BMWED

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KEY TERMS & CONCEPTS IN BMWED BARGAINING

Bargaining under the Railway Labor Act is a complex process, unique to the railroad and airline industries. To combat misinformation and ensure our members can effectively stay informed and communicate with each other, this glossary lists common terms and concepts important to understanding how we negotiate for our collective bargaining agreements.

This glossary is not intended to be a stand-alone resource to teach members everything we need to understand when it comes to our bargaining process, but it will offer a direct source to clarify some of the terminology, processes, or jargon commonly used to discuss rail labor bargaining.

Our members are also encouraged to find other resources to understanding bargaining under the RLA by visiting our Library page, by reaching out to their System Division or Federation officers, and by staying active at their local Lodges. Our members are also strongly encouraged to help their fellow sisters and brothers correct misinformation, gossip, or hearsay when it comes to our collective bargaining rights and processes. When we have a thorough knowledge and understanding, at all levels of our union, we are stronger together!

This glossary is organized by topic and in a roughly chronological format based on customary and historical rail bargaining processes. There are some entries for terms, organizations, or concepts that do not fall strictly within rail bargaining; these are included to provide further context and understanding.

Use the links below to jump to the appropriate section in this Glossary. Within the Glossary itself, key terms or concepts are hyperlinked throughout to aid navigation and understanding. Some links go to external websites. These are marked with an asterisk * and BMWED does not warrant, endorse, guarantee, or assume responsibility for the accuracy or reliability of any information offered by these third-party websites, or any website or feature linked in any banner or other advertising linked from them.

Organizations, Regulatory Bodies, and Laws

Coalition -

An alliance, often temporary, or groups, parties, or organizations for the purposes of combined action. In rail labor bargaining, the different rail unions often form coalitions with one another. An example of one such coalition is the BMWED/SMART-Mechanical coalition formed during the round of national bargaining that concluded in the 2022 imposed agreement after PEB 250. The authority and makeup of a coalition is subject to change, based on the mutual agreement of its component organizations. Coalitions allow for more effective bargaining, resource management, and action than unions acting on their own, but can also limit the autonomy of any one union within the coalition, subject to the agreements made when that coalition is formed.

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Cooperating Rail Labor Organizations (CRLO) -

Where nationally-negotiated health and welfare plans are administered on the railroad side by the NLRC, rail union oversight of plan administration is performed by the Cooperating Rail Labor Organizations (CRLO). This organization of rail unions is not a bargaining coalition, but an administrative and coordinating body. When the terms, conditions, plans, or coverage of our national-level bargained healthcare benefits are modified in our collective bargaining agreements, the CRLO oversees that these changes meet are implemented correctly.

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Joint Plan Committee (JPC) -

The Joint Plan Committee coordinates administrative decisions, rebids, or other proposed administrative changes to the Railroad Employees National Health and Welfare Plan, commonly referred to as national healthcare. With representatives from both the NRLC/NCCC on the railroad side and CRLO members on the union side, the JPC works together to determine processes and proposals for plan rebids.

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Labor Management Relations Act of 1947 (Taft-Hartley Act) -

The Taft-Hartley Act amends the National Labor Relations Act, restricting the power of labor unions governed under that law. A major difference between unions governed under the Taft-Hartley Act and rail labor unions governed under the RLA are a prohibition against "secondary boycotts." Historical and customary application of the RLA has established that rail labor unions can conduct secondary boycotts or honor the picket lines of other rail crafts during bargaining disputes on a specific rail property. While the RLA provides a much longer process to prevent rail strikes, if a rail strike occurs rail unions can stand in solidarity at the picket line in ways that unions under the Taft-Hartley Act are prevented from doing.

The full text of the Labor Management Relations Act of 1947 (Taft-Hartley Act) can be found on the website of the Government Publishing Office (GPO). The NLRB website also details some of the provisions and restrictions on the right of NLRB governed workers to strike, as amended by the Taft-Hartley Act. Keep in mind that these provisions DO NOT APPLY TO RAIL LABOR, but are included as reference for a deeper understanding of our union labor throughout our country. (Government Publishing Office, 2023; National Labor Relations Board, 2023)

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Labor-Management Reporting and Disclosure Act of 1959 (LMRDA or Landrum-Griffin Act) -

The LMRDA further amends the RLA, the NLRA, and the Taft-Hartley Act, establishing requirements for secret ballot elections, laying out reporting requirements for union, and providing other standards and regulations governing how unions can perform their work.

While the LMRDA does amend the RLA, the specific changes imposed by this law don't directly affect bargaining or negotiations under the RLA. Instead, the LMRDA affects how rail unions can organize new members, how they conduct elections, what reports they must make to the US Department of Labor, and other restrictions or requirements.

