REPORT 

 

to 

THE PRESIDENT 

by 

EMERGENCY BOARD 

NO. 242 

SUBMITTED PURSUANT TO EXECUTIVE ORDER DATED DECEMBER 1, 2007 

ESTABLISHING AN EMERGENCY BOARD TO INVESTIGATE A DISPUTE 

BETWEEN NATIONAL RAILROAD PASSENGER CORPORATION (AMTRAK) 

AND BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES; 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; 

INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS; 

BROTHERHOOD OF RAILROAD SIGNALMEN; JOINT COUNCIL OF CARMEN, 

COMPRISED OF THE TRANSPORTATION COMMUNICATIONS 

INTERNATIONAL UNION/BROTHERHOOD RAILWAY CARMEN DIVISION 

AND THE TRANSPORT WORKERS UNION OF AMERICA; AMERICAN TRAIN 

DISPATCHERS ASSOCIATION; NATIONAL CONFERENCE OF FIREMEN & 

OILERS/SERVICE EMPLOYEES INTERNATIONAL UNION; AND 

TRANSPORTATION COMMUNICATIONS INTERNATIONAL UNION – 

AMERICAN RAILWAY & AIRWAY SUPERVISORS ASSOCIATION 

AND SECTION 10 OF 

THE RAILWAY LABOR ACT, AS AMENDED 

_____ 

 (National Mediation Board Case Nos. A-13080, A-13098, A-13125, A-13185, A-13330, A-13340, 

A-13370, A-13395, A-13435) 

_____ 

WASHINGTON, D.C. 

December 30, 2007

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TABLE OF CONTENTS 

I. CREATION OF THE EMERGENCY BOARD.............................................5 

II. PARTIES TO THE DISPUTE ........................................................................5 

A. Amtrak ................................................................................................5 

 

B. The Labor Organizations ....................................................................6 

III. HISTORY OF THE DISPUTE .......................................................................7 

IV. ACTIVITIES OF THE EMERGENCY BOARD ...........................................9 

V. OVERVIEW ..................................................................................................9 

VI. DISCUSSION AND RECOMMENDATIONS ............................................12 

A. Summary of the Parties’ Proposals ......................................................12 

B. Pattern Considerations .........................................................................14 

 1. The Historical Pattern – The Class I Freights ........................14 

 2. The Claim of Internal Pattern ................................................16 

 3. Transportation Communications Union .................................16 

 4. Amtrak Service Workers Council ..........................................18 

 5. ARASA (On Board Services) ................................................19 

 6. American Train Dispatchers Association ..............................19 

 7. Fraternal Order of Police .......................................................20 

 8. Brotherhood of Locomotive Engineers and Trainmen ..........20 

 9. Other Possible Patterns ..........................................................22 

 10. Amtrak’s Internal Pattern Claim 

 is Not Persuasive in this Case ..............................................24 
4

C. Wages ...................................................................................................26 

 1. General Wage Increases .........................................................26 

2. Findings and Recommendations – General 

 Wage Increases .....................................................................29 

D. Retroactive Pay ....................................................................................31 

 1. Findings and Recommendations ............................................35 

E. Moratorium ..........................................................................................41 

F. Meal Allowance ...................................................................................41 

G. Health and Welfare ..............................................................................41 

H. Work Rules ..........................................................................................48 

 1. Amtrak’s Proposed Changes to Work Rules .........................48 

 2. Contracting Out ......................................................................49 

 3. Assignment of Work Out of Craft or Class ...........................52 

 4. Work Schedules/Overtime .....................................................53 

 5. Findings and Recommendations ............................................55 

 6.. ARASA (MofW and MofE Supervisors) ..............................60 

 7. All Remaining Work Rule Changes ......................................61 

VII. CONCLUSION .............................................................................................62 

APPENDIX A – EXECUTIVE ORDER ...............................................................63 
5

I. CREATION OF THE EMERGENCY BOARD 

 Presidential Emergency Board No. 242 (“PEB” or “Board”) was established by 

the President pursuant to Section 10 of the Railway Labor Act (“RLA”), as amended, 45 

U.S.C. § 151 et seq. including § 160, and by Executive Order dated November 28, 2007, 

effective December 1, 2007. The Board was created to investigate and report its findings 

and recommendations regarding a dispute between the National Railroad Passenger 

Service (“Amtrak” or “Carrier”) and certain of its employees represented by certain labor 

organizations. A copy of the Executive Order is attached as Appendix A. 

 The President appointed Peter W. Tredick, of Santa Barbara, California, as 

Chairman of the Board, and Ira F. Jaffe, of Potomac, Maryland, Joshua M. Javits, of 

Washington, District of Columbia, Annette M. Sandberg, of Alexandria, Virginia, and, 

Helen M. Witt, of Pittsburgh, Pennsylvania, as Members. The National Mediation Board 

(“NMB”) appointed Norman L. Graber, Esq. and Eileen M. Hennessey, Esq., as Special 

Counsel to the Board. 

II. PARTIES TO THE DISPUTE 

A. Amtrak

Amtrak provides passenger service to approximately 67,000 daily intercity 

passengers, in over 500 communities in 46 states on 21,000 miles of routes. Commuter 

services in the Northeast also operate on Amtrak facilities and in some cases Amtrak 

provides crew, dispatching, and/or maintenance of way and equipment to commuter 

operations. In addition, Amtrak provides commuter services outside of the Northeast 

Corridor. Overall, up to 600,000 intercity and commuter rail passengers utilize Amtrak 

services, and/or facilities on a daily basis. 
6

Amtrak’s Northeast Corridor, which runs between Washington, District of 

Columbia and Boston, Massachusetts, is the busiest railroad in North America, with more 

than 1,700 trains operating over some portion of the Washington-Boston route each day. 

The Washington-New York-Boston portion of the Northeast Corridor carried 9,431,279 

passengers in FY 2006. The San Diego-Los Angeles-San Luis Obispo corridor carried 

2,657,773 passengers during that time frame; and the San Jose-Oakland-SacramentoAuburn corridor carried 1,263,504 passengers during that time. Additionally, the 

following corridors carried between 500,000 and 1,000,000 passengers in FY 2006: 

Manhattan-Albany-Buffalo; Philadelphia-Harrisburg; Oakland-Fresno-Bakersfield; 

Eugene-Portland-Seattle-Vancouver, BC; and Chicago-Milwaukee. 

Amtrak provides contract commuter services/facilities to commuter agencies 

throughout the country. These include: Long Island Railroad (LIRR); New Jersey Transit 

(NJT); Metra (Chicago); Massachusetts Bay Transportation Authority (MBTA); 

Southeastern Pennsylvania Transit Authority (SEPTA); MARC (Maryland Area Regional 

Commuter); Peninsula Corridor Joint Powers Board (Caltrain); VRE (Virginia Railway 

Express); and Sound Transit (ST). 

In FY 2006, Amtrak’s earnings covered approximately 67 percent of its operating 

costs. The remainder is made up by Federal subsidies and State contributions. 

B. The Labor Organizations

The Brotherhood of Maintenance of Way Employes (“BMWE”) represents 

approximately 2,500 maintenance of way employees employed by Amtrak; the 

International Brotherhood of Electrical Workers (“IBEW”) represents approximately 

1,461 electrical workers employed by Amtrak; the International Association of 
7

Machinists and Aerospace Workers (“IAM”) represents approximately 750 machinists 

employed by Amtrak; the Brotherhood of Railroad Signalmen (“BRS”) represents 

approximately 858 signalmen employed by Amtrak; the Joint Council of Carmen 

(“JCC”), comprised of the Transportation Communications International 

Union/Brotherhood Railway Carmen Division and the Transport Workers Union of 

America (“TWU”), represents approximately 2,000 carmen employed by Amtrak; the 

American Train Dispatchers Association (“ATDA”) represents approximately 2,100 train 

dispatchers employed by Amtrak; the National Conference of Firemen & Oilers/Service 

Employees International Union (“NCFO”) represents approximately 450 firemen and 

oilers employed by Amtrak; the Transportation Communications International Union – 

American Railway and Airway Supervisors Association (“ARASA”) represents 

approximately 490 maintenance of equipment supervisors employed by Amtrak; and 

ARASA represents approximately 210 maintenance of way supervisors employed by 

Amtrak. 

The Passenger Rail Labor Bargaining Coalition (“PRLBC”) represents the 

following labor organizations in these proceedings: BMWE, BRS, ATDA, and NCFO. 

These Organizations formed the PRLBC on August 23, 2007. Similarly, on May 22, 

2006, the IAM, IBEW, and JCC advised the NMB that they had formed a coalition for 

the purpose of bargaining with Amtrak and were jointly represented before this 

Emergency Board. 

III. HISTORY OF THE DISPUTE 

In late 1999, pursuant to Section 6 of the RLA, eight of the crafts or classes 

involved in this PEB served on Amtrak formal notices for changes in current rates of pay, 
8

rules, and working conditions. ATDA served its Section 6 notice on Amtrak in 

December 2000. 

The parties were unable to resolve the issues in dispute in direct negotiations, and 

applications were filed with the NMB by the separate crafts or classes between April 

2000 and December 2006. 

Following the applications for mediation, representatives of all parties worked 

with NMB mediators and with Board Members of the NMB in an effort to reach 

agreements. Various proposals for settlement were discussed, considered, and rejected. 

On October 18, 2007, after mediation sessions in the various cases ranging from 

approximately one year to seven years, the NMB, in accordance with Section 5, First, of 

the RLA, urged Amtrak and the Organizations to enter into agreements to submit their 

collective bargaining disputes to arbitration as provided in Section 8 of the RLA (“proffer 

of arbitration”). Between October 18 and 25, 2007, all of the Organizations declined the 

NMB proffer of arbitration. Amtrak also declined the NMB proffer of arbitration in five 

of the cases, and requested an extension of time in which to respond in the other four 

cases. As the RLA provides that both parties must agree to a proffer of arbitration to 

establish an arbitration board, no board was established. 

On October 31, 2007, the NMB served notice that its services were terminated 

under the provisions of Section 5, First, of the RLA. Accordingly, “self-help” became 

available to both parties as of 12:01 a.m., EST, on Saturday, December 1, 2007. 

Following the termination of mediation services, the NMB notified the President, 

in accordance with Section 10 of the RLA, that in its judgment the disputes threaten 

substantially to interrupt interstate commerce to a degree that would deprive sections of 
9

the country of essential transportation service. The President, in his discretion, issued an 

Executive Order on November 28, 2007. Effective 12:01 EST on December 1, 2007, the 

Executive Order created this Board to investigate and report concerning the disputes. 

IV. ACTIVITIES OF THE EMERGENCY BOARD 

 

The Board held an organizational meeting by conference call on December 1, 

2007. Following consultation with the parties, the Board issued an organizational letter 

on December 3, 2007, in which the ground rules for the Board’s procedures were set 

forth. All parties were requested to provide the Board with pre-hearing submissions. 

Following the Board’s approval of a joint request for a one-day filing extension, all of the 

parties submitted briefs to the Board on December 7, 2007. A hearing on the issues in 

dispute was held December 11, 12, and 13, 2007, in Washington, District of Columbia. 

All parties were represented by counsel, and had a full and fair opportunity to present oral 

and documentary evidence and argument. 

On December 14, 2007, the Board met informally with the parties, in Washington, 

District of Columbia in an attempt to facilitate a settlement of the dispute. On December 

20, 2007, the parties submitted post-hearing briefs to the Board. The Board thereafter 

met by conference call in a number of executive sessions to finalize this Report. 

