BILL ANALYSIS Ó
SB 730
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Date of Hearing: July 8, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB
730 (Wolk) - As Introduced February 27, 2015
SENATE VOTE: 23-11
SUBJECT: Railroads: movement of freight: trains or light
engines: crew size.
SUMMARY: Prohibits a freight train from being operated in
California unless it has a crew consisting of at least two
individuals, as specified. Specifically, this bill:
1)Prohibits, effective February 1, 2016, a train or light engine
used in connection with the movement of freight from being
operated unless it has a crew consisting if at least two
individuals.
2)Provides that this prohibition shall not include hostler
service or utility employees.
3)Authorizes the California Public Utilities Commission (CPUC)
to assess civil penalties against any person who willfully
violates this bill, according to the following schedule:
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a) A civil penalty of $250 to $1,000 for the first
violation.
b) A civil penalty of $1,000 to $5,000 for a second
violation within a three-year period.
c) A civil penalty of $5,000 to $10,000 for a third
violation and each subsequent violation within a three-year
period.
4)Provides that the remedies available to the CPUC are
nonexclusive and do not limit the remedies available under all
other laws or pursuant to contract.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS: This bill is sponsored by the Brotherhood of
Locomotive Engineers & Trainmen, International Brotherhood of
Teamsters and is supported by the United Transportation Union.
According to the author, this bill protects communities by
requiring trains and light engines carrying freight within
California to be operated with an adequate crew size for both
public safety reasons and the protection of railroad workers.
The author states:
"Today's freight trains carry extremely dangerous materials
that may pose significant health and safety risks to
communities and the environment in the case of an accident. On
any given day, a freight train may be carrying crude oil,
ethanol, metam sodium (a water-soluble pesticide) or aqueous
hydrazine (a toxic chemical used in jet fuel) in California.
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Freight trains carrying these materials have been involved in
or have been the cause of accidents, derailments and
explosions.
Heightened concern over crew size stems from the tragic July 6
derailment of a Montreal, Maine & Atlantic (MM&A) fuel train
in Lac Mégantic, Quebec, which killed 47 and destroyed the
center of the town, and other incidents of which a single
person operation has been found to be wholly or partially the
cause. A single operator in an emergency situation cannot
properly assess the situation, secure the train, and notify
police, fire and other necessary officials in a timely manner.
Current state law makes no provisions for the minimum size of
railroad crews, nor has the Federal Railroad Administration
adopted any regulations covering railroad crew size. In recent
years railroad companies have reduced the size of crews on
trains to one person. Requiring two pairs of eyes and ears at
the head of every freight engine ensures communication and
safety redundancy, as well as operational efficiency. This
standard provides safer operations through our communities by
reducing the risk that arises from relying on a single
individual."
The California Public Utilities Commission (CPUC) and Railroad
Operations and Safety
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The CPUC is the state agency charged with ensuring the safety of
freight railroads, inter-city and commuter railroads, and
highway-railroad crossings. The CPUC performs these railroad
safety responsibilities through the Railroad Operations and
Safety Branch (ROSB) of the Safety & Enforcement Division.
ROSB's mission is to ensure that California communities and
railroad employees are protected from unsafe practices on
freight and passenger railroads by enforcing state and federal
rail safety rules, regulations, and inspection efforts; and by
carrying out proactive assessments of potential risks before
they create dangerous conditions.
ROSB personnel investigate rail accidents and safety related
complaints, and recommend safety improvements to the CPUC,
railroads, and the federal government, as appropriate. In
addition to enforcing the California Public Utilities Code and
CPUC General Orders, ROSB inspectors enforce Federal Railroad
Administration (FRA) regulations in a state/federal enforcement
partnership. According to the CPUC Web site, ROSB currently has
45 certified inspector positions that are FRA-certified and are
divided into the FRA's five railroad subject areas described
below:
1)Operating Practices - enforcing regulations for main, branch
and yard train operations, including hours of service, carrier
operating rules, employee qualification guidelines, and
carrier training and testing programs to enforce compliance
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with railroad occupational safety and health standards,
accident and personal injury reporting requirements, and other
requirements.
