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An arbitrator has ruled that a merger between the UTU and the Sheet Metal Workers International Association (SMWIA) be implemented and that the presidents of the two unions – or their designees — meet to decide how the implementation is to proceed.

Arbitrator Michael H. Gottesman said the merger agreement to create the Sheet Metal, Air, Rail and Transportation (SMART) Workers Union is an enforceable agreement. Gottesman was named by AFL-CIO President Rich Trumka to decide the question of enforceability after binding arbitration was ordered by Federal District Court Judge John Bates.

Gottesman acknowledged that there is pending before Judge Bates another merger related case – a complaint by several UTU members that Titles I and V of the Labor Management Reporting and Disclosure Act (LMRDA) were violated. When Judge Bates ordered binding arbitration to determine if the UTU-SMWIA merger agreement is enforceable, he said the LMRDA claims were beyond the purview of the arbitrator, and that he would decide those claims following the outcome of the arbitration.

Although the SMWIA asked Gottesman to allow the SMWIA to, in Gottesman’s words, “effectively micromanage the implementation of the merger, complete with timelines and very detailed instructions for the behavior of UTU officials,” Gottesman denied the request.   

Ruled Gottesman: “It is far better that the parties decide how to implement the merger than to have an arbitrator do so.” Accordingly, the award simply directs the presidents of UTU and SMWIA (or their designees) to meet “to discuss any and all issues pertinent to implementation of the merger … and to continue meeting on a regular basis until all such matters have been resolved.”

Annual health and welfare enrollment materials for railroad employees and/or dependents covered under the National Railway Carriers and United Transportation Union (NRC/UTU) Health and Welfare Plan are being mailed by UnitedHealthcare.

(Those members covered under the national health and welfare plan should have already received their enrollment materials in the mail.)

Included is a “Dependent Add Form” designed strictly for adding dependents to your plan during this open enrollment period who are not already listed on the “Enrollment Form.”

Certain dependent children under age 26 are eligible for coverage under the plan. Please read this section carefully and, if these children qualify for coverage, they must be added to the “Enrollment Form” and that form returned to UnitedHealthcare no later than Nov. 11 in order to be eligible for benefits beginning Jan. 1, 2012.

It is important that you open this material upon receipt to verify that the  information on the enrollment form is correct. If you have opted-out of coverage you MUST renew your opt-out for 2012 and return it by Nov. 11. If you add eligible dependent children, you must return the “Enrollment Form” no later than Nov. 11 for your elections/ changes to become effective Jan. 1, 2012.

If members do not receive these enrollment materials, call Railroad Enrollment Services toll-free at 1-800-753-2692.

WASHINGTON — A five-member Presidential Emergency Board was appointed by President Obama Oct. 6 to investigate and make non-binding recommendations in a dispute between 11 rail labor unions and the National Carriers’ Conference Committee, which represents BNSF, CSX, Kansas City Southern, Norfolk Southern, Soo Line, Union Pacific and numerous smaller railroads.

Neither the carriers nor any of the 11 unions may engage in self-help at least until Dec. 7 as a result of the PEB’s creation.

The UTU is not affected by creation of the PEB as it reached – and ratified – a new five-year agreement with the NCCC covering conductors, yardmen, brakemen, engineers (where UTU represents engineers), firemen/hostlers and yardmasters this past summer.

The other unions, unable to reach a voluntary settlement with the NCCC since talks began in January 2010, were released from mediation Sept. 6 by the National Mediation Board, which resulted – under provisions of the Railway Labor Act – in a 30-day cooling off period while President Obama considered appointing a PEB.

Creation of PEB No. 243 now begins a second 30-day cooling off period while the PEB commences its fact-finding investigation and makes non-binding recommendations no later than Nov. 6.

At that point, a third and final 30-day cooling off period will commence — and end Dec. 6 — while the two sides consider the PEB recommendations and seek a voluntary settlement based on those recommendations.