The full text of the LMRDA can be found online at the website* of the Government Publishing Office*. The Department of Labor also offers further tools* to understand the LMRDA. (Government Publishing Office, 2023; US Department of Labor, Office of Labor-Management Standards, 2023)

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National Carriers' Conference Committee (NCCC) -

The National Carriers' Conference Committee (NCCC) is organized within the NRLC. It consists of the Chairman of the NRLC who also acts as the Chairman for the NCCC, senior labor relations executives of five of the US Class I railroads (BNSF, CSX, KCS, NS, and UP), and the senior labor relations executives of the US railroads owned directly or indirectly by CN.

The NCCC functions as the bargaining party for railroads during rounds of National Bargaining. The NCCC is generally empowered to negotiate and make agreements on behalf of the railroads it represents, although each railroad can also engage in negotiations or discussions directly with rail unions on issues or agreements specific to their property through Local or Single Carrier Bargaining.

Historically, the NCCC acted as a coordinating body for scores of railroads that once operated within the US, combining similar, historical committees of rail executives (i.e. the Western Carriers' Conference Committee). With the mergers of many US railroads into a small group of enormous, continent-spanning duopolies, the NCCC's coordinating functions are often now found within the different Class I railroads themselves.

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National Mediation Board (NMB) -

The National Mediation Board (NMB), established by the 1934 amendments to the Railway Labor Act of 1926, is an independent U.S. federal government agency that facilitates labor-management relations within the nation's railroad and airline industries. Pursuant to the Railway Labor Act, NMB programs provide dispute resolution processes to effectively meet its statutory objectives: avoiding interruption to commerce or to the operation of any carrier; forbidding any limitation upon freedom of association among employees; providing for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; and providing for the prompt and orderly settlement of all disputes growing out of grievances related to the implementation and management of collective bargaining agreements.

The NMB is headed by a three member board nominated by the President and confirmed by the US Senate. The members self-designate a Chairman, typically on a yearly basis. Although appointed for three year terms, members may serve until replaced. (National Mediation Board, 2023)

The NMB will generally not get involved in negotiations unless either unions or railroads request their support or they determine that bargaining has reached an Impasse. The NMB offers Mediation and may make a Proffer of Arbitration, both of which are described in further detail below.

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National Labor Relations Act (NLRA or Wagner Act) -

Most private-sector unions in the United States are organized and governed under the terms of the NLRA. Enacted in 1935, the NLRA provides different mechanisms for how unions and employers negotiate, how disputes are resolved, and how employees can form unions. While this law does not govern rail labor bargaining, any discussion of bargaining or union activity with fellow non-rail workers, neighbors, or others will likely require our members to be familiar with the NLRA and its difference from the RLA that governs our work.

Key ideas within the NLRA, not found in the RLA, include "Weingarten Rights," "unfair labor practices (ULPs)," and the expiration of bargaining agreements (under the RLA, our contracts do not expire. RLA contracts are subject to periodic amendment).

The full text of the National Labor Relations Act, as well as other tools to understand how it works, can be found on the website of the National Labor Relations Board (NLRB) at nlrb.gov*.

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National Railroad Adjustment Board (NRAB) -

The NMB administers the NRAB, which provides processes to arbitrate claims and grievances that arise from the application or interpretation of our collective bargaining agreements. The NRAB is not directly involved in negotiations to amend collective bargaining agreements. However disputes under those agreements may be handled through arbitration by the NRAB or similar boards (PLB, SBA).

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National Railway Labor Conference (NLRC) -

The National Railway Labor Conference, the parent organization to the NCCC, is an association of US Class I railroads and many smaller freight and passenger carriers. While the NCCC handles bargaining negotiations, the NLRC also administers the national-level health and welfare plans rail employees work within, represents rail industry executives in government hearings or court cases, and may participate in arbitration under the RLA.

Like the NCCC, the NLRC represents the consolidation of older rail conferences into a single, nationwide organization that represents rail executive interests.

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Presidential Emergency Board (PEB) -

Section 10 of the RLA gives the President of the United States authority to establish a Presidential Emergency Board when advised by the NMB that a dispute could "threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service." When the NMB notifies the President he or she may, at their discretion, create a board to investigate and make a report regarding the dispute. The PEB makes recommendations to resolve the dispute, which may be adopted or rejected by either the unions or the railroads. PEB recommendations often form the basis for legislated (imposed) resolutions.

When the PEB is established, a thirty-day period is also provided by the RLA for this board to conduct its work and make its report. This is commonly referred to as the "Cooling Off Period" during which neither the railroads nor the employees may engage in Self-Help, described in further detail below.