V. OVERVIEW 

At the hearing and in their papers the Parties devoted substantial argument 

regarding the role of this PEB. Amtrak asserts that the Board should not recommend 

retroactive pay because it does not have the money for full retroactive payments and the 

Congress will not appropriate it. According to Amtrak’s testimony and exhibits, the 

Carrier is neither profitable nor self-sufficient. The evidence showed that 2000-2007 
10

were particularly challenging financial times for Amtrak. In fact, during 2000 and 2001, 

Congress zeroed out the operating subsidies for Amtrak and created self-sufficiency 

standards, which Amtrak still fails to meet. Additionally, because Amtrak is dependent 

upon the Congressional budgeting process for annual operating subsidies it has not been 

able to budget and save for the wage adjustments necessary to resolve these outstanding 

labor disputes. In fact, the Board acknowledges that, given the timing of this dispute, it is 

highly unlikely Amtrak will be able to modify its current 2008 budget pending before 

Congress to fund the wage adjustments necessary to fully settle this dispute. 

The Organizations counter that retroactive payment is fair and equitable, and that 

predicting future Congressional action is beyond the scope of the Board’s authority. 

PEB 234 addressed this issue in a similar context in great detail. In that case the 

PEB analyzed a request by the Brotherhood of Maintenance of Way Employes for 

retroactive pay in light of Amtrak’s position that Congress would not appropriate the 

necessary funds. The Board in that dispute concluded as follows: 

Our obligation is to recommend a fair and equitable package of 

compensation for maintenance of way employees, and then leave to the funding 

authorities the issue of whether or not they wish to fund that package. We 

cannot, in good conscience, shirk that responsibility to the parties and to the 

collective bargaining process by surrendering to what might be characterized as 

political expediency. 

Report to the President by Emergency Board 234, at 6 (1997). 

Just as PEB 234 concluded, this Board cannot shrink from its responsibility to 

make recommendations based on the record in this case. Its role is to find a fair and 

reasonable basis for agreement. We must consider traditional factors relevant in the 

collective bargaining process but cannot tailor those recommendations to a prediction of 

Congressional action. We are cognizant of the political and financial constraints facing 

Amtrak, and have recommended adoption of contractual terms that are reflective, in part, 
11

of those realities. But we agree with PEB 234 that Congress should be informed of the 

“true cost” of Amtrak’s service. It is then for Congress to determine whether to provide 

the funding necessary for passenger train service. 

In this connection, the Senate Committee on Appropriations recently noted that 

“most of” Amtrak’s employees have gone more than seven (now eight) years without a 

general wage increase, and that consequently many craftsmen have fallen “further and 

further” behind craftsmen “conducting identical work for freight and commuter 

railroads.” S. Rep. No. 110-131, at 92-93 (2007). This Report went on to state that 

“Amtrak’s failure to reach a labor settlement is not a result of inadequate Federal 

funding.” 

The House Committee on Appropriations also noted that “. . . Amtrak’s wages, in 

many cases, are well below market and many of Amtrak’s skilled workforce are 

compensated as much as 29 percent below the levels paid for comparable jobs on the 

freight railroads.” H. R. Rep. No. 110-238, at 86-87 (2007). 

 “Ability to pay” is one criterion traditionally considered in collective bargaining 

and interest arbitrations when attempting to determine appropriate compensation and 

working conditions; we have given that criterion its appropriate weight. We can neither 

assume that Congress will decline to appropriate the funds needed to adequately fund a 

settlement that may result based upon the recommendations set forth in this Report, nor 

may we ignore Amtrak’s present economic situation based upon a contrary assumption 

that whatever is recommended or may be agreed to will be fully funded. Our task, as 

noted in prior PEB Reports, must be to recommend an appropriate solution to the issues 

in dispute, based upon the record developed in this matter, and in light of all of the 
12

relevant factors. Appropriate consideration must be given to historical patterns and 

relationships, both within the Carrier and within the industry, to the fiscal realities facing 

Amtrak, to Amtrak’s dependence upon Congressional operating and capital subsidies, to 

the labor market generally and competitive pressures on Amtrak, to the increases in 

productivity by the employees in this proceeding, and to the equities surrounding the 

lengthy period of time that has elapsed since the last Agreements and last general wage 

increases (during which time real wages have fallen for the employees in this case, both 

compared to traditional comparator groups and in inflation-adjusted dollars). 

VI. DISCUSSION AND RECOMMENDATIONS 

A. Summary of the Parties’ Proposals

 The Organizations urge that the new Agreement begin, effective January 1, 2000 

– the day after the moratorium date of the prior Agreement – and remain in effect through 

December 31, 2009. The Organizations’ wage proposals track – both in nominal 

percentage amounts and dates – the wage adjustments negotiated in the 2000-04 and the 

current (2005-09) Agreements between the organizations and the Class I Freight 

Carriers.1

 Amtrak agrees that the new Agreement should begin, effective January 1, 

2000, but proposes that it remain in effect through September 30, 2010. 

 The Organizations and Amtrak each propose significant wage increases, reflective 

of the fact that there have been no general wage increases since 1999. The proposals of 

both the Organizations and Amtrak would end the “Harris” COLA once a new 

 

1

 The Class I Freight Carriers consist at the present time of the Burlington Northern and Santa Fe, CSX, 

Kansas City Southern, Norfolk Southern, and Union Pacific Railroads. Together, they employ 

approximately 155,000 employees, own more than 75,000 miles of road, have annual operating revenues 

in excess of $43.4 billion, and net annual railway operating income in excess of $5.5 billion. For ease of 

reference, hereinafter they will be collectively referred to simply as the “Freights” and the Agreements 

between the Organizations and the Freights will be referred to simply as the “Freight Agreements.” There 

are also over a hundred Class II and Class III (much smaller) railroads which sign on to the Freight 

Agreement. 
13

Agreement is ratified. The Organizations, however, would have the Harris COLA pop up 

after the amendable date. Amtrak urges that the Harris COLA be eliminated permanently 

without pop up. 

 The single most significant area of dispute between the Parties relates to 

retroactivity. The Organizations seek retroactivity in an amount equal to the full 

difference in pay between what employees actually received and what their rates of pay 

would have been under a successor Agreement, with adjustment for the cost-sharing 

contributions that would also have been paid if the employee contributions towards health 

insurance required by the 2000-04 and 2005-09 Freight Agreements had been in effect. 

No claim is raised herein for any interest or similar adjustments. Full nominal back pay 

is claimed, however, a claim estimated to be equivalent, on a composite basis and “net” 

of the retroactive cost-sharing contributions, to a payment as of January 1, 2008, of 

$12,848 per employee. Amtrak, by contrast, has offered no retroactivity. It proposes a 

lump sum bonus of $4,500 to each employee represented by the Organizations, regardless 

of craft or class or job title, who has 2000 or more straight time hours paid for time 

worked, holidays, personal leave, compensatory/bank time, and/or vacation, during 

FY 2007. 

 Both Parties seek to apply employee contributions towards health insurance in the 

amount (15%) negotiated as part of the Freight Agreements, although they calculate the 

15% employee contribution towards premiums going forward differently. The Parties 

also differ concerning whether all, or only some, of the changes in health and welfare 

benefits under the Freight Agreements should be imposed on AmPlan (the health 

insurance plan that provides benefits to Amtrak employees). 
14

The major area of dispute between the Parties after retroactivity relates to 

proposed work rules changes. The Carrier proposed a number of potentially sweeping 

work rules changes in a number of significant areas, including contracting out, 

assignment of work out of class or craft, and work scheduling. Several of the 

Organizations also have made work rules proposals specific to the crafts or classes that 

they represent. 

B. Pattern Considerations

1. The Historical Pattern – The Class I Freights

Amtrak was chartered in May 1971 as a result of the Rail Passenger Service Act. 

The Carrier was created after the Freights left the unprofitable passenger rail business. 

The initial complement of employees came from Conrail. Amtrak has been unprofitable 

for its entire existence, relying upon a federal operating subsidy to continue operations. It 

is the only federally owned or controlled entity subject to the Railway Labor Act. 

There is no dispute that, despite the differences between Amtrak’s unprofitable 

passenger rail operations and the Freights, the Freight Agreements have served over the 

years as the historical pattern referenced for establishment of wages, benefits, and 

working conditions, at Amtrak. For over 30 years, the Parties have used the Freight 

Agreements as the pattern for purposes of negotiating new Amtrak Agreements with the 

Organizations. Presidential Emergency Boards which have issued reports in connection 

with Amtrak and one or more organizations have treated the Freight Agreements as the 

pattern against which fair and reasonable agreements may be measured. 

The importance of pattern bargaining in the railroad industry has been the subject 

of commentary by a number of PEBs over the years. In each of these reports, the PEB 
15

has noted that pattern bargaining principles serve a number of functions. First, absent 

changed circumstances sufficient to break the pattern, they provide an objective indicator 

of the terms that should result from arms length, good faith bargaining between parties in 

the same industry, attempting to set wages and working conditions in similar jobs, at the 

same points in time. Second, pattern bargaining promotes stability, both internally within 

a carrier and externally in the industry, by utilizing referents that the Parties themselves 

used in prior rounds of bargaining and, depending upon the proposals, perhaps even in 

the current round of bargaining. Third, these principles provide benchmarks in 

bargaining, enhancing the likelihood of voluntary agreements. Fourth, the absence of a 

pattern would be much more uncertain and chaotic, encouraging groups at one carrier to 

attempt to outdo others, creating an undesirable and disruptive cycle. Given the critical 

nature of the services provided and the economic repercussions of labor disruptions, 

stability as a goal is even more important than in other industries. Avoiding strife and 

work stoppages, while ensuring that wages, benefits, and working conditions are fairly 

and appropriately determined, are among the principal goals underlying the RLA 

generally and the PEB process in particular. Fifth, patterns assist in the maintenance of 

well recognized parity relationships among the wages paid to employees in different 

classes or crafts or working at different carriers. 

The Carrier and the Organizations embrace these general concepts. It is in their 

application where their positions diverge. The Organizations seek an Agreement that 

mirrors closely the Freight Agreements and seeks retroactivity for the entire period since 

December 31, 1999. The Carrier points, instead, to certain differences in its operations 

from the Freights – differences that have existed for virtually the entire life of the Carrier 
16

– and asks, instead, that the Organizations and the Board focus principally upon a 

claimed “internal pattern,” consisting of several Agreements reached in 2003 and 2004 

and extend that “internal pattern” forward based upon a variation of the Freight pattern 

after 2004, and that retroactivity not be applied, except for the offered lump sum. 

2. The Claim of Internal Pattern

 Amtrak maintained in bargaining with the Organizations represented before this 

Board and in its presentation to the PEB that the most appropriate pattern for an 

agreement is the “internal pattern” already established by the Carrier and several of its 

Organizations in agreements or tentative agreements. 

 The claim of “internal pattern” is based upon Agreements that Amtrak reached 

in 2003 and 2004 with three organizations for agreements that were amendable 

December 31, 2004 – the TCU, the Amtrak Service Workers Council (“ASWC”), 

ARASA (On Board Services) (“OBS”). Amtrak also relied upon two Tentative 

Agreements (“TAs”) that were overwhelmingly rejected by the membership and never 

took effect – one for the ATDA in 2004 and one for the Brotherhood of Locomotive 

Engineers and Trainmen (“BLET”) in 2007. A summary of the TCU, ASWC, and 

ARASA (OBS) Agreements, as well as briefer descriptions of the rejected 2004 ATDA 

and 2007 BLET TAs follow. 

3. Transportation Communications Union 

The TCU represents clerical employees including ticket clerks, reservation sales 

agents, crew dispatchers, baggagemen, Red Caps and service workers.2

 Their Agreement 

with Amtrak covers 3,577 employees, the largest single segment in Amtrak’s organized 

workforce. Amtrak and the TCU reached agreement in 2004, effective October 1, 2003. 

 

2

 The Carmen Division of the JCC and ARASA are also affiliated with the TCU. 
17

The amendable date of that Agreement was December 31, 2004. A Harris COLA benefit 

of $.75 from an earlier agreement was rolled into the base wage rate before any 

percentage increases were applied. Additional wage increases were: 3.5% on October 1, 

2003; 3% increase on July 1, 2004; 3% increase on October 1, 2004. These increases 

were different in timing and amount from those provided under the Freight Agreement. 