If no settlement occurs, the Railway Labor Act has run its course and the parties are free to engage in self-help – a work stoppage by labor, a lockout by one or more of the carriers, or unilateral promulgation of carrier Section 6 notices.

At that point, Congress typically enters the fray and issues a back-to-work order, effectively imposing a third-party settlement on the involved carriers and their unions.

The 11 unions affected by the Obama-created PEB have been negotiating in two separate coalitions:

One coalition includes the Transportation Communications Union, the American Train Dispatchers Association, the International Association of Machinists, the International Brotherhood of Electrical Workers, and the Transport Workers Union.

A second coalition still negotiating with the NCCC includes the Brotherhood of Locomotive Engineers and Trainmen, the Brotherhood of Maintenance of Way Employes, the Brotherhood of Railroad Signalmen, the Brotherhood of Boilermakers and Blacksmiths, the National Conference of Firemen and Oilers, and the Sheet Metal Workers International Association.

The members of the PEB No. 243 are: Ira F. Jaffe, chair; Roberta Golick; Joshua Javits; Gil Vernon; and Arnold Zack.

Their biographies, as provided by the White House, follow:

Ira F. Jaffe has been an arbitrator and mediator of labor and employment disputes since 1981 and has presided over more than 4,000 cases in a wide variety of industries in the private and public sectors. Mr. Jaffe serves on over 60 permanent arbitration panels and has served on three separate PEBs, one in 2001 and two in 2007. Mr. Jaffe is also a Vice-President of the National Academy of Arbitrators (NAA) and has been a frequent contributor at the NAA Meetings and at other professional conferences. Mr. Jaffe served as the National President of the Society of Federal Labor Relations Professionals in 1990. As an Adjunct Professor at the George Washington University Law School in the 1980s, Mr. Jaffe taught courses in labor law, collective bargaining and labor arbitration, and agency and partnership. He is a Charter Fellow in the American College of Employee Benefits Counsel and has arbitrated and mediated a wide variety of employee benefits disputes. He is also a Fellow in the College of Labor and Employment Lawyers. Mr. Jaffe is a graduate of the Cornell University School of Industrial and Labor Relations and of the George Washington University Law School.

 

Roberta Golick is President of the National Academy of Arbitrators, one of the leading North American organizations of neutral arbitrators of labor-management and employment disputes. With more than 35 years’ experience in the profession, Ms. Golick has handled thousands of cases in both the private and public sectors during the course of her career. Ms. Golick was the 1996 recipient of the Cushing-Gavin Award, given annually by the Boston Labor Guild to a single neutral each year for “Excellence in Labor-Relations, Exemplifying Moral Integrity, Professional Competence and Community Concern.” She received her B.A. from Barnard College, Columbia University and her J.D. from Boston University School of Law.

 

Joshua M. Javits is a neutral mediator and arbitrator and serves on numerous permanent arbitration panels. He served on a Presidential Emergency Board in 2007. From 1993 to 2001, Mr. Javits was a Partner at Ford & Harrison LLP where he also served as executive director of the Labor Relations Association of Passenger Railroads. He was also an adjunct professor at the Georgetown University Law Center where he taught courses in labor arbitration, transportation labor law, and alternative dispute resolution. He was Chairman and Member of the National Mediation Board from 1988 to 1993. He began his career as a trial attorney with the National Labor Relations Board. Mr. Javits has represented both labor unions and management, at different times, and is on the rosters of the American Arbitration Association, the Federal Mediation and Conciliation Service, and the National Mediation Board. He has been rated “AV” – the highest rating – by Martindale Hubbell’s “Best Lawyers in America” since 2001. Mr. Javits is a graduate of Yale College and Georgetown University Law Center.

