Ninth Circuit Ruling Favors Two-person Train Crews

Three states and two railroad unions achieved a favorable decision in the U.S. Court of Appeals for the Ninth Circuit regarding an attempt by the Trump-era Federal Railroad Administration (FRA) to do away with two-person operating crews on freight trains operating in the U.S.

The case, brought by the states of California, Washington and Nevada and by the International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division and the Brotherhood of Locomotive Engineers and Trainmen, challenged former FRA Administrator Ronald Batory’s order to roll back the Obama administration two-person crew rule for the purpose of adopting a nationwide maximum one-person crew rule and to preempt any state laws concerning that subject matter. The unions and states argued that Batory’s May 2019 order violated the comment-and-notice procedures of Administrative Procedures Act (APA) and that his agency could not implicitly preempt the state safety rules.

The court agreed with both arguments set forth by the states and unions. First, the court ruled that the order was “arbitrary and capricious,” thus violating the APA. In support of its ruling, the court specifically pointed out that the assertions made by FRA and the rail carriers that reducing the number of crew members in the cab to one-person could improve safety “did not withstand scrutiny” and “was lacking.” Indeed, the court chided the FRA for basing its decision on “an economic rationale” instead of its main obligation — safety. Likewise, the court eviscerated the lack of a sound factual basis in the order, which merely cited a single study funded by the Association of American Railroads. On this note, the court held that “a single study suggesting that one-person crew operations ‘appear as safe’ as two-person crews seems a thin reed on which to base a national rule.”

Second, the court also agreed that the order’s “real and intended effect [was] to authorize nationwide one-person train crews and to bar any contrary state regulations,” just as the states and unions maintained. Here, the court additionally criticized the order as not being a “logical outgrowth” of the two-person crew proposal, because “[t]here was nothing in the [order] to put a person on notice that the FRA might adopt a national one-person crew limit.”

In vacating and remanding the order, rail labor can now look ahead to working with FRA again when crew size is next considered on a national level by the agency. It also means that two-person crew legislation in the states that had been targeted by the order remain in effect.

“This is a big win for all of rail labor,” says Brotherhood Railway Carmen General President Richard A. Johnson. “Having two people working together, with any improvements in technology, is the best way to ensure the safety of both the general public and railroad workers while similarly allowing for the effective and efficient movement of our nation’s railroads.”

A copy of the Ninth Circuit Court of Appeals ruling is available here.

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Updated: March 1, 2021 — 11:51 am