Rail worker training in hazardous materials and chemical emergency response will be offered in Portland, Ore., Sept. 24-28, and in Houston, Texas, Dec. 3-7.
Sponsored by the National Labor College, the training focuses on the Occupational Safety and Health Administration and Department of Transportation requirements for response and worker protection following hazmat release or incidents involving weapons of mass destruction.
The training is funded by a federal grant for those residing within a 500-mile radius of the training sites, and includes a stipend of $625 for those losing pay from employers while attending training. Also covered by the federal funding is mileage reimbursement, meals, air travel and lodging.
For more information, send an e-mail inquiry to Henry Jajuga of the National Labor College at hjajuga@nlc.edu
Use the following links for registration forms.
Completed application forms should be faxed, mailed or e-mailed to the Hazmat office as soon as possible, or register online at http://www.hazmatgmc.org:
Railway Workers Hazardous Materials Training Program 10000 New Hampshire Ave Silver Spring, MD 20903 (301) 439-2440 (301) 628-0165 -fax fthomas@nlc.edu
Registration forms for the two meetings are below:
MASON CITY, Iowa – Trainman Georgiy Soloviyov, 35, became the fifth UTU member killed on duty in 2012 following a Union Pacific yard accident here early July 31. Mason City is some 130 miles north of Des Moines, near the Minnesota border.
Soloviyov, of Stanhope, Iowa, and a member of UTU Local 867 (Des Moines) had seven years of service. Reports indicate he was part of a three-person conventional switching crew when pinned between two cuts of freight cars.
The National Transportation Safety Board and the Federal Railroad Administration are investigating, with assistance from the UTU Transportation Safety Team.
Four UTU rail members have been killed in accidents in 2012 and a bus member was murdered on the job. Ten UTU members were killed in on-the-job rail accidents in 2011, and eight in 2010.
George, as he was known, was a native of Kiev, Ukraine, who married an American serving there as a missionary. They relocated to the United States and George earned his American citizenship in 2004. Surviving, in addition to his wife, Lori, are two sons, Yuri and Aleksei, and two daughters, Tatyana and Katya.
The UTU and the Sheet Metal Workers International Association (SMWIA), along with two other rail labor organizations, have filed a complaint with the Department of Labor’s Occupational Safety and Health Administration (OSHA), alleging BNSF has expanded its harassment and intimidation of injured workers to include the targeting of witnesses.
In recent months, OSHA has imposed millions of dollars in sanctions against railroads – including BNSF – for violating federal laws that provide protections for injured rail workers and those reporting safety violations.
The UTU and the SMWIA – now combined as the Sheet Metal, Air, Rail and Transportation Workers (SMART) — along with the International Brotherhood of Electrical Workers and the Brotherhood of Locomotive Engineers and Trainmen — filed a complaint with OSHA July 31 alleging that BNSF officials in Montana are attempting “to interfere with an OSHA investigation into possible violations of the Federal Rail Safety Act” as reported by BNSF employees.
BNSF has written to possible witnesses, asking if they would “object” to having a BNSF representative present during their interview by OSHA investigators.
“Plainly,” states the rail organizations’ complaint, “any employee receiving a communication like this, however innocently couched from the company, will be intimidated by the knowledge that the company is looking over his/her shoulder insofar as providing information to OSHA is concerned.”
The Federal Railroad Safety Act of 2007 extended whistleblower protection to employees retaliated against for reporting injuries, illnesses or safety concerns.
The complaint filed with OSHA says, “We do not know how BNSF was able to identify these employees as witnesses,” as OSHA previously rejected a BNSF demand that OSHA disclose to BNSF the names of employee witnesses. OSHA told BNSF that “such requests are wholly inappropriate and that OSHA will not comply with them.”
OSHA previously has made clear that “the safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation.”
The rail labor organizations urged OSHA to “immediately contact BNSF and sternly rebuke the carrier for this inappropriate conduct. The confidentiality protections in the Federal Railroad Safety Act’s governing regulations and OSHA’s Whistleblower Investigations Manual require nothing less.”