(The 2000-04 Freight Agreements provided for General Wage Increases of 3.5%, 

effective January 1, 2001, and periodic cost of living adjustments during the remainder of 

the Agreement.) 

The most notable feature of the agreement in the health care insurance area was 

its provision for pre-tax cost-sharing. Borrowing from the innovation contained in the 

recently negotiated Freight Agreement, the TCU Agreement required employees to 

contribute $50 per month on and after October 1, 2003 and $75 per month on and after 

October 1, 2004. (This compared with the rates in effect for July 1, 2003-June 30, 2004 

of $79.74 and for July 1, 2004-June 30, 2005 of $91.32 for the Freights.) 

 The Parties also agreed to opt-out provisions for employees otherwise covered by 

health care insurance – another innovation of the Freight Agreement. As in the case of 

the Freights, employees who opted out because they were covered by other insurance 

were not required to make the cost-sharing contribution; unlike the Freights, however, the 

TCU represented employees of Amtrak did not receive additional monies over and above 

the waiver of employee contributions. 

The 2003 TCU-Amtrak Agreement also contained a number of changes to prior 

work rules, including changed rules with respect to an extra board, bidding procedures, 

overtime rules, work scheduling and modifications to the grievance procedure. The 
18

complex, carefully crafted rules, far too numerous and detailed to recount here, appear to 

have been the product of detailed discussion and negotiations. 

4. Amtrak Service Workers Council

 ASWC employees perform service on board the trains in the galley and dining 

cars. Some of the work is relatively unskilled such as stocking supplies, cleaning, 

dishwashing and garbage disposal. Following ratification of the TCU Agreement, on 

March 5, 2004, Amtrak and the ASWC adopted an Agreement with an effective date of 

January 1, 2000, to become amendable on December 31, 2004. It provided a signing 

bonus of $400 to each employee who had an employment relationship on the date of 

ratification and had rendered compensated service within six months prior to the date of 

ratification. The Agreement covered 1,639 on-board employees. 

The wage and benefits package (including the introduction of employee costsharing for health insurance) mirrored that of the 2003 TCU-Amtrak Agreement. The 

Agreement also established a new utility worker position to be paid 75% of the full rate 

already scheduled for several positions. Existing jobs were protected by contract 

language that limited assignment of the utility worker to occasions where “the addition of 

the position will result in an increase in the total number of crew positions and without 

reduction in the number of positions. . . .” Amtrak’s Vice President of Labor Relations 

testified that an important change in work rules was a reduced layover payment that 

meant the first 90 minutes of a six-hour layover would be unpaid. 

The Agreement contained some other work rule changes peculiar to the craft or 

class that need not be detailed here. 
19

5. American Railway and Airway Supervisors Association (On Board Services)

 As first line supervisors (“subordinate officials”) are eligible for union 

representation under the Railway Labor Act, the 150 On-Board Supervisors of Service 

Worker employees adopted an agreement with Amtrak in 2004. Represented are 

employees in positions such as the On-Board Service Inspector, On-Board Operations 

Supervisor and Supervisors of the Crew Base, Planning and Scheduling. Details of 

changes to the prior agreement that resulted from those negotiations are not available in 

this record, but it is generally agreed by the Parties that the agreement followed the TCU 

pattern for wage increases and health care contributions. 

 It should be noted that the 1999 Agreement that appears in the record before the 

PEB includes long-standing language in its Scope Clause that refers to sub-contracting. 

It reads as follows: 

Amtrak may not contract out work normally performed by an employee in a 

bargaining unit covered by a contract between a labor organization and Amtrak or a rail 

carrier that provided intercity rail passenger transportation on October 30, 1970, if 

contracting out results in the layoffs of an employee in the bargaining unit. 

 6. American Train Dispatchers Association

 Dispatchers are responsible for directing and monitoring the movement of trains 

over the carrier’s system. The ATDA agreement with Amtrak became amendable in 

January 2000. A tentative agreement was reached on September 1, 2004. That 

agreement increased wages by 3.5% upon ratification. A second increase in the amount 

of 3% was to be granted immediately after the initial increase was calculated. Finally, a 

third wage increase of 3% was scheduled to become effective on October 1, 2004. In 

addition, and like the previously described agreements, a $.75 COLA would be rolled 

into the base wage before the specified percentage increases were implemented. 
20

 The TA included a difference in the employee contributions to AmPlan. The 

monthly employee contribution, effective September 1, 2004, was to be $75 per month 

and was scheduled under the TA to increase on October 1, 2004 to $100 per month. 

 Like the other agreements, the ATDA TA included work rule changes. Some 

examples of the changes are an increase in the length of the probationary period from 60 

days to 120 days; elimination of the $19 training allowance; and clarification of the 

definitions of work day and work week which would redefine overtime as only time 

worked over 40 hours in a given work week. The record does not show how those 

changes contributed, if at all, to the failure of ratification. The ATDA TA failed 

ratification by a vote of 84 to 38. 

7. Fraternal Order of Police (“FOP”)

 Amtrak and the FOP reached agreement during the time that the Carrier and its 

operating, supervisory and craft unions were pursuing negotiations. The Board is not 

convinced that there is a sufficient parallel between traditional railroad craft unions and a 

police union to make their agreement relevant or instructive. Therefore, other than to 

find that an agreement was reached, no additional detail will be provided. 

 8. Brotherhood of Locomotive Engineers and Trainmen

 Amtrak and the BLET reached a TA covering 1,216 employees in July 2007. The 

agreement followed the wage pattern established in the 2003 TCU Agreement, the 2004 

ASWC Agreement, the 2004 ARASA-OBS Agreement and the 2004 ATDA TA through 

the end of 2004. Seven additional General Wage Increases would have been effective 

after 2004 that mirror Amtrak’s wage proposal in this proceeding, including the lack of 

retroactivity and a signing bonus of $4,500 per employee who had worked 2000 hours in 
21

the year beginning July 1, 2006. Employees who worked less than 2000 hours were to be 

paid a pro rata share based on their hours worked. 

 This TA, like other agreements on the property and like the freight agreement of 

2007, included changes to the health care plan and provided for an employee cost-sharing 

contribution. But the amount required to be contributed was greater than the amounts in 

the earlier agreements, starting at $166.25 per month, the same amount as was payable 

under the Freight Agreements. The TA would have increased the employee contribution 

effective July 1, 2008, to the same formula contained in Amtrak’s proposal in this 

proceeding – which is a close variant of the Freight Agreement provisions for employee 

cost-sharing, and would have made the other changes to health care contained in 

Amtrak’s proposal in this proceeding. 

 The TA was rejected by approximately 70% of the membership who voted and, 

therefore, failed ratification. Amtrak asserts that, in spite of the failed ratification, the 

BLET TA should serve as the pattern for the Organizations before this PEB because it 

evidences the upper boundary of the Carrier’s ability to address the outstanding demand 

for back pay and provides an example of the kind of settlement Amtrak needs in order to 

access new skill sets and work efficiencies. Amtrak acknowledges that the post-2004 

wage proposal herein and in the rejected BLET TA were based on the freight rates and 

closely approach the wage proposals made herein by the Organizations. Amtrak does not 

contend that its proposal on wages, other than retroactivity, has its genesis solely in 

internal patterns. But it argues that the recent BLET TA is the best evidence of “an 

arm’s length negotiated set of conditions.” 
22

The Organizations strenuously object to the concept of using a failed TA as a 

“pattern” for negotiations and note that its overwhelming rejection highlights the fact that 

Amtrak’s proposals in the areas of work rules and pay, particularly retroactive pay, do not 

represent a package that is likely to be acceptable if put to a vote by their memberships. 

9. Other Possible Patterns

 Neither the Organizations nor the Carrier urged adoption of another pattern. In 

the course of arguments about the propriety of the Freight pattern, however, reference 

was made to the wages and benefits and work rules of the Commuter Rail and Urban 

Transit carriers and some limited reference to the wages paid to employees in similar 

titled classifications in the airline industry. Some reference was also made to wage trends 

in the economy as a whole (both governmental and private) and to Bureau of Labor 

Statistics data regarding job titles that are similar to a number of the crafts and classes in 

this proceeding. 

 While all of that evidence has been considered, the Board is unpersuaded that they 

provide compelling evidence of patterns upon which to ground a recommendation in this 

case. Several factors support this conclusion. 

First, the evidence is strong that the Parties historically have patterned their 

bargains on the Freight Agreements, not any of these alternatives. While there has been 

some limited variation from the Freight pattern for a number of years, the linkage 

between the wage and benefits of the Freights and Amtrak is unmistakable. Not only 

have the Parties’ agreements in the past mirrored the Freight pattern, but their proposals 

in this dispute borrow heavily from the Freight pattern. The Organizations’ proposals 

track the Freight pattern fairly closely. The Carrier’s proposals on pay (other than 
23

retroactivity) and on benefits, including health contributions, also track the Freight 

pattern, albeit to a lesser degree. The industry is the same. The job classes and crafts 

perform very similar duties under similar, albeit not identical, operating conditions. The 

training, skills, and necessary certifications are parallel. When the present linkage is 

combined with the strong historical linkage and these similarities, it is difficult to argue 

with the finding that the most appropriate pattern for the Amtrak employees involved in 

this proceeding are the Freight Agreements. 

Amtrak’s observations that the Freights are very profitable enterprises not 

dependent upon governmental subsidies and not involved in the transport of passengers 

provide no basis for rejection of the Freight Agreements as the appropriate pattern. 

Those differences have been true since virtually the inception of Amtrak and, despite 

those differences, the Carrier and the Organizations and prior PEBs have relied upon the 

Freight pattern. Moreover, if one were persuaded that those differences rendered the 

Freight patterns inapplicable, the result would not necessarily be one in which there 

would be no pattern, beyond what Amtrak itself negotiated with earlier settling 

organizations. One would then be compelled to more closely examine similarities 

between Amtrak’s operations and those of Commuter Rail and Urban Transit in which 

wages and benefits are significantly higher. 

Reference to general economic wage trends are of little value in the Board’s task 

of making appropriate wage and benefits recommendations. Those wage trends were not 

shown to involve jobs or operations that are truly comparable, notwithstanding some 

similarity of job titles. The training, job duties, and experience of seasoned rail 

employees are unique. If considered as evidence of wage movement generally or as 
24

changes in the cost of living generally, they support use of the Freight pattern herein. 

There was no showing that Amtrak employees are overpaid when compared to truly 

comparable counterparts in other rail and non-rail organizations, particularly after taking 

into account the geographic location in which most of the employees in this proceeding 

live and work. 

10. Amtrak’s Internal Pattern Claim is Not Persuasive in this Case

 The settlements reached by Amtrak with the TCU, the AWSC, and ARASA 

(OBS) in 2003 and 2004 are clearly relevant to consider in this matter. Avoidance of 

internal wage or benefit inequity is a legitimate consideration. There are a number of 

reasons why this Board cannot accept Amtrak’s argument that the claimed internal 

pattern trumps or modifies the Freight Agreements as the appropriate relevant pattern in 

this case. 

 First, the record contains no evidence that the TCU, AWSC, or ARASA (OBS) 

agreements have historically been used as patterns for the settlements of the Agreements 

for the Organizations involved in this dispute, particularly given the fact that the cited 

settlements from 2003 and 2004 involved operating crafts. Nor was there evidence that, 

even if not used as a pattern, the wages and benefits provided to these operating crafts 

bore some lock-step relationship with the wages and benefits provided to the employees 

of the Organizations in this dispute. 