 

Gil Vernon has been engaged in the practice of labor arbitration and dispute resolution since 1979. From 1979 to 1983, he was also an instructor in the Department of Business Administration of the University of Wisconsin, Eau Claire, teaching labor relations, labor law, personnel, compensation administration and management. Prior to that, Mr. Vernon was a carrier member of the National Railroad Adjustment Board in Chicago, Illinois. Previously, he was a Labor Relations Officer, and before that a Crew Dispatcher and union member, for the Chicago, Milwaukee, St. Paul and Pacific Railroad in Chicago. He was appointed to a Presidential Emergency Board in 1996. Mr. Vernon is the immediate past President of the National Academy of Arbitrators. He is on the Major League Baseball Salary Arbitration panel, the National Railroad Adjustment Board, and more than 15 airline arbitration panels, among others. He previously served on seven multi-year railroad arbitration panels as well as the Protective Benefits Panel of the Railroad Retirement Board. Mr. Vernon received his B.A. from Hope College and his M.A. from the University of Chicago.

 

Arnold M. Zack has been an arbitrator and mediator of over 5,000 labor disputes since 1957 and a Member of four Presidential Emergency Boards, serving as Chair twice. He is currently the President and Chief Judge of the Asian Development Bank Administrative Tribunal. Mr. Zack was the President of the National Academy of Arbitrators from 1994 to 1995. From 1990 to 2000 he was the Chair of the Essential Industries Dispute Settlement Board in Bermuda, and the Chair of the Essential Services Dispute Settlement Board there from 1998 to 2001. Mr. Zack has also served and taught as a senior research associate at the Labor and Worklife Program at Harvard Law School since 1985. He was a Fulbright Scholar, a Wortheim fellow, and is a member of the College of Labor and Employment Lawyers. Among his awards is the Distinguished Service Award of the American Arbitration Association and the Pioneer Award and Willoughby Abner Award of the Association on Conflict Resolution. Mr. Zack holds degrees from Tufts University, Yale Law School and Harvard University’s Kennedy School of Government.

 Following is the White House executive order appointing the PEB:

THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release October 6, 2011
EXECUTIVE ORDER
– – – – – – –
ESTABLISHING AN EMERGENCY BOARD TO INVESTIGATE DISPUTES
BETWEEN CERTAIN RAILROADS REPRESENTED BY THE NATIONAL CARRIERS’
CONFERENCE COMMITTEE OF THE NATIONAL RAILWAY LABOR CONFERENCE
AND THEIR EMPLOYEES REPRESENTED BY CERTAIN LABOR ORGANIZATIONS

Disputes exist between certain railroads represented by the
National Carriers’ Conference Committee of the National Railway
Labor Conference and their employees represented by certain
labor organizations. The railroads and labor organizations
involved in these disputes are designated on the attached list,
which is made part of this order.

The disputes have not heretofore been adjusted under
the provisions of the Railway Labor Act, as amended, 45 U.S.C.
151-188 (RLA).

I have been notified by the National Mediation Board that
in its judgment these disputes threaten substantially to
interrupt interstate commerce to a degree that would deprive a
section of the country of essential transportation service.

NOW, THEREFORE, by the authority vested in me as President
by the Constitution and the laws of the United States, including
section 10 of the RLA (45 U.S.C. 160), it is hereby ordered as
follows:

Section 1. Establishment of Emergency Board (Board).
There is established, effective 12:01 a.m. eastern daylight time
on October 7, 2011, a Board composed of a chair and four other
members, all five of whom shall be appointed by the President to
investigate and report on these disputes. No member shall be
pecuniarily or otherwise interested in any organization of
railroad employees or any carrier. The Board shall perform its
functions subject to the availability of funds.

Sec. 2. Report. The Board shall report to the President
with respect to the disputes within 30 days of its creation.

Sec. 3. Maintaining Conditions. As provided by section 10
of the RLA, from the date of the creation of the Board and for
30 days after the Board has submitted its report to the
President, no change in the conditions out of which the disputes
arose shall be made by the parties to the controversy, except by
agreement of the parties.

Sec. 4. Records Maintenance. The records and files of the
Board are records of the Office of the President and upon the
Board’s termination shall be maintained in the physical custody
of the National Mediation Board.

Sec. 5. Expiration. The Board shall terminate upon the
submission of the report provided for in section 2 of this
order.

BARACK OBAMA
THE WHITE HOUSE,
October 6, 2011.

