FLASH NEWS!!!

 

Please click on the link below to view the 2014 Election Results

http://www.utu171.com/Vote-Talley-2014.docx

January 6, 2014

Dear Sirs:

This is in regard to the Letters of Understanding outlining the terms of the Recovery Incentive. Please consider this as BNSF’s 5-day Notice of Cancellation. The Recovery Incentive will be cancelled effective end of day January 11, 2014.

Sincerely,

Milton H. Siegele, Jr.

During a meeting with the presidents of the Brotherhood of Locomotive Engineers and Trainmen and the SMART Transportation Division on April 24, 2013, Kansas City Southern Railway announced that it intends to install and begin to use inward facing cameras in all of its locomotives over the next few weeks.

According to KCS, each locomotive will have two cameras – one behind the engineer focused on the control panel, and one across the cab focusing on both crew members. (Some locomotives with cameras installed already are in use in Mexico; others are being fitted for cameras in Shreveport.)

The carrier told the two presidents that it has “management prerogative” to take these actions and does not have to, and does not intend to, bargain with the unions over the use of these cameras, or the effects of this dramatic change on its operating craft employees.

Without notifying the unions, that same day KCS filed suit in federal district court in Shreveport, La., to obtain a ruling allowing it to implement its plan. Upon learning of these developments, BLET National President Dennis Pierce and Mike Futhey, President of SMART Transportation Division, together told the carrier that both unions vehemently disagree that the carrier has the right to install and use inward-facing cameras unilaterally without exhausting the bargaining processes of the Railway Labor Act.

The two presidents and the leadership of both unions view this as a serious change in working conditions and have agreed to work closely to resist its implementation. A coordinated effort is being undertaken in response.

Not only will both unions be fervently opposing KCS’s lawsuit, they will be asking the court to enjoin the carrier from going ahead with its plan.

As of now, and until the court has issued a ruling regarding the parties’ respective rights, the carrier has agreed not to turn on or use the cameras.

Union members who work for KCS on a locomotive that has a camera installed should request assurances from the proper carrier officials that the camera is not turned on and not in use. Any instance where that assurance is not given should be immediately reported to your general chairperson.

Also, to avoid any possibility of discipline, no member should attempt to move, cover or otherwise tamper with the cameras they encounter.

Cooperation in this manner is vital.

Lastly, train and engine employees can be assured that their unions are diligently working to protect them and their interests in this matter. No legal stone will be left unturned in opposing the carrier on this issue.

Below is the suggested time slip language for a yardman denied a “utility yardman” position due to either of the following situations, 1) the Carrier arbitrarily demands Remote Control Certification to work as utilityman or, 2) from having been federally decertified and the Carrier requires such to work as a utility yardman. In each case, when the yardman had adequate seniority to hold a utility yardman assignment and had made the required request for such position and is denied, a claim would be supported by our office.

Allow one basic day account restriction of my seniority. I have adequate seniority and requested/bid to be assigned job ______ on (date) yet was denied by the Carrier due to (not having Remote Control Certification) or (being decertified). Junior yardman (name) was allowed to work in my place.

Please require our members to provide you and I with documentation to support their claim(s). At a minimum I will need the following support for each claim:

        1. Seniority standing between the claimant and Jr. yardman involved.

        2. Printout of the assignments for the claim date showing the yardmen assigned.

        3. Claimant’s Daily Mark Preference entry for the claim date, if applicable

        4. Claimant’s bid and bulleting award for utility yardman position showing him/her as senior bidder

If you have any question please give me a call.

Fraternally,

Randy Doyle

Please click on the link below to view the document that contains information concerning the Work Retention List

http://www.utu171.com/WRL_Displacement.pdf

Please click on the link below to view the document that contains information concerning the recent BNSF - OSHA agreement pertaining to whistleblower violations

http://www.utu171.com/BNSF-OSHA-Agreement.pdf

All

For those of you that have elected to implement the WRU List agreement at your location, and for those of you who may be contemplating it, there was recently some confusion regarding the manner in which those on the list submit to be recalled in seniority order.

It has since been related that there is no electronic means of doing so and if you wish to be recalled from this list in seniority order, a written request must be faxed to Crew Support in Topeka.

In fact, following is a “cut & paste” of the instruction issued the callers when contemplating a recall:
How TYE can move from the Work Retention List Back to Active Service • When the division manager recalls from WR list. Please check the folder to find any senior employee, if none found, recall junior to senior off WR list.

Requests should be faxed in and filed in the WR Recall folder.

Randy K.

