June-July 2018 Legislative Update

June-July 2018 Legislative Report

By Kathleen Bisbikis, National 2nd Vice President, National Legislative Rep, BLET Auxiliary

Below are some of the most recent news items that affect all of us. Please feel free to share these with your local auxiliary. If you have information you would like to share with me for future updates, please send it to me at bletauxilliarylr@gmail.com.

FRA – Autonomous Trains, 5 Unions Respond

While we are still in the midst of fighting to keep two-people crews on trains, the Federal Railroad Administration issued an RFI (Request For Information) on March 29, on “the future of automation in the railroad industry.”

“Secretary Chao is placing considerable emphasis on autonomous vehicle development, and prospective use of automation technologies across all modes of transportation,” FRA spokesperson Warren Flatau told Railway Age. “This solicitation is part of U.S. DOT [Department of Transportation] efforts to advance the safe deployment of such technologies.” Comments on the RFI were due on May 7, 2018. Five unions responded, including the BLET and SMART Transportation Division.


Bill Introduced Would Make Assaulting Rail Crews a Federal Offense

On the one-year anniversary of the shooting of an Amtrak conductor in Naperville Station, just outside of Chicago, Illinois, Democratic Sen. Tammy Duckworth (D-IL) introduced a bipartisan bill on May 13, 2018, that would make assault or intimidation of passenger rail crew members a federal offense, which could lead to tougher penalties.

A news release from Sen. Duckworth’s office stated that the bill, co-sponsored by Sen. John Hoeven (R-ND), would provide the same federal protections to passenger rail engineers, conductors, and other on-board service personnel, as are provided to airline crew members. Currently, any assault against a rail crew member is handled under the laws of the local jurisdiction where the crime is committed.

The bill, called the Passenger Rail Crew Protection Parity Act, is being introduced one year after the shooting of Michael Case at the Naperville train station. Case, who suffered extensive internal injuries and spent 10 weeks in the hospital, was one of 73 victims of recorded assaults on Amtrak crew members since 2015, Duckworth’s office said.

The man who shot Case, Edward Klein, 80, formerly of West Allis, Wisconsin, was charged with attempted murder but found to be unfit for trial after exhibiting signs of dementia, and committed to a private facility in suburban Milwaukee. Case, 46, has said that he and his family supported the way the incident was resolved.

Having assaults adjudicated under federal law would mean that penalties would be tougher and more consistent across county and state lines, according to Duckworth’s office. “No one in America should experience what Amtrak conductor Michael Case endured while just doing his job,” Duckworth said in the news release. She is a member of the Senate Committee on Commerce, Science and Transportation. Robert Guy, State Director of the SMART Transportation Division, a union representing Amtrak and other rail workers, said in a statement that given the interstate nature of passenger rail, it “only makes sense” to give rail workers the same federal protections enjoyed by aviation employees.

Chicago Tribune – May 16 2018


BNSF Files for PTC Deadline Extension

BNSF Railway, citing interoperability issues, has filed a two-year extension request of the Positive Train Control (PTC) deadline with the Federal Railroad Administration (FRA). As of December 2017, BNSF had fully installed and was operating under PTC on all mandated subdivisions in advance of the Dec. 21, 2018 deadline. BNSF explains that the extension request was filed and is required due to FRA’s current interpretation of the law that full implementation status cannot be achieved until all non-BNSF trains and/or equipment operating on its PTC-equipped lines are also PTC-compliant.

“BNSF has succeeded in the adoption of this key safety technology. Even with this request for a deadline extension, BNSF’s PTC network is installed and we are currently running, and will continue to run, more than a thousand trains daily with PTC as we continue to refine the system and resolve technological challenges,” said Chris Matthews, BNSF Assistant Vice President, Network Control Systems.

As reported, BNSF completed the installation of all mandated PTC infrastructure at the end of 2017, including 88 required subdivisions covering more than 11,500 route miles on its network. However, to be considered fully implemented requires that all other railroads operating across any of BNSF’s PTC-equipped lines must be capable of operating with BNSF’s PTC system. BNSF explains that this interoperability of PTC systems between Class I, commuter and shortline rail carriers remains a challenge.