Additionally, the rail organizations cited a June 1 OSHA letter to BNSF stating that “OSHA assumes that BNSF [legal] counsel would be well aware of the conflict of interest that would inevitably arise if BNSF’s attorney were to represent both the corporation and non-managerial employees in a whistleblower case.” The complaint says, “Apparently, BNSF did not see fit to explain that conflict of interest when approaching these employees and offering to be their ‘liaison’ with OSHA.
“No railroad employee [should be] intimidated from filing a complaint initiating an OSHA investigation or from participating in such an investigation, or in any way retaliated against by his/her employer for doing so,” said the rail organizations in their complaint.
Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the Federal Rail Safety Act.
BNSF has a history of attempting to violate federal laws protecting workers. In March, following a complaint by the UTU and the SMWIA to the Equal Employment Opportunity Commission (EEOC), BNSF rescinded a proposed new rule that would have required its employees to provide highly personal medical information.
The UTU and the SMWIA told the EEOC that the BNSF would be in violation of the Americans with Disabilities Act, the Civil Rights Act and other federal statutes by requiring employees provide the railroad with doctor’s notes, diagnostic test results and hospital discharge summaries that could disclose non-workplace injuries and illnesses. BNSF rescinded the proposed new rule prior to EEOC action.
Delivering on the theme of the 2012 regional meetings – “We will not back down” – UTU International President Mike Futhey told more than 1,000 attendees at the Memphis meeting how the UTU is using every tool available – negotiations, legislative and legal — to defend its members’ jobs and workplace safety.
* On the Belt Railway of Chicago, where the carrier is demanding contract changes to permit one person crews at carrier discretion, the UTU has asked the National Mediation Board to declare a bargaining impasse. Belt Railway General Chairperson Chris Votteler’s negotiating team, assisted by International Vice President Delbert Strunk, faces a carrier that refuses to take crew consist changes off the table – three years following start of negotiations — even though the carrier is party to a moratorium on the issue.
“We will take every action necessary to protect our members’ jobs. We will not stand down on crew consist,” Futhey said.
* As to conductor certification — mandated by Congress and put into regulatory language by the Federal Railroad Administration – Norfolk Southern has filed an FRA-required certification plan without discussion and coordination with general chairpersons.
The NS proposed plan seeks to provide a pilot for remedial training only for conductors who have not traveled over a territory for 36 months, rather than the 12 months required in current agreements; and then seeks to place the burden of notification solely on the conductor rather than tracking the time period electronically. Additionally, the NS plan does not discuss procedures it will follow in an investigation even though FRA regulations require railroads to provide all documents and the list of witnesses prior to a hearing.
Futhey said the UTU will not permit “a tortured interpretation” of congressional and FRA intent, and will work to ensure every railroad follows the letter and intent of the law and regulations prior to the required Sept. 1 deadline for certifying conductors.
* In Pennsylvania, Norfolk Southern is attempting to disregard state safety laws and regulations through federal preemption affecting workplace safety at hump yards. “We will take every action necessary to prevent railroads from weakening workplace safety protections, whether at the state or federal level,” Futhey said.
* Pointing to millions of dollars in fines assessed by the Occupational Safety and Health Administration against railroads that have harassed, intimidated, disciplined and fired workers for reporting injuries and workplace safety concerns, Futhey reminded members that UTU designated legal counsel is pledged to assist in bringing and pursuing such complaints. Information on filing these complaints is available at the UTU website at www.utu.org by searching “OSHA.”
“We are not going to allow carriers to continue their pattern of harassment and intimidation of workers who are injured on the job,” Futhey said. “The FRA and OSHA recently signed a letter of intent to investigate jointly all complaints of carrier harassment and intimidation, and the FRA has informed each carrier of its intent to work with OSHA to end the long-standing practice of carriers disciplining injured workers “where the facts fail to support the charges. We are lawyered up, too, and will take this to wherever we must to protect the interests of our members.”
* Recalling the horrific murder of a UTU-member bus driver in Los Angeles, the fatal shooting of a train-crew member near New Orleans, and assaults on bus operators and intrusions into locomotive cabs by armed robbers elsewhere, Futhey said the UTU is working with lawmakers and regulators to implement better safeguards for its air, bus and rail members. The FRA recently imposed a requirement that all new and remanufactured locomotive cabs be equipped with secure cab locks.
