BMWE Requests NMB to Proffer Arbitration

Bargaining under the Railway Labor Act, the law that governs contract negotiations in the railroad industry, is always difficult. This is because the parties are not free to legally resort to self-help when the term of the contract ends, as they are in industries other than rail and air.

Instead, a government agency, the National Mediation Board, becomes involved in the process and tries to get the parties to reach agreement. Only after the NMB releases the parties (proffers arbitration) can the parties, after a 30-day cooling off period, resort to self-help.

Even then, the National Mediation Board can recommend to the President of the United States the appointment of a Presidential Emergency Board to do fact finding on the dispute and that puts a self-help date off for another 60 days.

Since the 1980s, when one party or the other did not accept the PEB recommendations and the parties could not reach agreement within the 30-day cooling off period, Congress has usually intervened and imposed the PEB recommendations or some binding arbitration process on the parties.

The railroads always try to use this process to protract negotiations as long as possible. That way the BMWE, and the other rail unions as well, may either agree to a contract that is not as good as one that could be reached if the bargaining ended on a certain date, as in industries such as steel and auto, or take seemingly forever to negotiate a new one.

On November 1, 1999, the BMWE served comprehensive Section 6 Notices on most of the Class I carriers in the U. S. The carriers also served notices upon the BMWE the same day and requested the parties engage in multi-carrier or "national handling" of the respective notices. Because BMWE representatives were prepared to negotiate vigorously and felt agreement could be reached by January of this year with concentrated bargaining sessions, they consented to national handling of the various Section 6 Notices.

The parties first met on December 2 and 3, 1999, at which time the BMWE requested a series of days to meet for comprehensive negotiations, after which the parties would either reach agreement or move to the next stage in the process. The response of the carriers, through their chief spokesman, Robert F. Allen of the National Carriers' Conference Committee, was that the NCCC planned to "audition" all of the rail unions through March 2000 to see which, if any, appeared to be the most likely settlement partner and Allen pointedly refused to give the BMWE any more bargaining days than any other organization. This was in spite of the fact that at the time of the meeting several unions had not even served Section 6 Notices yet. The NCCC offered two days in January, three in February and two in March. When the BMWE objected to the scarcity of negotiations dates, arguing that there simply were not enough dates provided to reach an agreement, Allen agreed, but still refused to meet more frequently.

The NCCC also said their economic proposals would not be presented until February because they were not prepared.

At meetings on December 8 and 9, 1999, the BMWE asked Allen if the carriers wanted to discuss the employee utilization and travel allowance issues they had earlier said were important to them. Allen replied that the carriers were not ready to discuss these issues.

Instead, the NCCC discussed possible changes to Section 3 of the Railway Labor Act relative to making "party pay" arbitration mandatory and changes to the Federal Employers Liability Act. The only collective bargaining matter brought up was a general discussion of issues related to the Job Stabilization Agreement of February 7, 1965, as amended by the Agreement of September 26, 1996.

At these meetings in December, Allen also took the opportunity to take the BMWE to task for allegedly manipulating bargaining in 1996 to obtain a PEB that was supposedly sympathetic to BMWE's interests. While Allen admitted that the 1996 PEB 229's recommendations were within the "pattern" created by the agreement between UTU and NCCC (which was rejected by the UTU membership and imposed by arbitration), he clearly wanted to dwell on the carriers' perceived injustices suffered in the past.

The BMWE told Allen that his accusations were groundless and that PEB 229 was composed of two respected academics, Carl Van Horn and David Twomey, and another respected arbitrator, former Undersecretary of Labor, William Hobgood. The BMWE noted that Van Horn had served on the Board of Directors of New Jersey Transit; Twomey had served on a number of Emergency Boards; and Hobgood subsequently accepted the position of "Vice President - People" at United Airlines. In addition, this PEB recommended the UTU pattern which BMWE (and the membership of the UTU) opposed.

From these NCCC remarks, it was clear to the BMWE that the railroads wanted to protract negotiations beyond the presidential elections in November 2000 to avoid what they feared would be an unfavorable PEB if negotiations reached impasse.

