(NMB Case Nos. A-14068, A-14070, A-14071, A-14076, A-14078)

WASHINGTON, D.C. MARCH 16, 2026

NMB.gov Link

PEB 254 PDF

Post PEB 254 Articles:

1. LIRR strike looms after ‘Trump-appointed board’ sides with labor unions

   https://www.msn.com/en-us/politics/government/lirr-strike-looms-after-trump-appointed-board-sides-with-labor-unions/ar-AA1YQqKU?ocid=socialshare

2. PEB 254 sides with rail labor unions in LIRR contract dispute, unions call on MTA to settle

   https://ble-t.org/news/peb-254-sides-with-rail-labor-unions-in-lirr-contract-dispute-unions-call-on-mta-to-settle/

3. LIRR strike looms after ‘Trump-appointed Board’ sides with labor unions

   https://pix11.com/news/local-news/lirr-strike-looms-after-trump-appointed-board-sides-with-labor-unions/

4. Second presidential emergency board sides with LIRR unions again in contract dispute with MTA, raising strike concerns

   https://www.msn.com/en-us/news/world/second-presidential-emergency-board-sides-with-lirr-unions-again-in-contract-dispute-with-mta-raising-strike-concerns/vi-AA1YNjE4?ocid=socialshare#

5. TCU: PEB 254 Decision and Status of Negotiations – March 16, 2026

   https://tculocal90.org/news/peb-254-decision-and-status-of-negotiations-march-16-2026/

Comments:

1. Regarding the PEB 254 Report, the statutory language appears quite clear that the 2nd PEB is limited to selecting either of the two offers submitted by the parties and the selection criteria is the determination of the most reasonable offer. PEB 254 specifically states it made its determination consistent with statutory language, although it gratuitously added language acknowledging its consistency with PEB 253 as has other 2nd PEBs have historically followed the respective 1st PEBs recommendations:

   “Based on the foregoing analysis of both the respective wage offers and the Carrier’s work rule proposals, we find that the Organizations’ Final Offer is the most reasonable offer. It is also the Final Offer closest to the Recommendation of PEB 253. While we agree that we are not bound by the Report and Recommendation of PEB 253, and we have in fact made an independent analysis of the issues before us, historically second PEBs have selected the offer that more closely reflects the recommendation of the first PEB that investigated the particular dispute. In the instant dispute, that offer is the Organizations’ Final Offer.” PEB 254 Report, page 41.

2. Consistent with the above Articles, with the rendering of the PEB 254 Report, a status quo continues for 60 days and “the parties are free to engage in self-help” thereafter, unless an agreement is reached or there is congressional intervention. See. 4. Post-PEB Congressional Intervention with Table & Links.

   In that the parties have already gone through a 270 day, two PEB procedure (see 2.4. Collective Bargaining/Mediation Process Charts), it would be torturous to put then through another “Advisory Board” process, but that is what was done in the matter of the only other commuter railroad in a similar situation, the LIRR and several labor organizations after the completion of PEBs 210 and 212. Another option used in the past includes imposition of conditions tied to PEB recommendations, often with a special board/panel to resolve issues needing clarification, interpretation or any “unresolved issues.” Finally, on a few occasions an arbitration process was used to finalize the dispute, including a once used “last-best-offer” arbitration, see PL 102-306 involving PEBs 220, 221, and 222.

   However, a different/modified approach could be used that combines the imposition of the so-called pattern and sending the disputed “addition” to the pattern to arbitration.

   Also, there could be neither congressional involvement nor agreement, leaving the parties to their “self-help,” as they did with the LIRR - UTU dispute in 1994. 3.5 Strikes in the Railroad and Airline Industries - May 2025 Update.

3. Returning to PEB 253, the 1st PEB, it is important to note that the “pattern” terminology and rationale used in PEB 253 is significantly inconsistent with “pattern” terminology and rationale traditionally used in PEBs. For example, PEB 253 specifically states:

   “The principle of pattern bargaining, however, should not be applied in a manner that effectively deprives these Organizations of their ability to independently bargain under the RLA.” PEB 253, page 50 and 51.

   In PEB 116, the Board sets forth a number points on page 13, often referenced in subsequent PEBs that supported “pattern bargaining,” that are significantly different than PEB 253’s stated view:

   “Among other reasons for our decision to approve and recommend adoption of the settlement pattern plan are the following:

   1. It is right and sound and fair that the remaining 20 percent of railroad employees be given the same package protection (and asked to forego similar demands) as their fellow workers in the 80 percent who have already agreed to a 3-year settlement.

   2. The pattern plan offers the best hope of preventing discriminatory treatment among the various crafts.

   3. No specific challenge of the propriety and fairness of the pattern settlement has come from any leader of the Organization or from any of the highly knowledgeable and experienced witnesses who gave testimony before this Board.

   4. Earlier pattern plans have proven their worth as stabilizing influences.

   Pattern bargaining has resulted in the recommendation of settlements consistent with the pattern agreements. The PEB 253 approach/rationale may help explain its determination but is directly at odds with traditional application of pattern bargaining.