2)Track - enforcing regulations for track construction,
maintenance and inspections.
3)Signal & Train Control - enforce safety rules on signal system
construction, maintenance and inspection activities.
4)Motive Power & Equipment - enforce safety rules on
locomotives, freight and passenger rail cars, air brakes, and
other safety appliances maintenance and inspection activities.
5)Hazardous Materials - enforcing regulations for rail movements
of hazardous materials, such as petroleum and chemical
products; and inspection of hazardous materials shippers.
Railroad Safety Statistics
According to the U.S. Department of Transportation Federal
Railroad Administration, the nation has had two straight years
of record-breaking safety performance, along with significant
reductions in all types of accidents since Fiscal Year 2008.
(Safety Fact Sheet, February 2014.) Overall, the FRA found that
human factor caused accidents were down by 38 percent, track
defects down by 37 percent, and equipment defects down by 41
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percent.
In California, the CPUC reported the following activities in its
2013-14 Annual Railroad Safety Activity Report:
Performed 3,692 inspections and follow-up inspections to
monitor the railroads' compliance and remedial actions;
Identified 11,445 federal regulation non-compliance defects
(which are notices to railroads of an existing issue -
railroads are directed to replace, repair or remove the
defects. Violations exist when the defects are not remediated
or conditions are so that they warrant a civil penalty and
immediate remedial action);
Completed 349 CPUC General Orders (GO) that identified 938
defects;
Recommended 259 violations of FRA regulations;
Cited 11 violations of state regulations; and,
Responded to and resolved 28 informal safety complaints.
The Lac-Mégantic Canada Incident and Response
The author and sponsor of the bill reference a 2013 Canadian
incident as highlighting the need for this bill. The Senate
floor analysis of this bill describes that incident as follows:
"On July 6, 2013, there was a derailment of an unattended
Montreal, Maine and Atlantic Railway freight train containing
crude oil in Lac-Mégantic, Quebec, Canada. In this accident,
the train had been operated by one person who failed to secure
the hand brakes properly before retiring for the night. The
train rolled down the grade uncontrollably and crashed and
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exploded killing 47 people.
In response to this tragic incident, the U.S. Department of
Transportation created three Railroad Safety Advisory
Committee (RSAC) Working Groups - Appropriate Train Crew Size,
Securement, and Hazardous Materials Issues. The RSAC held
emergency meetings to evaluate and consider wide-ranging
proposals to enhance railroad safety including the safe
shipment of crude oil by rail. On April 9, 2014, following
deliberations of the working groups, the U.S. Department of
Transportation's FRA announced its intention to issue a
proposed rule requiring two-person train crews on crude oil
trains and establishing minimum crew size standards for most
main line freight and passenger rail operations. According to
the FRA Administrator Joseph C. Szabo, "We believe that safety
is enhanced with the use of a multiple person crew-safety
dictates that you never allow a single point of failure.
Ensuring that trains are adequately staffed for the type of
service operated is a critically important to ensure safety
redundancy." The FRA has not yet adopted regulations for
implementation of this minimum crew size rule.
Existing California law has no minimum size of railroad crew
requirements. Similar to the federal efforts on the issue,
this bill prohibits, on and after February 1, 2016, a train or
light engine used in connection with the movement of freight,
as specified, from being operated unless it has a crew
consisting of at least two individuals. According to the
FRSA, it is the policy of Congress that rail safety
regulations be nationally uniform to whatever extent
practicable. However, a state is permitted to continue to
regulate with respect to any rail safety matter until such
time as the Secretary of the U.S. Department of Transportation
issues a rule covering the same subject matter. Also, a state
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is permitted to adopt additional or more stringent standards
than the federal standards if the state rule does not create
an undue burden on interstate commerce, is not incompatible
with federal standards, and is necessary to eliminate or
reduce local safety hazards (FRSA of 1970)."