 

As we are all aware, on February 29th, the FRA came out with interpretive changes regarding the 2009 RSIA changes. On April 30th, there was a subsequent postponement granted for the interpretation of the definition of “day” in the original ruling. The “day” changes are currently scheduled to take place in December.

 

However, there were other changes that go into effect today from a Crew Support programming perspective. We will be making the following changes later today in order to comply with the effective date published by the FRA.

 

·        CRF 49 Chapter II Section IV (B-7) addresses “How much rest must an employee have after initiating an on-duty period for six consecutive days by sec. 21103(a)(4)(B)?”

·         From a Crew Support Programming perspective:

·         Prior to the change – an employee getting a 7th start out of the AFHT that is a straight away deadhead was granted 72 hours of unavailable time at the HT

·         With this change – an employee getting a 7th start out of the AFHT that is a straight away deadhead will be granted 48 hours of unavailable time at the HT

·        CRF 49 Chapter II Section IV (C-1) addresses “Does the prohibition protect employees from any communication for the entirety of the off-duty Period?”. The Executive Summary goes on to state “Employees are not permitted to grant advance permission for all off-duty periods…”

·         From a Crew Support Programming perspective:

·         Prior to the change – an employee was able to designate whether they wanted to receive “push” alerts when they were not FRA rested.  

·         With this change – an employee will no longer have the option of whether to receive a push alert if they are not FRA rested – they will only receive push alerts when rested.

·         ** at the time of the change, 8,394 TYE employees are signed up for pushes. Of them, 4,121 employees had the options set to receive when not rested

Please click on the link below to view the document that contains information concerning the Unilateral Change Of Pool Handling (First In, First Out)

http://www.utu171.com/FirstInFirstOut.pdf

Please click on the link below to view Part 1 of 2 of the document that contains information about the new password requirements for 2012.

http://www.utu171.com/password_requirement_changes_faqs.pdf

Please click on the link below to view Part 2 of 2 of the document that contains information about the new password requirements for 2012.

http://www.utu171.com/password_changes.pdf

Please click on the link below to view the document that contains highlights of the Conductor certification final ruling

http://www.utu171.com/Highlights_Conductor_Cert.docx

Please click on the link below to view the document that contains a Q & A session regarding the Conductor certification final ruling

http://www.utu171.com/Conductor_Cert_Q&A.pdf

 