 Second, the settlements cover a minority of Amtrak’s unionized working forces 

and did not prove acceptable as a basis for reaching agreement with the Organizations in 

this dispute or other organizations at Amtrak. In fact, several Tentative Agreements 
25

based upon that claimed “pattern” failed ratification by significant margins, both in 2004 

(ATDA) and in 2007 when circumstances had changed (BLET). 

 Third, there is no real “pattern” at all regarding the period after December 31, 

2004. No Agreement that passed ratification and became effective for Amtrak employees 

was introduced. 

 Fourth, even if there is some limited linkage between the wages and benefits 

generally of the operating crafts who did settle for the pre-2005 period, there was no 

showing that their work rules and other working conditions have been used by Amtrak 

and the Organizations in this proceeding as pattern indicators of any type. 

 This stands in stark contrast to the very strong evidence of linkage relative to pay, 

benefits, work rules, and other working conditions that has existed for over 30 years 

between Amtrak and the Freights for the classes and crafts represented by the 

Organizations.3

 The finding of pattern does not mean that deviations may not be recommended or 

bargained when appropriate. That brings the Board to the central issues in this dispute – 

whether the particular deviations sought by Amtrak (and in a very few respects by the 

Organizations) relative to wage rates, retroactive pay, health and other welfare benefits, 

and work rules should be recommended notwithstanding their deviation from the Freight 

pattern. It is well established that the burden rests upon the Party seeking a variance from 

 

3

 The Board appreciates that the general wage increases provided under the TCU, ASWC, and ARASA 

(OBS) Agreements of 2003 and 2004 mirror to a significant degree the Freight Agreement of 2000-04 and 

that general wage increase provisions of the rejected BLET TA of 2007 mirrors to a significant degree the 

2003-04 internal pattern of ratified agreements and the Freight Agreement of 2005-09. The finding in this 

case that the Freight Agreements provide the most fair and appropriate pattern for the Organizations in this 

dispute is grounded squarely upon historical considerations and also record facts and should not be 

construed as opining on whether in the future some pattern other than the Freight Agreement might be fair 

and appropriate. 
26

the pattern and from the existing provisions of the applicable Agreements to justify the 

particular variance or change. This is particularly true if the proposed variance is 

significant. 

 We now discuss application of these traditional collective bargaining principles to 

the facts of this case. 

C. Wages

 1. General Wage Increases

As a result of the fact that there has been no new Agreement since the 1997 

Agreement became amendable on December 31, 1999, wages for the employees 

represented by the Organizations have been maintained at 1999 levels during the 

subsequent eight years, with the exception of Harris COLA adjustments.4 

 The Organizations seek the following General Wage Increases: 

 July 1, 2002 6.087% 

 July 1, 2003 3.00% 

 July 1, 2004 3.25% 

 July 1, 2005 2.50% 

 July 1, 2006 3.00% 

 July 1, 2007 3.00%5

 July 1, 2008 4.00% 

 July 1, 2009 4.50% 

 

4

 “Harris COLA” payments are cost of living adjustments that are paid during the period after the 

amendable date of agreements and during the often lengthy periods of bargaining that occur under the 

Railway Labor Act. The term is derived from PEB 219 (Robert O. Harris, Chair) that recommended a 

modified, post-moratorium COLA for a particular situation. Its use has become customary in the industry 

to mitigate the effects of extended post-moratorium periods without negotiated increases and, following 

agreement on terms of a successor agreement, offsets are typically provided for Harris COLA payments 

made during the post-moratorium period. Despite recognition of the fact that negotiations under the RLA 

often take years, the Board is unaware of any dispute that has spanned an eight year period as in the instant 

case. 

5

 The cumulative effect of the pre-July 1, 2007 increases is 22.68%. Thus, if an Agreement is reached prior 

to July 1, 2008, the net effect on wages, after taking into consideration the loss of the $1.44 in Harris 

COLA and the effect of the health insurance contributions of $166.25 per month, will be equivalent (on a 

consolidated basis) to a wage increase (ignoring the tax effects of the health insurance contributions being 

pre-tax monies) of 9.34%. 
27

The Organizations also propose that the $0.27 Harris COLA paid as of January 1, 

2001, be incorporated into basic rates of pay, effective June 30, 2002, and that the Harris 

COLA paid between July 1, 2001 and October 1, 2007 (a total of $1.44 per hour) be 

eliminated as of that date, but be reinstituted after December 31, 2009. With the 

exception of the “pop up” of the Harris COLA after December 31, 2009, this is patterned 

after the Freight Agreements. 

 The Carrier proposes the following General Wage Increases: 

 1) payment of a $4,500 lump sum signing bonus to employees on payroll as of the 

date of ratification in lieu of retroactivity; 

 2) subtraction of the accumulated Harris COLA from the wage rates as of the date 

of ratification; and 

3) increase to the resulting wages by the following percentage adjustments on the 

following dates: 

 30 days after written notice of 

ratification 18.8516% 6

 April 1, 2008 1.5% 

 October 1, 2008 3.5% 

 October 1, 2009 3.5% 

 The Carrier’s proposal appears to match the wage provisions of the 2003 TCU 

Agreement for the period 2000-04, but makes no adjustment for the retroactive pay 

provided to the TCU. The increases provided thereafter do not match either the Freight 

Agreements or wages reflected in any comparator agreement (there is no TCU 

Agreement extending beyond December 31, 2004) or wages actually paid to any other 

 

6

 This is the result of compound increases immediately imposed 30 days after receipt of written notice of 

ratification of 3.5%, 3.0%, 3.0%, 2.5%, 2.0%, 1.5%, and 2.0%. 
28

employee group. The Carrier’s wage proposal does match exactly, however, the wage 

provisions of the rejected 2007 BLET TA.7

The Carrier proposes that the term of the Agreement end on September 30, 2010. 

The Organizations propose that the term of the Agreement end on December 31, 2009, 

the same ending date contained in the 2005-09 Freight Agreement. 

 The difference in wage rates between the two proposals is relatively modest over 

the respective terms of the Agreement. The difference in dollar cost is significant, largely 

due to the Parties’ contrasting positions on retroactivity. 

 The Organizations cost out their proposal as providing for nominal wage 

increases of 35.2% (3.1% per year) over term, with the increase net of the health 

insurance contributions of 29.2% (2.6% per year) over term. By contrast, the 

Organizations cost out the Carrier’s wage proposal as providing for nominal wage 

increases of 34.5% (2.8% per year) over that same term, with the increase net of the 

health insurance contributions of 28.3% (2.3% per year) over that term. 

The total incremental dollar cost of the two proposals through December 31, 

2009, however, as projected by the Organizations, including retroactivity, is $198.3 

million for the Organizations’ wage proposal and $109.3 million for the Carrier’s wage 

proposal. This differential assumes that, as requested by the Organizations, full 

retroactivity is provided for all affected employees who worked during the period after 

December 31, 1999. 

The Organizations propose to suspend Harris COLA payments after the 

Agreement takes effect through December 31, 2009, but to resume those payments 

 

7

 Inasmuch as the BLET Tentative Agreement was rejected, it was never implemented and no BLET 

employees were actually compensated in accord with the terms contained therein. 
29

thereafter. They point to the inordinate length of time that the instant dispute has taken 

and urge that Harris COLAs thereafter be reinstituted to mitigate the continuing harm to 

employees of working under frozen wage rates. The Carrier proposes to eliminate Harris 

COLA after the Agreement is ratified and opposes reinstitution of the Harris COLA in 

the post-moratorium period. In that regard, the Carrier relies upon the fact that the 

Freight Agreements provided for elimination of the Harris COLA, but not for 

reinstitution of the Harris COLA in the period after contract expiration. 

2. Findings and Recommendations – General Wage Increases

 The Board is persuaded that the Organizations’ Wage Proposals are the most 

reasonable, fair and equitable package of compensation after consideration of the relevant 

factors which, in this case, include consideration of the Freight pattern, consideration of 

the maintenance of internal equity among different groups of Amtrak employees, 

consideration of changes in the cost of living and wage movements in the period of other 

comparable employee groups, both inside and outside the railroad industry, and 

consideration of Amtrak’s financial situation. 

 As discussed in the prior section of this Report, there is strong evidence of the 

Parties’ historical use of the Freight Agreements as a pattern for wages and benefits for 

the Amtrak employees represented by these Organizations. In the past, the Parties have 

looked principally to the Freight Agreements as the basis of their wage and fringe benefit 

bargain. When they have proceeded to impasse, the only two Presidential Emergency 

Boards to address the matter – PEB 222 and PEB 234 – both found the Freight 

Agreements to be appropriate pattern comparators for Amtrak employees. No persuasive 

basis has been shown on this record that some better pattern or referent is currently 
30

available for determining the wages, benefits, or other working conditions of the Amtrak 

employees represented by the Organizations in this proceeding. 

The Organizations’ proposal on wages (excluding retroactivity which will be 

discussed later) has as its principal advantage that it retains the historical linkage between 

wages at Amtrak and wages for comparable jobs at the Freights. The Carrier’s proposal 

on wages and those of the Organizations are relatively close. The available evidence 

regarding Amtrak’s financial situation failed to show that the Freight pattern was not 

affordable. As it relates to “ability to pay,” there was no showing that the General Wage 

Increase proposals of the Organizations are so much more costly than the General Wage 

Increase proposal of the Carrier that they are beyond the ability of Amtrak to provide 

them, under its present funding, even ignoring the trend of increasing ridership and 

passenger revenues. The present financial situation of Amtrak, including its need to 

maintain a state of good repair, simply was not shown to preclude the General Wage 

Increases sought by the Organizations – which are consistent with traditional pattern 

principles and are consistent with maintenance of real wage levels. Nor was any other 

basis shown that would support a finding by this Board that those Freight wages would 

be unfair or inequitable, particularly in light of the tremendous gains in productivity in 

recent years by the employees represented by the Organizations. 

 For reasons previously noted, the claim of an “internal pattern” that would trump 

the Freight pattern relative to wages is unpersuasive in this case and cannot provide a 

basis for a recommendation that the Parties depart from the Freight pattern on the issue of 

general wages. 
31

 The Board declines to recommend the Organizations’ position relative to Harris 

COLA and, instead, recommends adoption of the Carrier’s position concerning the 

elimination of the Harris COLA without “pop up.” This will mirror the terms of the 

Freight Agreements. Despite concerns based upon the record evidence of the behavior of 

the Carrier and the Organizations regarding the lengthy period of negotiations in this 

case, we are unpersuaded that these concerns merit a departure from the Freight pattern 

relative to the elimination of Harris COLAs. 

Finally, the Board would be remiss if it did not observe the significant increases 

in employee productivity, as measured by seat miles per total hours paid for that further 

support the Organizations’ wage requests. The record data showed increases in that 

indicator of approximately 50% between 2000 and the present, largely as a function of 

significant reductions in employee headcount.8

 While not relied upon affirmatively by 

the Organizations to support a request for greater than pattern increases in compensation, 

we note that the significant increases in productivity provide further support for a full 

Freight pattern package of wage increases in this case. 

D. Retroactive Pay

 The primary issue separating the Parties in this dispute relates to the 

Organizations’ claim for retroactive pay. Although, as noted above, the proposed 

percentage adjustments to pay are uniform across the various Organizations, the hourly 

rates of pay and paid work hours vary between and within crafts and classes. 

 

8

 The composite employment for the Organizations in this dispute declined from 10537 in January 2000 to 

6729 as of September 2007 – a reduction of over 36% - despite a much smaller reduction in seat miles 

(0.5%) in that same period. Some of this reduction was the result of Amtrak contracts in Boston and San 

Diego being assumed by other contractors. 
32

The Organizations’ expert, Thomas R. Roth, President, Labor Bureau, Inc., 

testified that, on a consolidated basis, the retroactive pay claim was follows: 

 Wage Retroactivity as of January 1, 2008 

(after subtracting Harris COLA) $20,335 

Employee Health Insurance Contributions 

as of January 1, 2008 $ 7,487 

Net Retroactive Pay $12,848 

The average net retroactive pay varies from the Coach Cleaners, the lowest paid 

employee group (based upon hourly rates of pay), of $5,139 to $34,433 for the 

Supervisor C&S group. Individual employees’ retroactive pay will, of course, be more or 

less than these averages, based upon the hours worked by those employees in any given 

time period and their individual rates of pay. 