“I promise every member that the UTU will stand shoulder-to-shoulder with our members to ensure their safety. Our voice will be heard,” Futhey said.
As to the state of the union, Futhey said the International’s general fund balance is improving as carriers bring back furloughed workers, that the UTU Insurance Association now has a $28 million surplus and is financially strong, and the Discipline Income Protection Plan (DIPP) is financially sound with more than $10 million in assets.
Futhey emphasized that while competing plans often seek ways to deny payment of claims, the UTU’s DIPP is aggressive in paying claims. Futhey cited an example of two workers on the same assignment on CSX – one covered by the UTU’s DIPP and the other by a competing plan – who were both suspended. “Where the competing plan denied the claim, DIPP paid the claim. End of story.”
As for the UTU’s disability insurance plan covering bus and rail members, Futhey said it has paid out more than $22 million in disability benefits for off-duty injuries and is proving to be a valuable benefit.
As to organizing, Futhey said that since January 2008, when he took office, the UTU has an unprecedented record of organizing one new property every seven weeks. One of the first post-merger coordinations has been the joint strengthening with the Sheet Metal Workers International Association of organizing efforts, which makes greater resources available for organizing transportation, building trades and production workers.
Futhey also explained how the UTU negotiating strategy in national handling has already paid off for rail members covered by the national rail contract.
“When we entered national rail contract negotiations, our strategy was to hold the monthly cost sharing premium under $200 — rather than allow it to escalate to $300 or more — in exchange for somewhat higher copays,” Futhey said. “The Affordable Care Act now eliminates many of those copays, saving affected members out-of-pocket for many health care services while those members enjoy one of the lowest cost-sharing premiums in the public and private sectors.”
BNSF reported a 16 percent increase in profit for the second quarter 2012 versus second quarter 2011.
BNSF’s second quarter 2012 operating ratio of 71.1 percent was a more than 3 percentage point improvement over second quarter 2011. Operating ratio is a railroad’s operating expenses expressed as a percentage of operating revenue, and is considered by economists to be the basic measure of carrier profitability. The lower the operating ratio, the more efficient the railroad.
BNSF operates in 28 states and two Canadian provinces
Canadian National reported a 17 percent increase in profit for the second quarter 2012 versus second quarter 2011. The railroad said its revenue was helped by a nine-day strike at Canadian Pacific – the additional traffic overcoming declines in coal, fertilizer and grain shipments.
CN’s second quarter 2012 operating ratio of 61.3 was unchanged from second quarter 2011. Operating ratio is a railroad’s operating expenses expressed as a percentage of operating revenue, and is considered by economists to be the basic measure of carrier profitability. The lower the operating ratio, the more efficient the railroad.
CN is primarily a Canadian railroad. Its U.S. holdings include what were formerly Detroit, Toledo & Ironton; Elgin, Joliet & Eastern; Grand Trunk Western; Illinois Central; and Wisconsin Central.
Canadian Pacific reported 20 percent drop in profit for the second quarter 2012 versus second quarter 2011, citing a nine-day strike.
CP’s second quarter 2012 operating ratio weakened to 82.5 percent from the second quarter 2011 operating ratio of 81.7. Operating ratio is a railroad’s operating expenses expressed as a percentage of operating revenue, and is considered by economists to be the basic measure of carrier profitability. The lower the operating ratio, the more efficient the railroad.
Canadian Pacific is primarily a Canadian railroad. Its U.S. holdings include Class I Soo Line and regional railroad Delaware & Hudson.
CSX reported a 1.2 percent improvement in profit for the second quarter 2012 versus second quarter 2011. CSX said a 27 percent jump in automotive traffic and an 8 percent increase in trailers and containers offset a significant decline in coal traffic volume.
The CSX second quarter 2012 operating ratio of 68.7 percent was an improvement over the 69.3 percent operating ratio for the second quarter 2011. Operating ratio is a railroad’s operating expenses expressed as a percentage of operating revenue, and is considered by economists to be the basic measure of carrier profitability. The lower the operating ratio, the more efficient the railroad.
CSX operates some 21,000 route miles in 23 states and the District of Columbia.
Kansas City Southern reported a 70 percent improvement in profit for the second quarter 2012 versus second quarter 2011, citing a gain from financial restructuring along with a 23 percent boost in trailers and containers and a 15 percent gain in automotive revenue, which overcame a 24 percent drop in coal traffic.