WASHINGTON – It's now official. Conductor certification, mandated by the Rail Safety Improvement Act of 2008, has a clear track for Jan. 1 implementation.
>
> In a final rule, published by the Federal Railroad Administration Nov. 9, railroads must implement, by Jan. 1, a formal training program for certifying conductors and a formal process for training prospective conductors, thus ensuring job competency.
>
> The FRA's final rule on conductor certification follows many of the provisions of locomotive engineer certification, with a number of improvements the UTU, joined by the BLET, was able to obtain.
>
> Following are highlights of the final rule, which runs almost 300 pages in the Nov. 9 Federal Register.
>
> * While the railroad and its employees must comply with the final rule, there is no limitation on any rights the employee may have under a collective bargaining agreement
>
> * Conductors currently employed will be grandfathered for from one to three years, with one-third of those conductors required to be tested for certification in 2012, 2013 and 2014. Beginning in 2015, one-third of the total conductor workforce will be recertified each year.
>
> * Each railroad, in submitting its proposed certification program to the FRA for approval, must simultaneously submit it to the presidents of the UTU and BLET, which will have 45 days to comment. The intent is to encourage coordination by carriers with local union officers in formulating the certification program, and to gain a supporting statement from the general committee of jurisdiction.
>
> * A conductor losing certification may work as an assistant conductor, brakeman, yard helper, switchman or utility employee, but cannot work as a locomotive engineer. If that individual holds both conductor and engineer certification, and the engineer certification is revoked, they may not work as a conductor.
>
> * If the conductor certificate is revoked because of failing to control a train, violation of train speed, violation of brake test requirement, occupying main track without proper authority, tampering with safety devices, or an alcohol or drug violation, the decertified conductor may not work as a locomotive engineer. However, if the decertification is for violation of a rule covering shoving or pushing movements, or equipment left out to foul track, switches and derails, the decertified conductor may work as a locomotive engineer.
>
> * The conductor must be trained by a qualified person on the territory over which that conductor will operate. If the certified conductor lacks territorial qualification, and has never been qualified on main track physical characteristics, that conductor shall be assisted by a person who is a certified conductor qualified on the territory, and NOT a member of the crew.
>
> * If the conductor has been previously qualified over the main track territory, and the time limits have expired on their qualification, the conductor may be assisted by any knowledgeable person, including a member of the crew, other than the locomotive engineer on the crew, so as not to conflict with other safety sensitive duties.
>
> * If the conductor lacks territorial qualification on other than main track, the conductor, where practical, shall be assisted by a certified conductor meeting the territorial qualifications. Where this is not practical, the conductor shall be provided an appropriate job aid, which includes maps, charts or other visual aids of the territory. This applies to all tracks on each territory.
>
> * Territorial qualification is not required for short movements of one mile or less where track speed is 20-mph or less and movement is required to be at restricted speed, and the track grade is less than 1 percent.
>
> Prior to revoking conductor certification, a railroad must:
>
> * Provide notice of the reason for suspension, and an opportunity for a hearing before a person other than the investigating officer. Written confirmation of the notification shall be in accordance with the collective bargaining agreement. Additionally, the hearing shall be in accordance with the collective bargaining agreement, but shall be convened within 10 days after the certificate is suspended, unless the conductor asks for a delay.
>
> * Provide, no later than convening the hearing and notwithstanding any collective bargaining agreement, a copy of the written information and a list of the witnesses the railroad intends to present at the hearing. The railroad shall grant a recess if the information is provided just before the hearing. If the information is provided through written statements of an employee, the railroad shall make that employee available for examination during the hearing.
>
> * Not revoke certification or recertification if there is sufficient evidence that an intervening cause prevented or materially impaired the conductor’s ability to comply with requirements.
>
> Additionally, with regard to conductor certification:
>
> * The appeal procedures largely mirror engineer certification regulations.
>
> * The training requirements for new conductors are significantly improved from current requirements. In addition to improved initial training, this rule requires recurrent training for all conductors every three years during the recertification process. The recurrent training must be identified in the certification plan filed with FRA, including changes in operating rules, operating practices, new federal regulations and new equipment in service.
>
> "The implementation of conductor certification enhances the skills and safety performance of freight and passenger conductors, provides a federal license ensuring proper training of conductors, and establishes a new basis for resisting management pressure to violate operating rules and federal regulations," said UTU International President Mike Futhey.
>
> The final rule is a result of input from all affected parties, including labor, through the FRA’s Rail Safety Advisory Committee (RSAC).
>
> The UTU was represented on this RSAC Conductor Certification Working Group by Local 645 Chairperson Vinnie Tessitore, Local 1470 Chairperson David Brooks, General Chairperson (GO 049) John Lesniewski, Local 528 Legislative Representative Ron Parsons, Alternate National Legislative Director John Risch, National Legislative Director James Stem, and UTU Rail Safety Coordinator for Designated Legal Counsel Larry Mann.
>
> A link to the 278-page final rule will be available on the UTU website at www.utu.org by midday Nov. 9.
>

Arbitrator Michael H. Gottesman said the UTU-ratified 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 or 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 begin meeting not later than 15 days after the effective date of this award (Oct. 10) 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.”

Please click on the link below to view the document that contains a synopsis of the tentative contract.

http://www.utu171.com/Local%20Chairmen%206-3-11.pdf

The Federal Railroad Administration's rule that bans the use of electronic devices, including cellular phones, by on duty railroad crews becomes permanent on Monday, March 28.Also attached is a flow chart that can be printed off for easy reference. All members are strongly urged to abide by the electronic device ban and to encourage other crew members to do the same. Penalties for a violation could be severe and include carrier discipline and personal monetary penalties.

Please click on the link below to read the article from the UTU International Web page that highlights the specifics of the ban. http://www.utu.org/worksite/detail_news.cfm?ArticleID=53964

Please click on the link below to view the reference flow chart http://www.utu171.com/FRAUseofElectronicDevices.pdf

Members that received disability claim payments in 2010 will be receiving W2 forms from their carrier. This does not mean that their benefits were taxable - this is merely a reporting requirement of the IRS. Please read the message below to understand the meaning of the W2. Even if a claimant’s disability benefits are non-taxable, the claimants will receive W2s. However, the payments should be listed in box 12 with a J and the amount entered. Our members have called indicating they should not have received W2s because the benefits were non-taxable. However if the disability amounts are entered in box 12 with a J; that is the correct designation for our benefit plans since disability amounts entered in this box notifies the IRS that the third party sick income is non-taxable. As such, the member would not claim the payments as income for tax reporting purposes.

