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WASHINGTON, D.C., (August 28, 2020) — A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit has vacated Federal Railroad Administration (FRA) approval of the Kansas City Southern Railway (KCSR) certification program under which locomotive engineers employed by a contractor of Kansas City Southern de México (“KCSM”) have been permitted to operate over Texas Mexican Railway (Tex-Mex) tracks in the United States since July 10, 2018. Under the decision, the matter has been remanded to FRA “either to ‘offer a fuller explanation of the agency’s reasoning at the time of the agency action,’ or to ‘deal with the problem afresh by taking new agency action.’”
This ruling followed a challenge by the Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (“SMART–TD”) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) to the agency’s actions in approving the certification program.
The court agreed with the unions’ position, holding that FRA “fail[ed] to provide a reasoned explanation for its approval of the materially altered engineer certification program administered by one of the railroads.” The court further held that KCSM was under a statutory and regulatory obligation to have its own engineer certification program, which requirements FRA failed to enforce, finding that:
“By virtue of the Railroad Administration’s passive approval system and the complete absence of any accompanying explanation for the agency’s approval of [KCSR’s] modified engineer certification program, the administrative record is devoid of any explanation or reasoning for the administrative steps taken and legal determinations made by the agency in approving the engineer certification program. Likewise, in searching the administrative record for the rationale by which the agency allowed [KCSR] to certify the engineers of another railroad, despite the former’s apparent lack of control over [KCSM’s] crew members, we come up empty-handed. And in a hunt for the reason that service under a foreign regulatory system was credited to allow an abbreviated certification program, we hear only crickets.

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“… what we confront in this case is a total explanatory void. There is no reason — not one word — in the administrative record for the Railroad Administration’s material and consequential decisionmaking on important matters of railroad safety. Not even [KCSR’s] certification program itself, as submitted to the agency, provides an explanation for the relevant determinations that the Agency presumably reached.”
However, the Court declined to rule on several other objections made by the unions that related to conductor certification, transfer of the air brake testing waiver in place for northbound trains, and inadequacy of hours-of-service recordkeeping, finding that there had been no final agency action so the Court lacked jurisdiction to address these objections. In doing so, the Court acknowledged FRA’s “shadowy and unwritten processes make it difficult for aggrieved parties to navigate the … jurisdictional constraints.”
SMART–TD President Jeremy R. Ferguson and BLET National President Dennis R. Pierce applauded the decision.
“We congratulate the court for exposing just how much FRA has become captive to the railroad industry,” the presidents said. “This is a significant victory for Tex-Mex crewmembers, but is just one skirmish in the war to preserve well-paying American jobs. We also thank all the counsel who worked so hard on this case, especially Special Counsel Kathy Krieger for an outstanding job.”

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The SMART Transportation Division is comprised of approximately 125,000 active and retired members of the former United Transportation Union, who work in a variety of crafts in the transportation industry.
The Brotherhood of Locomotive Engineers and Trainmen represents nearly 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.

Today, Aug. 28, the U.S. Court of Appeals for the 5th Circuit issued its decision in BNSF et al v. SMART-TD (Case No. 20-10162) concerning crew consist.
This decision is a long-awaited victory for the Union. The appellate court vacated the injunction that forced SMART-TD General Committees to bargain over crew consist, despite the existence of moratoria which bar such negotiation.
SMART-TD has always read those moratoria clauses to bar the service of Section 6 Notices to negotiate over crew consist until the last protected employee voluntarily separated from service. Indeed, that is the very reason for their existence.
But despite the long-standing nature of these clauses, the carriers presented a new and novel theory that the moratoria did not actually bar crew-consist negotiations.
The carriers tested this theory out by filing suit against SMART-TD in October 2019 and moving for a preliminary injunction in December 2019. In their request for an injunction, the carriers asked a district court in Texas to force SMART-TD to bargain now in spite of the moratoria. That court issued its decision on February 11, 2020, finding that even though the dispute over the moratoria was minor, and no arbitral determination had been made, SMART-TD was required to bargain now.
Under the RLA, minor disputes must be resolved through arbitration, not Section 6 bargaining. In the 22-page opinion, the appellate court walked through the various bases on which an injunction can be issued in Railway Labor Act (RLA) disputes. The 5th Circuit Court found that none existed here.
Rather, it concluded that the carriers had failed to exhaust the administrative remedy provided under the the RLA arbitration regarding the moratoria clauses.

