Labor & Employment Law Daily Proposed strike over railroad’s COVID-19 precautions derailed
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Thursday, January 14, 2021

Proposed strike over railroad’s COVID-19 precautions derailed

By Marjorie Johnson, J.D.

Because the union’s demands over the railroad’s COVID-19 safety protocols fell within the scope of current negotiations over a new collective bargaining agreement, the union could not unilaterally strike and was instead required to follow RLA procedures.

Union Pacific won a preliminary injunction against a union that had threatened a work stoppage unless the railroad met its demands for additional COVID-19 safety protocols, including paid leave for any COVID-19 related reason, on-site testing, additional PPE, and mandatory social distancing. A federal district court in Nebraska ruled that the proposed strike would violate the Railway Labor Act (RLA) since it concerned matters relating to ongoing contract negotiations and rejected the union’s assertion that it fell within the Federal Railroad Safety Act’s (FRSA) protection of workers for “refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties.” Moreover, the injunctive relief was warranted since the railroad demonstrated it would suffer substantial and irreparable injury that would be greater than the harm to the union (Union Pacific Railroad Co. v. Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters, January 7, 2021, Buescher, B.).

Contract negotiations. In November 2019, Union Pacific and one of its main unions began bargaining over a new collective bargaining agreement. On November 4, in accordance with Section 6 of the RLA, the union sent written notice of intended changes to the contract, which included a wage increase, additional health and welfare benefits, and more paid time-off. While the parties continued to bargain, the COVID-19 pandemic struck the nation.

Dispute over COVID-19 protocols. Over the next several months, the railroad instituted several safety measures. The union was not satisfied, and in a letter dated December 17, 2020, threatened a work stoppage unless several demands were met. These included pay for employees absent from work for “any . . . Covid-19 related reason,” access to COVID-19 testing and temperature checks, mandatory paid quarantine for exposed workers, additional personal protective equipment (PPE) or pay for those who lacked PPE, and mandatory social distancing.

The railroad then brought the instant action alleging that the threatened strike violated the RLA.

In response, the union argued that its proposed strike was unrelated to its CBAs with the railroad and was protected pursuant to the FRSA. On December 23, 2020, the court granted the railroad’s motion for a temporary restraining order. A hearing on the railroad’s motion for preliminary injunction followed.

Major dispute. Congress established separate procedures under the RLA to resolve “major” verses “minor” labor disputes in the transportation industry. The RLA’s “detailed and extensive” process for resolving a major dispute—one which concerns the formation or amendment of a CBA—includes written notice, mediation by the NMB, and investigations and reports regarding disputes. If either side unilaterally alters the status quo during the bargaining and mediation process, a court may issue an injunction even without the traditional showing of irreparable injury. By contrast, a minor dispute—one which involves a question about how to interpret an existing CBA—triggers a less involved resolution process and courts may enjoin strikes in limited circumstances.

Here, the court rejected the union’s assertion that its demand for changes to the railroad’s pandemic response were focused on health and safety concerns “strictly related to the current Covid-19 crisis” and thus fell outside the scope of the ongoing CBA negotiations. Rather, siding with the railroad, the court found that the union’s demands were primarily economic in nature—centering around pay and leave time—and “directly overlapped” with its contract negotiations.

“Merely adding claims regarding health measures did not remove [the union’s] economic demands from the ambit of the CBA. Indeed, if that were the case, [the union] could avoid the entire RLA process at any time simply by including one non-pay-related demand.” Accordingly, because this was a major dispute, the union could not strike without following the RLA’s procedures.

Injunctive relief appropriate. The railroad’s requested injunctive relief was also appropriate since the threatened a strike was unlawful under the RLA and the railroad demonstrated it would suffer substantial and irreparable injury that would be greater than the harm to the union. In particular, the railroad averred that a work stoppage of its services would impact critical U.S. industries and cause it severe and irreparable financial loss in the range of millions of dollars in lost revenue and business opportunities.

FRSA didn’t apply. The union failed to convince the court that its dispute was instead governed exclusively by the FRSA, which bars a railroad carrier from taking certain adverse actions against an employee for “refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties” if certain prerequisite conditions exist. Those conditions include that the refusal is made in good faith, that a reasonable individual would conclude “the hazardous condition presents an imminent danger of death or serious injury” and “the urgency of the situation does not allow sufficient time to eliminate the danger without such refusal,” and that the employee notified the railroad carrier of the hazard.

At the outset, the court rejected the union’s contention that the FRSA protects labor strikes since the statutory language makes clear that it is an anti-retaliation statute applicable when employees are unable to work due to hazards on the job and does not mention labor unions or mass labor strikes. But even if the statute did apply, the pandemic did not present a “hazardous safety or security condition related to the performance of the employee’s duties.” Rather, it was “unfortunately, a worldwide and widespread problem confronting not just the union employees, but individuals of all walks of life.” Moreover, a reasonable individual under the circumstances would not conclude that there was “an imminent danger of death or serious injury” in light of the railroad’s already-implemented safety measures, on-going dialogue between the parties, and continually evolving safety procedures.

Finally, the railroad’s COVID-19 response did not constitute a “hazardous safety or security condition.” While the union took issue with certain aspects of its protocol, it did not dispute that the railroad had implemented numerous safety measures, including some requested by the union. Furthermore, witnesses testified that the railroad had continued to improve its response to the pandemic and its primary demands were related to pay and leave time, not safety and health. The court explained that “the semantics of implementing protections and paying workers during an unprecedented health situation do not rise to the level of ‘hazardous’” under the FRSA.

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