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A Loading Dock and a Latte: The Millennial Workforce Changes the Rhythms of Union Organizing With a Little Help From the National Labor Relations Board

This article reflects on how, led by changes in retail and logistics, the dynamics of union organizing have made rapid shifts, and how changes in legal policy at the federal level are accelerating and supporting those changes.

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Transportation Bites – Transportation news this week is in sync with ATLP’s Annual Meeting Agenda

ATLP’s Annual Meeting is 79 days away.  The agenda is packed full of transportation topics in sync with this week’s transportation news.  In this Highlights post we review this week’s news and preview related annual meeting sessions.

Maritime

The Senate sent its version of the Ocean Shipping Reform Act to the House of Representatives this past Monday.  The House had already passed its version of the act and now the chambers must reconcile the differences between the bills. 



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Passenger Rail Update

In this edition of the Passenger Rail Highlight we cover recent updates and guidance from the Federal Transit Administration (FTA) regarding implementation of changes to requirements for federal transit funding recipients and applicants provided under the recently passed Infrastructure and Investment Jobs Act, Public Law 117-58 (IIJA). First, FTA Administrator Nuria Fernandez issued a Dear Colleague Letter reminding transit agencies of new requirements regarding the establishment of Safety Committees. FTA also issued new proposed guidance regarding its Capital Investment Grants (CIG) program, while signaling more comprehensive changes to CIG policy guidance on the horizon.

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Changes to Cybersecurity for Transportation and Energy Infrastructure

In recent months, the federal agencies have continued efforts to harden the cyber defenses of critical energy and transportation infrastructure. In December 2021, the Department of Homeland Security’s (DHS) Transportation Security Administration (TSA) announced two new Security Directives providing additional guidance to strengthen cybersecurity across the transportation and critical infrastructure sectors. Most of the Security Directives were implemented for owners and operators of critical natural gas pipelines and liquefied natural gas facilities following the May 2021 cyberattack on Colonial Pipeline. The December 2021 Security Directives made these requirements applicable to higher-risk freight railroads, passenger rail, and rail transit. The Directives require owners and operators to:

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Transportation Bites

  • STB suspends the CP/KCS procedural schedule.
  • Chairman Oberman Appoints Danielle Gosselin as Director of Office of Environmental Analysis of the Surface Transportation Board.  Ms. Gosselin has been Acting Director since the retirement of the prior Director, Vicki Ruston. 
  • Surface Transportation Board holds public hearing on EP 711 (sub 1) to solicit public feedback on reciprocal switching.
  • The Transportation Security Administration is extending the current mandate for mask use on public transportation and in transportation hubs through April 18.
  • The White House seeks to utilize the Federal Maritime Commission to increase oversight of the global shipping industry in an effort to lower consumer prices.
  • Budget deal implements spending authorized in the Infrastructure Investment and Jobs Act and provides $102.9 billion in budgetary resources for DOT – an increase of $16.2 billion above the fiscal year 2021 enacted level.  

A New (Acting) Head of the FMCSA and Parking

Some motor carrier Highlights posts are quite technical. Not this one.  This is a practical update about trucking: a change in acting leadership at the Federal Motor Carrier Safety Administration, and a discussion about parking.

FMCSA Leadership Change

Head of the FMCSA Meera Joshi left the administration in January to take a role as New York City deputy mayor for operations in the Adams administration.  Joshi had been confirmed as deputy administrator and nominated to be the administrator of the agency, but left before she could be confirmed by the Senate to that position.  She had previously held several positions in New York City, including head of the New York City Taxi and Limousine Commission.



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U.S. District Court Reaffirms the Preemptive Effect of the Montreal Convention

Continuing with this space’s recent focus on cases analyzing the scope of the Montreal Convention, this blog entry discusses yet another recent Montreal Convention case that establishes the broad scope of the Convention’s preemptive effect.  As frequent readers of this blog will recall, the Montreal Convention exclusively governs lawsuits against air carriers for damage arising from air transportation, and aircraft embarkation and disembarkation among signatory nations.  That is, the Montreal Convention preempts claims for damages that either are not enumerated within the Convention or are based on laws other than the Convention, such as state laws.  Further, because the Montreal Convention is a treaty of the United States, defendants almost always remove such cases to federal court.