Brother Matt Bryant of Local 1067 (Virginia, Minn.), his wife and their three children lost their house in a fire Aug. 14 and could use some help as they attempt to rebuild their lives.

A GoFundMe online fundraiser has been established to assist Brother Matt Bryant, his wife, Jenna, and their children Emma, 11, Grace, 3, and Matty, 1, after a house fire.
Bryant, 34, a conductor with Canadian National, was furloughed in late May and had returned to service Aug. 10. Just four days later, he, his wife, and their three children saw their home in Carlton, Minn., destroyed.
No one was injured in the fire, as fortunately the family members were all outside of the house when it happened.
“They are currently waiting to rebuild, which will take some time,” said Michael Strand, secretary of Local 1067.
In a display of union fraternalism, Devin Clolinger, an applicant to Local 1067, has established an online fundraiser to help Brother Matt, his wife, Jenna, and their children Emma, 11, Grace, 3, and Matty, 1.
Please follow this link if you are able to donate and help the Bryant family in their time of need.

A boy’s life was saved Aug. 14 and a potential tragedy averted thanks to the fast-thinking actions of Mike Bobrosky III, a member of Local 1006 (Brownsville, Pa).

Bobrosky III
That morning, Reese Pearson, 9, who has autism, ran off from his home in Morgan Township, Pa. His mom immediately called police, according to reports from KDKA TV-2 in Pittsburgh, and authorities began to search the remote wooded area for Reese.
Down the hill from the home traveling the Norfolk Southern line toward Waynesburg, Pa., conductor Bobrosky and his engineer were traveling southbound. As their train approached Wayne Tunnel nears Waynesburg, Bobrosky said he saw something fouling the track ahead.
“We were coming around a bend. He was in the middle of the gauge inside the tunnel, and we dumped it into emergency,” he said.
The train stopped inside the tunnel, just short of hitting the boy.
“It was inches.”
After the train stopped, they alerted authorities, who had been searching for Reese for quite some time, and coaxed him aboard the locomotive. The hungry boy received a ride to the next crossing from the crew, where authorities were waiting and reunited Reese with his worried mother.
The alertness of Bobrosky and the action he and his engineer took saved a life that day and serves as yet another example of how having two people in the cabs of freight trains makes a difference in safety, contrary to carriers’ arguments.
“It was a right-hand curve – I saw him way before the engineer,” Bobrosky said. “If it was a one-man crew, I don’t know if the train would have stopped.
“It made a difference having two on the crew.”

