amendment submitted to Congress by the BLET to lower the threshold for hours worked for railroad operating crews will soon be introduced by Rep. Tim Bishop (D-NY). Two-thirds of our BLET members work in pools or on extra boards and a percentage of these members do not meet the current threshold of hours worked (1250 hours per year) to qualify for FMLA. The amendment states that, in addition to the number of hours actually on duty, the number of hours that a railroad employee is required to be available for work must be included in the minimum number of hours required to qualify for the FMLA.

H.R. 912, the Airline Flight Crew Technical Corrections Act, a very similar bill pertaining to airline crews who fell into the same loophole, was submitted by Rep. Bishop in February 2009. It was introduced in the Senate as S.1422 on July 9, 2009, and became law on December 9, 2009, with widespread support. Because our amendment is very similar to the airline flight crew amendment, which is still fresh in the minds of those serving in Congress, the outlook is good for its passage in both houses.

My heartfelt thanks go out to our President Becky Schneider for providing the following legislative update information that she ascertained at the National Association of State Legislative Board Meeting in Mobile, Alabama, last month. I was unable to attend the meeting due to other obligations and I very much appreciate Becky’s efforts to take good notes and to put together the following information for all of us.

Positive Train Control (PTC)

The Carries filed their PTC implementation plans on April 16. The Federal Railroad Administration (FRA) now has 90 days to review and approve those plans. The goals, as stated by the FRA, are to implement PTC to provide an added measure of safety for collision prevention. They also want to see PTC standardized between rail carriers, a concept that has encountered resistance by the Carriers citing cost as a major issue.

Operation Lifesaver

The current Transportation budget bill contains no funding for Operation Lifesaver, a program that has over the years been very beneficial in educating the public as to grade crossing dangers. Cutting this program from the budget is not good news. When grade crossing accidents occur, not only is it tragic for the victims and their families, it also takes its toll on the crew involved. To cut the educational funding out of the bill could possibly lead to an increase in grade crossing accidents.

Carrier Pilot Projects

As reported by the FRA, they are currently reviewing the lack of regulations pertaining to extra long trains. Apparently, when the Union Pacific recently ran their three-mile-plus train “pilot project,” they failed to notify the FRA of their intentions. The concern stems from not only the potential for extensive blocked crossings in case of a malfunction, but also the loss of communication between the head end of the train and the rear end of the train. The FRA is working to update the regulations to keep up with technology.

Remote Control Operations

The BLET DC office has reported that the Carriers are trying to expand guidelines to operate RCOs on the mainline. They have asked any BLET members who may observe these type of mainline operations to report the pertinent information as soon as possible to the DC office, at 202-624-8776.

Cab Temperatures

While there are minimum cab temperature regulations in place, no maximum cab temperature exists. The BLET National Division is working to require maximum temperature regulations. Based on testimony before Congress, BLET Vice President and NLR John Tolman used the FRA’s numbers from hygienists as to 85 degrees being the maximum temperature to maintain 100% functionality. The attorney for the American Association of Railroads refused to accept these findings as being legitimate. The Washington office will continue to push for maximum temperature regulations.

National Rail Plan

The BLET has declared it’ support of the National Rail Plan envisioned by the FRA, but has demanded that jobs created under the plan must go to America’s railroad workers. They are urging the FRA to require that jobs covered by the National Rail Plan be safeguarded for railroad workers, and to ensure that these workers are protected by federal laws in place relating to railroad workers, including the Railway Labor Act, the Railroad Retirement Act, and the Federal Employers Liability Act.