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Railway Labor Act (RLA) -

Enacted in 1926, this federal law establishes the legal rights, duties, and processes for rail labor and railroads to resolve disputes while avoiding any interruption to interstate commerce. Both rail labor unions and railroads have a duty under the RLA to exert every reasonable effort to make and maintain collective bargaining agreements and settle disputes arising from the interpretation of such agreements or otherwise. The RLA also sets out processes for organizing workers on new RLA governed properties (railroads and airlines), mediating disputes, and adjusting claims and grievances to resolve disputes. The RLA was amended in 1934 and 1966.

Our Library page offers additional resources that provide further information on understanding the RLA. The full text of the Railway Labor Act can be found here*.

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Surface Transportation Board (STB) -

The independent US government agency charged with the economic regulation of freight rail. While the STB is not directly involved in rail labor negotiations, its regulatory authority may impact the bargaining positions or work of either party as it governs issues related to railroad rates, practices, or service issues. The STB also regulates the ability of railroads to merge, sell off, or abandon lines.

More information on the work of the STB can be found at their website*. (Surface Transportation Board, 2023).

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Key Terms & Concepts

Arbitration -

Arbitration refers to the work done to resolve disputes that includes the participation of a neutral third part (the "Arbitrator"). For Minor Disputes, Arbitration is requires and is often performed by the NRAB, Special Board of Adjustment (SBA), or a Public Law Board (PLB). For contract negotiations or Major Disputes, arbitration occurs after both parties agree to a Proffer of Arbitration made by the NMB.

For bargaining issues, the arbitrator will decide upon any issues not already resolved between the unions and the railroads. The arbitrator's decision is decisive, binding, and concludes the issue

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Bargaining Committee -

To effectively conduct Direct Negotiations, BMWED forms a Bargaining Committee of members and officers empowered to receive proposals from the railroad, consider them, and offer our own proposals or counterproposals. Our Bargaining Committees are formed from our elected officers representing those members affected by the Direct Negotiations, often the General Chairpersons of the System Divisions or Federations involved. Our National Division officers can also form part of our Bargaining Committees, and BMWED includes rank-and-file members to our Bargaining Committees in line with Resolution No. 65 of our BMWED Bylaws. For technical, advisory, or administrative purposes, appointed BMWED staff may attend bargaining sessions, but are not considered to be members of the Bargaining Committee.

When BMWED forms a bargaining coalition with other rail unions our Bargaining Committee becomes part of a larger coalition Bargaining Committee that may include dozens of officers or members from all crafts. Our rights, duties, and obligations in coalition bargaining are set by mutual agreement of the parties when the coalition is formed and determined by our National Division.

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Bargaining Unit -

A bargaining unit or collective bargaining unit is another term for the legally-recognized group of workers at a particular place of employment. Under the RLA, which organizes an entire carrier by class or craft, a bargaining unit may be all maintenance of way workers on a particular railroad. In some instances, one can refer to "bargaining unit" or "union" interchangeably. A nationwide union like BMWED, however, may represent multiple, separate bargaining units, each with their own collective bargaining agreements.

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Carrier -

In the legal jargon of the Railway Labor Act, railroads are often referred to as "carriers." A Carrier, for BMWED's purposes in bargaining, arbitration, or other work within the RLA, is a railroad.

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Codification -

Collective bargaining agreements within the RLA may not be amended in their entirety during a single bargaining round. Often, especially in National Bargaining with the NCCC, only items like wages, healthcare, or paid time off may be negotiated during the round while other provisions of the agreement like seniority boundaries, the provision of tools, or call-out procedures may be left to "local" bargaining or left out entirely.

This will often lead to collective bargaining agreements that are actually a collection of various different agreements. The "base" agreement outlining most of the major work rules and conditions may be amended by additional special agreements or "side letters" that adjust the provisions for certain conditions or on certain territories while wages and benefits for that agreement are amended under a "National Agreement." As an example, a BMWED member working on a traveling bridge gang may find their wages, their working hours, their bargained healthcare benefits, their lodging and expense reimbursements, and the boundaries of their seniority territory are each within a separate agreement document.

From time to time, and at the mutual agreement between the parties, BMWED and a railroad may engage in a process to integrate all the various changes, side letters, or special agreements into a single, comprehensive document. This process is called codification. The result of codification is the creation of a single, all-encompassing agreement for all wages, benefits, and working conditions an employee may have on a certain property. This is a complex and time-consuming process for both the BMWED and the railroads involved, but may be incorporated as a condition within a bargaining round.