   PEB 253 identified the Carrier’s (LIRR) position regarding its settlements, and the MTA-wide pattern, but avoided making a determination of the issue. Instead, PEB 253 stated, “The pattern/not a pattern question, however, is of largely academic concern in this case because both the Carrier and the Organizations agree that the GWIs for the first three years are to be 3%, 3%, and 3.5% – a settlement that is consistent with all of the Agreements reached by the Carrier during this round of bargaining.” Basically, three years of both parties four year proposals matched and were “consistent with all the Agreements reached by the Carrier during this round of agreement bargaining.” It should be noted, PEB 253 refrained from making a determination of whether a pattern existed in the Carrier’s four-year proposals or its three-year proposals and actual settlements. Also, it should be noted that PEB 253 acknowledged the Carrier’s resistance to adding the fourth year to its previously asserted pattern. See PEB 253, page 11.

   PEB 253 framed these 3 years of wage increases as a “three-year pattern” and, then, created an approach to add and justify a fourth year of wage increases to its so-called pattern recommendation where there was no agreement/settlement:

   “The question is presented as to whether it would violate pattern principles if the Organizations in this dispute negotiated a fourth year when the organizations that have already settled have not done so. After careful consideration, we are unpersuaded that, in this case, pattern principles deprive the Organizations of their ability to negotiate a fourth year, either to address the impact of inflation or for other reasons.”

   PEB 253 Report raises significant issues based on its inconsistencies with prior PEB Reports on the subject of pattern bargaining:

   · PEB 253 devised its so-called three-year pattern from parts of proposals from the parties that were in common; this is dramatically inconsistent with determining patterns based on actual settlements and recommending such settlements to similarly situated parties.

   · The concept of adding an additional year of wage increases to a pattern settlement recommendation is an anathema to the concept of “pattern bargaining”.

   The foregoing is not meant to state there was a pattern or not and is offered solely for noting the inconsistency in the PEB 253 Report on the subject of “pattern bargaining.”

   Notwithstanding the foregoing, it is recognized that there are legitimate issues that have rationalized slight modification of valid pattern settlements, and, in one instance, PEB 225 Soo Line - UTU, that resulted in the rejection of the application of a clear local-internal pattern in favor of a national pattern base on a disproportionate impact concept.

Since the establishment of the 2^nd PEB (PEB 254) on January 14, 2026, there has been a dearth of information on the naming of the PEB members and the activities of the Board. Based on a recent publication by a labor organization advising its members of the PEB 254 activities, the following information is available:

Members of Presidential Emergency Board 254

· Barbara C. Deinhardt – Chairman

· Joyce M. Klein – Board Member

· James M. Darby – Board Member

Key Upcoming Dates and Deadlines

· January 28, 2026 – Submission of the full PEB 253 record to the Board

· February 13, 2026 – Final Offers due from both the Unions and the Carrier

· February 24, 2026 – Deadline for all pre-hearing submissions, including briefs, exhibits, and witness lists

· March 1–2, 2026 – PEB 254 hearings held at the National Mediation Board offices in Washington, D.C.

https://www.iam754.org/files/peb-254-letter-to-members.pdf

Please note the following quote from the Executive Order creating the PEB that specifically references Section 9A of the RLA, see 2nd Section 9a PEB established in LIRR Labor dispute (PEB 254):

Sec. 2. Report. As provided by section 9A(f) of the RLA, within 30 days after the creation of the Board, the parties to the disputes shall submit to the Board final offers for settlement of the disputes. As provided by section 9A(g) of the RLA, within 30 days after the submission of final offers for settlement of the disputes, the Board shall submit a report to the President setting forth the Board’s selection of the most reasonable offer.

While the statutory language appears quite clear that the 2nd PEB is limited to selecting either of the two offers submitted by the parties and the selection criteria is the determination of the most reasonable offer, this selection process has not gone without varying interpretations. See 3.4. Commuter Rail PEBs (§ 9A), Update 10/2025.

SECOND EMERGENCY BOARD TO INVESTIGATE DISPUTES BETWEEN THE LONG ISLAND RAIL ROAD COMPANY AND CERTAIN OF ITS EMPLOYEES REPRESENTED BY CERTAIN LABOR ORGANIZATIONS

Disputes exist between the Long Island Rail Road Company and certain of its employees represented by certain labor organizations. The labor organizations involved in these disputes are the Transportation Communications Union, the Brotherhood of Locomotive Engineers and Trainmen, the Brotherhood of Railroad Signalmen, the International Association of Machinists and Aerospace Workers, and the International Brotherhood of Electrical Workers.

The disputes have not heretofore been adjusted under the provisions of the Railway Labor Act, as amended, 45 U.S.C. 151‑188 (RLA).

An emergency board to investigate and report on these disputes was established on September 18, 2025, by Executive Order 14349 of September 16, 2025 (Establishing an Emergency Board to Investigate Disputes Between the Long Island Rail Road Company and Certain of Its Employees Represented by Certain Labor Organizations). That emergency board terminated upon submission of its report to the President. Subsequently, its recommendations were not accepted by all of the parties.

A party empowered by the RLA has requested that the President establish a second emergency board pursuant to section 9A of the RLA (45 U.S.C. 159a).
Section 9A(e) of the RLA provides that the President, upon such request, shall appoint a second emergency board to investigate and report on the disputes.

