|ONLINE VERSION||AUGUST 1999|
|Victory at Last! Travel Allowance Sustained by Arbitrator!|
|Almost before the ink was dry on the National Agreement
signed on September 26, 1996, the railroads began welshing on the deal which had taken two
struggle-filled years to reach. But the railroads' lack of integrity was more than met by
the rock solid determination of the BMWE membership to never give up.
Because of true solidarity and commitment, the BMWE gained victory at last when Arbitrator Richard R. Kasher fully sustained the BMWE's position that Article XIV of the National Agreement applies to all traveling employees. The Award was issued on June 20, 1999, just short of three years after the agreement signing.
Voting in record numbers, BMWE members overwhelmingly (nearly 90 percent) ratified the National Agreement in October 1996. The 61 percent response rate was nearly fivefold the number of members who voted in the previous round, a tribute to the increased involvement and solidarity the '95 bargaining round helped to build.
But the wave of positive feeling came crashing down when the railroads refused to abide by the agreement, saying that only regional and system gangs were entitled to the travel allowance. The BMWE immediately (early in November 1996) threatened to strike and simultaneously filed suit in the Federal District Court for the Central District of Illinois (Peoria) against all the major railroads (BNSF, Conrail, CSX, NS, UP) to force them to pay the travel allowance as required under the agreement.
At the time President Mac A. Fleming described the railroads' refusal to honor their written word as "one of the greatest disappointments I have had as President of the BMWE." He said he understood the railroads' "reflex to sharpshoot; to play games of upmanship. It is a reflex that needs to be broken if the railroad industry is to move into the next millennium." He urged the railroads to "just do what you agreed to do--provide the travel allowance to all BMWE members working away from home."
On December 17, 1996, the Peoria Court issued a preliminary injunction to stop the BMWE from striking the nation's railroads after it agreed with the BMWE that travel allowance payments are a major dispute under the Railway Labor Act. The court found that the travel provisions were in "plain and unambiguous language," and that the carriers had no "arguable justification" for ignoring the contract or demanding arbitration on the issue.
"The carriers think they can just pick and choose among the contract provisions they want to implement," said President Fleming at the time. "They thought they could just arbitrate a different agreement from the one they signed. They were wrong."
The railroads immediately filed an appeal with the Seventh Circuit Court of Appeals and the BMWE was granted their motion to expedite the appeal.
The BMWE then also filed separate lawsuits against the BNSF and CSX over those railroads' refusal to pay weekend meal allowances when workers collect the national travel allowance. The National Agreement coupled with the recommendations of Presidential Emergency Board 229 made the national travel allowance an amendment to the away-from-home expense provisions of the agreement (Award 298).
BNSF argued that if they had to pay the travel allowance, they were no longer required to pay the seven-day meal allowance under Award 298, but only had to pay meal allowances for the number of days worked. Arbitrator Das rejected the railroad's argument in a decision issued in 1998.
Oral arguments on the PEB 229 travel allowance was heard in the federal court at the end of February 1997 but a decision wasn't rendered until December 1997 and it was a hard punch in the stomach for the BMWE. The U.S. Court of Appeals for the Seventh Circuit, by a 2-1 vote, reversed the judgement of the District Court which held that the BMWE's dispute with the carriers over the payment of travel allowances was a major dispute.
All three judges agreed that if you looked only at the plain language of Article XIV of the Agreement, the dispute is major. "We would hold the railroads' view 'frivolous or obviously insubstantial' and affirm the district court--if the act of interpretation were to stop at the four corners of the Agreement." But the majority held there might be some "latent ambiguity" and that they must look at evidence outside the agreement even if the agreement language is clear.
The dissenting judge stated that "Article XIV makes no distinction between employees who travel with a district gang and those who travel with a regional and system gang. Either type of gang can travel considerable distances as the majority notes and as the record amply demonstrates. ... I agree with the district court that the railroads are trying to obtain a new and materially different travel allowance in the agreement."
When the Court of Appeals found the dispute to be minor it meant that under law the BMWE had to go to arbitration and couldn't strike over the issue. The BMWE did appeal to the U.S. Supreme Court but the Court denied a writ of certiorari (refused to hear the case).
At this juncture, CSX stood out. CSX generally chooses to negotiate rather than arbitrate as most recently demonstrated in the agreement they made over the Conrail carve-up. This was true at that time also and the BMWE was able to reach an agreement with CSX providing all traveling employees with a travel allowance, which was ratified by the membership of the BMWE on CSX.
Now, following a year and a half of arbitration, BMWE members have finally been awarded what they have struggled for so long to achieve. This is a major victory for the BMWE, worth millions in retroactive expenses and more millions into the future. However, the failure of the railroads to honor their clear commitment under the 1996 National Agreement and force these issues to strike, court and arbitration, makes it difficult to believe anything they say, even at the bargaining table.
Each involved system is in the process of working out arrangements to implement the Kasher Award on the various railroads. We hope the railroads will implement the arbitration decision immediately.
In a letter to all general chairmen explaining the process of the implementation of the travel allowance award, President Fleming said, "I would like to take this opportunity to thank all of the people who worked so hard to right the wrong the carriers committed when they welshed on the travel allowance agreement they made with the BMWE. Our victory was made possible by a true showing of solidarity that involved the membership and system officers who religiously filed thousands of travel allowance claims and the Grand Lodge officers and staff who doggedly pursued this matter through years of litigation and arbitration. My thanks goes out to each and every one of you who never gave up despite the carriers' years of stonewalling and legal maneuvering."