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Eleventh Circuit Holds that the Oil Pollution Act Does Not Create a Right of Contribution Against United States by a Vessel Discharging Oil

Earlier this month, a Panel of the Eleventh Circuit considered two issues of first impression construing contribution and liability of a vessel owner under the Oil Pollution Act of 1990 (“OPA”)  33 U.S.C. §§ 2701 – 2720.  In Savage Services Corporation v. United States of America—F. 4th (11th Cir. 2022), the Court held that OPA did not create a cause of action for contribution for the cost of oil removal by a vessel operator against the United States.  Second, the Court determined that a vessel pushing a tank barge discharging oil into the navigable waters of the United States could not be shielded from all statutory liability for remedial costs by asserting that the federal government was solely negligent.  Finally, the Panel held that the comprehensive liability scheme within OPA both displaced and preempted a vessel owner’s claim against the United States arising under the Suits in Admiralty Act, 46 U.S.C. §§ 30901- 30918 (“SSA”).

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The Board Holds Public Hearing in CSXT/Pan Am Control and Merger Proceeding

On January 13-14, 2022, the Surface Transportation Board (Board) held a public hearing in the CSXT/Pan Am control and merger proceeding, in which the applicants are seeking approval for: (1) CSX Corporation (CSXC), CSX Transportation, Inc. (CSXT), and 747 Merger Sub 2, Inc. (747 Merger Sub 2) to control the railroads controlled by Pan Am Systems, Inc. (Systems) and Pan Am Railways, Inc. (PAR); and (2) CSXT to merge certain PAR subsidiaries into CSXT (the Proposed Transaction).  See CSX Corp.—Control and Merger—Pan Am Systems, Inc., FD 36472 (STB served Dec. 10, 2021).

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The Board Issues a Notice of Public Hearing Concerning the Proposed Reciprocal Switching Regulations

On December 28, 2021, the Surface Transportation Board (Board) issued a decision announcing that it would hold a public hearing on March 15 and 16, 2022, concerning the reciprocal switching regulations that it proposed in this proceeding. Reciprocal Switching¸ EP 711 (Sub-No. 1), slip op. at 1 (STB served Dec. 28, 2021).

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The Board Accepts for Consideration the Application Filed in CP/KCS Merger Proceeding

On November 23, 2021, the Board issued a decision accepting for consideration the application filed on October 29, 2021 in Docket No. FD 36500, regarding a potential merger between Kansas City Southern and Canadian Pacific.  Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (STB served Nov. 23, 2021).  

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The Board Seeks Comments on Modifications to Proposed Procedure for Challenging the Reasonableness of Railroad Rates in Smaller Cases

On November 15, 2021, the Board issued a supplemental notice of proposed rulemaking (SNPRM) in Docket Nos. EP 755, Final Offer Rate Review, and EP 665 (Sub-No. 2), Expanding Access to Rate Relief.  Final Offer Rate Review, EP 755 (STB served Nov. 15, 2021).  The Board stated that, in response to comments received on the notice of proposed rulemaking (NPRM) in those dockets, and to ensure parallel consideration of the proposal in Docket No. EP 765, Joint Petition for Rulemaking to Establish an Alternative Voluntary Arbitration Program for Small Rate Disputes, the Board was inviting parties to comment on certain modifications to the rate reasonableness procedure proposed in the NPRM.  Id., slip op. at 1.

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The Board Proposes to Modify its Regulations to Establish a Voluntary Arbitration Program for Small Rate Disputes

On November 15, 2021, the Board issued a notice of proposed rulemaking (NPRM) to modify its regulations at 49 C.F.R. Part 1108, Subpart B to establish a voluntary arbitration program for small rate disputes.  Joint Petition for Rulemaking to Establish an Alternative Voluntary Arbitration Program for Small Rate Disputes, EP 765 (STB served Nov. 15, 2021).  The Board also stated that it has decided to defer final action in Docket No. EP 755, Final Offer Rate Review,to allow for “parallel consideration of the voluntary, small rate case arbitration program proposed in this docket.”  Id., slip op. at 8. 

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What A Difference Leadership Makes - A Practitioner’s Guide to The Impact of Activist Federal Agencies

This article will address the ongoing areas in which administrative leadership is moving substantive enforcement changes in core areas of labor law focusing on how Board procedures facilitate such changes. We will discuss shifts in the prosecution of cases by the General Counsel of the National Labor Relations Board in injunction cases and collaborative enforcement with other federal agencies as well as a number of substantive areas.