Similar Efforts at the State and Federal Levels
In addition to the pending two-person train crew rule at the
federal level, there are several states that have either
implemented or are considering similar requirements. In the
State of Wisconsin, no person operating or controlling any
railroad, as defined, may allow the operation of any railroad
train or locomotive unless it has a crew of at least two
individuals. That law goes even further by requiring that one
of the individuals be a certified railroad locomotive engineer
and imposes penalties for violations ($25-$100 for a first
offense, $100-$500 for a 2nd offense within three years, and
$500-$1,000 for a 3rd offence within three years). Two-person
railroad crew legislation is also pending in other states
including Washington, Nebraska, Minnesota, Wyoming, Iowa, Utah
and North Dakota.
Wisconsin - Case Seeking Invalidation of "Two-Person Crew"
On July 23, 1999, the U.S. Court of Appeals, Seventh Circuit
made a decision in the case of Burlington Northern and Santa Fe
Railway Company, Soo Line Railroad Company, Union Pacific
Railroad Company, and Wisconsin Central Ltd. vs. Attorney
General, et al of Wisconsin and the United Transportation Union.
The railroads brought action against Wisconsin Attorney General
and district attorneys seeking invalidation of Wisconsin's
"two-person crew" statute because FRA regulations allegedly
preempted safety concerns. The court held that crew
qualification requirements were preempted by federal law but
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held that two-person crews were not.
PROPOSITION 17 OF 1964 AND LABOR CODE SECTION 6900.5
Proposition 17 (the Railroad Anti-Featherbedding Act of 1964)
was an initiative measure approved by the voters at the
statewide general election of November 3, 1964. Among other
things, Proposition 17 added Section 6900.5 of the Labor Code to
read as follows:
"It is the policy of the people of the State of California
that featherbedding practices in the railroad industry should
be eliminated and that national settlement of labor
controversies relating to the manning of trains should be made
effective in California. Accordingly the award of the Federal
Arbitration Board No. 282 appointed by President John F.
Kennedy pursuant to Congressional Public Law 88-108 of August
28, 1963, providing for the elimination of excess firemen and
brakemen on diesel powered freight trains, or awards made
pursuant thereto, shall be made effective in this State. Said
award was the culmination of the proceedings originating with
the Presidential Railroad Commission which was appointed by
President Dwight D. Eisenhower at the request of both railroad
labor and management and reported to President Kennedy on
February 26, 1962.
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Nothing contained in the laws of this State or in any order of
any regulatory agency of this State shall prevent a common
carrier by railroad from manning its trains in accordance with
said award, in accordance with any federal legislation or
awards pursuant thereto, or in accordance with any agreement
between a railroad company and its employees or their
representatives."
SB 200 of 1999 and Arguments Regarding Proposition 17
SB 200 (O'Connell) of 1999 was similar, but not identical, to
this bill. SB 200 would have provided that a common carrier may
run freight or work trains only if it employs on that train at
least two persons, one of whom is a railroad trainman, as
defined.
The legislative history of SB 200 indicates that there was
disagreement between the supporters and opponents of that bill
regarding whether such a legislative proposal was superseded by
Proposition 17 and Labor Code Section 6900.5.
At the time, opponents of SB 200 obtained a Legislative Counsel
opinion that concluded that Section 6900.5 precludes the
Legislature from enacting a statute that supersedes the
provisions of a collective bargaining agreement regulating the
crew size of railroad trains. That opinion stated, in relevant
part, as follows:
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"[T]he plain language of Section 6900.5, as added by
Proposition 17, states that nothing in the laws of this state
shall prevent a railroad from manning its trains in accordance
with any agreement between a railroad company and its
employees or their representatives. The ballot arguments in
favor of the initiative measure specify that the measure
repeals outmoded featherbedding laws and makes possible
genuine collective bargaining procedures. The ballot
arguments against the measure specify that passage of the
measure would mean a complete surrender of all of California's
regulatory powers governing the manning of freight rains,
giving the railroads a free hand to establish work rules as
they see fit. The ballot arguments against the measure
further state that the measure would prohibit California from
ever enacting any legislation in the future to regulate the
size of train crews for public safety purposes.
Thus, based on the ballot arguments both in favor of and
against Proposition 17, as well as the language of Proposition
17, as expressed in Section 6900.5, the measure contemplated
an end to state regulation of the size of train crews in favor
of setting the size of train crews through the collective
bargaining process?