NOW, THEREFORE, by the authority vested in me as President by the Constitution and the laws of the United States, including section 9A of the RLA, it is hereby ordered:

Section 1. Establishment of a Second Emergency Board (Board). There is established, effective 12:01 a.m. eastern standard time on January 16, 2026, a Board composed of a chair and two other members, all of whom shall be appointed by the President to investigate and report on these disputes. No member shall be pecuniarily or otherwise interested in any organization of railroad employees or any carrier. The Board shall perform its functions subject to the availability of funds.

Sec. 2. Report. As provided by section 9A(f) of the RLA, within 30 days after the creation of the Board, the parties to the disputes shall submit to the Board final offers for settlement of the disputes. As provided by section 9A(g) of the RLA, within 30 days after the submission of final offers for settlement of the disputes, the Board shall submit a report to the President setting forth the Board’s selection of the most reasonable offer.

Sec. 3. Maintaining Conditions. As provided by section 9A(h) of the RLA, from the time a request to establish the Board is made until 60 days after the Board submits its report to the President, the parties to the controversy shall make no change in the conditions out of which the disputes arose except by agreement of the parties.

Sec. 4. Records Maintenance. The records and files of the Board are records of the Office of the President and upon the Board’s termination shall be maintained in the physical custody of the National Mediation Board.

Sec. 5. Expiration. The Board shall terminate upon the submission of the report to the President provided for in section 2 of this order.

Sec. 6. Costs of Publication. The costs for publication of this order shall be borne by the Department of Transportation.



DONALD J. TRUMP




THE WHITE HOUSE,
January 14, 2026.

https://www.whitehouse.gov/presidential-actions/2026/01/establishing-a-second-emergency-board-to-investigate-disputes-between-the-long-island-rail-road-company-and-certain-of-its-employees-represented-by-certain-labor-organizations/

Also, see PEB 254 Report - Update 4/02/26.

RLA Section 9A PEB Process

Related News Articles:

Unions Call Again for Special Board to Resolve Contract Dispute

LIRR unions request second Presidential Emergency Board

• BLE website

• Labor Press

As stated at page 16 in the PEB 253 Report: Under Section 9a of the RLA, the creation of such an emergency board would impose a status quo period for an additional 120 days, until January 15, 2026.

Assuming there is no agreement at the end of the referenced status quo period, self-help is available, as well as the opportunity for the creation of a 2nd PEB with a more structured process. (You may find 3.4. Commuter Rail PEBs (§ 9A), Update 10/2025 helpful.) However, Section 159a (e) specifically provides:

(e) Establishment of second emergency board

If no settlement in the dispute is reached at the end of the 120-day period beginning on the date of the creation of the emergency board, any party to the dispute or the Governor of any State through which the service that is the subject of the dispute is operated may request the President to establish another emergency board, in which case the President shall establish such emergency board.

To further borrow from 3.4. Commuter Rail PEBs (§ 9A), Update 10/2025, I am inserting the Section 9a process time-line:

The PEB 253 Report and Recommendations included a particularly significant issue: the acceptance of a commuter rail wage pattern to which was added an additional annual wage.

The Report, at pages 11 and 12, references the Carrier’s objections to the National Mediation Board’s mediation process that directly appeared related to the “additional annual wage” issue, and the Carrier’s argument in favor of the historical application of pattern bargaining at the LIRR and the MTA system, as well as the destabilizing affects of such a determination.

Notwithstanding the Carrier’s input, the Board basically stated its acceptance of the pattern bargaining and determined that its approach of accepting the three year “pattern” did not prevent it from including a fourth year of annual wages. The Board’s handling of the issues was extensive: the issue of including the fourth year is at pages 50 through 56, and the issue of determining the amount of the fourth year increase is at pages 57 through 60.

The issue with its potential ramification, is significant and may very well result in at least a second PEB.

REPORT TO THE PRESIDENT

by

EMERGENCY BOARD NO. 253

SUBMITTED PURSUANT TO

EXECUTIVE ORDER DATED SEPTEMBER 16, 2025 ESTABLISHING AN EMERGENCY BOARD TO INVESTIGATE DISPUTES BETWEEN LONG ISLAND RAIL ROAD AND BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN; BROTHERHOOD OF RAILROAD SIGNALMEN; INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS; AND TRANSPORTATION COMMUNICATIONS UNION

AND SECTION 9a OF THE RAILWAY LABOR ACT, AS AMENDED

_____

(National Mediation Board Case Nos. A-14068, A-14070, A-14071, A-14076, A-14078)

_____

WASHINGTON, D.C.

OCTOBER 17, 2025

See Comment 3 to PEB 254 Report - Update 4/02/26)

Transportation Communication Union/IAM announcement, October 17, 2025: PRESIDENTIAL EMERGENCY BOARD NO. 253 ISSUES REPORT AND RECOMMENDATIONS https://www.tcunion.org/news/peb253/ which included the Union Coalition’s issued statement regarding PEB 253: https://www.tcunion.org/wp-content/uploads/2025/10/LIRR-PEB-Press-Release.pdf. The coalition of five rail unions includes the Brotherhood of Locomotive Engineers and Trainmen (BLET), the Brotherhood of Railroad Signalmen (BRS), the International Association of Machinists and Aerospace Workers (IAMAW), the International Brotherhood of Electrical Workers (IBEW), and the Transportation Communications Union (TCU).