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Collective Bargaining Agreement -

The agreements that sets out wages, benefits, and working conditions for a bargaining unit on a particular carrier under the RLA. The Collective Bargaining Agreement is also often referred to as the "agreement" or the "contract." Under the RLA, these agreements do not expire but are subject to periodic amendment.

Historically, each particular railroad had a collective bargaining agreement with its different craft workers. For instance, a railroad like the Atchison, Topeka and Santa Fe (AT&SF) or St. Louis-San Francisco (SLSF or Frisco) was the carrier that made one agreement with its maintenance of way workers, another agreement with its locomotive engineers, another with its signalmen, and so on. So any particular railroad had multiple agreements. As railroads merged and consolidated since the Staggers Rail Act of 1980*, large railroads like BNSF may have multiple separate agreements for workers within a single craft. BNSF maintains both a "South" Agreement for its workers on the former AT&SF and Frisco properties and a "North" or "BN" Agreement for the different properties that all formed the per-merger Burlington Northern railroad. Other modern railroads have similar situations where BMWED members may have multiple agreements on the same railroad. (US Congress, 2023

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Commerce Clause -

Article 1, Section 8 of the US Constitution* grants our US Congress certain powers. Clause 3 of Section 8 gives Congress authority to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

This clause of our Constitution* has been called The Commerce Clause, and it is the language that gives Congress the right to pass laws governing interstate commerce like the rail transportation industry in which we all work. Under its Commerce Clause authority, Congress has the power to pass legislation like the Railway Labor Act and other laws which govern our industry and our union. Similarly, Congress uses its authority to legislate an end to any bargaining dispute which may threaten interstate commerce.

Congress has used its authority under the Commerce Clause to impose contracts in our industry and prevent possible railroad strikes. The most recent time this has happened was in 2022, when Congress passed HJ Res. 100 to become Public Law 117-216*.

As the Commerce Clause is a part of our US Constitution*, any changes to Congress' ability to intervene in rail labor disputes will likely involve an amendment to the Constitution. (National Archives, 2023; US Congress, 2023)

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"Cooling Off" Period -

Under the RLA, there are certain processes which take time to develop. The lawmakers, union workers, and rail executive who worked together to craft the RLA understood this and inserted language into the law to allow for that time. The specific time period directly provided within the RLA is a thirty-day period after one or both parties refuse the Proffer of Arbitration where Status Quo must be maintained. This thirty-day period has been named the "Cooling Off" period.

An additional period where Status Quo must be maintained is provided after the creation of a Presidential Emergency Board (PEB). The PEB has thirty days from the date of its creation to make a report to the President, so this period can be considered a second, thirty-day, "Cooling Off" period.

Once the PEB makes its report to the President of the United States, the RLA provides for an additional thirty days where no changes can be made regarding the dispute, except by mutual agreement between the parties. This is often referred to as the third "Cooling Off" period.

In any of these periods, parties are not permitted to perform Self-Help. For specific situations, and by mutual agreement between the parties, Status Quo can also be extended beyond these thirty-day periods.

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Direct Negotiations -

After one or both parties exchange Section 6 Notices, under the RLA they are considered to be in Direct Negotiations. Either the union or the railroad can propose changes to wages, benefits, working conditions, or other rules at this time, and parties can discuss those proposed changes. The NMB will generally not get involved in bargaining at this stage, since the RLA lays out a clear duty for both unions and management to conduct bargaining in good faith to reach an agreement. Direct Negotiations may be face-to-face, with a BMWED bargaining committee across the table from rail executives, or may occur through the exchange of correspondence or through online, virtual meetings.

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General Wage Increases (GWIs) -

In nearly all negotiations to amend our collective bargaining agreements, increases in the rates of pay across all classifications are considered. These are General Wage Increases, and often take the form of a percentage increase across all rates of pay for a given year that amended contract is in force.

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Impasse -

During Direct Negotiations, when parties cannot reach a mutual agreement or understanding they can be considered to be at an Impasse. This condition has a specific meaning within the RLA, since the National Mediation Board (NMB) can determine whether or not an Impasse exists and if it must invoke Mediation or render a Proffer of Arbitration to resolve the dispute.

Basically, BMWED or a railroad can state "We are at an impasse." However, the actual decision on whether an impasse exists, and the path forward, is up to the NMB.

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Implementing Agreement -

When a railroad merges, realigns, or purchases a line of track from another railroad, the workers affected may see changes to their seniority, their work rules, or other agreement provisions, adjusted to work within the agreements already in place with their new employer. When this happens, BMWED and the newly merged railroad will negotiate what are called Implementing Agreements to determine how any changes are to be made and when or how they will take place. These sorts of agreements often invoke legal precedents ("cram down" agreements) and other provisions or protections (i.e. New York Dock) for the affected workers.

