Legislative Update May 2013

BLET Urges Investment in Amtrak

Amtrak has submitted its FY 2014 budget to Congress, outlining the incredible progress the railroad has made in recent years. Amtrak moves nearly one million people on commuter and intercity rail services each day, and has broken its annual ridership records in nine out of the last ten years. In March 2013, Amtrak moved more passengers than any other month in its history and is on track to break another all-time annual ridership record. The railroad has become more efficient and self-sufficient in recent years, covering 88% of its operating costs with ticket fares and other non-federal revenue.

On April 17, John Tolman, BLET National Vice President and Legislative Representative, testified before the Surface Transportation Subcommittee of the Senate’s Committee on Commerce, Science, and Transportation, presenting a strong case for the U.S. to make a major investment in Amtrak, particularly along the Northeast Corridor, for the expansion of service and high-speed rail. He explained that the solution to the pollution and congestion on our nation’s highways is simple – improvements to passenger rail services. He urged the senators to support reauthorization of the Passenger Rail Investment and Improvement Act, which reauthorized funding for Amtrak for five years, and tasked it with working together with the U.S. Department of Transportation, the Federal Railroad Administration and the states to improve service, operations, and facilities. The bipartisan legislation was enacted in 2008 and is due to expire this year. BLET National President Dennis R. Pierce thanked Vice President Tolman for representing the Brotherhood at the hearing. To read Tolman’s full, written testimony, go to http://www.ble-t.org/pr/pdf/Tolman_NEC_Testimony_4.17.13.pdf.

In 2014, Amtrak is requesting $373 million for operating support, more than 20% less than Congress appropriated last year and 34% less than was appropriated in 2010. Please contact your elected officials and ask them to support Amtrak authorization.

BLET and SMART Transportation Division Fight KCS on Implementation of Inward Facing Cameras on Locomotives

In his comments to the National Association of State Legislative Board Chairmen in Detroit, Michigan, on May 6, President Pierce informed us that Kansas City Southern Railway (KCS) has announced that it intends to install and begin to use inward facing cameras in all of its locomotives. According to KCS, each locomotive will have two cameras—one behind the engineer that will be focused on the control panel, and one across the cab focusing on both crew members. KCS officials have stated that the railroad has “management prerogative” to take these actions and does not have to, nor do they intend to, bargain with the unions over the use of these cameras or the effects of this dramatic change on its operating craft employees.

BLET National President Dennis Pierce and SMART Transportation Division President Mike Futhey together told KCS that they and the other leadership of both unions vehemently disagree that the carrier has the right to install and use inward-facing cameras unilaterally without exhausting the bargaining processes of the Railway Labor Act. Both unions view this as a serious change in working conditions and have agreed to work closely to resist its implementation. A coordinated effort is being undertaken in response. Not only will both unions fervently oppose KCS’s lawsuit, they will be asking the court to enjoin the carrier from going ahead with its plan.

As stated in a press release issued by the BLET National on May 10: “As of now, and until the court has issued a ruling regarding the parties’ respective rights, the carrier has agreed not to turn on or use the cameras. Union members who work for KCS on a locomotive that has a camera installed should request assurances from the proper carrier officials that the camera is not turned on and not in use. Any instance where that assurance is not given should be immediately reported to your General Chairperson. Also, to avoid any possibility of discipline, no member should attempt to move, cover, or otherwise tamper with the cameras they encounter.”

The unions have stressed that crew members’ cooperation in this manner is vital, and have assured their members that the two unions are diligently working to protect the crews and their interests in this matter.

Third Circuit Appeals Court Rules NLRB Recess Appointments Invalid

In a 2-1 decision rendered on May 16, the U.S. Court of Appeals for the Third Circuit has joined the D.C. Circuit in ruling that President Barack Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional, concluding that some board actions taken in the wake of those appointments are therefore invalid. The court ruled that the presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions or other adjournments during which the Senate might meet in pro forma sessions.

The Third Circuit case centered on decisions the NLRB made on the authority of three members, including Craig Becker, who was appointed by the President on March 27, 2010, while the Senate was adjourned for two weeks. The case, NLRB v. New Vista Nursing & Rehab was brought before the court by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the Board’s decision was invalid because the naming of Becker to the board was not a valid recess appointment; therefore, the Board did not have enough members active when the decision was issued. In order for a decision of the NLRB to be valid, it must have three members participate. The Court ruled that because Becker was not appointed during a break between sessions of Congress, he was not a valid member of the Board.

The Third Circuit reached its conclusion based on essentially the same reasoning as that relied upon by the D.C. Circuit Court of Appeals in its January 2013 Noel Canning v. NLRB ruling that Sharon Block, Richard Griffin and Terence Flynn’s January 2012 NLRB appointments were invalid. Some question still remains as to whether Congress was or was not in session at the time that the appointments were made in January 2012 (see legislative update of February 2013 on the BLET Auxiliary website at http://www.bletauxiliary.net/Legislative%20Update%20Feb%2013.htm).

The NLRB filed a petition on April 25 in the Noel Canning case, asking the U.S. Supreme Court to review the D.C. Circuit’s decision, and it is likely the NLRB will similarly petition the Supreme Court to review the Third Circuit’s New Vistadecision. This latter decision will make it more difficult for the NLRB to ignore opposing views concerning the recess appointments clause’s meaning and may create more reason for the Supreme Court to grant judicial review in similar cases. Some have called for the NLRB to curtail all activity until the Supreme Court rules on this issue. The D.C. Circuit’s Noel Canning decision makes this particularly concerning since the D.C. Circuit has jurisdiction to accept all NLRB appeals. The NLRB, however, has not yet stated whether this most recent ruling will change its position.

On the same day the Third Circuit Court made its ruling (May 16), the Senate Subcommittee on Health, Employment, Labor, and Pensions conducted a hearing regarding the three National Labor Relations Board members up for reconsideration and two new Board nominees. The hearing, entitled: “The Future of the NLRB: What Noel Canning v. NLRB Means for Workers, Employers, and Unions” was conducted to examine the implications of the U.S. Court of Appeals for the D.C. Circuit’s decision in the Noel Canning case. Last month, President Obama announced his intent to re-name Mark Gaston Pearce (D) as NLRB Chairman, and to seat two Republican nominees, Harry I. Johnson, III and Philip A. Miscimarra, to the agency. In February, following the D.C. Court decision, the President re-nominated Democrats Sharon Block and Richard Griffin to the Board. During the hearing, the members and nominees were asked specific questions about their philosophies about labor law in general and how the Board has acted in certain situations in particular. Committee Chairman Tom Harkin (D-IA) said that it was “deeply disappointing” to see what is happening to the NLRB in recent years, and placed the blame on “political squabbling.” He stated that the Board has not had five confirmed members in a decade. Sen. Harkin concluded the hearing by announcing that the Committee will meet to vote on advancing the nominations onWednesday, May 22, 2013.