Please click on this link to view information pertaining to outlying assignments.http://www.utu171.com/Outlying_Assignments.pdf

Please click on this link to view information regarding the payroll W2 error.http://www.utu171.com/form_w-2c_ltr.pdf

Please click on this link to view information about our latest round of collective bargaining.http://www.utu171.com/Section_6_Notice.pdf

Please click on this link to view information regarding group disability now available to members.http://www.utu.org/worksite/detail_news.cfm?ArticleID=47800

Please click on this link to view information regarding the proper riding of equipment.http://www.utu171.com/Riding_Equipment.pdf

Please click on this link to view information regarding the new EBB and Flow agreement from General Chairman Randy K.http://www.utu171.com/EBB_FLOW.pdf

 

Vacation Recovery Pay Statement Display

 

Vacation recovery is shown differently on the new pay statements, and this is causing some confusion.

 

To clarify how it should be interpreted, please first look at the bottom left Before Tax Deductions section. There is a line called Gross Recollection with two columns – Current and Year-to-Date. The Current column displays the amount collected in this pay period; the Year-to-Date is a new feature that is displaying a recollection total beginning with this pay period, since we never had accumulated that information on the pay statement before. This will accumulate going forward. Please note that this Year-to-Date column only represents the recollection starting June 16, 2009; this is in addition to all previously recollected amounts. Also, this is a display line item – it will not calculate to the Total Before Tax Deductions at the bottom of the box.

 

The section immediately above that one – Gross Earnings – includes a Total Gross Earnings sum at the bottom of the box. This is the employee’s correct gross earnings, and you will find that same number carried over to the top line of the Payment Summary section at the top right, the first line being Total Gross Earnings. Now this part is very important: Before any gross-to-net calculations are made, the Gross Recollection / Current amount referred to earlier (representing the vacation recollection for the current pay period) is deducted from the Total Gross Earnings.

TY&E Vacation Recovery FAQ         

This week, employees began receiving letters outlining the details of how they were impacted by the vacation adjustment. The following are a few frequently asked questions about the letters and the impact.

 

Q. Do I have to file an amended tax return because of this issue?

 

A. No, employees actually received and paid taxes on the inflated vacation rates in 2008.

Therefore, the previous tax paid was correct. The 2009 recoveries will be taken from gross pre tax earnings, and will thereby reduce taxable income by the equivalent amount paid in 2008. The overall impact is a wash for 2008 and 2009 tax purposes.

 

Furthermore, we have corresponded with members from the IRS, our internal tax department, and an independent tax lawyer as requested by the Organization’s leadership team. The handling has been confirmed in compliance with tax code, and no further action is required on the part of the employees. 

 

Q. Why is the vacation rate, on my letter, higher than the vacation rate showing on my 816?

 

A.  All employees received lump sum vacation rate adjustments last year. The payments were identified as a V8 payment on your 816.  These payments were makewhole adjustments for vacation that had already been used in 2008. V8 payments were made on June 30, August 15 and August 31 of 2008 (varied by craft). All unused vacation was then paid at the higher rate for the remainder of the year.  To view those V8 payments, you will need to rerun your 816’s for the appropriate pay period.  Since the V8 payment for the UTU back pay project was handled in a separate pay period, you can run that 816 by putting 2008 and “RG” in the pay period field.

 

In some cases, employees used all of their vacation prior to the V8 adjustment. Therefore, they only received the lump sum makewhole vacation adjustment. They did not receive vacation pay at the new rate because no vacation days were remaining.

 

In order to verify that your vacation rate is correct, you must take the sum total of all of your V8 payments and divide that number by the total number of vacation days taken in 2008. Adding that number to your original vacation rate will give you the actual 2008 vacation rate. That number should be reflected in your letter.

 

The formula is as follows:

 

(Original Daily Vacation Rate paid in 2008) + (V8’s divided by Total Vacation Days)

 

Q. Why doesn’t my W-2 show the same earnings reflected in the letter?

 

A.  The 1/52nd vacation rate calculation generally includes all compensation in association to working in the TYE craft.  However, there are some items that are not included.  Those items are non-taxable items, such as meals at the away from home terminal, mileage reimbursement claims etc... Also not included would be any former BN UTU Productivity Fund payments, former Santa Fe BLET ICP or any bonuses in association to temporary transfer work or relocation allowances.

 

Also, W-2’s are based off of earnings actually received between January 1 and December 31 of each year. Vacation rate calculations are based on pay period 01 to pay period 24 earnings, even though pay period 24 earnings are not actually received by the employees until the following year.

 

      Therefore the W-2 is not an accurate indicator of earnings used for the vacation rate calculation.   

 

 

If you would like further assistance in understanding the details and your individual impact please contact Compensation Systems through the VRU.