 The Carrier urges that no retroactive pay be provided, but proposes a $4,500 

signing bonus, which is equivalent in cost, on a consolidated basis, to 35.0% of the 

retroactive pay claims.9

 Its impact would be uneven, however, providing 87.6% of 

retroactive pay, on average, for the Coach Cleaners, but only 13.1% of retroactive pay, on 

average, for the Supervisor C&S group. In closing, the Carrier noted that it would not 

object to a retroactive pay approach that took the $4,500 amount and allocated it to the 

totality of retroactive pay claims ratably. The amount of money devoted to retroactive 

pay, rather than its allocation, was central to the Carrier’s position in this matter. 

 

9

 During the hearings in this matter, Amtrak estimated its proposal as equivalent to 30% to 32% of the 

Organizations’ request for retroactive pay. The $4,500 bonus is equivalent to one-third of the $13,500 

figure that was cited prior to the start of these hearings as the composite average retroactivity amount. 

Beyond the question of who is eligible to receive retroactive pay, there is no significance to labeling the 

retroactivity a signing bonus since the Organizations’ claim for retroactivity is also in the form of a cash 

payment; the wage proposals of Amtrak and the Organizations attempt to provide employees with roughly 

the same wages prospectively for the remainder of the Agreement that would have been payable if the 

earlier pattern wage increases had been made over the prior eight year period. 
33

 The Carrier relied upon its fiscal situation, asserting that anything more than 

$4,500 was simply not possible from a budgetary perspective in FY 2008. It also relied 

upon the “internal pattern” based upon the rejected BLET TA to support the $4,500 

bonus amount. The Carrier also stressed that it had informed the Organizations as early 

as 2002 of its opposition “as a matter of principle” to any retroactive pay and further 

claimed that the Organizations bore significant responsibility for the duration of the 

dispute. The Carrier speculated that the Organizations waited until the present time in the 

hopes that the political climate would change and a more favorably inclined Congress 

would fund the claim for retroactivity. The Carrier also cited to the 2003 TCU Clerks 

Agreement which it asserted did not provide for full retroactive pay. 

 The Organizations asserted that the Carrier’s retroactivity proposal was not 

equivalent to the TCU Agreement, even if one treated the TCU Agreement as an 

appropriate pattern (which they maintained it was not). They project that the wages 

employees would have received had the TCU Agreement’s wage and benefit terms been 

applied to them would have generated a pay differential that was, measured on a nominal 

and composite basis, $7,072 higher than that received by the Organizations’ members – 

an amount equivalent to slightly more than 55% of full retroactivity (before application 

of the health insurance contributions). If one then adjusts for the health insurance 

contributions due under the formula contained in the TCU Agreement (which is lower 

than the formula under the Freight pattern), the equivalent retroactivity number becomes 

$6,397, or approximately 50% of full retroactivity sought herein. 

 The Organizations urged that full retroactivity should be granted as a matter of 

basic equity. They maintained that, having gone eight years without an amended 
34

Agreement through no fault of their own, it would be inequitable to allow Amtrak to 

benefit from its behavior at the bargaining table. According to the Organizations, the 

timing of wage increases is an integral part of the “pattern” and if the value of the wage 

package is to mirror the Freights pattern settlements, then full retroactive pay is 

warranted to compensate for the difference between the amount that employees would 

have received if the pattern settlement had been timely agreed to and the amount that 

employees actually received in wages. They stress that, even under their proposal – 

which does not include any interest atop the dollar value of the “lost” wages – Amtrak 

will have received an eight year, interest free “loan” equal to the value represented by the 

retroactive pay. The Organizations argue further that if the claim for retroactive pay is 

rejected, in whole or in substantial part, it will place a premium upon not reaching 

agreement and allow the Carrier to effectively force upon the remaining employee groups 

whatever agreement may be reached with the first organizations to settle. 

 The Carrier limited its proposal for the $4,500 bonus to “each employee with 

2,000 or more straight time hours paid for time worked, holidays, personal leave, 

compensatory/bank time and/or vacation during the period October 1, 2006 through 

September 30, 2007.” The Carrier’s proposal further proposes that: 1) pro-ration of the 

bonus amount be paid to employees who have fewer straight time hours (as defined) 

during the period October 1, 2006 through September 30, 2007; and 2) payment of the 

bonus to “each employee subject to this Agreement who has an employment relationship 

subject to this Agreement as of the date of this Agreement, or has retired or died 
35

subsequent to the beginning of the applicable calendar year used to determine the amount 

of such payment.”10 

 The Organizations urged that retroactive pay be granted to all individuals, 

including employees who retired, died, quit, or were terminated since December 31, 

1999, and noted that the lump sum bonus proposal would give an employee hired in 2006 

the same retroactive pay as employees who worked for the entire eight year period 

without the benefit of the retroactive wage increases. 

1. Findings and Recommendations

 The principal issues with respect to retroactivity were the following: 

 1) the amount of the retroactive pay/signing bonus; 

 2) eligibility to receive the retroactive pay/signing bonus; and 

 3) the timing of the payment(s). 

 In making recommendations as to the disposition of these items, considerations of 

pattern, impact upon the duty to bargain in good faith, equity, and ability to pay, are all 

implicated. 

 A number of factors persuade the Board that the most appropriate 

recommendation in this case is one that would provide “full” retroactive pay, calculated 

as if the 2000-09 Agreement (both the retroactive wage increases and the retroactive 

employee contributions to health insurance) were in effect, but that the timing of the 

retroactive payments should be spread out to reflect the “ability to pay” issues raised by 

Amtrak. 

 

10 No explanation was provided regarding that eligibility language and particularly the questions of: 

a) whether the date of this Agreement for this provision would be the date of ratification; and b) the 

reference to “applicable calendar year” when the bonus eligibility is based upon earnings in FY 2007. 
36

 The claim of the Organizations for full retroactivity is, in this case, a strong one. 

The period between the end of the last prior Agreement and the new Agreement is 

inordinately long – over eight years. While employees have received Harris COLA 

payments and did not have to begin making employee contributions towards health 

insurance, those facts do not make up for the loss of any pay increase during the eight 

year period in question. Employees at the Freights, employees at the Commuter carriers, 

and employees for the federal government and most private employers received 

substantial wage increases over this period. Even the TCU and ASWC and ARASA 

(OBS) represented employees at Amtrak received pay increases and some retroactivity. 

The cost of living continued to increase and the necessary living expenses of the 

employees in this dispute continued to increase over this period. In short, absent 

retroactivity, employees will have been paid much lower real wages throughout this eight 

year period than under the immediately preceding Agreement and the Agreement will 

depart significantly from the wages and benefits due under the Freight pattern. 

 Additionally, there was no credible evidence that the Organizations were 

principally responsible for the inordinately prolonged nature of these negotiations. The 

Board recognizes that, as early as 2002, Amtrak announced as one of its “principles” that 

it would not agree to retroactive pay as part of any agreement. That unilateral statement, 

however, does not mean that a recommendation that rewards the Carrier and punishes 

employees for the failure to have earlier reached a settlement is fair or equitable or 

appropriate in this case. While this is not a “refusal to bargain” proceeding, and the 

procedures applicable to presentation of evidence to PEBs are not fully analogous to 

adversarial proceedings attempting to gauge whether a particular pattern of behavior 
37

constituted good faith bargaining, the evidence paints a fairly clear picture that places 

much greater responsibility on Amtrak for the failure to ink a deal over the prolonged 

period since December 31, 1999, than on the Organizations. 

The evidence indicates that: 1) Amtrak resisted application of the obvious pay 

pattern without reasons given for that position; 2) Amtrak insisted throughout the limited 

negotiations that the Organizations agree to far-reaching Work Rules changes that are 

unprecedented in the industry and would seriously undermine their standing and the 

security of their members in continued employment; as will be discussed in the next 

section in greater detail, Amtrak never proceeded past general proposals to allow 

virtually unlimited contracting out, obliteration of craft or class lines, changes in work 

schedule, and the like, and when asked for justification for these positions and/or cost 

analysis, declined to provide that information; 3) the pattern over the years in the 

industry, including those Agreements that Amtrak did reach with the TCU, AWSC, and 

ARASA (OBS) in 2003 and 2004, has been to approach Work Rules changes in a 

measured, incremental fashion, based upon particular specific problems caused by the 

application of historical Work Rules, and to engage in appropriate discussions (including 

quid pro quo bargaining) for reaching agreements in these areas; it was inconceivable that 

the Organizations to this dispute could ever agree to the revisions of Work Rules 

demanded by Amtrak which Amtrak declined to discuss in detail in bargaining11; and 

 

11 Amtrak apparently engaged in these focused, specific negotiations with the Organizations, as appropriate, 

and as needed, with respect to numerous projects. Differing positions were also taken regarding scope and 

contracting out in various arbitration proceedings. There was no evidence, however, that even a single 

detailed proposal in term bargaining was provided by Amtrak to the Organizations prior to the eve of the 

hearings in this matter and even those proposals were sweeping generalized attempts to eliminate all 

restrictions, rather than to focus upon particular proven problem areas. Further, as discussed below, the 

evidence introduced by Amtrak in support of its claimed need for these sweeping reforms was weak, at 

best, and with respect to many of the proposals bordered on non-existent. 
38

4) the record revealed that the Organizations attempted on numerous occasions over the 

years to be released from mediation, despite the failure of the Parties to have narrowed 

the areas of their differences and, in each of those instances, Amtrak opposed release and 

opposed offers to arbitrate the matters in dispute.12 When these and other facts are 

viewed together, there is a serious question as to whether Amtrak desired to obtain 

agreements from the Organizations in this proceeding other than under terms evidencing 

complete capitulation in several areas in which such capitulation could not reasonably be 

expected. Instead, it appeared content to continue to work its employees at 1999 wage 

levels (adjusted only by the Harris COLAs) and to reserve its arguments, after an 

agreement was ultimately reached, that: 1) retroactivity was inappropriate; and 2) even if 

appropriate, should not be awarded due to a lack of funding for that purpose. 

 Full retroactivity is not inconsistent with industry patterns over the years. It 

appears that full retroactivity has been granted in some cases and compromised in other 

cases by payment instead of signing bonuses. We are persuaded that, in this case, 

nothing short of full retroactivity is fair and equitable and appropriate to begin to restore 

to employees the lost wages that resulted from their inability to obtain a successor 

Agreement over the unprecedented eight year period that these employees have continued 

to work without a new Agreement. Even an award of full retroactivity will result in 

Amtrak having had the benefit of an interest-free “loan” of the pay that would have been 

granted on an ongoing basis if the Freight or other applicable pattern had been timely 

incorporated as part of an Agreement. 

 

12 Amtrak’s implausible assertion that the Organizations deliberately avoided reaching agreement in the 

hopes of obtaining a more favorable political climate in which to obtain gains in Congress is inconsistent 

with the record evidence and is rejected. 
39

 Despite these conclusions, we do not wish to recommend terms that constitute an 

unreasonable risk of forcing Amtrak out of business or adversely affecting operations so 

significantly that safety will be imperiled or dependability affected. 

Accordingly, some discussion of the financial ability of Amtrak to provide the 

retroactive pay recommended herein is appropriate. 

 The Organizations, in their post-hearing brief, while challenging Amtrak’s 

“ability to pay” defense, note that “In the interest of settlement, the Organizations are 

amenable to negotiations on the timing of retroactive payments due.” 