Brotherhood of Locomotive Engineers and Trainmen announcement, October 20, 2025: PEB 253 recommends raises and back pay for BLET members at LIRR

https://ble-t.org/news/peb-253-recommends-raises-and-back-pay-for-blet-members-at-lirr/

Various new media reported MTA’s rejection of the recommendations:

MTA Rejects Deal Offered by Board, October 18, 2025:

https://lilifepolitics.com/news/long-island-news/mta-rejects-deal-offered-by-board/

MTA rejects mediator plan as LIRR inches closer to potential January strike, October 20, 2025:

https://www.crainsnewyork.com/transportation/mta-rejects-mediator-proposal-lirr-unions-inch-closer-potential-january-strike

As previously advised, a delineation of the Railway Labor Act, Section 9a process may be found at 3.4. Commuter Rail PEBs (§ 9A), Update 3/2025. As noted there, and in several union provided materials, a Public Hearing is to occur; how this will work during a government shutdown is not known. Subsequent to this 1st PEB, there is the potential for the establishment of a 2^nd PEB with its unique process; again, how that will work if the government continues to be shut down is not known.

Based on the union and coalition announcements, the PEB 253 Report, when it is released, should provide interesting reading in its analysis and rationale for their recommendations, particularly as they relate to similar cases where significant settlements with other unionized multiple crafts have occurred.

ESTABLISHING AN EMERGENCY BOARD TO INVESTIGATE DISPUTES BETWEEN THE LONG ISLAND RAIL ROAD COMPANY AND CERTAIN OF ITS EMPLOYEES REPRESENTED BY CERTAIN LABOR ORGANIZATIONS. See link:

https://www.whitehouse.gov/presidential-actions/2025/09/establishing-an-emergency-board-to-investigate-disputes-between-the-long-island-rail-road-company-and-certain-of-its-employees-represented-by-certain-labor-organizations/

The parties involved in the dispute are the Long Island Rail Road (LIRR) and the Brotherhood of Locomotive Engineers and Trainmen (BLET), the Brotherhood of Railroad Signalmen (BRS), the International Association of Machinists and Aerospace Workers (IAMAW), the International Brotherhood of Electrical Workers (IBEW), and the Transportation Communications Union (TCU). The NMB released the parties from statutory mediation on August 18, 2025, and a 30-day cooling-off period began on August 19, 2025. Absent agreements or the establishment of a Presidential Emergency Board (PEB), the parties would have been able to exercise self-help as of 12:01 a.m. EDT, September 18, 2025. https://nmb.gov/NMB_Application/index.php/press-releases/lirr-and-blet-brs-iamaw-ibew-and-tcu-enter-cooling-off-period/

On September 19, 2025, the National Mediation Board wrote the parties’ representatives concerning Presidential Emergency Board No. 253 & Schedule and Ground Rules, with a copy to the PEB 253 Board Members: Ira F. Jaffe, Chairman, Sidney Moreland, IV, Member, and Thomas Pontolillo, Member. The hearings were scheduled for October 5, 6, 7, and 8, 2025, at the National Mediation Board’s Offices, 1301 K Street, NW, Suite 250 East, Washington, DC 20005. NMB PEB 253 Link

News Releases/articles regarding the dispute:

Transportation Communication Union/IAM, September 19, 2025: https://www.tcunion.org/tcu-union/peb_253/

Progressive Railroading, September 19, 2025: https://www.progressiverailroading.com/labor/news/Labor-requests-PEB-in-Long-Island-Rail-Road-contract-dispute--75396

In that this dispute and PEB fall within the RLA Section 9a Commuter Rail provisions, 3.4. Commuter Rail PEBs (§ 9A), Update 3/2025, may be helpful to review.

The LIRR has the unique distinction of being the first commuter rail operation to utilize the Section 9a provisions, the only railroad to strike after the expiration of the Section 9a provisions, and the only commuter railroad to be subject to congressional intervention after the Section 9a provisions ended.

It should be noted that the NMB data used the NMB fiscal year, October 1 to September 30. Also, the designation of the strikes occurrence only the year the strike began was included, i.e., a strike that continued into another fiscal year was only counted in the year it began; however, the original data did include the duration of the strike and the dates it began and ended. To better analyze the data, the strikes have been reported in four separate categories: 1. Rail Section 10 Strikes, 2. Airline Section 10 Strikes, 3. Commuter Rail Section 9A Strikes, and 4. Special Legislation Strikes.

The NMB’s detailed strike data, including involved parties and the beginning and ending dates of the strikes, used in the above chart for both the Railroad and Airline industries is contained in the Strike Report: U.S. Railroads and Strike Report: U.S. Airlines.

General Comments regarding legal strikes under the Railway labor Act:

1. Under the Railway Labor Act, strikes will typically occur after the 30-day status quo period following the release from mediation or after the status quo period following a subsequently established Presidential Emergency Board. See 2.4. Collective Bargaining/Mediation Process Charts, 2.3. Status Quo Provisions and 3.3. Presidential Emergency Boards (PEBs): PEB List & PEB Links - March 2025 Update.