All, In December, 2008, the Organizations received a favorable arbitral ruling wherein it was determined that existing collective bargaining agreements did not give the Carrier the right to substitute paid leave for unpaid leave. Put another way, it was improper for the Carrier to allow payment of personal leave and/or vacation days when an employee was allowed unpaid leave under the Family and Medical Leave Act. Although the Carriers have now changed their policy on this matter, there was still no resolution regarding the proper remedy to those that were adversely affected. To update you, I just received word from the UTU International that the remedy piece of this dispute will be arbitrated on April 21, 2009, and a decision will be rendered within 60 days. What I am unable to advise is if we are successful with the remedy portion, will only those employee that submitted timeslips be eligible for the remedy or will this apply to all those adversely affected? We will not have an answer to this question until the decision is rendered.

Fraternally,

Randy K

A couple of operating employees contacted payroll in February, 2009 to complain that their vacation earnings for January, 2009 were less than what they were compensated for vacation in 2008. When researching the problem, it was discovered that instead of these figures being wrong, the Carrier actually overpaid the vast majority of vacation allowances in 2008. Apparently, both the second half of July, 2007 and the first half of October, 2007 were duplicated by their vacation calculator, which essentially based your vacation pay on “13” months earnings instead of 12. All employees who took vacation in 2008 and their compensation was based upon 1/52 of their earnings from 2007 were affected by this.

In examining the issue from an arbitral standpoint, it appears that neutrals have fairly consistently ruled that contractual time limits would not apply in instances where the overpayment was a “mistake,” and not purposely or intentionally executed. In other words, we do not have a leg to stand on with this issue other than to attempt to influence the repayment schedule.

While my initial suggestion was not supported by their software (so I won’t elaborate), the Carrier did consent to make the repayment schedule graduated based upon the amount owed. Theoretically, this should invoke less of a financial burden on those that who only have a few weeks of vacation and are presently having difficulty continuing to stay in active service. Regardless, repayment will only take place during pay periods in which the employee has earnings. 

As info, repayment will be as follows:

$0 to $399: $25 per pay period

$400 to $799: $50 per pay period

$800 to ??: $100 per pay period

If you have any questions regarding this, please feel free to contact us.

Fraternally,

Randy K

Six International Union Vice Presidents To Go On Trial before UTU Executive Board

Federal Judge Denies Temporary Restraining Order

On January 30, 2009 at 1:00 P.M. Judge John R. Adams held a telephonic hearing on the motion by Joyce Goldstein, who is the SMWIA paid attorney for the six UTU International officers who have charges pending against them before the UTU Executive Board.  On February 3, 2009 at 9:00 A.M. the trials of these officers is scheduled to begin but a motion for a TRO had been filed to block the trials.

After hearing from Ms. Goldstein on behalf of the six Vice Presidents; Baffoni, Babler, Boling, Cumby, Iannone and Fitzgerald, Judge Adams asked several pointed questions to clarify their position on the propriety of the trials. 

The attorneys for the UTU International, the UTU Executive Board and the charging defendants also further clarified their positions citing the reasons why the trials should not be halted or delayed any further.  The UTU Executive Board has a constitutionally required duty to promptly investigate charges against International Officers and to determine their validity.

Judge Adams referred the parties to the charges filed by the defendants.  In doing this the judge stated that the charges covered many issues that dealt with dual unionism, failure of the officers to meet their obligations of their oaths of office and attempting to usurp the power of the UTU President under article 16 of the UTU Constitution while acting on behalf of the Sheet Metal Workers International Association.  He stated that the constitution did reference the Vice Presidents being subordinate to the UTU President.  He compared that to the precedent setting manner in which the SMART merger, which lies at the genesis of this dispute, was secretly negotiated by then UTU President Paul Thompson and only a few select others who placed the finished merger agreement as a fait accompli before the UTU Board of Directors and demanded their immediate approval.   

In closing Judge Adams denied the intervenors' motion to grant a TRO to stop the UTU Executive Board from holding the trials.  The Executive Board will begin these hearings on February 3, 2009 at the UTU International Headquarters in Cleveland, OH, at 9:00 A.M.

More information will be posted on the Save Our Union website as it becomes available.

The Carrier has advised that they intend to train approximately 250 engineers, system-wide, during the first quarter of 2009.  That said, we are receiving numerous inquires whether or not an employee may bid and be awarded a slot in the LETP when they are in furlough status.

First, I would like to state that it is the position of this office that it would be proper for a furloughed employee to bid and be awarded a slot in LETP.  We have discussed this at length recently and cannot find any provision that would prevent it.

However, the Carrier has taken the opposite position and deemed an employee for LETP while in furlough status.

Therefore, unless we can reach agreement otherwise, should an employee’s LETP application be denied simply due to being in furlough status, a grievance should be filed on his behalf contesting such.  Should you have any questions regarding the structure of the grievance, please feel free to contact us.  Keep in mind that any such grievance must be properly submitted and progressed under the time limits set forth in the existing agreement.

