Unions, Norfolk Southern Grapple Over Vaccine Mandate, Conductor Assignments

Norfolk Southern and two rail unions, the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation Workers (SMART-TD), are continuing to scuffle in court over two hot-button issues: the COVID-19 vaccine mandate and engineers' roles.

Unions seek immediate stop to the practice of making engineers work as conductors

The two unions want the courts to immediately stop NS from using train engineers as conductors until the unions and the railroad are able to bargain about the issue, according to recent filings.

BLET and SMART-TD say NS' actions violate their labor agreements because those actions weren't bargained beforehand. The unions also say NS threatened engineers who didn't comply with the railroad's requests to work as conductors. They each filed preliminary injunctions against NS in the U.S. District Court for the Northern District of Ohio, Eastern Division.

NS NSC contests that the practice only occurs in emergency situations and falls under the preexisting agreements, according to a filing the company made last month in response to union claims.

BLET says NS forced members to work as conductors by not putting the assignments through the predictable workforce scheduling system that both use per the 2015 collective bargaining agreement. As a result, that action represents a major dispute under the Railway Labor Act, according to BLET's filing from last Wednesday.

BLET says an immediate injunction would forbid NS from making engineers work as conductors, while SMART-TD says the injunction would return the workplace to the status quo, according to a release last Thursday. BLET represents train engineers while SMART-TD represents conductors. BLET also wants NS to reinstate members who were disciplined as a result of the dispute.

The court will issue a decision following a hearing, and if the court grants the unions' request and orders NS to stop the practice, then "any continued misconduct by the carrier could trigger a strike," BLET said.

In its filing last Wednesday, SMART-TD said NS' actions started in early August in areas such as the Blue Ridge Division, Elmore District; the Dearborn Division, Buffalo District; and the Dearborn Division, Elkhart Division.

"This situation is identical to the September 2013 dispute that led to a BLET strike on the Wheeling and Lake Erie," said BLET National President Dennis R. Pierce and SMART-TD President Jeremy R. Ferguson in a release. "The 6th Circuit Court of Appeals, which also has jurisdiction here, held that the 2013 dispute was, indeed, a major dispute. Multiple ground employees on NS have sustained injuries in switching operations in recent weeks."

They continued, "We have made it clear to NS that forcing engineers to work ground assignments that they are not currently qualified on or familiar with is an invitation for more incidents. While NS' current business model may accept responsibility for that risk to its employees, our unions do not. We will do everything in our power to prevent that risk to our collective memberships."

Meanwhile, in an Oct. 7 filing, NS countered that assigning engineers to the conductor roles is only used to temporarily fill vacancies in emergency circumstances.

Engineers are also "qualified to work as conductors and must maintain seniority as conductors. [Norfolk Southern] has a decades-long practice of calling engineers to protect their conductor seniority by filling temporary conductor vacancies in emergency circumstances," NS said last month.

As a result, NS thinks the courts should rule this issue as a "minor dispute" and sees the unions' argument as a disagreement in the interpretation of the Railway Labor Act. Furthermore, a minor dispute is subject to the exclusive jurisdiction of the National Railroad Adjustment Board or an arbitration panel established by the parties.

"The dispute arises out of the interpretation or application of existing agreements with BLET concerning rates of pay, rules, and working conditions," NS said.

Unions respond to vaccine mandate in court

BLET and SMART-TD also last week responded to NS' filing in federal court over being able to compel employees to get vaccinated from COVID-19.

NS had petitioned the U.S. District Court for the Northern District of Illinois, Chicago Division, to show that it has the legal right under existing collective bargaining agreements to require employees to be vaccinated against COVID-19. NS said it must comply with President Joe Biden's executive order mandating "covered employees" of federal contractors, including NS, to be fully vaccinated against COVID-19 by Dec. 8.

BLET and SMART have filed counterclaims saying that implementing a vaccine policy without bargaining violates the Railway Labor Act. By not bargaining, they engender a major dispute, they said.

"NS has ordered all employees to report that they are fully vaccinated by Dec. 8 or they will be unable to continue working. And instead of negotiating with us as the law requires, the carrier is directly dealing with its employees by offering a payment for compliance with its unilateral mandate," Ferguson and Pierce said in a statement.

"We generally support our members getting the vaccine. However, we have several objections to NS' unilateral implementation of their policies mandating them and illegally dealing directly with its represented employees. The members of our unions — including members who already are vaccinated — are irate over NS' outrageous conduct.

"We have been in contract negotiations with NS since November of 2019, and federal law absolutely bars railroads from changing rates of pay, rules, and working conditions while negotiations are ongoing. Not only is NS in violation of the law, it has explicitly spurned our demands that these matters be bargained. We will continue to fight on behalf of all BLET and SMART-TD members in an effort to stop NS' lawlessness in its tracks," they said.

In a Friday filing, BLET said NS' vaccine requirement and a $300 bonus NS is giving employees for the vaccine isn't permissible under the collective bargaining agreement.

NS "has openly disregarded its legal duty under the [Railway Labor Act] to bargain with the BLET. NSR's pattern of taking unilateral action in altering the terms and conditions of employment of engineers represented by the BLET is a flagrant violation of … [the] status quo," BLET attorneys said.

BLET continued, "With each of these unilateral actions, the phones and emails at BLET are being flooded with questions and concerns from its membership. The resulting chaos of these and a multitude of unanswered questions have resulted in a drain on BLET's limited resources and its ability to represent its membership. The only way to remedy this situation and protect the integrity of good faith bargaining is for this court to order [Norfolk Southern] to stop its unilateral action and to bargain with BLET to reach an agreement."

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