CLEVELAND, Ohio, (August 21, 2020) — As freight rail traffic levels rebound strongly from the economic slowdown caused by the coronavirus (COVID-19) pandemic, railroad management has unleashed an unprecedented barrage of measures to manipulate recalls from furloughs, make already draconian attendance policies even more punitive and interfere with union representatives who fight to protect their members from this abuse.
SMART Transportation Division and the BLET’s National Division both have received multiple reports from their General Committees of Adjustment on various Class I railroads indicating two specific types of recall-related conduct that could jeopardize tens of thousands of dollars in unemployment benefits. These benefits are paid pursuant to the Railroad Unemployment Insurance Act (RUIA), which is administered by the U.S. Railroad Retirement Board.
At least one carrier is disputing unemployment claims for all days later than the date of a recall notice, regardless of when the furloughed worker actually received the notice and irrespective of collective bargaining agreement provisions that provide the employee with a certain number of days within which to report. These provisions allow furloughed railroad workers to make necessary arrangements to settle personal and family obligations, such as child care, to accommodate a return to work without being penalized economically for the position in which the carrier’s furlough originally placed them.
The GCAs have also reported that one or more carriers have recalled furloughed employees who, after reporting for work, are then furloughed for a second time. In at least one instance, an employee quit other employment he had found, only to be kicked to the street again by the railroad without ever having performed service. And, for workers receiving RUIA benefits, a one-week waiting period during which no benefits are paid could be triggered, depending upon the timing and duration of this second furlough.
The leaders of both unions expressed outrage over these actions.
“Just when one thinks the carriers can’t possibly stoop any lower, they try to game the RUIA system to their benefit,” said SMART-TD President Jeremy R. Ferguson and BLET National President Dennis R. Pierce. “Since RUIA tax rates are experience-based, maybe the carriers are looking to minimize next year’s hit. But cutting their losses on the backs of union members and their families in this fashion is reprehensible.”
In an August 14 letter, SMART-TD and BLET General Chairpersons jointly blasted BNSF management for changes to that Carrier’s attendance policy. According to the letter, the changes would be implemented via a blitz of threatening letters to workers who took off from work on what are now, but were not then, viewed by the Carrier as being “high impact” days. Most of these are family-friendly days, including national holidays, and letters apparently are being sent even in cases where permission to take the time off had been granted to workers.
“The Carrier continues to remain inflexible when it comes to respecting workers’ attempts to have lives outside of work,” the union presidents said. “If a worker happens to have chosen to engage in a family event, to enjoy a holiday or some sort of emergency cropped up on one of these unknown-until-now ‘high-impact’ days, he or she can now expect to receive a threatening letter and have a watchful eye just waiting to issue punishment if they dare have off time that coincides with another of these days.”
The unions’ General Chairpersons also pointed out that thousands of BNSF operating employees remain furloughed, and that this reserve is more than sufficient to meet any service needs on “high impact” days while, at the same time, allowing reasonable time off from work. Further, they report that the Carrier continues to do nothing to address long-standing problems with poor lineups, denial of reasonable vacation and personal leave requests, excessive held away-from-home terminal times during holidays, excessive on-duty times and denied holiday pay claims. As a reminder, even in the midst of a pandemic-stricken U.S. economy, BNSF reported second-quarter earnings of more than $1.13 BILLION in net earnings and a 61.1% operating ratio thanks to the essential work done by employees who are being targeted for discipline and punishment by this policy.
BNSF also is attempting to pressure working local union representatives to not take time off from work to represent their members. In some cases, local representatives are invited to conferences with the railroad, then are denied the time off work to attend the conference, forcing them to mark off for union business. When they do so, the railroad warns that their use of union business mark-offs is excessive and they, too, may fall subject to that Carrier’s intensified attendance policy.
“Shame on BNSF for expanding their anti-worker attendance policy in a way that is plainly anti-family,” Ferguson and Pierce said. “In no event will our union representatives be intimidated into not performing the duties of their offices. Our members should keep in mind that Election Day in November will determine whether these examples of unconscionable corporate misbehavior will continue to receive the approval of federal government officials at the highest levels.”
The joint letter from the SMART Transportation Division and BLET General Chairpersons to BNSF objecting to that Carrier’s attendance policy changes is available here.

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The SMART Transportation Division is comprised of approximately 125,000 active and retired members of the former United Transportation Union, who work in a variety of crafts in the transportation industry.
The Brotherhood of Locomotive Engineers and Trainmen represents nearly 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.

G. Thomas DuBose, who served one term as president of the SMART Transportation Division’s immediate predecessor union, passed away on Aug. 20, 2020, after a short illness.