?In light of the foregoing, it is our opinion that Section
6900.5 of the Labor Code precludes the Legislature from
enacting a statute that supersedes the provisions of a
collective bargaining agreement regulating the crewing of
railroad trains."
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However, counsel for the sponsor of SB 200 provided a legal
analysis which disagreed with the Legislative Counsel opinion,
arguing that it went too far in concluding that Proposition 17
"contemplated an end to state regulation of the size of train
crews." The sponsor's legal analysis concluded that:
"Section 6900.5 was placed into the Labor Code to simply
codify the provisions of Arbitration Board No. 282 (Award).
The Award did not end state regulation of railroad crew size.
It only eliminated, from state statute, those sections of law
with which it was in conflict. Section 6900.5 cannot have any
ability to do anything other than what the Award provided.
The Award eliminated excess firemen and brakemen from train
crews, nothing else."
The sponsor's legal analysis also noted that the crew size and
composition statutes which were repealed by Proposition 17
related to the subject matter and were in conflict with the
provisions of the federal arbitration award. Notably,
Proposition 17 left intact several Labor Code provisions (such
as Sections 6901, 6902, and 6904) which regulate crew size and
composition on passenger, mail and express trains. They argued
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that each of these statutes predated Proposition 17 and were
neither repealed nor amended by it.
Therefore, the legal analysis concludes that, "These surviving
statutes, which were unaffected by Proposition 17, demonstrate
that the state's regulatory power continues, even as to
regulation of the size of train crews, so long as this
regulatory power does not conflict with the Award. Thus, the
key point made by Legislative Counsel that the state may not
regulate the size of train crews is patently wrong. At the very
least the argument is too all-encompassing."
The legislative analysis of SB 200 did not resolve the issue,
but did state:
"It should be noted that the Legislative Counsel opinion noted
by opponents of the bill did not specifically address the
question of whether or not SB 200 conflicts with Proposition
17 or Section 6900.5 of the Labor Code. Instead, the opinion
looks generally at whether the Legislature can enact a statute
that supersedes the provisions of a collective bargaining
agreement regulating the crewing of railroad trains.
The bill, if enacted, may face a court challenge based on the
provisions of Proposition 17 (Labor Code Section 6900.5)."
SB 200 ultimately failed passage on the Assembly floor.
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Sponsor/Opponent Arguments Related to This Bill and Proposition
17
As this bill is similar to SB 200, it is no surprise that
supporters and opponents of this bill make similar arguments
regarding the impact of Proposition 17 and Labor Code Section
6900.5 on the Legislature's ability to pass this bill.
Opponents of this bill state that it overrides the federal
collective bargaining process embodied in Proposition 17 and
will unnecessarily and unreasonably interfere with the ability
of railroad management and union leaders to fully bargain over
the best and safest crew size for each assignment. Therefore,
they contend that the bill is prohibited by Proposition 17.
With respect to the argument regarding Labor Code provisions
that Proposition 17 did not repeal, opponents contend that these
provisions of law would be repealed by implication, and have not
already been struck down merely because those sections are
obsolete and have not been challenged in court. They argue that
one such provision (Labor Code section 6906(b)) was in fact
determined to be repealed by implication in Burlington Northern
and Santa Fe Railway, et al., v. Public Utilities Commission,
112 Cal. App. 4th 881 (2003). ("Enforcement of section 6906(b)
has the effect of preventing the railroads from manning its
trains in accordance with collective bargaining agreements,
which are based on the lack of a need for brakemen.
Accordingly, enforcement of section 6906(b) violates the
Anti-Featherbedding Law. As the later-enacted statute, the
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Anti-Featherbedding Law prevails and we must conclude that
section 6906(b) has been repealed by implication.")
However, the sponsor of this bill argues that the Federal
Arbitration Award 282 of 1963 addressed excess firemen and
brakemen on freight trains. The intent of Proposition 17 and
Labor Code section 6900.5 was to give full effect to that award.