KCS’s second quarter 2012 operating ratio of 70.5 was 1.2 percentage point improvement over the second quarter 2011 operating ratio of 71.7. Operating ratio is a railroad’s operating expenses expressed as a percentage of operating revenue, and is considered by economists to be the basic measure of carrier profitability. The lower the operating ratio, the more efficient the railroad.
KCS operates some 3,500 route miles in 10 states in the Central and South-Central U.S., as well as Kansas City Southern de Mexico, a primary Mexican rail line.
Norfolk Southern reported a 5.9 percent slide in profit for the second quarter 2012 versus second quarter 2011. Coal is a major source of revenue for Norfolk Southern, and a 15 percent plunge in coal revenue could not be offset by increases in revenue from automotive and chemicals traffic and trailers and containers.
NS’s second quarter 2012 operating ratio of 67.5 – a record quarterly low for the railroad — was a significant two-percentage-point improvement from the 69.5 percent operating ratio in second quarter 2011. Operating ratio is a railroad’s operating expenses expressed as a percentage of operating revenue, and is considered by economists to be the basic measure of carrier profitability. The lower the operating ratio, the more efficient the railroad.
Norfolk Southern operates some 20,000 route miles in 22 states and the District of Columbia.
Union Pacific profit rose 28 percent in second quarter 2012 compared with second quarter 2011. The railroad said higher freight rates and fuel surcharges, along with growing demand, offset weak coal volume. UP said it was the “best-ever quarterly results.”
Union Pacific’s second quarter 2012 operating ratio of 67.0 percent was a 4.3 percentage point improvement over the 71.3 percent operating ratio for the second quarter 2011. Operating ratio is a railroad’s operating expenses expressed as a percentage of operating revenue, and is considered by economists to be the basic measure of carrier profitability. The lower the operating ratio, the more efficient the railroad.
Union Pacific operates some 32,000 route miles in 23 states in the western two-thirds of the U.S.
BNSF second quartaer results have not yet been reported.
If you’re part of a working family and attracted to some of the positions of the Tea Party, you had best check the bait for a barbed hook intended to reel-in labor unions, government-provided benefits such as Railroad Retirement, Social Security, Medicare and unemployment insurance, and workplace safety protection.
That was the unvarnished message from U.S. Rep. Steve Cohen (D-Tenn.) July 23, as he told some 1,000 UTU members at a regional meeting in Memphis that the Tea Party has become so extreme that it is driving from the Republican Party those of moderate political positions who once made bipartisan cooperation possible in Congress. “The Republican Party as we know it today is run by Tea Party extremists,” Cohen said.
He contrasted the approach of Democrats and moderate Republicans in Congress – who historically worked to create jobs and protect the middle class – with today’s Tea Party extremists, whom he said are committed to revoking collective bargaining rights, repealing workplace safety laws and regulations, and spending more supporting foreign wars than rebuilding a crumbling American infrastructure that would “create American jobs in America.
“I’m a liberal and I don’t hide it,” Cohen said. “I’m inspired by John F. Kennedy, Adlai Stevenson, Lyndon Johnson and Hubert Humphrey,” all praised by Cohen as having worked “to give people a step up” by a government “that provides for the common good.”
If Mitt Romney and Republicans beholden to the Tea Party win in November, said Cohen, “they are coming after you – your jobs, your working conditions and your economic standards.”
To combat the anti-union, anti-middle class Tea Party agenda, which Cohen said is bankrolled by conservative billionaires, the middle-class must contribute to union PACs, register to vote and help get out the vote on Election Day for candidates who support the middle-class. “This election is about [saving] the middle-class,” Cohen said.
Cohen, who spent 24 years in the Tennessee state senate before being elected to Congress in 2006, has a 100 percent voting record on issues of importance to working families, according to the AFL-CIO. He is a member of the House Transportation & Infrastructure Committee.
From left, Sheet Metal Workers International Association General President Joe Nigro, Rep. Cohen, and UTU International President Mike Futhey following Cohen’s talk to UTU members at the UTU regional meeting in Memphis, July 23.
Here we go again – or should we say, again and again and again and again.