G. Thomas DuBose served as UTU president from 1991 until his retirement in 1995.
DuBose, United Transportation Union (UTU) president from 1991 to 1995, had experienced health complications recently and had been placed in hospice care. He was 85 years old.
“The union extends its deepest sympathy and condolences to the family and friends of former President DuBose,” SMART-TD President Jeremy Ferguson said. “His leadership helped to guide our union through a period of great difficulty and transition. As an organization, we all are saddened, and we mourn his loss.”
DuBose assumed the union presidency during a time when great transition was occurring in the use of technology, especially with the establishment of the internet. The union acquired its first mainframe during his administration as UTU made its initial steps toward the computerization of its operations. An email system for the union and an awards database accessible to international officers and general chairpersons was created, and he also oversaw a union restructuring with the consolidation of a number of General Committees, and the establishment of an accident investigation committee. The UTU also joined the Transportation Trades Department (TTD) of the AFL-CIO for the first time during his tenure.
“I feel I left this union in better condition than I found it,” DuBose said in a UTU News article as the union transitioned from his leadership to succeeding President Charles L. Little in 1995.
David Hakey, who worked alongside DuBose during his two campaigns for the union presidency and served as a union vice president from 2000 to 2007, spent more than four decades knowing DuBose personally and professionally. In the late 1970s and early 1980s, DuBose was generous in lending his time and guidance to Hakey who was starting out as a general committee officer. DuBose, even then a longtime vice president, showed Hakey the ropes in writing cases and defending members.
“He was my mentor, and he was my friend,” Hakey said. “He was always a good steward of the union. He always put the union first and the membership first.”
Hakey said DuBose was naturally inclined to put the needs of others ahead of himself, even outside of union business. In one encounter, DuBose and Hakey met a man on the street begging for money. Rather than just giving the man some spare change, DuBose insisted that they take him out to lunch.
“Tom was alway willing to listen,” Hakey said. “He was a compassionate individual. He always tried to put the membership first.”
Carl Cochran, administrator of the SMART TD Alumni Association, remembered DuBose’s active leadership in organizing a team that brought the Florida East Coast Railroad back into the UTU fold and in reaching out to help members in Cochran’s home state of Florida to cope with the devastation of the Category 5 Hurricane Andrew in 1992.
“We asked for help from our union, and we got it for our members that lost their homes,” Cochrane said.
Born in Macon, Ga., on March 23, 1935, G. Thomas DuBose hired on as a switchman for the Central of Georgia Railway in October 1955 and was a member of Local 535 in Macon, serving as a local officer there. He was elected vice president of the Switchmens’ Union of North America (SUNA) in 1967 at the age of 32 and retained that office during the formation of the UTU in 1969.
He served four additional terms as a union vice president before being elected the UTU’s assistant president in 1987. At the Sixth UTU Convention in 1991, he defeated then-incumbent UTU President Fred Hardin’s bid for a fourth term. DuBose had unsuccessfully challenged Hardin for the presidency at the prior convention.
“We ran a grassroots campaign,” said Hakey, who managed DuBose’s winning campaign. “instead from the top-down, it was from the bottom up. The membership was desirous of a change and they wanted to see something different.”
The union faced a number of fiscal challenges at the time, Hakey said, and DuBose resolved those during his single term, leaving UTU on better financial footing than before. DuBose also was elected and served as secretary-treasurer of the AFL-CIO TTD.
After his 1995 retirement, the former president continued to maintain an association with the union and lent his support to a tentative national rail contract negotiated in 2011 that won approval.
“After Tom retired, he would sit at the Alumni table at the regional meetings with Kenny Menges or myself,” Cochran said. “Our members would enjoy Tom telling the history of our union.”
Former President G. Thomas DuBose is survived by his two children, Mark DuBose (Margaret), Marty Lee (KD), and three grandchildren, Matthew DuBose, Kristin Lee, and Ben DuBose.
His family thanks SMART General President Joseph Sellers, SMART-TD President Jeremy Ferguson and all members, past and present, for their kind words and condolences during this difficult time. In lieu of flowers, the family requests that all donations be made to a charity of their choice. Due to COVID-19, the burial will be a private graveside service on September 9th. To express condolences, please visit https://www.dignitymemorial.com/obituaries/macon-ga/g-thomas-dubose-9326937.
The SMART Transportation Division offers its deepest condolences to the DuBose family, his friends and his Local 535 brothers and sisters in their time of loss.