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Imposed Agreement -

When our US Congress exercises its authority under the Commerce Clause of the US Constitution* to resolve a bargaining dispute, it will often impose new contract terms through legislation. This legislated contract will, more often than not, mirror the recommendations of a Presidential Emergency Board. Such a contract is an Imposed Agreement. This occurred during the round of National Bargaining that ended in 2022 with the resolution imposed by Public Law 117-216*.

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Interest-Based Bargaining -

In Interest-Based Bargaining, parties to the dispute attempt to find collaborative solutions to resolve issues underlying the dispute. Instead of approaching a possible bargaining outcome as a position to be defended at all costs, each party works together to understand the underlying reasons for each possible position. Interest-Based Bargaining is also referred to as "Facilitated Problem Solving" by the NMB and may have other names depending on where or how it is conducted.

Interest-Based Bargaining is similar to the idea of a "positive sum" game where both parties may achieve desirable outcomes for a given issue or dispute.

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Local Bargaining -

When issues specific to a certain territory or railroad are negotiated between that railroad and its union employees, or when the terms negotiated in a round of National Bargaining are incorporated within the existing agreements of a particular carrier, this is considered to be Local Bargaining. Some issues resolved in Local Bargaining may apply to just a single railroad or even a specific operating division, branch, or territory of that railroad. This can be considered as another form of Single Carrier Bargaining.

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Major Dispute -

Disputes about work conditions, wages, benefits, or the interpretation and application of our collective bargaining agreements can be categorized by the RLA as either "major" or "minor" disputes. A Major Dispute, under the RLA, is handled under Section 6 in a manner similar to negotiations to amend our collective bargaining agreements. The NMB will likely involve itself in these disputes to prevent any interruptions to rail commerce. While rail unions may reserve the right to strike over a Major Dispute, and BMWED has pursued such action before, railroads will often go to federal court to enjoin our ability to strike over a Major Dispute.

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Mediation -

Also called "Public Interest Mediation" by the NMB. If the union or the railroad believes it is getting nowhere with Direct Negotiations, or if the NMB believes it must step in and become involved to resolve the dispute, the NMB will assign a Mediator to work with the parties and resolve issues preventing an agreement.

Under the Railway Labor Act, when parties are in Mediation they must keep working under the conditions of the collective bargaining agreement as it is was in place at the beginning of negotiations. Neither party can make unilateral changes to wages, benefits, or working conditions, and unions cannot strike. Mediation has no set time limit, and parties can only be released from Mediation by the NMB.

It is important for BMWED members to understand that:

1) Mediation is a prescribed phase for our bargaining under the RLA (we can't skip it),

2) When we are in Mediation, we cannot strike or exercise Self-Help, and

3) Mediation can last years!

The National Mediation Board has a very informative FAQ on Mediation on its website*.

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Minor Dispute -

Disputes about work conditions, wages, benefits, or the interpretation and application of our collective bargaining agreements can be categorized by the RLA as either "major" or "minor" disputes. Minor Disputes can be thought of as disputes over how we interpret our rights and duties under our agreements. For instance, disputes over how overtime is paid for working during a derailment, or how seniority boundaries are considered when calling employees to work on that derailment, can both be considered Minor Disputes since the collective bargaining agreement has established rules for these situations. Minor Disputes are handled through the process laid out within Section 3 of the RLA and involve claims, grievances, appeals, and arbitration before the NRAB or a similar board. Unions under the RLA are generally forbidden from engaging in strikes over Minor Disputes.

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Moratorium -

A moratorium is a temporary prohibition or restriction on an activity, like a defined period of postponement. While collective bargaining agreements under the RLA do not expire, the RLA also does not define a set period between when either party may serve a Section 6 notice to reopen negotiations. This could lead to unwanted conditions where unions and railroads are always in negotiations. To offer some stability, both rail unions and railroads negotiate for moratoriums to take place between periods of bargaining, during which the collective bargaining agreement operates as intended.

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Moratorium Clause -

This is the part of a collective bargaining agreement that lays out the period of time before either party can serve its Section 6 notice and formally reopen negotiations on the contract. While the railroads and unions can still meet to discuss matters of mutual interest during a moratorium, the official beginning of a new round of negotiations (which can affect things like wage negotiations or other terms of the contract) will not occur during the mutually-agreed time period within the agreement's moratorium clause. As an example, Section 2 of the 2022 Imposed Agreement contains provisions regarding when the terms of that agreement take effect, how long they remain in effect, and when parties can serve notice or proposals to change the terms laid out in the Imposed Agreement.