This time it is Canadian National’s Illinois Central Railroad and short line Chicago, Ft. Wayne & Eastern Railroad that have been hit with more than $650,000 in sanctions by the Department of Labor’s Occupational Safety and Health Administration for retaliating against three employees who reported workplace injuries and/or safety concerns.
Sadly, there is basis in fact for the refrain that no industry spends as much to hire and train new employees as do railroads and then works so hard to intimidate, harass and fire them.
The Department of Labor’s Occupational Safety and Health Administration (OSHA) said the more than $650,000 in sanctions is to go toward back wages and damages for two Illinois Central employees at the railroad’s Markham, Ill., yard, and a Chicago, Ft. Wayne and Eastern employee — all of whom were the targets of management retaliation in three separate incidents.
“It is critically important that railroad employees in the Midwest and across the nation know that OSHA intends to defend the rights of workers who report injuries and safety concerns,” said Assistant Secretary of Labor Dr. David Michaels. “We will use the full force of the law to make sure that workers who are retaliated against for reporting health and safety concerns are made whole.”
Michaels has said that before, in the wake of its investigations and sanctions against other railroads – and OSHA continues to deliver on its promise.
The Federal Rail Safety Act of 1970 extended whistleblower protection to employees retaliated against for reporting an injury or illness requiring medical attention. The Rail Safety Improvement Act of 2008 added additional requirements ensuring injured workers receive prompt medical attention. An employer is outright prohibited from disciplining an employee for requesting medical or first-aid treatment, or for following a physician’s orders, a physician’s treatment plan, or medical advice, or for reporting workplace safety concerns.
Retaliation, including threats of retaliation, is defined as firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to rehire, intimidation, reassignment affecting promotion prospects, or reducing pay or hours.
OSHA, which does not identify whistleblowers, said the first employee, a conductor, was injured in August 2008 when he was knocked unconscious and sustained injuries to his shoulder, back and head while switching railcars in Illinois Central’s Markham, Ill., yard. A knuckle that connects the cars allegedly broke, said OSHA, causing the cars to suddenly jolt and the employee to fall. The railroad held an investigative hearing and consequently terminated the conductor, alleging he had violated safety rules.
OSHA, however, found that the worker was terminated in reprisal for reporting a work-related injury.
The second employee, a carman, reported an arm/shoulder injury in February 2008. While walking along a platform to inspect railcars in the poorly lit yard, said OSHA, the carman slipped on ice and tried to catch himself, which jolted his left arm and shoulder. The railroad held an investigative hearing and consequently terminated the carman for allegedly violating the company’s injury reporting procedures.
OSHA, however, concluded that the carman had properly reported the injury.
In the third incident, OSHA said Chicago Fort Wayne & Eastern Railroad – a RailAmerica property — wrongly terminated a conductor in retaliation for his raising concerns about workplace safety while serving as a union officer, and for reporting a trainmaster had instructed him to operate a train in violation of certain Federal Railroad Administration rules in June 2009 near Fort Wayne, Ind.
UTU designated legal counsel have pledged to investigate and assist UTU members in bringing complaints under these laws.
A rail employee may file a whistle-blower complaint directly with OSHA, or may contact a UTU designated legal counsel, general chairperson or state legislative director for assistance.
A listing of UTU designated legal counsel is available at:
Here is an update on federal funding to keep Amtrak operating.
The House of Representatives in June approved a transportation funding bill — for the 12-month fiscal year that begins Oct. 1 — that includes $1.8 billion for Amtrak (H.R. 5972).
This is an almost $400 million increase over fiscal-year 2012 funding that ends Sept. 30, but $300 million less than Amtrak sought.
The ball is now in the Senate court, with the Senate Appropriations Committee having voted a $1.45 billion appropriation for Amtrak. That committee action awaits a vote by the entire Senate. If the entire Senate does approve that level of funding – $350 million less than the House approved – the House and Senate versions will go to a conference committee of House and Senate members for a final decision.
There are two other differences between the bill approved by the entire House and the bill approved by the Senate Appropriations Committee. The House voted not to provide any funding for high speed rail initiatives or other grant programs that could benefit Amtrak. The Senate Appropriations Committee voted to fund $100 million for high speed rail and another $500 million for separate grants that would benefit Amtrak.