2. In that the parties under Section 9A Commuter Rail Provisions, as well as the governors of states through which the carrier operates, may request a PEB after a release from mediation and be granted such, there is an assurance that the Section 9A two-PEB process is readily available with its potential 240-day duration in addition to the 30-day status quo period following the release from mediation. Public Law 97-85 – August 13, 1981, The Railway Labor Act as amended, Section 9A.

3. There are only three Special Legislation strikes captured in the covered period. These three strikes occurred in 1983 under the procedures established under the Section 10 of the Rail Passenger Service Act, as amended by the Northeast Rail Service Act (NERSA) of 1981. See IV. Special Legislation Strikes’ comments, below.

NMB Strike Notes:

I. Rail Section 10 Strikes

There has not been a legal strike in the rail industry under RLA Section 10 process since the 1994 strike on the Soo Line, initiated after being released from mediation in 1994, prior to the establishment of PEB 225, more than 30 years ago. Between 1978 and 1994, there were 23 rail strikes under the Section 10 process, including 4 commuter rail service strikes under Section 10 prior to the effective date of the Railway Labor Act Section 9A Commuter Rail Service amendments contained in the NERSA Act of 1981.

Several cases are worth noting in light of the subsequent infrequency of strikes in the rail industry under Section 10. The first two cases may have significantly contributed to the handling of future cases and relate to actual and threatened expansion of the strike activity; and the second two cases involved the unique congressional procedure established to handle the remaining disputes following three concurrently handled PEBs in a process assuring finality.

• 1994 Soo Line – UTU:

  Initially, the 1994 Soo Line Strike by the UTU was contained on the Soo Line and was not considered of sufficient magnitude to cause a national emergency. As the strike continued, the UTU threatened to expand the strike to other carriers. To prevent expansion of the strike, on August 29, 1994, the President established PEB No. 225 to investigate the dispute. Strikers were required to return to work while the emergency board conducted its investigation. After the emergency board issued its report, an agreement was reached in mediation. See 1993, 1994, & 1995 NMB Annual Reports, page 27, and see 3.1. Pre-PEB Legal Strikes - Legal Strikes that Triggered or Preceded the Creation of PEB.

• 1986 Maine Central Railroad – BMWE

  When the parties were unable to resolve their differences, on March 3, 1986, after 15 months of mediation and the release from mediation, the parties resorted to self-help with the BMWE initiating a strike action against Guilford Transportation-owned Maine Central/Portland Terminal Co. system. The strike quickly spread to the Boston and Maine and Delaware and Hudson Railroads and moved to additional carriers including Conrail and the Richmond, Fredericksburg and Potomac Railroad. The threat of picket lines spreading across the country and conflicting decisions of the Federal courts permitting picketing of certain railroads not involved in the dispute made matters worse. Presidential Emergency Board 209 was established on May 16, 1986, the day after the U. S. Court of Appeals lifted an injunction against the BMWE picketing of Conrail. See 1986-1987 NMB Annual Report, Pages 58 & 59. Also, see 3.1. Pre-PEB Legal Strikes - Legal Strikes that Triggered or Preceded the Creation of PEB and 4. Post-PEB Congressional Intervention with Table & Links.

• 1992 NRLC & CSX – IAM & 1992 Conrail – BMWE

  Following the post-PEB status quo provisions of concurrently handled PEBs 220, 221, & 222, the involved unions did strike, congress passed legislation to resolve the disputes, and the President signed the bill, Public Law 102-306, at 1:02 a.m. on June 26, 1992. This legislation provided a detailed unique process to resolve the disputes at three different carriers. See 1991 & 1992 NMB Annual Report at pages 16 and 17. Also, see 4. Post-PEB Congressional Intervention with Table & Links.

II. Airline Section 10 Strikes

There were 43 Airline Section 10 strikes during this 1978 – 2025 period. However, since 2010, there have been no airline strikes. It should be noted that there was a significant strike that began in 1977 after a release from mediation, and the strike ended in 1979 by the special legislation; the strike is not mentioned in the data because the strike did not start in or after 1978. See 3.1. Pre-PEB Legal Strikes and, in particular, 1977-1978 Wein Air Alaska Strike (ALPA).

There are several unique facts that should be mentioned to further an understanding of the data unique to the airline industry:

1. The President George H. W. Bush, in his discretion under the law, decided not to create an emergency board in the Eastern-Machinists case." National Mediation Board 1989-1990 Annual Report, page 12.

2. During George W. Bush's Administration, Northwest Airlines and the Aircraft Mechanics Fraternal Association (AMFA) reached impasse twice. Northwest Airlines and its mechanics represented by the AMFA reached an impasse in negotiations in 2001, resulting in the establishment of a PEB, and, again, in 2005, there was no establishment of a PEB, the NMB in 2005 did not determine that the dispute would “threaten substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service.”

Additional details regarding Presidential Executive actions are available at 3.2. Post-Release Executive Actions.

III. Commuter Rail Section 9A Strikes Notes

During the chart’s covered period, 1978 – 2025, there were only four strikes under the Section 9A process.