The significance of involvement of the NLRB in a classification analysis of independent contractor status is both complex and subtle.  In traditional civil labor law, states and courts as well as the United States Department of Labor have evolved tests that focus, within different degrees of emphasis on status. These range from a multi-factor test that evaluates the degree to which a worker operates as a self-sufficient business complying with state laws that regulate the work. This has been an approach common in the trucking and intermodal world, buttressed by state licensing and insurance requirements, particular for owner operators in the brokerage industry.

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Federal Response to Pittsburgh Bridge Collapse: Presidential Visit, NTSB Investigation, and U.S. DOT awards National Highway Performance Program Funds

The dramatic collapse of the Fern Hollow Bridge on the east side of Pittsburgh on January 28 has left Pittsburgh residents grateful that no one was killed.  

I grew up in this area of Pittsburgh.  Fern Hollow Bridge served as my primary route into the city.  I used it to get to school, and to visit my grandparents. The bridge spans a ravine in Frick Park (bequeathed by industrialist Henry Clay Frick), which is a large city park in an otherwise urbanized area, with city neighborhoods on either side of the park.  The park contains a network of trails and just this past August my Mother and I walked across the bridge in order to access those trails.  Prior to Covid, 14,000 commuters per day utilized the Fern Hollow Bridge. 

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Passenger Rail Update

Introduction

In this Passenger Rail Update we mark Congress’s passage of the Infrastructure Investment and Jobs Act in November last year, which provides a range of passenger rail funding opportunities. We also note Amtrak’s announced support for the proposed merger between the Canadian Pacific (“CP”) and the Kansas City Southern (“KCS”) Class I railroads, which is currently pending before the Surface Transportation Board (“STB”). Finally, we review a recent Illinois federal district court case discussing whether a freight railroad’s common carrier obligation includes the obligation to provide passenger rail service (spoiler alert—the court held that it does not).

(The authors note at the outset that they represent the Commuter Rail Division of the Regional Transportation Authority, d/b/a Metra, as a party in the CP-KCS merger proceedings before the STB in FD No. 36500, and as Metra’s outside rail counsel in the Illinois district court case discussed below.)



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ATLP Transportation Quick Bites

This week’s Highlights shines a light on a few transportation news pieces that caught our attention, click through to the ATLP website for links to these items:

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DOT Agencies Strengthen Environmental Justice Efforts

At ATLP’s final Fall Forum session last month, officials from various modal agencies under the U.S. Department of Transportation (DOT) discussed agency activities related to environmental justice.

The U.S. Environmental Protection Agency defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”  The Biden Administration has indicated that environmental justice is a priority issue area for the President, as reflected in Executive Order 14,008 (“Tackling the Climate Crisis at Home and Abroad” – issued January 27, 2021) and the whole-of-government Justice 40 Initiative announced in Summer 2021 to implement the environmental justice-related aspects of the E.O. 

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Second Circuit Reaffirms the Preemptive Effect of the Montreal Convention

As frequent readers of this blog will recall, the Montreal Convention exclusively governs lawsuits against air carriers for damage arising from delay of or damage to cargo during international air transportation among signatory nations.  A recent decision by the United States Court of Appeals for the Second Circuit illustrates that litigants cannot use artful pleading to avoid application of the Montreal Convention.1

In New Fortune Inc. v. Apex & Aeroflot, plaintiff NFI purchased one million face masks from a Chinese company and hired defendant Apex, a freight forwarder, to transport the masks from China to the U.S.2  Apex was instructed to ship the masks directly from China to New York and complete delivery within two days.  Although half of the masks were shipped in the requested manner and timeframe, NFI alleged that the other half was not.  Instead of flying directly from China to New York, the second batch of masks was flown on another carrier’s flight (Aeroflot, a Russian carrier) from China to Moscow, where they remained at the airport for over twenty days before being flown to their final destination in New York.  NFI alleged that its buyer refused to accept late delivery of the second batch of masks, and further that some of the crates were damaged.

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Senate Approves Karen Hedlund to the Surface Transportation Board

Railway Age is reporting that the Senate voted to approve Karen Hedlund to succeed Board Member Ann Begeman. 

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