Randy K

Seems to be some confusion concerning the interlocking at Savanna. We had two instances, eastbound, 12/6 and 12/7 of trains having to put it into emergency at the diamond. In both situations the trains were stopped at CP 1462, then given a proceed indication. Per the rule below, highlighted, this is in the Chicago Division Timetable, Aurora Sub, page 6, when they start moving at CP 1462 and there speed is not above 20 MPH by time they go by the signal, they must move prepared to stop at the diamond. I have verified this with the rules department. Both instances they were under 20 MPH going by CP 1462 which requires them to be prepared to stop instead of blasting up to the signal and then putting it in emergency. If you could, please pass this on to your distribution list, it would be appreciated.

Rule 9.9.1—At automatic interlocking at IC&E, MP 144.8, the

following will govern:

A train must proceed prepared to stop at the interlocking signal

when:

• Moving below 20 MPH and passing a signal displaying an

indication more favorable than Approach that governs the

approach to the interlocking.

• Speed is reduced to below 20 MPH after passing a signal

displayi ng an indication more favorable than Approach that

governs the approach to the interlocking.

The train must continue to move prepared to stop at the

interlocking signal until the train reaches a point approximately

1,000 feet from that signal. If the interlocking signal then

indicates proceed, the train may resume speed.

Thanks,

Bob Fisher - RFE

LaCrosse

UNIONS WIN BIG IN FMLA ARBITRATION
A three-person arbitration panel ruled unanimously Dec. 2 (published Dec. 8) that the nation’s four largest railroads, which control some 90 percent of U.S. intercity rail freight traffic, no longer may require employees to substitute paid vacation and/or paid personal leave for unpaid leave under the Family Medical Leave Act (FMLA).
It was a stunning blow to BNSF, CSX, Norfolk Southern and Union Pacific -- carrier parties to the arbitration who had been ignoring collective bargaining agreements and the law in an attempt to maximize employee availability. Other carriers likely will abide by the arbitration ruling.
Under the FMLA, employees may elect to take up to 12 weeks of unpaid leave to deal with a family emergency, or a personal serious health condition. The law also provides that if employees have a more beneficial arrangement with the employer, the more beneficial arrangement shall take precedence.
Based on this provision, and the carriers' blatant violation of it, the UTU and 11 other rail labor organizations challenged the carriers, who agreed in July to arbitrate the issue.
The arbitration award becomes effective Dec. 22, at which time the carriers must "immediately discontinue" the invalidated provisions of their FMLA policies.
There is also a provision allowing follow-up proceedings to determine a monetary remedy for those who have taken FMLA leave and suffered by the carrier's forcing them to substitute paid vacation or paid personal leave for this time period.
The question submitted to the arbitration panel was: "Do the carriers' policies requiring employees to substitute paid vacation and/or paid personal leave for unpaid FMLA leave violate requirements of the national vacation and/or national personal leave agreements?"
In a 43-page award, arbitrators John E. Sands, William H. Holley Jr., and Jerome H. Ross said that collective bargaining agreements guarantee employees "a set number of paid vacation days" annually, with management restricted from administering the granting of guaranteed vacation days. The arbitrators also ruled that collective bargaining agreements similarly guarantee paid personal leave days.
The arbitrators cited a long history of other arbitration awards and court decisions backing their ruling that, "On the entire record before us, we must sustain the unions' position and find that the carriers' policies at issue to substitute paid vacation and/or paid personal leave for unpaid FMLA leave do violate the requirements of the national vacation and/or national personal leave agreements."

Voting Tally for 2009 Elections

Local Chairman Conductor

Terry Harwood     39

John Hoppe          13

Treasurer              

Dick Temple         82

Joe Cutrano          41

Secretary             

Colleen Heine       64

Jason Heath          57

Trustees

Brian Cantrell       113

Ron Phillipp           84

Russ Regner           79

Lee Lain               68

Total Votes        123

RAIL HEALTH & WELFARE PREMIUMS TO RISE SLIGHTLY


Members covered by the NRC/UTU Health & Welfare Plan and the Railroad Employees National Health and Welfare Plan will see their contributions rise by $4.71 per month in 2009 – from $166.25 monthly to $170.96 per month.


The $170.96 monthly employee contribution represents 15 percent of the total premium carrier’s pay monthly for employee health
and welfare benefits. The premium covers medical care, accidental death and dismemberment insurance, and dental and vision benefits.
The national plans are negotiated jointly by the carriers and the Cooperating Railway Labor Organizations (CRLO).