A. Post PEB Strikes

• PEB 251 and 252

  After the 2^nd PEB, PEB 252, the parties reached a tentative agreement but that agreement failed to be ratified by the BLET membership. The NMB did offer public interest mediation, but the parties failed to reach an agreement and the BLET initiated a strike on May 16, 2025, a Friday. Two days later, on May 18 in the afternoon, the parties reach another agreement, ending the strike, and regular train service was in effect Tuesday, May 20. This was the first legal strike on NJT in 42 years.

• PEB 223 and 224

  After a second emergency board (PEB No. 224) selected the Carrier's final offer which more closely followed the recommendations of PEB No. 223. The UTU struck the carrier at 12:01 a.m. June 17, 1994. The strike ended late on the evening of June 18, 1994. The agreement followed closely the second emergency board's selection of the carrier's final offer with some additional wage increases. See NMB Annual Report (1993, 1994, & 1995) pages 28 & 29.

• PEB 210 and 212

  When the period of mandated continuance of the post-Section 9A PEB status quo ended in January 1987, a strike occurred, hindering commuter travel between Long Island communities and New York City. After 10 days, Congress intervened, imposing a new 60-day status quo period and creating a Congressional Advisory Board comprised of experienced neutrals to investigate and report on the lengthy dispute. Voluntary settlements were reached by the parties during this congressionally-imposed 60-day extension of the status quo. See NMB Annual Report 1987 & 1988, page 10; also, see and 4. Post-PEB Congressional Intervention with Table & Links.

B. Pre-PEB Strike

• PEB 246

  On May 14, 2014, the NMB served notices that its services had been terminated under the provisions of Section 5, First, of the RLA. Accordingly, self-help became available at 12:01 a.m., Eastern Daylight Time, on Saturday, June 14, 2014. Absent the establishment of an Emergency Board (the involved parties did not request a PEB) the BLET and IBEW commenced a strike on June 14, 2014. Later, that same day, in accordance with Section 9a of the RLA, the Governor of Pennsylvania requested that President Obama establish an Emergency Board to investigate and issue a report and recommendations regarding the dispute. Again, that same day, the President issued an Executive Order creating Emergency Board 246, effective 12:01 a.m. Eastern Daylight Time, June 15, 2014, to investigate the dispute between SEPTA and certain of its employees represented by the BLET and IBEW; BLET and IBEW ceased striking when the Emergency Board became effective. See 3.1. Pre-PEB Legal Strikes; and NMB Annual Report 2014, page 44.

C. Section 10 Commuter Rail Cases

As noted in both the above General Comments and the Section 10 Rail Strikes Notes, prior to the effective date of the Railway Labor Act Section 9A Commuter Rail amendments contained in the NERSA Act of 1981, there were four commuter rail strikes under Section 10 of the Railway Labor Act during the covered period of the Chart, (2025 – 1978). These strikes are included in Section 10 Rail strike data. Additional information, including links to related PEBs, as well as prior PEBs, can be found at 3.4. Commuter Rail PEBs (§ 9A), Update 3/2025.

IV. Special Legislation Strikes

The 1983 strikes on SEPTA, on MNRR, and on NJT did not involve the use of the Section 9A PEB process and were the end result of special legislation enacted to transfer employees from Conrail (Consolidated Rail Corporation) to the new commuter rail operations at SEPTA, MNRR, and NJT. This legislation established triparty arbitrations involving each the new commuter rail operations with both Conrail and representatives of the employees to determine transfer arrangements/agreements that the parties were not able to negotiate. Additionally, a unique bargaining, fact-finding, and PEB process was established to address issues surrounding the formation of new collective bargaining agreements for the employees in the various crafts being transferred to each new commuter rail operation to be effective on January 1, 1983. The strikes occurred after the end of the process contained in this special legislation, i.e., January 1, 1983. See 3.4. Commuter Rail PEBs (§ 9A), Update 3/2025 and Rail Passenger Services Act, as amended by the enactment of the Northeast Rail Service Act (NERSA) of 1981.

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Chart 1. All PEBs  for period of 1978  - 2025.

This chart groups all PEBs together, all Section 10 PEBs for the 1978 - 2025 time period, including Freight Railroads, Amtrak, Airlines, Commuter Railroad PEBs prior to Section 9a effective date, as well as Section 9a Commuter Railroads PEBs (1st and 2nd), and the four PEBs established under "Special Legislation," specifically,  the three PEBs under the Section 10 amendments to the Rail Passenger Service Act enacted through the Northeast Rail Service Act (NERSA) of 1981 and the one PEB under Section 44 of the Airline Deregulation Act of 1978 – Public Law 95-504.  The total number of PEBs during this 45 year period was 65. In the 43 year period between 1934, the year the NMB was established, and 1977, there were 187 PEBs; almost three times as many PEBs.

Chart 2. All PEBS by Type (Section 10, Section 9a, and Special Legislation)

The above chart specifically distinguishes the Special legislation PEBs and the Section 9A PEBs from the Section 10 PEBs.  The special legislation PEBs occurred only in 1978 (1 PEB) and 1982 (3 PEBs).  During this time period there were 65 total PEBs; 4 "special legislation" PEBs, 34 Section 9A PEBs for Commuter Rail Service (both 1st and 2nd PEBs included), and 27 Section 10 PEBs.  ​Under Section 10 amendments to the Rail Passenger Service Act enacted through the Northeast Rail Service Act (NERSA) of 1981, the 3 special legislation PEBs, established in 1982, performed the functions of both the 1st and 2nd PEBs established under the concurrently amended RLA Section 9A PEBs.