RAILROADS

Union Pacific Railroad Company
BNSF Railway Company
CSX Transportation, Inc.
Norfolk Southern Railway Company
The Kansas City Southern Railway Company
Alton & Southern Railway Company
The Belt Railway Company of Chicago
Brownsville and Matamoros Bridge Company
Central California Traction Company
Columbia & Cowlitz Railway Company
Consolidated Rail Corporation
Gary Railway Company
Indiana Harbor Belt Railroad Company
Kansas City Terminal Railway Company
Longview Switching Company
Los Angeles Junction Railway Company
Manufacturers Railway Company
New Orleans Public Belt Railroad
Norfolk & Portsmouth Belt Line Railroad Company
Northeast Illinois Regional Commuter Railroad Corporation
Oakland Terminal Railway
Port Terminal Railroad Association
Portland Terminal Railroad Company
Soo Line Railroad Company (Canadian Pacific)
South Carolina Public Railways
Terminal Railroad Association of St. Louis
Texas City Terminal Railway Company
Union Pacific Fruit Express
Western Fruit Express Company
Wichita Terminal Association
Winston-Salem Southbound Railway Company

LABOR ORGANIZATIONS

Rail Labor Bargaining Coalition consisting of:
Brotherhood of Railroad Signalmen
Brotherhood of Locomotive Engineers and Trainmen
Brotherhood of Maintenance of Way Employes
International Brotherhood of Boilermakers, Blacksmiths,
Iron Ship Builders, Forgers and Helpers
Sheet Metal Workers’ International Association
National Conference of Firemen & Oilers
Bargaining Together:
Transportation-Communications International Union
American Train Dispatchers Association
International Association of Machinists and Aerospace
Workers
International Brotherhood of Electrical Workers
Transport Workers Union of America

 

WASHINGTON – Individuals choose bank savings accounts based on the interest rate offered, assuming the investment is secure because no depositor has ever lost their principal on a Federal Deposit Insurance Corp. (FDIC) backed account.

By contrast, corporate investors must consider risk of their principal along with an anticipated rate of return on their investment. Investors are more likely to invest in and/or lend to a firm displaying long-term financial sustainability.

For railroads, long-term financial sustainability is measured by revenue adequacy – earnings that cover the cost of paying investors competitive returns as well as covering the cost of efficient railroad operation.

Congress has instructed the U.S. Surface Transportation Board (STB) to make annual determinations of railroad revenue adequacy. For 2009 (the most recent STB determination of revenue adequacy), the STB determined that no major railroad was revenue adequate. A 2010 determination will be made soon.

To determine revenue adequacy, the STB annually measures a railroad’s profitability against its cost of holding and attracting investors.

The STB calculation estimates the average rate of return needed to persuade investors to provide a railroad with capital for new equipment; to maintain existing track, bridges, signal systems and other capital assets; and to fund capacity expansion. That profit must also allow the railroad to pay investors a competitive return.

Thus, only when the railroad’s rate of return on investment equals or exceeds its cost of capital is the railroad considered revenue adequate. The profits of large corporations may look immense in terms of total dollars, but investors and economists measure profit based upon return on investment. For example, a $5,000 interest payment by a bank on a savings account may seem huge, but if the $5,000 is paid on a $500,000 savings account, the return to the investor is but 1 percent and may cause the investor to shift banks in search of a better return.

This week, the STB determined that the 2010 cost of capital for railroads was 11.03 percent, up almost 6 percent (or sixth-tenths of one percentage point) from the 2009 cost-of-capital when no railroad was determined to be revenue adequate.

It will be November before the STB uses the higher cost-of-capital benchmark to determine if any railroad achieved revenue adequacy in 2010. To achieve revenue adequacy, a railroad’s profit for 2010 will have to have met or exceeded 11.03 percent. In 2009, for example, one of the most profitable railroads — Union Pacific — posted a return on investment almost two percentage points below the threshold for revenue adequacy.

