Elections Have Consequences – the Wheeling & Lake Erie Saga

By Dennis R. Pierce
National President

(BLET Editor’s Note: The following message from BLET National President Dennis R. Pierce has been excerpted from the March 2018 issue of the Locomotive Engineers and Trainmen News. On March 27, 2018, shortly after this article was written, the BLET requested that a proffer of arbitration be made by the National Mediation Board,, which is the next step towards reaching self-help. A copy of the BLET’s request is available here.)

INDEPENDENCE, Ohio, March 28 — My last article detailed an attack by the Indiana legislature on the rights provided by the Federal Employers’ Liability Act to railroad workers who are injured or killed as a result of negligence by their railroad employer. This article is to update you on a years-old struggle being waged by 180 active BLET locomotive engineers and trainmen who work for the Wheeling & Lake Erie Railway (W&LE).

Headquartered in Brewster, Ohio, the W&LE has been in existence since May of 1990 and incorporates over 800 miles of primarily former Norfolk Southern trackage in Ohio, Pennsylvania, West Virginia, and Maryland. The W&LE handles over 150,000 carloads annually and interchanges with three Class I railroads (CSX, Canadian National and Norfolk Southern) and 14 regional, short line and switching railroads.

And it is ground zero in the BLET’s fight to protect two-person crews.

The W&LE Trainmen’s Collective Bargaining Agreement has what may be the strongest language protective of two-person crews in the railroad industry. That language has been the Carrier’s target for nearly 20 years.

Because of the W&LE’s insistence on introducing single-person operations, our membership went without a new contract for seven years from 2001 until the summer of 2008, including several years of pressure from the National Mediation Board (NMB). Then-Ohio Governor Ted Strickland and his staff also provided key pressure to bring an end to the dispute.

But since then W&LE has been waging the same war … and has refused to negotiate a successor to that nearly 10-year old contract that is acceptable to our W&LE membership.

First, W&LE renewed its Section 6 demand for the right to institute single-person operations. Next, it failed to hire sufficient people to maintain an adequate supply of locomotive engineers and trainmen.

Finally, it began assigning supervisors to work as locomotive engineers and as conductors, even when extra engineers and conductors were available and rested. Because there was ongoing bargaining over a new contract this was a violation of the status quo requirements of the Railway Labor Act (RLA), and an outright abrogation of the Collective Bargaining Agreements.

W&LE engineered several of these provocations — apparently designed to force our W&LE members to knuckle under to their demands — and was repeatedly warned to discontinue its actions in the strongest terms by then-General Chairman Bob Linsey.

Brother Linsey also requested authority to poll the membership to withdraw from service if the Carrier continued to simply ignore the plain Agreement language. I authorized that poll, which resulted in overwhelming support for a strike in defense of the crewing requirements.

When W&LE again used supervisors in place of available and rested engineers and conductors, I authorized BLET members to walk off the job on strike on September 20, 2013. The Carrier immediately ran to the courthouse, and a federal judge temporarily ordered our members back to work … but he also ordered W&LE to stop using supervisors to perform craft duties.

However, the district court judge later held that both the engineers’ strike and the trainmen’s strike could be enjoined because the Carrier’s ability to use supervisors to perform work reserved in the Agreements for BLET-represented employees was “arguable” and, therefore, a minor dispute so the railroad could continue the actions that gave rise to the strike.

Because the judge improperly interpreted the Trainmen’s Agreement in order to justify issuing an injunction, I authorized our General Counsel to appeal that portion of the decision to the U.S. Court of Appeals for the Sixth Circuit.

A year later — as the 2014 Convention was about to open — the Carrier’s lawsuit was still on the Sixth Circuit’s docket. Our W&LE members still didn’t have a new contract, even though the dispute had been in mediation for more than two years. And the Carrier was still insisting upon implementing single-person operations.