 The Board is persuaded that, in light of the failure of Amtrak to have sought 

funding from Congress, and the resulting failure of Congress to specifically fund 

retroactive pay (or approve the creation of a special reserve for that purpose), it would be 

irresponsible to provide for payment of the entire retroactivity amount in FY 2008. The 

question is thus presented as to how much may prudently be paid in FY 2008 and how 

much should be recommended for payment on a deferred basis in FY 2009. 

 William H. Campbell, Amtrak’s Chief Financial Officer, testified that: 

1) monies appropriated and monies retained from other revenues cannot be 

“reserved” from year to year; thus, outside of the current year’s funding and revenues, no 

monies are available for retroactive pay; 

2) monies were available in the FY 2008 operating budget to fund the $4,500 

lump sum signing payment (which Mr. Campbell estimated had a cost, that includes the 

cost of Amtrak extending similar retroactive pay to other employee groups beyond the 

Organizations in this proceeding) of approximately $83.2 million (including RRTA roll-
40

up); exclusive of those other employee groups, the projected cost (including RRTA rollup) for the Organizations only was $34.35 million; and 

3) the $4,500 bonus payment was “within the capability” of Amtrak to provide if 

necessary to obtain an agreement with the Organizations; and 

4) the estimate of the full cost of retroactivity was approximately $150 million 

(including RRTA roll-up and including extension of the full retroactivity to other 

employee groups, after discounting for employee groups who had agreed to Agreements 

that did not provide for retroactivity); while he did not testify to the number it would 

appear that the full retroactivity number solely for the Organizations in this dispute would 

thus be slightly less than $62 million. 

While the Board recommends that full retroactivity be awarded, albeit paid out in 

two components, one in FY 2008 and the remainder in FY 2009, the Board recommends 

that the pool of eligible employees who will receive retroactivity be limited to those 

individuals who were on the payroll as of December 1, 2007, the date on which the Board 

was created. This should reduce somewhat the cost of the retroactivity pay from the 

estimates provided by Mr. Campbell. 

After consideration of all of the above, the Board recommends that, for eligible 

employees, 40% of the retroactivity be paid 60 days after the date of ratification and the 

remaining 60% of the retroactivity be paid on or before the one year anniversary date of 

the first 40% payment. This should result in payment of retroactivity that should be 

within Amtrak’s ability to pay and leave appropriate time for the remainder of the 

retroactivity pay to be adequately funded (from Congress and/or the fare box and/or other 

sources). The Board does not recommend any interest be added to these payments, 
41

despite the recognition that the spacing will continue for modest additional periods of 

time the existing inequities. 

E. Moratorium

Consistent with the Freight pattern and consistent with the remainder of the 

Board’s recommendations, we recommend a moratorium date of December 31, 2009. 

F. Meal Allowance

 The Organizations have proposed a 20% increase in the daily meal allowance 

provided for work away from home from the present level of $29.50 per day to $35.40 

per day. Adjustments to this allowance have historically been done on an ad hoc basis, 

both at the Freights and at Amtrak. 

Based upon the length of time since the last adjustment (which took place in 

December 1997), increases in the cost of food and meals in the intervening period (which 

were greater than 20%), and the increases in the meal allowance negotiated as part of the 

2000-05 Freight Agreement, we recommend adoption of the requested increase in daily 

meal allowance. 

G. Health and Welfare

 Until 1997, Amtrak participated in the Railroad Employees National Health and 

Welfare Plan (“National Plan”), the same health plan as the Freights. 

In or about 1990, Amtrak and the Railway Labor Executives Association 

arbitrated the issue of the Amtrak’s right to withdraw, mid-term, from the National Plan 

and to instead provide benefits through a plan administered by the Carrier. In Special 

Board of Adjustment Case No. 1029, issued on November 15, 1990, Arbitrator Nicholas 

H. Zumas, ruled that Amtrak could unilaterally change to a self-funded program, 
42

provided that the level of benefits remained the same as those offered by the National 

Plan. 

 The principal reason for Amtrak’s desire to split off from the National Plan was 

its belief that it could provide comparable benefits to its employees for significantly less 

money due to the lower average age of its employees compared with the Freights. 

Militating in favor of remaining in the National Plan after 1990 was the fact that 

substantial reserves had been accumulated in that Plan and those reserves were being 

used to subsidize what otherwise would have been larger current employer contributions 

necessary to provide the promised level of benefits. 

 In 1997, after those reserve levels were reduced somewhat as a consequence of 

being drawn down to pay out current benefits and as a result of some repayment to the 

participating carriers, Amtrak formed its own health plan – AmPlan. Like the National 

Plan as of the date of Amtrak’s withdrawal, those benefits were provided to employees 

without employee contributions. AmPlan included a Joint Medical Administration 

Committee (“JMAC”), patterned after the Joint Committee system in place with respect 

to the National Plan. With some relatively minor differences due largely to differences in 

administration, and with the exception of benefits changes made to the National Plan as a 

result of the 2000 and 2005 Freight Agreements, the terms of the National Plan and 

AmPlan have remained identical. The record indicated that, for a number of the years 

after Amtrak’s withdrawal from the National Plan, it provided the same package of 

benefits through AmPlan with significantly lower costs per employee. By 2007, 

however, the costs of the two plans were almost identical. 
43

In accord with the 2000 Freight Agreements, effective as of July 1, 2001, the 

employees began to contribute a share of the total premium cost of the coverage.13 The 

present rate of employee contribution under the Freight Agreements is $166.25 per 

month.14 Those Agreements further provide that the monthly employee contribution for 

2010 cannot exceed the higher of the 2009 contribution or $200.00. The 2000 and 2005 

Freight Agreements also made a number of changes to the plan of benefits of the 

National Plan. Some increased benefits slightly. Others, in the nature of cost 

containment features, reduced benefits and/or improved administration. 

 The 2003 TCU Agreement contained provisions that differed from the 2000 

Freight Agreement in the following respects: 1) the $100 additional opt-out payment for 

employees who can demonstrate other health coverage and opt out of the National Plan 

was not included; 2) the employee contributions of $50 per month beginning October 1, 

2003, $75 per month, beginning October 1, 2004 were significantly lower than under the 

Freight Agreement; and 3) the period in which medical benefits were provided following 

disability was changed from the two calendar year period following the year in which the 

disability took place, with vacation pay extension (the National Plan provision and which 

varied in individual cases from 24 months and one day to 35 months and 30 days) to a 

uniform 24 months following disability, with no extension for vacation pay. 

 The Organizations propose that the benefit changes negotiated with the Freights 

relative to the National Plan in the period between 2000 and the present be incorporated 

 

13 This was to be done via Section 125 Cafeteria Plans so as to permit those contributions to be made on a 

pre-tax basis. 

14 Employee monthly contributions towards health benefits under the Freight agreements were $33.39 

(July 1, 2001-June 30, 2002); $81.18 (July 1, 2002-June 30, 2003); $79.74 (July 1, 2003-June 30, 2004); 

$91.32 (July 1, 2004-June 30, 2005); $97.43 (July 1, 2005-December 31, 2005); $123.28 (January 1, 2006-

December 31, 2006); and $166.25 (January 1, 2007-December 31, 2007). It appears that the 2008 

employee contributions under the Freight Agreements will be close, if not identical, to the 2007 rates. 
44

into AmPlan in their totality and on an entire package basis. With one modest exception, 

the Board endorses that proposal as a fair and equitable basis for resolution in this case 

for several reasons. First, reasons of historical pattern bargaining support this proposal. 

Second, all Parties to this proceeding recognize the continued linkage between AmPlan 

and the National Plan. A central part of the proposed changes involves the introduction 

of employee cost-sharing in monthly contributions towards the provision of health 

insurance and a number of related welfare benefits. Amtrak recognized the linkage when 

it sought employee contributions from these Organizations and from other organizations 

in bargaining. The proposal that the employee contributions be a percentage of total 

annual costs and set at 15% - the same as is provided under the Freight Agreements – and 

that the 2010 contributions be further capped so as not to exceed the greater of the 2009 

employee contribution or $200.00, with the 2010 amounts to be continued thereafter 

without increase until varied by a successor Agreement, are elements of the Freight 

Agreements. It would be inappropriate to model the employee contribution change on 

the Freight Agreements, which is of enormous benefit to Amtrak at significant cost to 

employees, but then to divorce as irrelevant the other changes effected as part of the give 

and take of bargaining in the pattern Freight negotiations. 

For these and other reasons, we cannot support Amtrak’s request to institute a 

$50.00 monthly premium contribution requirement for retirees that is not part of the 

Freight pattern. We recognize that a pattern is not inviolate. Deviations are made by the 

bargaining parties themselves, and by interest arbitrators and PEBs, where shown to be 

warranted. No such showing was made in this case. The sole basis posited by Amtrak at 

the hearing for the request was to receive some modest additional income from the retiree 
45

participants, not to discourage them from participating in the plan. No cost data as to the 

amount of money involved, other than the estimate (as to which no calculational basis 

was provided) in the testimony of Thomas O.S. Rand, Kennedy & Rand Consulting, that 

this change was equivalent to $2.50 per month per employee. Nor, apart from a claim of 

comity with the 2003 TCU Agreement, has Amtrak advanced persuasive reasons for any 

of the other proposed variations from the National Plan save one – the introduction of an 

additional $100 per month payment to employees who opt out of the plan. The reason for 

recommending adoption of these additional payments is not obvious. Due to the delay in 

implementing the employee premium co-payments, the first required co-payments will be 

of sufficient size that it is unlikely any additional financial inducements are needed if an 

employee has qualifying other coverage and otherwise chooses to opt out. Since they are 

inapplicable to the vast majority of employees and would appear to reward individuals 

simply for giving up health coverage for which they would receive limited or no benefit, 

this limited variation would not seem to imperil principles of parity.15 Given the serious 

competing claims upon Amtrak’s limited revenue, the lack of any apparent benefit to 

these expenditures, and the changed circumstances existing now, as compared to the 

point in time when the Freight Agreements adopted that payment, we decline to 

recommend adoption as part of the packages a monetary item which has more than 

minimal cost and which has no apparent benefits. 

There also are two minor items that merit deviation from the National Plan 

provisions due to differences in the administration of AmPlan. First, the change in 

 

15 We limit the variation from the Freight pattern to the $100 payment and recommend that employees who 

opt-out of health coverage retain the same eligibility as Freight employees for other welfare coverages with 

the same terms applicable to retention of those coverages. 
46

benefits coverage appears appropriate due to differences in the AmPlan and National Plan 

networks. Second, the changes to the Emergency Room co-pays contained in Amtrak’s 

proposal appear warranted. That merely extends to the existing ER co-pay under AmPlan 

the change in ER co-pay amounts adopted by the National Plan as part of the Freight 

pattern. 

The final item relative to AmPlan about which the Parties’ proposals depart 

concerns the calculation of the amount of the employee contribution. All proposals 

support a formula based upon the National Plan formula – 15% of the employer’s cost, 

paid by means of a pre-tax mechanism. All proposals support a cap on the 15% 

employee contribution in 2010, with the contribution in 2010 equal to the lesser of: a) the 

15% of employer costs; or b) the greater of i) the 2009 employee contribution amount, or 

ii) $200.00, with the 2010 amount to be continued thereafter until a successor Agreement 

is adopted that changes that amount. The difference between the proposals is whether to 

adopt the Freight Agreement dollar employee contribution figures (either as the 

contribution figure or as a cap) or to apply the Freight Agreement formula to the costs of 

AmPlan. The Board urges adoption of Amtrak’s proposal in that regard. While AmPlan 

has a plan design that closely parallels that of the National Plan – a fact that will likely 

keep total costs per employee and employee contributions very close to one another – 

AmPlan is a separate plan. No reason was shown to have the share of cost-sharing for 

AmPlan employee participants differ from that of the National Plan by using National 

Plan dollar figures, an approach that could result in the cost sharing of the employee 

participants in AmPlan being slightly less or slightly more than 15%. Having 

transitioned to a separate parallel health plan, both Amtrak and the represented 
47

employees now have a common stake in efficient benefit administration and cost controls 

within the existing plan of benefits and in having cost-sharing proceed on the basis of 

Amtrak’s costs, rather than those of the National Plan participating employers (who 

presumably will determine contributions annually based not only on projected costs, but 

on the reserves contained in the National Plan). 