​​Chart 3. Section 10 Railroad and Airline PEBs.

The above chart compares the Section 10 Railroad PEBs to the Section 10 Airline PEBs. Simply put, there were only three airline PEBs during this period (one PEB established under Section 44 of the Airline Deregulation Act of 1978 – Public Law 95-504, is not included in this chart). The remaining PEBs (24) were for the railroads, but this number included 3 PEBs for Amtrak and 2 Commuter Railroad PEBs prior to the Section 9A effective date, but did not include the 3 statutorily created Commuter rail PEBS created under Section 10 amendments to the Rail Passenger Service Act enacted through the Northeast Rail Service Act (NERSA) of 1981,

Chart 4. Section 9A 1st and 2nd PEBs.

The chart demonstrates how the 34 Section 9A PEBs functioned: 18 were 1st PEBs and 16 were 2nd PEBs.  Only in two instances of the 18 1st PEBs was a 2nd PEB not requested. It should be remembered that the 2nd PEB functions in a different capacity than the 1st PEB under Section 9A.  See 3.4. Commuter Rail PEBS.

Chart 5. Section 10-Railroad PEBs and Section 9A Commuter Railroad PEBs Compared.

The above chart compares the Section 10 Railroad PEBs (24) with the Section 9a 1st PEBs (18) only to demonstrate a comparison focused and based on the dispute resolution process per dispute without the complications that the 2nd PEBs add in terms of time, cost, and adding administrative requirements to the process.  As mentioned in Chart 1 discussion above, Section 10 Railroad data still includes the Section 10 Amtrak PEBs (3), as well as the Section 10 Commuter Rail PEBs (2) that predate the effective date for RLA Section 9a.

Chart 6. Section 10 Railroad Data, adjusted, to remove Amtrak PEBs and Pre-Section 9a Commuter Rail PEBs, compared to Section 9A 1st PEBs.

The above chart displays Adjusted Section 10 Railroad data,  the three Section 10 Amtrak PEBs (PEBs 222, 234, & 242) and two Section 10 Commuter Railroad PEBs (PEBs 192 & 193), were removed from the Section 10 data and, as a result, such reduces the Section 10 Railroad PEB data from twenty-four to nineteen. The rationale for this adjustment is to reflect a purer freight railroad Section 10 PEB activity such as it would have appeared prior to 1983 and the creation of the three Commuter Rail entities (MNRR, NJT, & SEPTA), as well as assumption of rail operations by Amtrak; prior to 1983 the employees of Amtrak and the three Commuter operations would have been subsumed in the freight railroad operations of which they were a small part.  

If the above Chart was further adjusted to add the two “pre-Section 9a” Section 10 Commuter Rail PEBs (PEBs 192 & 193) to the Section 9a 1st PEB data, the Commuter Rail 1st PEB data (18) would be increased by two to 20 PEBs.

Summary

During this 45 year period, in the first 20 years of the period covered (1978-1997), there were 

1. seventeen PEBs in the adjusted Section 10 Railroad data (Freight Railroads),

2. eleven Section 9A 1st PEBs (the two commuter rail cases pre-NERSA PEBs are not included and the ten Section 9A 2nd PEBs not included in this number),

3. one Airline Section 10 case (the 1978 Wein Air Alaska case, PEB 189, is included in statutorily required PEBs in No. 5, below),

4. two Amtrak Section 10 PEBs, and 

5. four Statutorily required PEBs (three special legislation" PEBs, established in 1982, performed the functions of both the 1st and 2nd PEBs established under the concurrently amended RLA Section 9A PEBs, and one PEB established under Section 44 of the Airline Deregulation Act of 1978 – Public Law 95-504.

In the last 25 years of this measured period (1998-2023), there were 

1. two Section 10 Railroad (Freight) PEBs in the adjusted data

2. seven Section 9A 1st PEBs (the six Section 9A 2nd PEBs are not included in number),

3. two Airline Section 10 PEBs, and

4. one Amtrak Section 10 PEB.​

Also, as indicated in Chart 4, above, Section 9A's PEB provisions added 16 additional PEBs (2nd PEBs) to the process and included a Public Hearing and an additional 120 days for each 2nd PEBs process, as well as the 2nd PEB procedures and administrative processes to select and appoint the 2nd PEB members.

Note:
​Possible references that may be helpful are:

• Section 3.3. Presidential Emergency Boards (PEBs): PEB List & Report Links & 

• Section 3.4. Commuter Rail PEBs.

Both sections have been recently updated with the PEB 251 and 252 data, including the Section 3.3 linked PDF file that lists all the NMB PEBs.