In reaction to the San Francisco Unified School District’s (SFUSD) decision to lay off about 260 school bus drivers effective Aug. 31 on the cusp of the new school year, SMART-TD Local 1741 plans a massive protest in front of City Hall this week.
Drivers, dispatchers and staff were given little notice about the sudden cuts and plan to assemble at 4:30 p.m. Thursday, Aug. 20 to speak out against the cuts, local union leaders say.
“This is unconscionable. Despite preserving the wages and benefits for drivers and staff since shelter-in-place began in March, it is at this critical point that SFUSD has decided they will no longer pay until the buses are rolling again,” Local 1741 President Sharon Chappill said. “The chaos as drivers scramble to maintain health care coverage for themselves and their families, and then switch coverage back a few months later when they return to work, is completely unnecessary and a preventable catastrophe.
“Other school districts in the state recognize the importance of covering their transportation contracts until students are safely phased back to in-person. But here in San Francisco, drivers are expected to wait with no wages and no health care until routes start up in a few months.”
Chappill points out that in addition to the wages and benefit loss for the 260 workers, required training and safety certification for drivers will also be halted and that the school district is using the pandemic to resort to underpaid, non-union workers.
“The district has already given transportation contracts to Zum, a rideshare company much like Uber and Lyft. It is a company that profits off of miscategorizing their drivers as contractors who are unable to unionize,” Chappill said. “The layoffs of certified unionized drivers is an excuse to bring in more underpaid, non-unionized workers. This is another blow to the proud union town of San Francisco.
“We are graduates, parents and grandparents of graduates from SFUSD. We are immigrants. We are working families representing the entire spread of diversity found in the Bay Area. We have served the city of San Francisco for 50 years. And we do not think it too much to ask that the city find a way to provide for us for a few months so that we are able to return to the job that we are proud to do.”
Chappill urges people to assemble Thursday to support the workers whose jobs have been jeopardized by the district’s actions.
“We hope you will join us as we raise our voices to defend the school bus drivers of this city.”
Read coverage about the layoffs on KPIX TV-5.

Gregg B. Weaver, a retired member of SMART-TD Local 898 who rode with former Vice President Joe Biden many times during the longtime senator’s commute from Delaware to Washington D.C., was featured in a video presented Monday, Aug. 17, during the first night of the Democratic National Convention.
In the video, the former vice president’s respect and empathy toward the SMART members who served him as he traveled on Amtrak were highlighted.
“I think he’s most comfortable around everyday, working-class people,” Weaver said. “He makes you feel like you belong.”

SMART-TD member Gregg Weaver, right, introduces Vice President-elect Joe Biden at the Wilmington, Del., Amtrak station in January 2009.
Weaver has had a long relationship with the former senator and vice president, even introducing Biden and former President Barack Obama as they took a train ride to their first inauguration in January 2008 as featured in the February 2009 issue of the SMART-TD News.
Another instance of Biden’s concern came after he heard that Weaver had had a heart attack, Weaver recalled in the video.
“I was in a barber shop in New York City and the phone rings,” Weaver said. “And sure enough, it’s Vice President Biden asking how I’m doing — wanted to know the whole story. Kind of funny that you’re talking to the Vice President of the United States, but if I would have told the people in the barber shop, I don’t think they would have believed me.
“I’m not saying like it was me and I’m anything special. Everyone was special to him. We have heroes all over this country … the average guy is important to him.”