Meanwhile, major railroad stocks are well off their 52-week highs, suggesting investor concern over the ability of railroads to sustain their recent levels of profitability.

The price of CSX common stock is down 30 percent from its 52-week high; Kansas City Southern is down 18 percent from its 52-week high; Norfolk Southern is down 21 percent from its 52-week high; and Union Pacific is down 23 percent from its 52-week high. BNSF is now held privately and its stock is not traded.

KELSO, Wash. – Shuttle van operator Coach America Crew Transport has been fined more than $13,000 by the State of Washington for alleged safety lapses in the wake of a train-van accident in March that killed a BNSF engineer, a conductor trainee and the van driver, and seriously injured a UTU-member conductor.

The shuttle van, transporting BNSF crew members to an away-from-home terminal, was struck by a BNSF train at a private crossing in Kelso.

According to the Vancouver Columbian, Coach America Crew Transport was fined by the state for “failing to tailor its accident prevention program to the types of hazards drivers may encounter” and for “not implementing and enforcing safety training programs for employees and not providing on-the-job instruction to employees about hazards.” Coach America said it would appeal the violations.

A spokesperson for the State Department of Labor and Industries told the Columbian, “This is a company who has 260 drivers in our state. When we looked at their accident prevention program, we didn’t see any language about driving.”

Killed in the accident were conductor trainee Chris Loehr, 28, of Seattle; engineer and BLET member Thomas J. Kenny, 58, a 22-year BNSF employee of Shoreline, Wash.; and the Coach America Crew Transport driver, Steven Dean Sebastian, 60.

Critically injured was UTU member and conductor Dwight L. Hauck, 51, of Auburn, Wash., a member and trustee of UTU Local 324 with 22 years of railroad service.

The Longview Daily News reported at the time of the accident that the shuttle van had just departed a BNSF yard at Kelso and was crossing the tracks at the private crossing when struck by a northbound freight train with a consist of three locomotives and 106 carloads of grain. The Seattle-bound train had originated in Crookston, Minn.

Following the collision, the van plunged down a 25-foot embankment, landing some 50 feet from the highway-rail grade-crossing.

The BNSF operating employees in the van reportedly had brought a train from Seattle to Kelso and were being transported by Coach America Crew Transport to overnight lodging.

The Federal Railroad Administration is still investigating the accident.

DITTLINGER, Texas — The UTU has reached a tentative collective bargaining agreement with shortline Western Rail Road on behalf of train, engine and mechanical workers who now will vote on ratification.

The negotiations were led by UTU General Chairperson Doyle Turner (GO 347), who heads the UTU’s shortline outreach program.

Western Rail Road employees selected the UTU as their collective bargaining agent in February after meeting with UTU organizers Rich Ross and Mike Lewis.

This tentative agreement, as with others negotiated with shortlines, is intended “to bring parity in wages, benefits and work rules to the thousands of employees in the shortline railroad industry, along with the many other protections offered by union membership,” Turner said. “The seniority, scope and discipline rules these members now enjoy are what makes union membership valuable.”

Western Rail Road connects a quarry and cement plant at Dittlinger with Union Pacific’s Austin, Texas, subdivision. Dittlinger is four miles south of New Braunfels and about 50 miles south of Austin.

PHOENIX – UTU Arizona State Legislative Director Greg Hynes has seen the political attack on organized labor unfold in the Southeast, the Midwest and north in Idaho, knowing it was but a matter of time before the extremists came knocking on the door in the his state. When they did, Hynes and other labor union officers were prepared to fight back.

A federal district court in Phoenix listened carefully — and agreed — as organized labor challenged a new state law aimed squarely at diluting the political power of labor unions in Arizona.

An anti-union Arizona legislative majority decreed that some labor unions – but not the ones with which they curry favor; and certainly not employers – should be restricted in making contributions to political candidates or causes.

A First Amendment violation was made clear to the federal court – that the law’s intent was arbitrarily to restrict the free speech of targeted labor unions – and the state was ordered by the court not to enforce the law on its effective date of Oct. 1. The court now will now consider imposing a permanent injunction.