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Moratorium Period -

The time laid out by the Moratorium Clause of the bargained agreement and agreed between the parties. As an example, Section 2 of the 2022 Imposed Agreement contains provisions regarding when the terms of that agreement take effect, how long they remain in effect, and when parties can serve notice or proposals to change the terms laid out in the Imposed Agreement. The 2022 Imposed Agreement keeps the terms and conditions of that agreement in effect through December 31, 2024, with no notice or proposal to change those terms to be made officially until November 1, 2024 (to become effective January 1, 2025).

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National Bargaining -

Many BMWED members work on railroads that participate in bargaining as part of the NCCC. These railroads bargain as a single entity, engaging the unions in what is called "National Bargaining." Issues generic to all railroads and workplaces like wage increases, healthcare coverage, paid time off, or similar issues, are often negotiated as part of a National Bargaining round. While some Work Rules like contracting out, seniority, or other topics may also be proposed or discussed, these are usually resolved between individual railroads and unions in Local Bargaining.

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Pattern Bargaining -

In rail labor bargaining, we have several railroads negotiating with several unions, often at similar times to address similar issues (i.e. wages, healthcare, benefits, work rules, etc.). During negotiations, either or both sides may seek to create a "pattern" of bargaining outcomes that can then be applied to rail labor or the rail industry as a whole.

Pattern bargaining is a tactic either side can use. In disputes that have reached an impasse, an arbitrator (or, in some cases, a judge) may choose to "follow the pattern" set by other railroads or other crafts for similar issues, thus resolving the dispute.

For example, BMWED could bargain for significant wage increases on one railroad, then use that as a precedent-setting "pattern" to argue for similar wage increases on another railroad. Likewise, a railroad can get a significant increase in employee healthcare contributions from one craft and argue that this "pattern" should apply to all crafts on its property.

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Positional Bargaining -

Traditional rail labor bargaining has generally been what is considered Positional Bargaining. In this style of bargaining, each party states its positions and demands, attempting to compel the other party to meet its demands through argument or negotiation. Positional bargaining can be thought of as a "battle" where one side attempts to win over the other, gaining the greatest advantage or outcome while conceding as little as possible. Often, the positions of either party themselves are the focus of discussions, without investigation into underlying causes or interests that created these positions.

Some aspects of positional bargaining are similar to the idea of a "zero sum" game, where anything gained by one side must be considered a loss by the other side.

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Proffer of Arbitration -

When the NMB invokes Mediation, it will work with both parties to find an agreement. If the NMB believes that further mediation efforts will not result in an agreement, is issues a Proffer of Arbitration to resolve any remaining issues through binding arbitration. If both parties accept this Proffer of Arbitration, the remaining issues will be decided in binding arbitration and will not be subject to ratification by union members. Either party can reject this Proffer of Arbitration. The Arbitrated Agreement effective May 23, 2018 between BMWED and NCCC was the result of binding arbitration award made by Arbitration Board 602 after both parties accepted a Proffer of Arbitration to resolve the dispute.

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Proposal -

While in Direct Negotiations, either party may submit a proposal on terms or conditions it would like to change in the collective bargaining agreement. These proposals will follow the initial proposals that may be laid out in the Section 6 notice, but may also include changes or new proposals as the parties negotiate.

BMWED will often communicate proposals to its members to keep them informed about bargaining negotiations and the different positions either party has adopted. Its important for members to understand that proposals are just that. Communicating a proposal does NOT, by itself, indicate that the terms or conditions proposed will be adopted.

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Rebid -

For healthcare or similar benefit plans, a "rebid" is a formal process used to obtain proposals from benefit managers or healthcare coverage providers. PEB 250 recommended that railroads and unions design and oversee an appropriate rebid process to ensure that current costs are competitive and not excessive. This recommendation was imposed by Public Law 117-216, which amended the BMWED National Agreement. As an administrative process, rebids affect the structure or administration of healthcare coverage, as opposed to a negotiation over the actual benefits themselves.

Any rebid process related to the Railroad Employees National Health and Welfare Plan (national healthcare) is a joint effort between the unions (within the CRLO) and railroads participating in national bargaining (NRLC/NCCC). Representatives from each railroad and rail union meet to determine the procedures for a rebid, which include identifying a third-party neutral to resolve potential disputes, defining the criteria to be analyzed within any Requests for Proposals (RFPs), issuing RFPs with a sufficient time period for vendor review and response, analyzing RFPs based on economic, financial, and healthcare data and objectives, and determining the value for any given proposal in comparison with other proposals. Railroads may seek lowest possible cost for benefits provided, while rail unions may seek to minimize disruption and maximize the greatest possible value for benefit plans.