The 2014 Convention adopted a resolution in support of the W&LE struggle, noting that “it is vital that these brothers and sisters win this struggle and demonstrate to the W&LE — and the other rail carriers as well — that union labor will not accept train operations with a single employee.”

The Delegates also acknowledged that “the outcome of this struggle of these brothers and sisters will have a direct impact on engineers and trainmen and all railroad workers throughout North America; their fight is our fight!”

They also “pledge[d] our unwavering solidarity and assistance to the members of Division 292 to win this fight” and “encourage[d] all BLET members and all railroad workers — especially those in geographical proximity — to join the picket line, to bring material aid and assistance and otherwise support the workers on the W&LE as necessary in the coming months and years in order to ensure victory.”

Our appeal was argued shortly after the Convention, and in mid-April of 2015 a unanimous three-judge panel on the Sixth Circuit reversed the District Court. It found that W&LE’s “claim that the Trainmen Agreement allowed it to man trains without union conductors is frivolous or obviously insubstantial, and the dispute is major.” After the District Court revised its Order, W&LE appealed again and lost. Finally, early last year the U.S. Supreme Court put an end to the litigation when it denied W&LE’s request for review. As a result, BLET’s strike in 2013 remains a legal job action, and the precedent set by the Courts’ affirmation of this fact stands as a cornerstone in our battle to preserve two man crews.

However, this victory led to W&LE doubling down on its efforts at the bargaining table to weaken the collective bargaining agreement protections that the court upheld. In an effort to gain long overdue wage increases for the W&LE membership, a proposed agreement was submitted to the membership in September of 2016 that weakened the staffing requirements for conductors. The membership spoke loud and clear by overwhelmingly rejecting the proposal.

Because the W&LE clearly was trying to starve our membership into submission — and at the request of the General Chairman — I requested in 2013, 2014 and 2017 that the NMB agree with us that impasse had been reached, and proffer arbitration to the parties so that the mandatory processes of the RLA could be brought to a conclusion, including a strike if need be.

Last summer our W&LE members voted unanimously to authorize such a strike if the RLA process concluded without a ratified voluntary agreement. Bargaining since that time has not produced any movement on the Carrier’s part; in fact, at the most recent session in mid-March, W&LE insisted that our members accept a lower hourly wage rate than contained in the rejected proposal. BLET’s bargaining committee rejected those outrageous demands immediately, and requested that I again notify the NMB that negotiations are at an impasse.

It is almost 10 full years since our W&LE members have had a new contract, a period in which the Carrier has waged an unrelenting attack on their wages, working conditions and current Agreements.

As I said in my last article, elections have consequences. Our bargaining efforts under the RLA are managed by the NMB, and through the President’s power of appointment, the NMB is controlled by the White House. Those who are elected to high office in the Federal Government must be judged more by what they do in office as compared to what they say as candidates. In other words, who among our elected government officials work for working class Americans and who work for Corporate America?

It is time for the White House, through the NMB, to acknowledge that the RLA process has been exhausted on the W&LE. It is time for the federal government to allow this dispute to be resolved without the constraints the RLA imposes, which have failed to produce a fair resolution on this property for far too many years. The continued refusal to allow the final steps of the bargaining process of the RLA to be implemented only serve to frustrate the intent behind the drawn-out process itself. It is truly unfortunate that the threat of a legal strike may be the only thing that will convince W&LE to negotiate an acceptable agreement.

You have my word and my assurance that the National Division will continue to provide our W&LE members with all the assistance at our disposal. I am equally confident that our Convention in October will again rise up in support of their Brothers and Sisters.

The true test is this. What will the White House do in response to our latest request? Many BLET members voted for President Trump because of his campaign commitments to improve the lives of working class Americans. He now has an opportunity to take action on those commitments by releasing us from further mediation and allowing us to take the legal actions necessary to reach an agreement acceptable to the membership. I urge him to seize that opportunity.

Wednesday, March 28, 2018
bentley@ble-t.org