In the fashion of the novel “1984” by George Orwell, which probed mass mind control, the law’s authors spitefully misnamed it, “Protect Arizona Employees’ Paychecks from Politics Act.”

The law is intended to restrict targeted labor unions – presumably those unions that support political opponents and policies of the legislative majority – from using paycheck deductions of its members to fund political activities or causes.

The law does not impose similar restrictions on unions representing police officers, or on employers who make political contributions. As such, the federal district court said the law violates the free speech rights of the targeted unions.

The court held that the law “violates the First Amendment” by discriminating against ‘those wishing to express less favored or more controversial views”; and “by imposing its burdens on the political speech of some unions and other organizations and not imposing like costs upon other similarly-situated unions, or on other organizations that can use the funds for political activity, the law is under-inclusive and discriminates according to speaker.”

Hynes said the law, put on hold by the court, is “part of a comprehensive legislative campaign to quash speech in Arizona by labor organizations and groups representing employees.” One news organization quoted a sponsor of the law as saying it is intended to prevent unions “from taking their First Amendment rights too far and infringing on the rights of employers.”

Specifically, the law requires unions collecting dues money through payroll deduction either to “affirm to the employers who process the deductions that none of their general fund is used for political purposes or to specify the percentage of their general fund to be used for political purposes.” The term “political purposes” is defined by the law as “supporting or opposing any candidate for public office, political party, referendum, initiative, political issue, advocacy, political action committee, or other similar group.”

FRA logoCHICAGO — Here is an opportunity to voice your rail safety concerns directly to the administrator of the Federal Railroad Administration.

A 90-minute town hall meeting on rail safety will be held Tuesday, Oct. 11, in Chicago. FRA Administrator Joseph Szabo will take questions and hear concerns as part of the agency’s outreach to rail labor.

Szabo, formerly the UTU’s Illinois state legislative director and a fifth-generation railroader, promises “a frank and often safety discussion.” He also will share with the audience details on the FRA’s risk reduction program, which is a non-punitive approach to addressing safety in advance of an accident or injury.

FRA Associate Administrator for Safety Jo Strang wrote of that program some months ago in an exclusive column that appeared in the UTU News and on the UTU website. A link to that column is provided below.

Here are the details of the town hall meeting:

WHEN: Tuesday, Oct. 11, from 9-10:30 a.m.

WHERE: Chicago Laborers District Council, 999 McClintock Drive, Burr Ridge, Ill. Burr Ridge is 20 miles southwest of downtown Chicago.

To read the Jo Strang column on the FRA’s risk reduction program, click on the following link:

https://www.smart-union.org/news/help-fra-stop-harassment-improve-safety/

NORTH PLATTE, Neb. — UTU Alumni Association Chapter 17 will host its  second annual UTU/UTUe alumni luncheon Tuesday, Oct. 4, at noon, here at the Depot Restaurant, 520 N. Jeffers.
All retirees, and their spouse or friends are welcome to attend.
For more information contact Terry Sigler at (308) 532-6041, or email him at terryes@q.com.

The UTU’s ratified national rail contract – locking in for six years a $200 monthly health care insurance premium — is looking even more attractive following a Kaiser Family Foundation study showing health care costs and health care premiums are rocketing into space.

Nationally, the average monthly premium for family health care insurance through an employer reached $1,256 in 2011, according to the study– and even higher monthly premiums are forecast in the years ahead.

Although employers generally pay a significant portion of those premiums, the employee share for private sector and federal workers is anywhere from almost double to more than double what is paid by rail workers under the recently ratified UTU national rail contract.

It is expected that most private-sector and government employees will be paying considerably more in health care insurance premiums in the years ahead, while those covered by the UTU national rail contract pay not a penny more for coverage through mid-2016. Moreover, the UTU national rail contract includes improvements in a health care plan already considered one of the most comprehensive in America.

The Kaiser Family Foundation study found that health care insurance premiums have doubled over the past 10 years, outstripping, for most Americans, the growth in wages.