To Local Treasurers, Local Presidents and Local Chairpersons,
As you are aware, we are presently accepting orders for the 2021 time books and while these orders are being processed we are also reviewing the materials contained in the current booklet.
This booklet is utilized by you, the membership. As such, we are soliciting your ideas and feedback on how this office may update the booklet to greater serve the membership’s needs/requirements.
Due to publishing requisites, you must submit any feedback by Sept. 4, 2020, to be reviewed by the committee.
Please send your submissions to Dora Wolf via email: dwolf@smart-union.org for consideration prior to the deadline stated above.

SMART – Transportation Division

Washington, D.C. (Aug. 7, 2020) — On August 5, 2020, 12 rail unions whose members and their families are covered by the NRC/UTU Plan and the Railroad Employees National Health and Welfare Plan filed suit against the nation’s Class I railroad carriers in the United States District Court for the District of Columbia.
The suit asks the court to force the carriers to bargain in good faith with the unions over mandatory subjects of bargaining. The involved issues have been the subject of collective bargaining for decades and are in fact part of the carriers’ bargaining notices served on November 1, 2019, pursuant to Section 6 of the Railway Labor Act (RLA). At issue are carrier attempts to restrict access to certain medications and to forcibly reconfigure health care networks.
The unions are: the American Train Dispatchers Association; the Brotherhood of Locomotive Engineers and Trainmen; the Brotherhood of Maintenance of Way Employes; the Brotherhood of Railroad Signalmen; the International Association of Machinists and Aerospace Workers; the International Association of Sheet Metal, Air, Rail and Transportation Workers, Mechanical Division; the International Association of Sheet Metal, Air, Rail and Transportation Workers, Transportation Division; the International Brotherhood of Boilermakers; the International Brotherhood of Electrical Workers; the National Conference of Fireman & Oilers District, Local 32BJ, SEIU; the Transportation Communications Union/IAM; and the Transport Workers Union.
The rail carriers are: BNSF Railway Company; Kansas City Southern Railway Company; CSX Transportation; Grand Trunk Western Railroad Company; Norfolk Southern Railway Company; Soo Line Railway Company; and Union Pacific Railway Company. Also named in the suit is the National Railway Labor Conference (NRLC), whose National Carriers’ Conference Committee (NCCC) is the designated bargaining agent of the railroads.
The unions have asked the court to:

  • issue a declaratory judgment that the carriers are obligated to bargain in good faith with the unions on proposed health and welfare changes in accordance with the collective bargaining procedures outlined under the RLA;
  • issue a declaratory judgment that health and welfare plan design changes are a mandatory subject of collective bargaining pursuant to the RLA;
  • issue a declaratory judgment that the NRLC may not force plan design changes upon its employees without the agreement of the unions, to be achieved through the mandatory dispute resolution process of the RLA;
  • issue an order enjoining the NRLC from trying to force these health and welfare changes via arbitration rather than addressing them in collective bargaining; and
  • issue an order requiring the NRLC to engage in good faith negotiations with the unions over their proposed health and welfare changes through the RLA’s major dispute resolution procedures.

The chief executives of the 12 unions issued the following statement concerning the lawsuit:
The railroads’ attempt to evade their legal obligation to bargain on these issues of great importance to our members has left us with no choice but to enforce these legal rights in court. If implemented without successfully negotiated application, the carriers’ proposals could be extremely harmful to our members and their families. Even more outrageous, the process they are attempting to impose would allow rail carriers to reduce employees’ access to medicines and doctors in the middle of a pandemic. When they should be rewarding the contributions of their essential employees with hazard pay, the rail carriers instead attempt to reduce medical benefits when they are needed most. Events like these are why railroad managers were labeled as “Robber Barons” over a century ago; their actions today are proof positive that the label still applies. Unfortunately for working class Americans, this is the way of many corporations across the country in Donald Trump’s America; essential employees are treated as expendable employees. We will not stand idly by while management attacks the core legal rights our members enjoy.
Updates will be provided as developments warrant.
Read this release in PDF form.
Read the case filing. (PDF)