Rebids are a complex and sometimes lengthy administrative process, with the process itself requiring substantial administrative resources. Near-term or long-term adjustments to employee contributions or cost sharing may not be a realized outcome from a rebid process.

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Requests for Proposals (RFPs) -

During a rebid process for administrative changes to a healthcare or other benefits plan, the Request for Proposals (RFP) is the formal communication sent out to solicit vendors or benefit managers to submit bids. RFPs lay out a general intent or mission for the plan and include information on plan coverage or beneficiaries to help vendors put together an effective bid. RFPs are written carefully to ensure that the desired benefit structure and coverage are clearly stated. Necessary analytical data is provided within RFPs, ensuring such data is "de-identified" to protect participant privacy.

Upon the formal issuance of an RFP, a set time period is announced to allow for vendors to prepare and present bids. This time period is often a few months, to allow for necessary research and analysis. Once bids are received, the Joint Plan Committee (JPC) of railroad and rail union representatives can compare and analyze the bids, often with expert support for economic, financial, healthcare, or legal issues.

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Ratification -

When our Bargaining Committees reach a state in negotiations where they believe they have secured the best attainable outcome, reached an agreement worthy of consideration by our members, or where our union is unlikely to achieve any further improvements, they can then forward this potential agreement to our BMWED Standards Committee. If the Standards Committee finds no fatal flaw or issue with the agreement (i.e. something that would diminish the rights of our members or harm their success in future bargaining), this Tentative Agreement is then provided to our BMWED members for their review, discussion, and ratification. BMWED members in Good Standing who would be subject to the terms of this new agreement will then vote on whether to adopt or reject this Tentative Agreement. If adopted, the Tentative Agreement is considered ratified and, subject to similar ratification by the carrier or carriers, its terms will go into effect as negotiated.

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Secondary Picket -

Customary and historic practice within the rail industry has been that rail unions can conduct Secondary Picketing. This means, for instance, that our craft can honor the picket lines of a strike by another rail union like BLET, SMART-TD, or BRS, and that they can honor our picket lines. In certain circumstances we can also honor the picket lines of union brothers and sisters outside the rail industry (for instance, our fellow Teamsters at UPS).

This sort of solidarity is restricted under the Taft-Hartley Act that amended the NLRA, but our union is governed under the RLA. Corporations can still seek injunctive relief for any secondary picketing through court action.

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Section 6 Notice -

This is the official notice exchanged by either the union or coalition, the railroad or NCCC, or both parties to reopen negotiations to amend a bargaining agreement under the Railway Labor Act. While unions and management can meet at any time to discuss any topic of mutual interest or concern, the Section 6 Notice formally begins a bargaining round. It is named after the section of the RLA that deals with these negotiations. For National Bargaining, the current terms of the 2022 Imposed Agreement bar serving Section 6 notices until November 1, 2024.

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Self-Help -

Self-help is the activity the RLA was specifically designed to prevent! For unions like BMWED, self-help often means a strike. On the railroad side, self-help can include preventing employees from performing work in a lock-out or unilaterally imposing changes to the agreement. Under the RLA, both parties must exhaust the available avenues for dispute resolution (Direct Negotiations, Mediation, reject arbitration, PEB, any Super Mediation, etc.) before they are permitted to exercise Self-Help.

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Single Carrier Bargaining -

In National Bargaining the railroads unite under the NCCC and bargain as a single unit. This often means that issues any specific railroad would like to address, or BMWED would like to negotiate with that railroad are overlooked or simply ignored within the National Bargaining round. In 2019, at the beginning of a round of National Bargaining, BMWED filed suit in federal court to allow Single Carrier Bargaining. This would have allowed issues specific to each railroad to be addressed in negotiations directly with that railroad, rather than through the grievance and arbitration process laid out in Section 3 of the RLA. Single Carrier Bargaining is another type of Local Bargaining.

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Standards Committee -

While a Bargaining Committee is responsible for the negotiation of any amendments to our collective bargaining agreements, any potential agreement they reach is reviewed by the officers of our BMWED Standards Committee to ensure that its terms do not erode the rights our members have achieved, place members in a more difficult position for future bargaining, or crate obstacles to the mission and work of BMWED elsewhere. If a potential agreement passes its review with our Standards Committee, it can then be considered a Tentative Agreement subject to ratification by our members.

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Status Quo -

When parties are in Direct Negotiations, Mediation, during the work of a Presidential Emergency Board (PEB), or while parties are reviewing and ratifying any proposed agreements based off PEB recommendations, neither party can act outside the terms of the agreement in force at the time they began negotiations. That means the union cannot strike and the railroad cannot prevent employees from coming to work (lock-out) or make unilateral changes to wages, benefits, or working conditions. Status Quo is Latin for "the state in which," and means "the way things currently are." When we are in Status Quo, we work and act under the terms and obligations of the contract as it is.

