Court decision remains in effect unless court alters its decision
By Joanna Marsh for freightwaves.com
Union members affiliated with the Brotherhood of Maintenance of Way – Employes Division (BMWED) can’t strike against Union Pacific (NYSE: UNP) over their concerns about how Union Pacific (UP) has handled the COVID-19 pandemic among its workforce.
In a Thursday decision by Judge Brian C. Buescher of the U.S. District Court in Nebraska, Buescher sided with UP’s request asking for a preliminary injunction that would prevent BMWED from taking actions that would disrupt operations, such as picketing or taking part in strikes or a sickout.
The union, which is affiliated with the International Brotherhood of Teamsters, had argued that its right to strike fell under the Federal Railroad Safety Act.
But UP countered that the union can’t take disruptive actions because of the Railway Labor Act (RLA).
The judge sided with UP, and he said that the Federal Railroad Safety Act also supports UP’s argument.
“Union Pacific’s COVID-19 response itself does not constitute a ‘hazardous safety or security condition’ as BMWED argues. While BMWED takes issue with certain aspects of Union Pacific’s COVID-19 protocol, it does not dispute that Union Pacific has, in fact, implemented numerous safety measures, including some requested by BMWED,” Buescher said in his decision.
“Furthermore, witnesses testified that Union Pacific has continued to improve its response to the pandemic, including securing higher-quality masks, locating hand sanitizer when it was in short supply, and updating social-distancing requirements as CDC [Centers for Disease Control and Prevention] guidance has evolved. BMWED seeks additional safety precautions that are either of marginal benefit because of the measures already in place or, as in the case of on-site COVID-19 testing, unworkable. Furthermore, as set forth above, BMWED’s primary demands are related to pay and leave time, not measures relating to safety and health,” he said.
Buescher later continued, “the purpose of the RLA and of the requested injunctive relief is to protect the status quo while CBA [collective bargaining agreement] negotiations are ongoing. The risk of harm to Union Pacific in allowing an unlawful strike outweighs the harm to BMWED in not allowing it to pursue self-help in order to gain the additional COVID-19 accommodations it seeks.”
He said, “Lastly, the Court concludes that the public interest favors issuance of a preliminary injunction as well. As previously stated, the threatened strike could have severe repercussions for numerous individuals and industries which rely on railroad transportation. Thus, the public interest favors maintaining the status quo and avoiding major disruption to the nation’s rail lines.”
The decision will remain in effect as long as the case is pending unless otherwise directed by the court.
In response to the court decision, BMWED National Vice President Jed Dodd issued the following statement:
“We are very disappointed with Judge Buescher’s decision and believe that it will lead to more COVID-19 infections and death in our membership on the Union Pacific Railroad. It is infuriating that as essential workers required to go to work he found that COVID-19 was not life threatening. We have four dead members on Union Pacific Railroad and nearly 1,000 infected who would disagree. Union Pacific would rather protect their obscene profits instead of taking all reasonable measures to protect us from this terrible disease on the job and they have themselves a Judge who values their profits over our health and safety.
Dodd continued, “We have not decided on our future legal options but our struggle for decent and safe conditions on the Union Pacific Railroad is not over until Union Pacific does everything possible to protect our members from this terrible disease while they require us to go to work.”
Meanwhile, UP issued this statement in response to the court decision:
“Union Pacific is pleased with the court’s decision to issue a preliminary injunction that will prevent the Brotherhood of Maintenance Way Employes Division/IBT (BMWED) from striking. This order will allow Union Pacific to continue to meet the country’s freight demands, while we work with the BMWED towards our common commitment to ensure the safety of our employees,” UP said.