In November the Senate reconfirmed Linda Morgan for a second four year term at the Surface Transportation Board. The circumstances surrounding her reconfirmation are disturbing and once again showed the utter untruthfulness of the railroads and their legislative spokesman, Edward R. Hamberger. Hamberger is the head of the Association of American Railroads.

The "cram down" provision of the Interstate Commerce Act has been around since 1920. Not until 1983, did the Republican-dominated Interstate Commerce Commission interpret that provision to permit the breaking of collective bargaining agreements (CBAs) in rail mergers. In 1991, the Supreme Court held the "cram down" provision could be used to break CBAs. Significantly, the Court remanded to the ICC the issue of when, or if, the "cram down" could be used against CBAs. In other words, the rules that would apply the "cram down" to CBAs were left to the ICC's discretion.

Enter Linda Morgan. When President Clinton first nominated Linda Morgan to the ICC, the BMWE and most of rail labor was cautiously optimistic that the ICC's use of "cram down" to break CBAs would be substantially limited. Remember, the Supreme Court said the use of "cram down" was discretionary with the ICC and we believed a Democrat-controlled ICC would be more friendly to labor's legitimate interests. BMWE and the rest of rail labor was disappointed by the actual turn of events.

President Clinton made Linda Morgan Chairman of the ICC in early 1994. Over the next four years, the ICC and its successor, the STB, issued decisions which continue the Reagan Board's application of cram down and expanded it so that mergers which occurred 20 years earlier could be used to break current agreements. The STB, under Linda Morgan's direction, applied the "public transportation benefit" test to determine if a CBA could be broken.

The test is the following: does the breaking of the CBA provide a public transportation benefit? If the answer is yes, the CBA is history. A public transportation benefit is anything that might provide better rail service to the public. Therefore, when a railroad argues that bigger seniority districts make for a more efficient utilization of employees, thereby lowering costs that might be passed on to shippers and consumers, a public transportation benefit has been proven.

Sound strange? Well as someone once said, you couldn't make this stuff up if you tried.

You may wonder, does the railroad have to prove the existence of the public transportation benefit? The answer is no. In fact, when the BLE and UTU petitioned the STB to require CSX to provide an actual accounting of the benefits that allegedly flowed to the carrier after some CBAs were broken, the STB denied the petition saying the railroads did not have to be bothered with an after the fact accounting of the "public transportation benefits" the transaction achieved.

Linda Morgan's first term ended on December 31, 1998. Under the law governing the STB, she was permitted to "holdover" for another year. If she was not reconfirmed to the STB by December 31, 1999, Linda Morgan would have to leave the STB. During 1999, BMWE and all other rail unions except the UTU, lobbied the Clinton administration not to re-nominate Linda Morgan. On May 5, 1999, the Executive Council of the AFL-CIO unanimously passed a resolution opposing the renomination of Linda Morgan. Ordinarily, the Executive Council does not oppose potential Presidential nominees by name, especially ones being considered by a Democratic administration. This makes the resolution especially powerful. The resolution concerning Linda Morgan reads as follows:

The Executive Council also opposes the renomination of STB Chair Linda Morgan. For sixteen years, five of which have been during Morgan's tenure, the ICC and the STB have routinely used their claimed authority to break collective bargaining agreements with no regard for the rights and jobs of railroad employees. Chairwoman Morgan has presided over the above-cited mergers and acquisitions and has refused to change the anti-worker policies set in motion in 1983 by President Reagan's appointees to the ICC.

Despite the Executive Council's resolution, President Clinton re-nominated Linda Morgan to the STB in the early summer. However, her nomination was not acted upon by the Senate.

While Linda Morgan's renomination hung fire in the Senate, the Chairs of the House Transportation and Infrastructure Committee and the Senate Transportation Committee and the ranking Minority members of each Committee asked the unions and the railroads to try to work out a negotiated solution to the cram down provision. Some meetings took place and very tentative and limited movement was made towards a negotiated solution. However, some of the railroads clearly did not want the negotiations to work and they stalled out. At the last face-to-face meeting, Hamberger, the chief lobbyist for the railroads blurted out that the railroads might agree to a "moratorium" on New York Dock notices while the parties continued to negotiate.

Meanwhile, back in the Senate, Senator Torricelli (D-NJ) put a "hold" on Linda Morgan's nomination. If a Senator puts a "hold" on a nomination, Senate protocol forbids any action on the nomination. Senator Torricelli's hold put the railroads in a bind. They wanted Linda Morgan reappointed to the STB, after all, she approved the BN-Santa Fe merger, the UP-SP merger and the carve-up of Conrail by CSX and NS and she actively permitted the use of the "cram down" to break CBAs. This is when the railroads' lies and venality reached new heights, even for them.

Hamberger contacted Richard Trumka, the Secretary-Treasurer of the AFL-CIO and offered a moratorium on the serving of New York Dock notices for a limited period while labor and the carriers tried to negotiate a replacement for cram down. Trumka offered a different deal: the railroads would observe a moratorium on all Section 4 notices through the end of the 107^th Congress (sometime in 2002) and in the meantime, labor and the railroads would attempt to negotiate new rules to replace "cram down." Once the new rules were reached, rail labor and the railroads would present their rules to Congress in the form of a "clean" reauthorization of the STB. At a meeting on Capitol Hill, Hamberger told Trumka that the railroads accepted labor's offer. Hamberger immediately telephoned the White House, the General Counsel of the Department of Transportation and Senator Hollings, the ranking minority member of the Senate Transportation Committee, confirming his "deal" with labor.

While the Hamberger-Trumka deal was not directly linked to Morgan's reconfirmation, Senator Torricelli came under intense pressure to release his hold once the "deal" was reached. After consulting with labor, the Senator released the hold and Linda Morgan was reconfirmed to the STB. That same day, Richard Trumka sent a written memorandum of understanding of the "deal" Hamberger had agreed to the day before on Capitol Hill. You can guess what happened. Linda Morgan was reconfirmed and Hamberger reneged on the deal he made with Trumka. The railroads got what they really wanted: Linda Morgan at the cost of lying to Richard Trumka, President Clinton, Secretary of Transportation Slater and Senator Hollings.

Where the "real" Linda Morgan story goes from here no one knows. Linda Morgan is back at the STB, Ed Hamberger remains the paid liar for the railroads. However, the White House, Secretary Slater, Richard Trumka and Senator Hollings are all furious. The railroads lied to them blatantly. Linda Morgan must know she sits at the STB only because the railroads lied, cheated and stole to get Senator Torricelli to release his hold.

This battle is not over. At the request of UTU and the support of the rest of the labor movement, Senator Crapo (R-Idaho) introduced anti "cram down" legislation (S. 1590) in 1999 that was drafted with the help of BMWE Assistant General Counsel Don Griffin and Sante Esposito of The Lawler Group. The Administration also introduced legislation eliminating "cram down" using language similar to Senator Crapo's. Additionally, Congressmen Oberstar and Nadler have other anti "cram down" bills pending. Also, the shippers are as disgusted with the railroads as we are and Senator Rockefeller introduced shipper-friendly legislation. Perhaps BMWE can make common cause with the shippers to fix their problems and end "cram down" at the same time. It's guaranteed that 2000 will be a "hot" year for the railroads and Ed "Pinocchio" Hamberger.

There is a general bi-partisan consensus that a government agency should not meddle in private contracts. Hopefully the STB chooses in the future to exercise its discretion in a manner that protects collective bargaining agreements. The choice is up to the STB.