Remember that, under the Railway Labor Act, railroad collective bargaining agreements never expire. We are never working without a contract, we are either working under the Status Quo of an existing contract or we are working under an amended contract (whether it is ratified, arbitrated, or imposed upon us by Congress).

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Super Mediation -

After either side rejects a Proffer of Arbitration from the NMB and enters the thirty-day "Cooling Off" Period specified in the RLA, NMB can still invite the parties to further mediate the negotiations and find a resolution to the dispute. These last-minute negotiations are sometimes called "super mediation." In the round of national bargaining that ended in the 2022 Imposed Agreement, the Department of Labor hosted representatives from both rail labor and the railroads in a late night round of negotiations that achieved a tentative agreement on some crafts (like train crew employees represented by BLET) after the rejection of a Proffer of Arbitration.

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Tentative Agreement -

While the eventual decision whether to adopt or reject any agreement rests with BMWED members, our Bargaining Committees and our officers are responsible for negotiating a Tentative Agreement that is acceptable to the BMWED members, meets the interests or expectations of our members as expressed to the Bargaining Committee, and has a strong chance to be adopted by both parties. BMWED is obligated, under the Railway Labor Act, to engage in good faith bargaining with the carriers to reach an agreement, so Bargaining Committees will develop Tentative Agreements to offer members for their ratification (adoption) or rejection.

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"True-Up" -

Section 3 of the 2018 Arbitrated Agreement between the NCCC and the BMWED, following the Award of Arbitration Board 602, reduced the back pay eligible employees received in that contract by an amount that offset alleged cost savings the NCCC argued its railroads were denied while in negotiations and during arbitration (a period from February 2018 to May 2018). The railroads demanded that BMWED members' back pay be reduced to recoup money they insist they would have otherwise saved in an earlier implementation of the new contract's healthcare benefits plan design. The Arbitration Board decided in favor of the NCCC and incorporated a "true up" into the arbitrated agreement.

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Unfair Labor Practices (ULPs) -

Under the Railway Labor Act, Unfair Labor Practices are not defined! Workers in other unions, specifically those governed under the NLRA, may file charges against their employer for engaging in certain defined activities that are listed as Unfair Labor Practices in the language of the Wagner Act. Section 8 of the NLRA lists these Unfair Labor Practices. The National Labor Relations Board*(NLRB) is empowered to investigate any charges of Unfair Labor Practices and facilitate a settlement between the parties if charges are supported. If a charge has merit, but no settlement is reached between employees and their employer, NLRB can issue a complaint and have the matter heard before an Administrative Law Judge. (National Labor Relations Board, 2023)

While members of rail unions like BMWED do not have defined ULPs under the Railway Labor Act, railroads are obligated to exercise good faith and exhibit a standard of fair practice in their dealings. Like many other issues governed under the RLA, unfair practices by the railroads similar to the ULPs defined in the NLRA are addressed by seeking remedies through federal court. The NMB does not investigate unfair practices like the NLRB.

Bottom line, if a railroad worker or a BMWED member suspects the railroad is interfering with, restraining, or coercing its workers with regard to their rights to organize or bargain collectively, our path to fix the issue is through a lawsuit filed in federal court.

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Work Rules -

At the level of National Bargaining many agreements are amended with respect to wages, healthcare benefits, paid time off, or similar issues. Each collective bargaining agreement also contains provisions governing topics like the length of a working day, the rights of employees to perform certain work in certain areas (their seniority), the provision of safety equipment, definitions for different classifications of work, and so on. These various rules, which are often specific to a particular railroad or territory, are often not considered at the National Agreement level but may be negotiated at the local level. These other rules are often referred to as "Work Rules" to distinguish them from rules governing wages, healthcare benefits, paid time off, or other matters.

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References*

National Mediation Board. (2023). Mission & Organization.

https://nmb.gov/NMB_Application/index.php/mission-organization/

National Labor Relations Board. (2023). Guidance.

https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act

Government Publishing Office. (2023).

Labor Management Relations Act, 1947. https://www.govinfo.gov/content/pkg/COMPS-8190/uslm/COMPS-8190.xml

National Labor Relations Board (2023). The Right to Strike. [DOES NOT REFER TO RLA PRACTICES FOR RAIL LABOR!]

https://www.nlrb.gov/strikes

Government Publishing Office. (2023). Labor-Management Reporting and Disclosure Act of 1959.

https://www.govinfo.gov/content/pkg/COMPS-1511/uslm/COMPS-1511.xml