Name: HR 1748 Safe Freight act
Employed as: Conductor, for 10-20 years
Posted: 29 August 2020
FIFTH CIRCUIT VACATES INJUNCTION IN CREW-CONSIST CASE
PUBLISHED: AUGUST 28, 2020
Today, Aug. 28, the U.S. Court of Appeals for the 5th Circuit issued
its decision in BNSF et al v. SMART-TD (Case No. 20-10162) concerning
This decision is a long-awaited victory for the Union. The appellate
court vacated the injunction that forced SMART-TD General Committees to
bargain over crew consist, despite the existence of moratoria which bar
SMART-TD has always read those moratoria clauses to bar the service of
Section 6 Notices to negotiate over crew consist until the last
protected employee voluntarily separated from service. Indeed, that is
the very reason for their existence.
But despite the long-standing nature of these clauses, the carriers
presented a new and novel theory that the moratoria did not actually
bar crew-consist negotiations.
The carriers tested this theory out by filing suit against SMART-TD in
October 2019 and moving for a preliminary injunction in December 2019.
In their request for an injunction, the carriers asked a district court
in Texas to force SMART-TD to bargain now in spite of the moratoria.
That court issued its decision on February 11, 2020, finding that even
though the dispute over the moratoria was minor, and no arbitral
determination had been made, SMART-TD was required to bargain now.
Under the RLA, minor disputes must be resolved through arbitration, not
Section 6 bargaining. In the 22-page opinion, the appellate court walked
through the various bases on which an injunction can be issued in
Railway Labor Act (RLA) disputes. The 5th Circuit Court found that none
Rather, it concluded that the carriers had failed to exhaust the
administrative remedy provided under the the RLA arbitration regarding
the moratoria clauses