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Norfolk Southern sues unions over COVID-19 vaccine mandate

NS follows Union Pacific in effort to require employees to get shots

Norfolk Southern has filed a lawsuit in federal court against three unions over its ability to compel employees to be fully vaccinated against COVID-19.  

In a Thursday filing to the U.S. District Court for the Northern District of Illinois, NS (NYSE: NSC) said it has the authority to require its employees to be vaccinated against COVID-19. NS made an announcement last Wednesday saying that it would comply with President Joe Biden’s executive order mandating “covered employees” of federal contractors, including NS, to be fully vaccinated against COVID-19 by Dec. 8. 

The unions named in the suit are the International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division, which is also known as SMART-TD; the Brotherhood of Locomotive Engineers and Trainmen; and the Brotherhood of Maintenance of Way Employes, which is affiliated with the International Brotherhood of Teamsters.

Attorneys representing NS said requiring its workers to be vaccinated against COVID-19 falls under express and implied terms of existing collective bargaining agreements.

In the filing, NS summarized the unions’ opposition by saying that the union defendants don’t agree with NS’ interpretation of its authority under the collective bargaining agreements, with two defendants filing suit against one of the Class I railroads over a similar situation. The unions contend that the actions announced by NS constitute a “unilateral change” in the parties’ collective bargaining agreements, thus the Railway Labor Act (RLA), NS said. 

But NS contends that arguing over interpretations about its authority per the collective bargaining agreements falls under a “minor dispute” under the RLA. Under a minor dispute, it’s unlawful for union members to strike, picket, engage in a work stoppage or sick-out, or slow down operations, NS said, adding that minor disputes are handled by specialized boards of adjustment.

“It is at least arguable that Norfolk Southern has the right under its existing labor contracts to require compliance with the vaccine mandate, and to implement terms for such compliance, which means that this case presents a ‘minor dispute,’” NS said.

Although NS didn’t name Union Pacific specifically in its lawsuit, UP (NYSE: UNP) filed a countersuit recently against SMART-TD over its ability to comply with the vaccine mandate. In that proceeding, UP and union members are sparring over the railroad’s authority per collective bargaining agreements to follow the mandate.

Meanwhile, the unions contend that the railroads must work with union members to either ensure vaccination on good faith terms or offer the option for regular testing for those who can’t be vaccinated for religious or medical reasons.

“While vaccinations are not a collective bargaining issue, as they have not been negotiated into our agreements, we still believe that the carriers must engage with us about these policies prior to any implementation and we, in an effort of good faith, will continue our attempts to do so. We believe this is the best approach,” SMART-TD President Jeremy Ferguson said last Wednesday on the SMART-TD website. “We are going to let the outcome of those meetings and the advice of our general chairpersons guide our next steps. However, when these conversations with the carriers prove to be unsuccessful, then we must appeal our issues to the courts.”

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Joanna Marsh

Joanna is a Washington, DC-based writer covering the freight railroad industry. She has worked for Argus Media as a contributing reporter for Argus Rail Business and as a market reporter for Argus Coal Daily.