Other than these items, the Board proposes that the changes negotiated to the 

National Plan since January 1, 2000, be extended to and incorporated as part of AmPlan, 

effective January 1, 2008. Those changes will continue the parity between the two 

programs contemplated by the Parties and avoid doing violence to the pattern that the 

Freight Agreements continue to constitute. The changes to be incorporated relate to both 

those that improve benefits in certain areas and those that limit benefits in certain areas. 

The changes cannot be dismissed as minimal; however, in the context of the overall 

design and costs of the program, they represent modest modifications around the edges, 

rather than major changes in design or benefits. According to Amtrak’s expert in the 

PEB proceedings, the benefit reductions since January 1, 2000, that would be 

incorporated from the National Plan’s cost containment measures that would apply under 

the new Agreement, represent 4% of current costs, even after one takes into account the 

benefits improvements that are also part of that parity approach. Based upon Amtrak’s 

2007 costs, this is equivalent to an additional $48 per month per employee – a sum equal 

to almost 28% of the employee contribution amount, and brings the total savings to 

Amtrak in 2008 to $214.25 per month, or $2,571 per year.16 Thus adoption of the 

aggregate changes from the National Plan – the employee contribution requirement and 

 

16 If extended to all of Amtrak’s employees, this is equivalent to approximately $41.6 million in annual 

savings. 
48

the various benefit and administrative changes, will result in close to a 20% reduction in 

health care costs for Amtrak in 2008 over what Amtrak’s costs would have been under 

the 2007 plan provisions. Amtrak’s proposed “cherry picking” of the Freight package to 

take the parts that benefit it while rejecting the rest has no legitimate basis and cannot be 

recommended by this Board. 

H. Work Rules

1. Amtrak’s Proposed Changes to Work Rules

 Amtrak has proposed to the Organizations and to the Board a number of changes 

to Work Rules that have been in place for some years and which Amtrak states it seeks to 

improve the efficiency of the Carrier. Amtrak asserts that, in making these proposals, it 

is simply attempting to fulfill the desire of Congress to improve efficiency and to bring 

“19th century work rules” into the “21st century” so that it can efficiently operate a 

modern passenger railroad. In addition to proposed changes in Work Rules in other 

areas, Amtrak proposes an approach towards Work Rules that seeks to eliminate longstanding limitations on its ability to contract out work, seeks to eliminate restrictions on 

its ability to assign work out of craft or class, and seeks to eliminate restrictions on its 

ability to schedule work.17 

 Carriers have often sought changes to Work Rules in these areas, both in 

negotiations and before Presidential Emergency Boards. In negotiations in the industry, 

it is customary for agreements that amend or eliminate Work Rules to be fairly focused in 

 

17 These Work Rules proposals are the primary focus of the Board’s Report because the Parties indicated 

that they are the most significant of those proposed by Amtrak and because they were the subject of the 

most testimony and argument at the hearings. The Board has carefully reviewed and considered, however, 

all of the proposed Work Rules changes prior to making the recommendations in this matter. It should be 

noted that Amtrak has proposed major changes for scores of Work Rules. 
49

nature, to be incremental, and to be negotiated with quid pro quos to in exchange for the 

agreement of the Organization to relax or repeal the particular restrictive Work Rules. 

 2. Contracting Out

 On December 2, 1997, Congress passed the Amtrak Reform and Accountability 

Act of 1997, P.L. 105-134. Section 121 of that Act, Contracting Out, amended existing 

collective bargaining agreements between Amtrak and its organizations (including the 

Organizations parties to this dispute), to incorporate the pre-existing statutory language 

relative to contracting out. Those provisions, in essence, recognize Amtrak’s right to 

contract out work that does not cause the furlough of any employee. 

Amtrak’s Section 6 notices to the Organizations, in a section entitled “Rules to 

Support Amtrak Business Plan Objectives,” each contained the following identical 

language as its proposal relative to contracting out: “Permit greater flexibility in 

contracting out work, as needed.” No greater detail concerning Amtrak’s needs or 

desires was provided during the formal bargaining in this case. No additional written 

proposal regarding contracting out was provided by Amtrak prior to the cooling off 

period and the PEB proceeding in this case. Amtrak indicated that it did not tender 

specific written proposals for two reasons. First, it concluded that to do so when the 

Organizations had indicated their unwillingness to modify Work Rules to permit Amtrak 

greater contracting out would be “negotiating with itself.” Second, it argued that this 

objection by the Organizations was disingenuous since details concerning its contracting 

out desires were communicated in private “off the record” meetings. Further testimony, 

however, revealed that those discussions related to the handling of specific projects or 
50

situations where work was to be contracted out, rather than to general proposals for new 

contract language or reform of Work Rules. 

On November 20, 2007, Amtrak provided proposed Terms of Agreement to each 

of the Organizations. Those proposed Terms of Agreement included the following 

language relative to contracting out: 

Contracting Out – Eliminate any existing contracting out restrictions. Provide that 

employees furloughed as a result of contracting will have an option for up to and 

including 1 year severance pay, or transfer with relocation, or remaining on furlough. 

A labor protection event as set forth in the Mittenthal Award will supersede this 

provision. 

The Carrier’s December 6, 2007 proposal contained yet a different formulation of 

its contracting out request. It stated as follows: 

Replace the current provisions of Rule ... - Contracting Out, placed in the [organization] 

Agreement pursuant to Public Law No. 105-134, with the following: 

 In response to Public Law No. 105-134, in exercising its rights to contract out 

work, Amtrak will provide the following options for employees who may be furloughed 

as a result of such contracting: 

 1. Severance for up to twelve (12) months with each month of service counting 

as one (1) month of pay (21 eight hour days for each month), up to a maximum of twelve 

(12) months, or 

 2. transfer to another vacant position for which qualified, with relocation under 

the terms of Appendix C-2/Mittenthal (regardless of service), or 

 3. remain furloughed. 

A labor protection event as set forth in the Mittenthal Award will supersede this 

provision. 

In the case of the BMWE represented employees, the existing Scope Rule 

precludes contracting out of work to a greater degree than the Scope Rules and/or 

Agreements of the other Organizations. Amtrak proposed in its December 6, 2007 

Proposal to amend the BMWE Scope Rule so as to permit the contracting out of non-core 

functions (which Amtrak defined to include tree removal, brush and grass cutting, snow 

removal outside the right of way, clean up of non-railroad materials on the right of way, 
51

asphalt paving, bridge netting and fall protection, underwater inspections, demolition, 

fencing, large scale catenary pole foundations, large scale steel painting projects, and 

facility projects) and work for which special certification was needed (which Amtrak 

stated included lead abatement, asbestos removal, and building system maintenance, such 

as HVAC, cleaning, etc.). 

The BMWE did not agree that the listed duties were “non-core” in nature and 

asserted that they were substantial, regular duties of its members. Safety considerations 

related to clearing trees in the vicinity of high voltage power lines were also cited as a 

basis not to contract out those functions. No aggregate information was introduced as to 

how much work in these categories is presently being performed by BMWE employees, 

whether furloughs would result if Amtrak contracted out much or all of that work, 

whether there were any cost savings associated with any planned contracting out of that 

work and, if so, how much money would realistically be saved by such contracting out. 

While Amtrak asserted that it desired to reassign BMWE employees performing those 

enumerated duties to core work and that it did not expect furloughs to result, there was no 

evidence introduced as to the volume of that claimed core work backlog or its location. 

Nor was there proof that these claimed problems have increased in recent years. 

The Carrier confirmed in its economic presentation that, if these proposed Terms 

of Agreement are agreed to, then it intended to contract out the entire Car Cleaner 

function, resulting in the furlough of approximately 800 employees represented by the 

JCC. 
52

 3. Assignment of Work Out of Craft or Class

 Amtrak’s Section 6 notices to the Organizations, in a section entitled “Rules to 

Support Amtrak Business Plan Objectives,” each contained the following identical 

language as its proposal relative to out of craft or class work: “Provide that all employees 

work in a team environment, capable of performing all work for which capable, without 

claim or penalty, in the most efficient manner possible.” No greater detail concerning 

Amtrak’s needs or desires was provided during the formal bargaining in this case. No 

additional written proposal regarding assignment of work out of craft or class was 

provided by Amtrak prior to the cooling off period and the PEB proceeding in this case. 

 The Carrier included in its November 20, 2007 proposed Terms of Agreement 

identical language to each of the Organizations which provided in pertinent part as 

follows: 

Scope – Modify all work assignment and jurisdiction rules and agreements to provide: 

a. Employees can do any work in/out of craft they are capable of doing; other crafts can 

do any [organization] work they are capable of performing; training may be given as 

needed. 

b. A craft to craft ratio amongst shop craft unions will be established as of the date of the 

last signed shop craft settlement. Ratio will be reviewed around October 1 of each year 

or when a major event occurs. Amtrak will provide adjustments and [organization] may 

review the adjustment as it involves them. 

c. Any scope claims which may exist are considered withdrawn. No scope or 

jurisdiction claims may be submitted in the future. 

 Amtrak asserted that this proposal was necessary particularly in turnaround 

situations to eliminate delays in effecting repairs to trains which contribute to on-time 

performance problems. The areas cited specifically were repairs of toilets and heating, 

ventilation, and air conditioning (“HVAC”) systems. Depending upon the problem, a 

problem with the HVAC system or the toilets might be within the traditional work for an 
53

Electrician (IBEW), Plumber (Sheet Metal Workers), or Air System-Cleaner (JCC). In 

response to an inquiry as to why the matter would not be covered by existing Incidental 

or Simple Work Rules18, the Carrier replied that the major reason was that its foremen 

(who are also unionized) are reluctant to make out of craft or class assignments due to 

fear of being criticized if penalty pay is ultimately awarded. No specifics, however, were 

provided to establish either the frequency in which these situations were operational 

problems or the frequency of any operational delays due to the craft based system of 

work assignments. Nor was there any evidence suggesting that any problems which 

might exist have become more severe in recent years. 

 The Organizations maintained that this proposal was merely a renamed attempt to 

obtain a “composite mechanic,” a concept which had been rejected in prior negotiations 

and had been rejected by a number of prior Presidential Emergency Boards. 

 4. Work Schedules/Overtime

 Amtrak’s Section 6 notices to the Organizations, in a section entitled “Rules to 

Support Amtrak Business Plan Objectives,” each contained the following identical 

language as its proposal relative to scheduling of work and overtime: 

Provide that overtime will be payable after an employee has worked forty (40) 

hours during the workweek. 

 

18 The Incidental Work Rule in effect provides that “incidental work” covered by the classification of work 

or scope rules of another craft or crafts may be performed when completing a work assignment. Incidental 

work includes the removal or replacement or the connection or disconnection of parts and appliances, such 

as wires, piping, covers, shielding and other appurtenances from or near the main work assignment, and 

includes other simple tasks that require neither special training nor special tools. There are also time limits 

on the amount of incidental work that may be performed – it may not comprise a preponderant part of the 

assignment exceeding the main work assignment. Simple tasks can be performed up to two hours per shift 

and such hours are not considered when determining what constitutes a preponderant part of the 

assignment. Thus, if an assignment is expected to take a full eight hours to accomplish, including the 

incidental work and simple tasks, up to two hours may be spent performing simple tasks and an additional 

two hours and fifty-nine minutes (one-half of the remaining time less one minute) may be spent performing 

other incidental work duties. 
54

In order to enhance flexibility in meeting customer needs and service 

requirements, provide that work schedules, rest days, blanking and/or combining jobs, 

starting times, meal periods, hours of assignment, and any existing necessities for filling 

vacancies may be adjusted. This includes the setback of assignments at running repair 

locations on a day to day basis. 