'The health-care plans had an extremely favorable trend due largely to the removal from the rolls of some 20,000 ineligible
dependents, which trimmed some $30 million from the total costs of plan,' said UTU International President Mike Futhey.


'The new employee contribution rate, which is more than $20 lower per month than what was anticipated going into negotiations,
also reflects an expectation that railroad claims in 2009 will increase at a lower rate than the national average, owing to the addition
of plan improvements designed to reduce the frequency of treatment and severity of illnesses,' Futhey said.
These plan improvements include telephone contact with a nurse (the Nurse Line), custom-care coordination, disease management,
and strategies for participants to cease smoking and lose weight.


The plans' total monthly premium costs per employee for 2009 will be $1,061.46 for medical care, $12.30 for the life and accidental death and dismemberment premium, $55.98 for the dental premium, and $10 for the vision care premium, or a total of $1,139.74 monthly. Carriers will pay $968.78 monthly, and employees will pay $170.96 per month in 2009.

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WASHINGTON, D.C. - Not only is it now law, but it became effective immediately on Friday afternoon, Jan. 12, when President Bush signed the Railroad Retirement Disability Earnings Act, which raises from $400 monthly to $700 monthly the cap on outside earnings for recipients of Railroad Retirement disability benefits.

The new law means disabled rail workers can earn up to $700 monthly without suffering a reduction in their Railroad Retirement disability payments. In future years, the cap will be increased by a formula based on changes in the federally calculated cost-of-living index.

Those receiving the disability are afflicted with bad hearts, high blood pressure, failing eyesight and injuries received while on the job. While many were able to find menial work outside the railroad industry, the law previously limited their outside earnings to $400 monthly. Anything earned above that amount resulted in a reduction in disability benefits. 

The new $700 monthly cap is closer in line with what is permitted under Social Security. "This is going to make a meaningful difference in the lives of many disabled rail workers who struggle so to keep a roof over their family’s head, pay for prescription medication, buy groceries and clothing, and purchase medical care," said UTU International President Paul Thompson.

UTU National Legislative Director James Brunkenhoefer said that he had been lobbying Congress to raise the cap on outside earnings "since I was first elected to this job two decades ago. It has been a struggle, but one I pledged I would never abandon," Brunkenhoefer said.

“With assistance from the other rail organizations, and thousands of phone calls and e-mails to lawmakers from UTU members and retirees, we achieved passage of the bill this year," Brunkenhoefer said. "It was the right thing for Congress to do. And it was the right thing for the president to sign the bill into law."

Although the carriers previously opposed raising the earnings cap, "extensive good-faith discussions with them in December resulted in the railroads withdrawing their opposition and supporting the bill’s passage," Thompson said. 

Especially helpful in gaining passage of the bill were House members Jim Oberstar (D-Minn.), Corrine Brown (D-Fla.), Don Young (R-Alaska) and Steve Latourette (R-Ohio), and senators Mike Enzi (R-Wyo.), Dick Durbin (D-Ill.) and Ted Kennedy (D-Mass.).

Allowing the disabled higher outside earnings while retaining their full disability benefits will not create a financial burden for the Railroad Retirement system, Brunkenhoefer said. Currently, the Railroad Retirement Trust Fund totals some $27 billion. The estimated cost of this new law to the trust fund will be about $400,000 annually.

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Carrier Officers Can Be Sued Individually!

.29CFR§ 825.400   What can employees do who believe that their rights under FMLA have been violated?

(a) The employee has the choice of:

(1) Filing, or having another person file on his or her behalf, a complaint with the Secretary of Labor, or

(2) Filing a private lawsuit pursuant to section 107 of FMLA.

(b) If the employee files a private lawsuit, it must be filed within two years after the last action which the employee contends was in violation of the Act, or three years if the violation was willful.

(c) If an employer has violated one or more provisions of FMLA, and if justified by the facts of a particular case, an employee may receive one or more of the following: wages, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or, where no such tangible loss has occurred, such as when FMLA leave was unlawfully denied, any actual monetary loss sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages for the employee. In addition, the employee may be entitled to interest on such sum, calculated at the prevailing rate. An amount equalling the preceding sums may also be awarded as liquidated damages unless such amount is reduced by the court because the violation was in good faith and the employer had reasonable grounds for believing the employer had not violated the Act. When appropriate, the employee may also obtain appropriate equitable relief, such as employment, reinstatement and promotion. When the employer is found in violation, the employee may recover a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action from the employer in addition to any judgment awarded by the court.

 

(29 U.S.C. 209). SEC. 101. DEFINITIONS.