That award did not cover conductors and therefore does not
preclude the state from enacting a crew size law that deals with
that particular type of personnel. Moreover, the sponsor
contends that, even reading Labor Code Section 6900.5 in the
broadest manner possible, it does not preclude the enactment of
this bill. Section 6900.5 specifies that the state cannot
prevent a common carrier from manning its trains pursuant to the
aforementioned award, in accordance with any federal legislation
or awards pursuant thereto, "or in accordance with any agreement
between railroad company and its employees or their
representatives." The sponsor contends that this bill would
only be invalid if it conflicts with an existing federal
arbitration award, federal law, or collective bargaining
agreement, which it does not.
ARGUMENTS IN SUPPORT
According to the California Teamsters Public Affairs Council:
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"This bill is designed to maintain the status quo in freight
operations in this state, as the overwhelming majority of
trains operated in the United States run with a two person
crew. Despite that fact, however, it is clear that the
intention of the railroad industry is to move to one person
crews. If this were just about staffing, that would be one
thing, but this is about public safety. Freight trains are
often miles long and carry many kinds of hazardous and toxic
materials. As such, an accident can be devastating and
deadly. What happens when something happens to the engineer
on a single person crew while the train is operating at a high
rate of speed through a densely populated area? The answer is
that you have an uncontrolled weapon of mass destruction. We
already know that fatigue is a major issue in the industry.
Why wouldn't we want another crew member there to ensure that
someone being overworked and tired isn't the cause of a major
human and environmental disaster?"
Advanced technology has made the railroads safer; however,
supporters argue that nothing can replace an extra set of eyes
and ears when trains drive through populated areas. A single
operator in an emergency situation cannot properly assess the
situation, secure the train, and notify police, fire and other
necessary officials in a timely manner. Finally, supporters
state that the federal government and other states are grappling
with how to increase railroad safety and 14 states have
introduced minimum crew legislation this year.
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Additionally, supports note that the CPUC has voted unanimously
to support this bill, stating that requiring two-person crews is
a straightforward way of ensuring two qualified crew members
continue to operate freight trains in California until such time
as the rules and practices of safe operation may be updated for
safer operation with smaller crews. According to the CPUC, of
all the industries subject to CPUC oversight (energy, water,
telecommunications, and transportation) rail accidents result in
the greatest number of fatalities each year.
ARGUMENTS IN OPPOSITION
The California Railroad Industry opposes this bill because it
will unnecessarily and unreasonably interfere with the ability
of railroad management and union leaders to fully bargain over
the best and safest crew size for each assignment in California.
They argue that state legislation that attempts to alter terms
of collective bargaining agreements would harm the process and
would permanently undermine the principle of labor and
management cooperation that underpins the Railway Labor Act.
Opponents argue that, historically, safety and technology
improvements have been a primary catalyst for negotiations
related to crew size. As a result of these improvements, rail
labor and rail management have agreed to reductions in crew size
from as many as five persons in the 1980s to two persons on most
territories operating today. They argue that these reductions
in crew size were achieved without compromise to safety as
witnessed by a decline in rail employee injuries, train accident
and grade crossing collision rates by 79 percent or more.
Hazardous material accidents rates are down 91 percent.
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Additionally, opponents argue that the collectively bargained
crew size also provides the parties with flexibility to address
needs that arise from advancements in technology, design, and
planning. The railroads are not asking for one-person crews at
this time; however, they are opposing this legislation so that
if safe operating practices and technology make single person
crews viable in the future, then that option is not foreclosed
in California. Opponents point to Positive Train Control, which
is designed to automatically stop a train before certain
accidents caused by human error can occur, as a contemporary
example of pursuing such technological advancements.
REGISTERED SUPPORT / OPPOSITION:
Support
Brotherhood of Locomotive Engineers & Trainmen, International
Brotherhood of Teamsters
California Labor Federation, AFL-CIO
California Public Utilities Commission
California Teamsters Public Affairs Council
United Transportation Union
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Opposition
BNSF Railway Company
California Railroad Industry
California Short Line Railroad Association
Union Pacific Railroad Company
Analysis Prepared by:Ben Ebbink / L. & E. / (916)
319-2091