No greater detail concerning Amtrak’s needs or desires was provided during the 

formal bargaining in this case. No additional written proposal regarding work scheduling 

or overtime was provided by Amtrak prior to the cooling off period and the PEB 

proceeding in this case. 

 The Carrier included in its November 20, 2007 proposed Terms of Agreement 

identical language to each of the Organizations which provided in pertinent part as 

follows: 

Eliminate Bank Time19. 

Amend existing rules to provide that overtime shall only be paid for hours worked in 

excess of 40 straight time hours in the work week, excluding where such work is 

performed by an employee due to moving from one assignment to another. Paid 

vacation, holidays, jury duty, bereavement, training, paid personal leave and paid military 

leave will be credited towards the 40 hours when substituted for regular work hours. 

Work week will not be reduced and the existing double time rule will remain. 

The December 6, 2007 Proposals provided by the Carrier mirror, in substance, the 

excerpts from the November 20, 2007 proposed Terms of Agreement noted above. 

Increased flexibility in work scheduling was addressed via different language in 

Amtrak’s proposals, depending upon the Organization. Illustrative is the Carrier’s 

Proposal to the BMWE, dated December 6, 2007, which provides in pertinent part that: 

VII. Starting Times 

Paragraphs a, b, c, d, f, and h of Rule 42 – Starting Times, of the BMWE 

Northeast Corridor Agreement and Rule 10 – Shifts, Starting Time and Meal Periods, of 

the BMWE Corporate Agreement are replaced with the following (meal period provision 

under the BMWE Corporate agreement shall remain): 

One two or three shifts may be established where necessary to meet service 

requirements. The starting time of any shift or position may be changed on thirty-six (36) 

hours notice to the employee affected. The starting time for employees assigned to one 

 

19 Bank time is compensatory time provided in lieu of payment of overtime. 
55

or two shift operations shall be scheduled according to service requirements and need not 

be consecutive. For three shift operations, starting times for second and third shift shall 

generally be immediately following the preceding shift, but shifts may overlap consistent 

with operating requirements. 

 Amtrak asserted that it needed greater flexibility in scheduling so as to take better 

advantage of periods of lessened track use to perform maintenance and upgrades of the 

right of way and to accomplish repairs and maintenance of coaches and locomotives 

during periods that will minimize the effect on on-time performance. At the hearings, 

a handful of examples were cited of particular work schedules that Amtrak desired to 

implement to achieve those goals. The Organizations responded that, contrary to 

Amtrak’s position, it could implement a number of those schedules under the existing 

Work Rules. The Organizations also noted that, in emergency situations, even greater 

scheduling flexibility exists. 

 Amtrak estimates that it will save over $10 million annually by being able to 

schedule weekend and evening and night work and adjust starting times without the need 

to pay overtime or penalty for such work. 

5. Findings and Recommendations

There are a variety of reasons why the Board cannot recommend adoption of any 

of Amtrak’s Work Rules proposals. 

Some of the reasons we cannot recommend adoption of these proposals are 

common to all of the requested Work Rules changes. In that regard, we note the 

following. 

First, none of the proposals were shown to be consistent with the Freight pattern. 

In fact, some of these Work Rules proposals were also made by the Freights and 

abandoned in bargaining. Amtrak’s reliance upon the provisions of the failed BLET TA 
56

is misplaced. For reasons discussed earlier in connection with the discussion of pattern 

considerations, the BLET TA, which was overwhelmingly rejected, cannot provide an 

appropriate pattern or basis for the contracting out language sought by the Carrier. 

Moreover, the jobs performed by the BLET represented employees are very difficult to 

contract out and its scope rules protect its work in any event. The change, even if agreed 

to, would thus have limited practical effect with respect to its members. No other rail 

agreement, including the 2003 TCU Agreement and the Freight Agreements or the 

agreements with the Commuter Railroads, contains language similar to that sought herein 

by Amtrak. 

Second, none of the proposals were shown to have been the subject of intensive 

bargaining with the affected Organizations and were not even the subject of specific, 

detailed proposals until the cooling off period – almost eight years after the expiration of 

the last Agreement and the provision of Section 6 notices. The subject matter of these 

Work Rules is far too complex for major changes to be implemented without first being 

subject to the crucible of good faith bargaining which often yields a workable, balanced 

framework for addressing proven problems in a proportionate, measured fashion, taking 

into account appropriate tradeoffs and quid pro quos that often times accompany 

agreements to modify work rules. 

Third, many of the work rules proposals go to core craft and class job security 

concerns. A significant showing of propriety and need would have to be made prior to 

our recommending that these longstanding principles be eliminated. Moreover, the result 

of any abrupt abandonment of these work assignment and job security principles would 
57

likely include significant instability and, at least in the short run, would create far more 

productivity problems than would be solved. 

Fourth, no proof of compelling operational need for any of these proposed work 

rules changes was demonstrated. There was no showing that any problems have changed 

in frequency or severity in recent years or that the proper use of the existing work rules 

cannot achieve most of the results that the Carrier claims to seek by the proposed work 

rules changes. The need to meet and discuss matters with the Organizations prior to 

contracting out their work is not an undue burden or grounds to eliminate the existing 

limitations on contracting out. Rather, that represents a process that seems to work 

reasonably well in balancing the legitimate and often complex interests of all parties in 

those decisions and their effects. 

Fifth, to the extent that any recommendation ought to reflect a mutually 

acceptable basis for agreement, since the recommendations of this Board should mirror 

results that would be achieved through good faith, arms length, collective bargaining, 

there is virtually no chance that the comprehensive changes to existing work rules and 

assignment and pay practices sought by Amtrak would be agreed to by the Organizations, 

particularly in the absence of countervailing substantial concessions by Amtrak. None of 

these proposed changes standing alone and in their present form appears to be something 

that would likely be agreed to or could be ratified. Together, there is virtually no chance 

of such agreement or ratification. 

Any one of these concerns may well have led us to recommend against adoption 

of Amtrak’s proposed Work Rules changes. Together, they require that we recommend 

against adoption of these proposed Work Rules changes. 
58

There are additional reasons that militate against acceptance of the individual 

work rules discussed above. 

With respect to Amtrak’s contracting out proposal, the Carrier’s right to contract 

out work that does not lead to furloughs is broad with respect to most of the 

Organizations. No showing was made of any need by Amtrak to obtain the unrestricted 

right to engage in contracting out that would lead to employee furloughs. Nor did the 

Carrier establish that the BMWE contracting out and scope rules needed to be modified 

in the fashion that it sought. The record contains listings and brief descriptions of 

hundreds of contracts in recent years in which Amtrak did contract out craft work, some 

involving relatively small projects, and others involving major projects. In many of these 

situations, Amtrak met with the affected Organizations and reached agreements as to how 

they would be handled under the existing Work Rules. The record did not include 

evidence of even a single instance in which Amtrak sought to contract out work, the 

Organization refused, and the work then could not be accomplished satisfactorily and 

efficiently. Nor was proof provided as to any situation in which the application of the 

existing Work Rules caused significant operating inefficiencies, on-time performance 

problems, or featherbedding type situations. In fact, although Amtrak’s claimed 

motivation is to improve the efficiency of its operations and improve on-time 

performance – a laudable goal – there is no dispute that on-time performance has 

improved significantly in recent years despite the existence of the existing contracting out 

Work Rules and there was no evidence of any situation in which the ability to more 

broadly contract out work would have made trains more timely in their performance. 
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No need was shown in these hearings to support the contracting out of the Car Cleaner 

job classification. 

 No evidence was introduced supportive of Amtrak’s assertion that Congress 

favors contracting out even when it may result in furloughs of Amtrak’s own employees. 

Although the 1997 Act suggests that Congress expected there to be bargaining on the 

issue of contracting out and protective provisions where it might result in employee 

furloughs, there was no showing that Congress expected or desired wholesale changes to 

scope and other work rules to contract out work that Amtrak’s own employees have been 

doing. Congress appeared concerned with improving operating efficiencies, but did not 

express any preference for having work performed by outside contractors instead of with 

Amtrak’s own employees and did not indicate that it supported furloughing Amtrak 

employees to have work performed by outside contract personnel. To the contrary, 

Amtrak’s plans to contract out its reservations work to India met with express 

Congressional disapproval. 

With respect to the proposal to allow the Carrier to assign work without regard to 

craft or class, there was no showing that the Carrier was fully utilizing the already 

significant flexibility it enjoys pursuant to the Incidental and Simple Work Rules. If 

there are problems with foremen more fully utilizing those rules, the solution is to better 

instruct the foremen, not to discard long-standing rules relative to craft or class. The 

Carrier’s proposal goes beyond the “composite mechanic” concept – a proposal that has 

been rejected by every Presidential Emergency Board to consider it. The toilet and 

HVAC examples, stressed by several of Amtrak’s witnesses at the hearings, were simply 

not proven to be major problems. No details whatsoever of their frequency was provided. 
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No evidence, either cumulatively or even anecdotally, was provided as to specific 

situations in which it was determined, even in hind sight, that the inability to assign work 

across craft or class lines led to operating delays. 

With regard to work scheduling and overtime, Amtrak again failed to establish 

that, after accommodations made with the various Organizations and its current flexibility 

in scheduling are considered, there remains a problem that should be solved in the 

fashion advocated by the Carrier. 

In light of these findings and recommendations, it is not necessary to discuss the 

Organizations’ assertions that Amtrak proposed these changes in bad faith to effectively 

preclude a successor agreement from being reached. Nor need we discuss the claim that 

adoption of these changes, singly or together, would drastically shift the relative 

bargaining strength of the Parties and permit Amtrak to threaten to contract out work or 

change work times or assign work to other crafts not for operational needs, but to force 

concessions from the Organizations on other matters. 

6. ARASA (MofW and MofE Supervisors)

 A situation arose in the summer of 2007 in which seven vacant supervisor jobs 

and one supervisory position in which there was an incumbent were eliminated by 

Amtrak. Shortly after that elimination, Amtrak announced vacancies in eight 

management level General Foreman and Safety Officer positions, whose duties included 

the duties of the eliminated supervisor positions. ARASA proposed that the existing 

Scope Rules be strengthened to make clear that this behavior is contractually 

inappropriate. Few specifics surrounding Amtrak’s actions were presented at the 

hearings in this matter. 
61

 ARASA conceded that its objection to the actions of Amtrak may well be 

something that could be addressed on the basis of the existing scope rule and contractual 

language through the grievance procedure. 

 The Board declines to recommend a change in Scope Rule or contractual 

provision that has not been the subject of prior extensive bargaining, that may be properly 

resolvable on the basis of the existing provisions, and as to which we lack sufficient 

detailed facts to determine the fair and appropriate solution. 

 For these reasons, we recommend against adoption of ARASA’s proposed Work 

Rules change. 

7. All Remaining Proposed Work Rules Changes

 For the reasons previously noted, the Board does not recommend adoption of any 

of the remaining Work Rules changes proposed in this matter. The record simply failed 

to establish the need for such Work Rules in their proposed form. We remain persuaded 

that such complex and often thorny issues should, at least initially, be accomplished 

through careful and focused collective bargaining.20

 

20 The BMWE proposed that certain changes to certain work rules made to comply with the Consent 

Decree in James Thornton et al. v. National Railroad Passenger Corporation (Docket No. 98CV0890) 

(EGS), pending before the Hon. Emmet G. Sullivan, and reflected in an Interim Agreement, be included in 

the new Agreement. No testimony was developed regarding those work rules. The record provides no 

basis for the Board to make any affirmative findings as to the fairness and equity in incorporating those 

work rules in the new Agreement. If, however, all Parties so agree, we have no objection to such 

incorporation either.