Although frustrated by Allen's attitude, the BMWE still wanted to bargain intensively to reach an agreement and was making every effort to move negotiations along. In anticipation of the January 26 and 27 bargaining dates, the BMWE's bargaining committee spent a week in Chicago, Illinois right after New Year's working on a complete settlement proposal, substantially reduced from the BMWE's original Section 6 Notice.

The written proposal was presented to the NCCC on January 26 and further revised downward on January 27 as a result of legitimate carrier objections raised on January 26. The NCCC did not respond comprehensively to either proposal. Instead, they presented rules proposals in small spurts over the course of the next several months.

On January 28, the BMWE requested the NMB to intervene in the dispute through the appointment of mediators. On February 24, over the NCCC's objection, the NMB appointed mediators Jack Bavis and Les Parmelee to the dispute.

Meetings were held in Miami, Florida on February 16, 17, and 18. At that time, the parties disussed work rules changes which each side felt were important. But the carriers still had not made a comprehensive counter proposal.

The parties met again on March 22 and 23 and again discussed work rules. Despite the fact that the BMWE had presented a complete proposal on January 26 and revised it downward on January 27 based upon comments of the railroads, the NCCC refused to make a comprehensive counterproposal in either the February or March meetings.

When the BMWE requested bargaining dates for April, the NCCC refused, stating that now that mediation was invoked, the NMB should schedule meetings. When the BMWE contacted Mediator Bavis, he advised he was leaving the NMB to accept a management position with Northwest Airlines. Mediator Parmelee later contacted the BMWE and advised that the carriers refused to provide dates to meet until the three days immediately before the Memorial Day weekend.

Parmelee also had the carriers commit to meeting dates of June 8, 9, 28, 29 and 30. Although the BMWE was angry about not having dates in April, believing that the bargaining should either have reached agreement by April or there should have been a proffer of arbitration by the NMB, the BMWE accepted the dates obtained by Mediator Parmelee.

When the parties met at the end of May, the NCCC again wanted to discuss work rules but the BMWE insisted that a counterproposal to its January 27 comprehensive proposal be provided. The railroads eventually made an economic proposal on May 25 in addition to the work rule changes it had thus far proposed.

The carriers counter proposal was extremely low, involving a choice of a 2% per year wage increase or stock options instead of a wage increase. Also, the 2% wage increase wouldn't even start until 12 months after the agreement was ratified.

The BMWE offered a counter proposal on June 8, a further downward revision of its earlier proposal. The BMWE had cut its original Section 6 proposal several times and given projections of inflation at 3.6% this year instead of 2.5%, believed this proposal was within the range necessary to reach agreement. The carriers rejected the proposal claiming it was too high and refused to make a counter proposal.

On June 28 the parties met again. The railroads modified their proposal substantially, making it even worse from a BMWE perspective than their already unacceptable proposal. This time the NCCC proposed to give the railroads the right to eliminate all BMWE production work and contract that work out to third parties. Further, the NCCC stated that all they would bargain about in that proposal was the severance payments to BMWE members thrown out of work if this proposal became effective.

On June 30, President Mac A. Fleming for the BMWE wrote the National Mediation Board and asked the Board to terminate the mediation case and make a proffer of arbitration to the parties, because, simply stated, the parties are deadlocked.

The BMWE advised the NMB that the railroads latest proposal would impact between 30 and 60% of BMWE members, literally destroying railroad careers and members' families in the process. "Obviously the carriers proposal is unacceptable to BMWE," concluded Fleming, "and we do not intend to negotiate a 'capital punishment' benefit. However, even before this proposal, BMWE and NCCC were deadlocked and arbitration should be proffered. The carriers regressive and mean-spirited proposal of June 28 merely puts in sharp relief that impasse had already existed."

On July 7 President Fleming wrote all BMWE members about the positions the railroads have taken in national bargaining which concern their future and the future of the BMWE. Fleming assured them that the BMWE will fight with every legal means at their disposal to make sure that BMWE members continue to perform all maintenance of way and structure work now and in the future.

As this JOURNAL goes to print (July 20), the BMWE is still awaiting word from the NMB as to whether they will proffer arbitration so that the BMWE can move to the next step in the bargaining process.