Better appeals route urged for conductor certification

January 12, 2011

WASHINGTON — As the Jan. 1, 2012, effective date for conductor certification approaches, the UTU and Brotherhood of Locomotive Engineers and Trainmen are urging the Federal Railroad Administration to revise certain portions of the proposed certification rules.

Chief among areas of concern is the lack of a streamlined appeals process when railroads move to decertify a conductor. The UTU and the BLET also are asking the FRA to amend existing engineer certification rules with such a streamlined appeals process that will also require appeals to run their course before a conductor may be decertified.

Conductor certification is one dozens of actions required by Congress in the Rail Safety Improvement Act of 2008 (RSIA).

Other worker-positive safety advances ordered by the RSIA, also being advanced by the FRA, are mandatory availability of breathing apparatus for train and engine workers, implementation of positive train control, and hours-of-service reform. In each case, the UTU and the BLET also are working to refine those rulemakings in line with concerns of UTU and BLET members.

Conductor certification will be published as a new Part 242 of Chapter 49 of the Code of Federal Regulations. Engineer certification, implemented by the FRA in 1991, is published as Part 240

“Conductor certification has long been an objective of the UTU, as it enhances the professionalism and indispensability of the craft,” said UTU International President Mike Futhey. “One of the most sought after provisions of conductor certification, contained in the FRA’s proposed rulemaking, enables a conductor to refuse to violate operating rules and federal regulations even if demanded by a carrier officer.

“We also are pleased that the FRA proposes uniform training for conductors, which includes a requirement for territorial testing and qualification that must be preceded by face-to-face classroom training and territorial training with a pilot,” Futhey said.

“Railroads must also provide conductors with a map and listing of all safety hazards, and must keep a list of conductors qualified on each territory,” Futhey said. “The proposed rule also makes it unlawful to require a conductor to work on territory where the conductor is not qualified,  and provides that a lone engineer must be certified as both an engineer and a conductor, or be accompanied by a certified conductor. Collective bargaining will determine additional pay for certified conductors,” Futhey said.

In reviewing the FRA’s proposed rule for conductor certification, the UTU and the BLET noted that “the FRA cannot deny that the railroads have repeatedly abused” their discretion in disqualifying engineers under the two-decade old engineer certification rule.

Thus, the UTU and the BLET urged the FRA to streamline the decertification appeals process for conductors as well as engineers.

Unacceptable, for example, is the appeals process for engineer decertification, which requires hiring of an attorney and can stretch on for years.

The UTU and the BLET also want decertification to be delayed until the appeals process has run its course. “We contend that the only legitimate reason to impose a suspension prior to the employee being provided due process is if the alleged violation is deemed a willful violation; otherwise, the suspension serves no useful purpose,” the UTU and the BLET told the FRA. “The notion that someone will go right out and inadvertently commit additional ‘cardinal sins’ is preposterous.”

The UTU and the BLET also asked the FRA to include, in the final rule, a requirement for FRA review of unilateral decisions by railroads to make conductor certification requirements more stringent than contained in the rulemaking. “It is not unreasonable to expect the railroads to identify those areas where each railroad will implement additional or more stringent requirements for its conductors,” the UTU and the BLET told the FRA.

To read the comments of the UTU and BLET, click here.