BNSF has successfully demonstrated interoperability with several railroads that operate on its network, including commuter railroads and Amtrak. However, BNSF says not all railroads that operate on BNSF will have completed their PTC installation by the end of 2018.

RT&S – June 14 2018


Supreme Court Rules Against Workers Rights

In a case involving the rights of tens of millions of private-sector employees, the U.S. Supreme Court, by a 5-4 vote margin, delivered a major blow to workers, ruling for the first time that workers may not band together to challenge violations of federal labor laws. Writing for the majority, Justice Neil Gorsuch said that the 1925 Federal Arbitration Act trumps the National Labor Relations Act and that employees who sign employment agreements to arbitrate claims must do so on an individual basis — and may not band together to enforce claims of wage and hour violations.

Justice Ruth Bader Ginsburg, writing for the four dissenters, said that the 1925 arbitration law came well before federal labor laws and should not cover these arm-twisting “take-it-or-leave it” provisions that employers are now insisting on. The inevitable result, she warned, is that there will be huge underenforcement of federal and state statutes designed to advance the wellbeing of workers.

She urged Congress to correct the court’s elevation of the arbitration act over workers’ rights. Notably, Ginsburg’s dissent is five pages longer than the majority’s opinion. And Gorsuch spends time in his opinion to respond point-by-point to the minority’s arguments.

The ruling came in three cases — potentially involving tens of thousands of non-union employees — brought against Ernst & Young LLP, Epic Systems Corporation, and Murphy Oil USA, Inc. Each required its individual employees, as a condition of employment, to waive their rights to join a class-action suit. In all three cases, employees tried to sue together, maintaining that the amounts they could obtain in individual lawsuits were dwarfed by the legal fees they would have to pay as individuals to bring their cases under the private arbitration procedures required by the company.

The employees contended that their right to collective action is guaranteed by the National Labor Relations Act. The employers countered that they are entitled to ban collective legal action under the Federal Arbitration Act, which was enacted in 1925 to reverse the judicial hostility to arbitration at the time. A study by the Economic Policy Institute shows that 56 percent of non-union private-sector employees are currently subject to mandatory individual arbitration procedures under the 1925 Federal Arbitration Act, which allows employers to bar collective legal actions by employees. The court’s decision means that tens of millions of private non-union employees will be barred from suing collectively over the terms of their employment.

WFPL News – May 21 2018


Transportation Industry Ask OSHA for Whistleblower Improvements

Raising awareness of the Occupational Safety and Health Administration’s (OSHA) whistleblower rules would improve the agency’s enforcement of laws banning retaliation against employees in the rail and trucking industries, business and worker representatives said. At issue is OSHA’s plan to upgrade its whistleblower protection program. On June 12, at the Department of Labor headquarters in Washington, OSHA took its first step under the Trump administration, holding a session where transportation industry and labor representatives made their cases.

“OSHA could do more to explain to workers who qualifies to make a claim,” according to Abigail Potter, manager of safety and occupational health policy for American Trucking Associations in Arlington, Virginia. “Better information would lead to fewer complaints being filed that don’t meet OSHA’s criteria to open an investigation,” Potter said.

Jay Grimes, federal affairs manager for the Owner-Operator Independent Drivers Association in Grain Valley, Missouri, said few of the drivers he represents are aware of OSHA’s whistleblower rules. “Instead, they file complaints with Department of Transportation agencies,” Grimes said.

“A lack of resources is a crucial problem,” said Azita Mashayekhi, an industrial hygienist with the International Brotherhood of Teamsters in Washington, D.C. This could be resolved by doubling the federal whistleblower budget.

The program receives about $17.5 million annually from Congress. The Trump budget for Fiscal Year 2019 proposes $17.4 million in funding with level staffing of 121 employees. OSHA enforces the anti-retaliation provisions of 22 laws from worker safety to financial malfeasance. Investigations of ground transportation whistleblower complaints accounted for 22% of the 3,303 cases that OSHA opened in fiscal year 2017, according to agency data. Three federal laws — the Federal Railroad Safety Act, the Surface Transportation Assistance Act, and the National Transit Systems Security Act —extend whistleblower protections to railroad, trucking or transit company workers.

Bloomberg News – June 13 2018