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Commuter Ops

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By Scott Holland

Jan 10, 2022

A federal judge has refused to grant an injunction to labor unions hoping to prevent Metra’s employee COVID vaccine mandate, as the judge ruled the mandate, requiring workers to get a COVID vaccine or risk losing their jobs, doesn't leave workers with no choice in the matter.

The legal wrangling began when Metra, legally known as the Northeast Illinois Regional Commuter Rail Corporation, sued three employee unions in pursuit of a declaratory judgment that its imposition of a vaccine mandate meets the Railway Labor Act’s definition of a “minor dispute” subject to binding arbitration and not collective action. Metra announced the mandate on Nov. 1 in conjunction with President Biden’s Sept. 9 executive order stipulating vaccine mandates for federal executive agencies and contractors.


Metra’s mandate didn’t allow for employees to consent to regular COVID testing in lieu of vaccination. It required employees to provide proof of at least one dose by Dec. 7 and a second dose by Jan. 7. It filed its request for declaratory judgment on Nov. 8 rather than responding to requests to negotiate with workers. On Nov. 23, Metra announced it would give workers four hours of pay for each dose and eight hours paid leave within 24 hours of each dose.

In response, two of the unions — the International Association of Sheet Metal, Air, Rail and Transportation Workers- Transportation Division and Brotherhood of Locomotive Engineers and Trainmen — filed a counterclaim Dec. 3 to seek an injunction stalling the mandate. With those claims pending, Metropolitan Alliance of Police Chapter 267 intervened as a defendant, joining the motion for an injunction. The other union party to Metra’s action is Brotherhood of Maintenance of Way Employees, a Teamsters division.


In an opinion issued Jan. 6, U.S. District Judge Matthew Kennelly denied the unions’ motions, determining the authority Metra claimed was neither insubstantial nor frivolous.

Although the unions didn’t dispute Metra’s recounting of prior unilateral imposition of changes in response to federal law, they argued that history was inapplicable because Biden’s order differed from the earlier laws and regulations, which resulted from acts of Congress.

“The unions fail to explain, however, why this claimed distinction matters,” Kennelly wrote. “And they cite no authority supporting the proposition that the president's executive order should be treated differently from, say, a federal regulation.”

Metra noted it participates in the Transportation Security Administration’s National Explosives Detection Canine Team Program, under which it approved an amended contract expressly incorporating Biden’s mandate. The unions contended that program is a grant, a reading Kennelly said is plausible but “by no means conclusive.” They also argued the mandate covers employees who have nothing to do with the Canine Program, but Kennelly noted Biden’s mandate “covers all employees” of any qualified federal contractor.

Beyond Biden’s order, Metra argued it could institute its own mandate without negotiations because of its history of implementing standards protecting employee and passenger health and safety, such as requirements for vision and hearing tests, drug and alcohol screenings for police officers and workplace standards like visibility vests and sleep apnea testing requirements. The unions said the vaccine mandate is not a fitness for duty standard, arguing Metra didn’t mention that notion in its policy. They also argued Metra had “never once unilaterally implemented a term or condition of employment that poses the level of invasiveness, physical threat and liability risk as a COVID-19 injection.”

However, Kennelly said that position “takes an inappropriately granular view of what constitutes a past practice that provides an arguable basis for an implied right on the part of the railroad” and further noted Metra sufficiently addressed the impact of vaccines on returning to pre-pandemic conditions.

The unions also said Metra’s vaccine incentives were improperly implemented, but Metra again argued it has a track record of establishing incentive programs and furthermore told the court it would negotiate over specifics. But the unions said what Metra calls incentives actually are additional payments for a condition of employment, not an enticement for a desirable, voluntary behavior. Kennelly said such arguments might be convincing in negotiation or arbitration, but they don’t prove Metra was frivolous in enacting the policy, meaning it remains a minor dispute under the RLA.

Kennelly also rejected the unions’ push to halt the mandate because failure to do so would result in irreparable harm. Although Kennelly acknowledged the unions do have the chance to succeed should the matter proceed to arbitration, he rejected the argument employees have no choice.

“Although termination of employment has a serious impact on an individual's life and livelihood, it is not so debilitating as to amount to no option at all,” Kennelly wrote. “This is particularly so because an employee who chooses not to be vaccinated and is then terminated has an adequate remedy: if the adjustment board agrees with the unions that the mandate should not have been imposed, reinstatement and backpay will be available and would make the terminated employee whole.”

Kennelly set a status hearing for Feb. 8.

“Needless to say we are disappointed in the outcome of this lawsuit, especially considering other federal judges blocked vaccine mandates,” BLET President Dennis Pierce and SMART-TD President Jeremy Ferguson said in a joint statement. “We will continue to fight to protect the rights of our members during these historically difficult times.”

The unions are engaged in similar legal actions hoping to forestall vaccine mandates from Amtrak as well as leading rail freight carriers Union Pacific and Norfolk Southern.



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