CLEVELAND, January 17 — With federal regulations requiring the certification of conductors scheduled to take effect at the beginning of next year, the BLET has filed comments with the Federal Railroad Administration (FRA) strongly urging that the agency pay attention to the lessons of more than 20 years of locomotive engineer certification.
In a submission filed jointly with the United Transportation Union (UTU) on January 10, the two unions — who represent virtually all organized operating employees on the nation’s railroads — commented extensively on FRA’s proposed conductor certification regulation.
The unions pointed out that FRA’s original 1989 Notice of Proposed Rulemaking regarding locomotive engineer certification acknowledged a long history of unfair treatment by the carriers, and the agency committed itself to the “elimination of disparate treatment of locomotive engineers.” To attain that goal, FRA promulgated a regulation that provided railroads with only “limited authority to deny or revoke a person‘s certificate.”
Despite these clear statements, FRA was forced to overhaul Part 240 three times — in 1993, again in 1998 and, most recently, in 2009 — because of the carriers’ abuses of the “limited authority” granted to them. In FRA’s words, these amendments were necessary because carriers had “decertified employees where FRA had not anticipated such actions,” had used tests for which “the true purpose was not to monitor compliance but to make it inappropriately difficult for an engineer to pass,” and fabricated a loophole to terminate certification, and an engineer’s employment, without any Part 240 or collective bargaining agreement due process.
As part of the FRA’s Railroad Safety Advisory Committee (RSAC) consideration of conductor certification and possible corresponding changes to the locomotive engineer certification regulation, the BLET and the UTU were successful in persuading FRA to propose clearer and stronger protections for conductors. Specifically, the proposed conductor certification rule includes the following improvements, which are superior to the present locomotive engineer certification rule:
• A requirement that railroads serve a copy of their certification program submissions, resubmissions and material modifications on the president of each labor organization that represents conductors, with the right of those unions to comment to FRA on the proposals.
• A requirement that someone facing a revocation hearing be provided in advance with the written information the carrier plans to present at the hearing, as well as a list of witnesses called to testify at the hearing.
• An extension of certification that is set to expire when a state motor vehicle agency fails to provide driver information that was timely requested.
• A grace period for annual compliance testing when someone has not worked in the craft for an extended period of time, such as during an economic downturn, so as not to interrupt their return to certified service.
The main focus of the unions’ comments was to urge FRA to improve due process at the on-property level, and to streamline the dispute resolution process, which currently can take several years in an engineer certification appeal. Stricter procedural controls were outlined, along with stiffer sanctions when a railroad violates the regulation’s due process requirements.
The BLET and the UTU also proposed a far less cumbersome appeal process, which would feature a more balanced on-property hearing record and the right for the proposed Operating Crew Review Board to hold a de novo hearing as part of the agency’s final action. The unions also recommended that FRA impose civil penalties on certification program administrators for violations of the regulation committed by a railroad.
BLET National President Dennis Pierce was cautiously optimistic about the evolution of the proposed rule. “We have tried to incorporate the lessons of two decades of struggle over fair treatment for locomotive engineers to protect all conductors, and the BLET and UTU participants in the RSAC process did an excellent job in that respect,” Pierce said.
“We strongly urge the FRA not to overlook the sorry history of Part 240 in drafting its final rule, and we anticipate that the many new safeguards proposed by FRA will promptly be extended to certified locomotive engineers,” Pierce added.
A copy of the BLET/UTU joint comments can be found by clicking here.