Rail labor groups seek federal oversight on temporary waivers

A photograph of workers performing work on a rail track near a passenger railway station.

The Transportation Trades Department (TTD) of the AFL-CIO is asking Administrator Ron Batory of the Federal Railroad Administration (FRA) to ensure that the freight railroads are using furloughed workers first before seeking a waiver to be exempt from safety-related regulations.

Because of the coronavirus pandemic, FRA had declared emergency relief provisions be available, which in turn paved the way for the freight railroads to seek temporary waivers from complying with certain regulations, such as those related to random drug and alcohol testing. Several individual short line railroads and the rail trade groups have been communicating with FRA over such requests.

TTD’s letter, signed by a coalition of 12 rail-related labor groups including the Brotherhood of Locomotive Engineers and Trainmen and the International Association of Sheet Metal, Air, Rail and Transportation Workers – Transportation Division (SMART-TD), says furloughed workers should be sought after first in light of dwindling employment headcount levels within the industry. Headcount levels are at their lowest point in modern history, the letter contends, and so the railroads must demonstrate a burden of proof that the waiver request is due to a “true labor shortage.”

“If a carrier finds itself short on active employees, its first option must be found in the abundant supply of out-of-work railroaders, not in administrative intervention to be exempted from safety-critical regulations. We request that FRA make clear that a workforce shortage cannot be declared until these terms are met, and that this requirement be considered an amendment to all waivers granted contingent on workforce shortages,” said an April 9 letter from Larry Willis, TTD. “FRA should prohibit the use of any waiver for a carrier who is found to be non-compliant with the amended terms.”

If furloughed employees are unable to return to work because their qualifications expired or they need retraining, they should be offered a temporary waiver enabling them to work, provided that those employees receive training within 60 days of the waiver’s expiration date, Willis said.

TTD is also asking FRA to require the freight railroads to report weekly on how each waiver that the railroad received was used, as well as when it was used and what manpower shortages or other conditions necessitated the waiver. TTD also wants FRA to provide copies of these reports to the headquarters of the duly certified labor organizations representing employees at impacted locations.

TTD also wants to review via Emergency Relief Docket FRA-2020-022 any requests to extend temporary waivers.

The railroads have argued that the temporary waiver requests are due in part to social distancing recommendations by the Centers for Disease Control and Prevention that call for a distance of six feet between two people. That distance might be hard to comply with under certain circumstances, such as drug and alcohol testing, waiver applicants have said.