 

bullet (4) EMPLOYER.--
bullet (A) IN GENERAL.--The term "employer"
bullet (i) means any person engaged in commerce or in any industry or activity affecting commerce who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year;
bullet (ii) includes--
bullet (I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and

 

·         (29 U.S.C. 209). SEC. 107. ENFORCEMENT.

bullet (a) CIVIL ACTION BY EMPLOYEES.--
bullet (1) LIABILITY.--Any employer who violates section 105 shall be liable to any eligible employee affected--
bullet (A) for damages equal to--
bullet (i) the amount of--
bullet (I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
bullet (II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;
bullet (ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and
bullet (iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that if an employer who has violated section 105 proves to the satisfaction of the court that the act or omission which violated section 105 was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 105, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and
bullet (B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.
bullet (2) RIGHT OF ACTION.--An action to recover the damages or equitable relief prescribed in paragraph (1) may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of--
bullet (A) the employees; or
bullet (B) the employees and other employees similarly situated.
bullet (3) FEES AND COSTS.--The court in such an action shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney's fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant.
bullet (4) LIMITATIONS.--The right provided by paragraph (2) to bring an action by or on behalf of any employee shall terminate--
bullet (A) on the filing of a complaint by the Secretary in an action under subsection (d) in which restraint is sought of any further delay in the payment of the amount described in paragraph (1)(A) to such employee by an employer responsible under paragraph (1) for the payment; or
bullet (B) on the filing of a complaint by the Secretary in an action under subsection (b) in which a recovery is sought of the damages described in paragraph (1)(A) owing to an eligible employee by an employer liable under paragraph (1), unless the action described in subparagraph (A) or (B) is dismissed without prejudice on motion of the Secretary.
bullet (b) ACTION BY THE SECRETARY.--
bullet (1) ADMINISTRATIVE ACTION.--The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 105 in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207).
bullet (2) CIVIL ACTION.--The Secretary may bring an action in any court of competent jurisdiction to recover the damages described in subsection (a)(1)(A).
bullet (3) SUMS RECOVERED.--Any sums recovered by the Secretary pursuant to paragraph (2) shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each employee affected. Any such sums not paid to an employee because of inability to do so within a period of 3 years shall be deposited into the Treasury of the United States as miscellaneous receipts.
bullet (c) LIMITATION.--
bullet (1) IN GENERAL.--Except as provided in paragraph (2), an action may be brought under this section not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought.
bullet (2) WILLFUL VIOLATION.--In the case of such action brought for a willful violation of section 105, such action may be brought within 3 years of the date of the last event constituting the alleged violation for which such action is brought.
bullet (3) COMMENCEMENT.--In determining when an action is commenced by the Secretary under this section for the purposes of this subsection, it shall be considered to be commenced on the date when the complaint is filed.
bullet (d) ACTION FOR INJUNCTION BY SECRETARY.--The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary--
bullet (1) to restrain violations of section 105, including the restraint of any withholding of payment of wages, salary, employment benefits, or other compensation, plus interest, found by the court to be due to eligible employees; or
bullet (2) to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion.
bullet (e) SOLICITOR OF LABOR.--The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under this section.

FMLA

“Carrier Doesn’t have the right to offset PLD and earned Vacation days in lieu of FMLA. Carrier lost this case in Federal Court. Carrier is refusing to cooperate. General Chairman, John Fitzgerald, wants all who are covered under FMLA and who are having their FMLA and Vacation days used needs to put in a timeslip for a basic day explaining it’s a violation of collective bargaining agreement.

In retaliation, the carrier is reviewing FMLA files for each employee on BNSF who has FMLA to see if the number of layoffs and the duration that coinsides with their FMLA. If it exceeds the FMLA and what their DR prescribes the carrier is filing investigation notices for fraud. The investigation notice uses the following terminology: 

“Attend investigation at the Terminal Superintendent’s Office for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged indifference to duty, gross dishonesty, and intent to defraud BNSF when you laid off Family Medical Leave (FML) a total of ## occurrences in the months of --- and --- 2006, which is not consistent with the approved FMLA grant of # - # days every # month(s), according to documentation provided on (date of employee’s FMLA paperwork) by BNSF Benefits Coordinator, Marilyn Ehrhardt.”

Investigation notices are already being sent out to many and investigations are underway. Everyone who has FMLA needs to review their FMLA paper work to make sure they are in compliance with their FMLA lay offs and the amount of time your DR approves off. If you have questions about it, you should schedule an appointment with your DR and review your FMLA papers. A recommendation: DO NOT SIGN A MEDICAL RELEASE FORM!!!!!!!!!!!! Each Employee with FMLA should be claiming DR/Patient confidentiality. Make sure your DR understands not to release any info to the carrier.

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