The legislative process has been in almost total gridlock owing to partisan politics, and that gridlock may become worse as Election Day in November approaches. If no new funding legislation is approved by the House and Senate prior to the start of the new federal fiscal year Oct. 1, it is likely that Congress will pass a continuing appropriations bill, whose spending levels each month match the fiscal year 2012 funding levels. Otherwise, Amtrak would run out of funds and have to shut down.
Many congressional experts expect the partisan gridlock to continue past Election Day. Whether a lame-duck Congress will act after the elections (if they don’t pass a new funding bill for Amtrak before then), or await the seating of a new Congress in January to do so cannot be predicted.
Following almost 1,000 complaints from rail workers that they were improperly disciplined for reporting injuries or unsafe working conditions, the Federal Railroad Administration and the Occupational Safety and Health Administration have forged an alliance to bring more pressure on railroads to stop the pattern of harassment and intimidation.
“The safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation,” said OSHA.
Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the Federal Rail Safety Act, and almost 63 percent involved an allegation that a worker was retaliated against for reporting an on-the-job injury.
The Federal Rail Safety Act of 1970 extended whistleblower protection to employees retaliated against for reporting an injury or illness requiring medical attention. The Rail Safety Improvement Act of 2008 added additional requirements ensuring injured workers receive prompt medical attention. An employer is outright prohibited from disciplining an employee for requesting medical or first-aid treatment, or for following a physician’s orders, a physician’s treatment plan, or medical advice.
Retaliation, including threats of retaliation, is defined as firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to rehire, intimidation, reassignment affecting promotion prospects, or reducing pay or hours.
Under the coordination agreement, the FRA will refer railroad employees who complain of alleged retaliation to OSHA. OSHA will provide the FRA with copies of the complaints it receives under the Federal Rail Safety Act’s whistleblower provision, as well as any findings and preliminary orders that OSHA issues. The agencies will jointly develop training to assist FRA enforcement staff in recognizing complaints of retaliation, and to assist OSHA enforcement staff in recognizing potential violations of railroad safety regulations revealed during whistleblower investigations.
“This memorandum is a watershed moment for both railroads and labor alike,” said FRA Administrator Joe Szabo. “Securing a process that protects employees who report safety violations is critical to maintaining safety standards in the workplace.”
In recent months OSHA has ordered railroads to pay millions of dollars in sanctions for violating federal whistleblower protections. “Firing workers for reporting an injury is not only illegal, it also endangers all workers,” OSHA said. In imposing sanctions against Norfolk Southern in 2011, OSHA said the railroad’s culture of employee harassment and intimidation permitted the railroad to “maintain the appearance of an exemplary safety record.”
UTU designated legal counsel have pledged to investigate and assist UTU members in bringing complaints under these laws.
A rail employee may file a whistle-blower complaint directly with OSHA, or may contact a UTU designated legal counsel, general chairperson or state legislative director for assistance.
A listing of UTU designated legal counsel is available at:
The Railroad Retirement Board (RRB) has reported to Congress that, barring a sudden, unanticipated, large drop in railroad employment or substantial investment losses, it will experience no cash-flow problems over the next 23 years.
The report recommended no change in the rate of tax imposed by current law on employers and employees.
The RRB is required by law to submit annual financial reports and triennial actuarial valuations to Congress on the financial condition of the Railroad Retirement System, as well as annual financial reports on the railroad unemployment insurance system.
As of Sept. 30, 2011, total Railroad Retirement System assets totaled $23.6 billion.
The cash balance of the Railroad Unemployment Insurance system was $58.7 million at the end of fiscal year 2011.
Projecting income and outgo under optimistic, moderate and pessimistic employment assumptions, the valuation indicated no cash-flow problems occur throughout the 75-year projection period under the optimistic and moderate assumptions. Cash-flow problems only occurred under the pessimistic assumption, but not until 2035.
The RRB’s 2012 Railroad Unemployment Insurance financial report was also generally favorable. Even as maximum benefit rates increase 44 percent (from $66 to $95) from 2011 to 2022, experience-based contribution rates are expected to keep the unemployment insurance system solvent, except for small, short-term cash flow problems in fiscal year 2015 under the pessimistic assumption.