It was reported early on January 21, 2025, that “NJ TRANSIT hopes that this second PEB report will lead to continued good-faith negotiations and a voluntary settlement” and that they are “optimistic that this report will pave the way for productive dialogue and a voluntary settlement.” See SECOND PRESIDENTIAL EMERGENCY BOARD (PEB) REPORT DECLARES NJ TRANSIT’S OFFER MOST REASONABLE, January 21, 2025. https://www.njtransit.com/press-releases/second-presidential-emergency-board-peb-report-declares-nj-transits-offer-most

However, a BLET article later on January 21, 2025, acknowledged the PEB 252 Report and “its non-binding decision,” stating the Report “sets the clock ticking for ‘self-help’ where engineers are permitted under the rules of the Railway Labor Act to strike, or management can lock-out workers.” The BLE further stated that “there are certain portions of the Carrier’s Final Offer that we do not believe provide a reasonable basis for the voluntary resolution of the Parties’ dispute.” Decision by PEB 252 sets the clock ticking for a strike date at NJ Transit, January 21, 2025. https://ble-t.org/news/decision-by-peb-252-sets-the-clock-ticking-for-a-strike-date-at-nj-transit/

As specified in the National Mediation Board’s A-13965 NJT/BLET Post Release Timeline, with the rendering of PEB 252 Report, a status quo continues for 60 days and ends March 21, 2025, and “the parties are free to engage in self-help at 12:01 a.m.” on March 22, 2025. See Link to NMB’s A-13965 NJT/BLET Post-Release Timeline

While the parties may engage in further negotiations and the NMB may offer mediatory assistance, essentially, without an agreement, Congress will likely consider addressing the matter legislatively, as they have done in the past. See 4. Post-PEB Congressional Intervention with Table & Links. In that the parties have already gone through a 270 day, two PEB procedure (see 2.4. Collective Bargaining/Mediation Process Charts), it would be torturous to put then through another “Advisory Board” process, but that is what was done in the matter of the only other commuter railroad in this situation, the LIRR and several labor organizations after the completion of PEBs 210 and 212. Another option used in the past includes imposition of conditions tied to PEB recommendations, often with a special board/panel to resolve issues needing clarification, interpretation or any “unresolved issues.” Finally, on a few occasions an arbitration process was used to finalize the dispute, including a once used “last-best-offer” arbitration, see PL 102-306 involving PEBs 220, 221, and 222.

On November 8, 2024, the National Mediation Board (NMB) issued its response to the December 1, 2022, request from the National Labor Relations Board (NLRB) for the NMB’s opinion on whether Swiss Cargo Services, LP (Swissport) was subject to the Railway Labor Act (RLA), 45 U.S.C. § 151, et seq. In its response, effectively 52 NMB No. 8, the NMB acknowledged its longstanding practice (approximately 40 years), since the 1980s, of applying a “two-part function and control test to determine whether entities that are neither railroads nor airlines are subject to the RLA.” Breaking with this practice, the NMB found upon reviewing the “plain language of the statute in light of the contentions in this case,” there was no RLA jurisdiction in the case, stating that the “two-part test strays, both in structure and its application, from the plain language of the statute.”

In this case, Swissport, two NMB Board Members supported the determination, and one Board member dissented. The determination presented the rationale upon which the decision was based and stated it relied on having “reviewed the plain language of the RLA and the Board decisions issued contemporaneously with enactment of that statutory language as well as the legislative history, the Board finds that its two-part jurisdictional test is atextual.”

The dissent articulated what was viewed as the shortcomings in the Determination’s analysis and conclusion, including not factoring in that the RLA’s “first purpose outlined in the RLA itself is ‘[t]o avoid any interruption to commerce or to the operation of any carrier engaged therein.’ 45 U.S.C. § 151a.” In reference to this point, the dissent pointed to the recent handling of the Gate Gourmet case that was ratified. That case was docketed with the NMB on July 17, 2018, was release from NMB mediation effective June 29, 2024, and involved two unions in a council and a company “contracting with multiple airlines at approximately 30 airports.”

Additionally, the dissent raised other salient points: 1. Court decisions supporting the more than 40-year practice; 2. the potential work disruptions to service that the RLA better protects against; 3. the organizational disruptions with which the air carriers will now be faced; 4. the Congressional acquiescence to the more than 40-year practice; and 5. a potential “ethical dilemma” involving several NLRB Board Members in handling such cases.

Notwithstanding the expressed acceptance of the aforementioned longstanding practice by all parties, it should be noted that there was a relatively recent attempt made at the NMB to significantly alter this “longstanding practice” and to effectively cede jurisdiction to the NLRB in airline “derivative carrier” cases. In 2013, in two cases, Huntleigh USA Corp., 40 N.M.B. No.36, page 130 and Aero Port Servs., Inc., 40 N.M.B. No. 37, page 139, decided on the same day, the NMB significantly changed its longstanding practice. Although the NMB acknowledged the six factors analysis, it stated that in order to find “jurisdictionally significant control,” the NMB required that a “carrier exercise a greater degree of control over the firing and discipline over the company’s employees,” and the NMB declined to assert jurisdiction. It should be noted that the Republican Board seat at the NMB was vacant during the handling of these cases.

Due to judicial review not being readily available for NMB decisions and other factors, a review of this newly articulated NMB procedure from these cases did not get reviewed until 2017 when the United States Court of Appeals for the District of Columbia Circuit in an entirely different case reviewed the change in the NMB’s longstanding practice. ABM Onsite Servs.-W., Inc., 849 F.3d 1139. In this case, the Court held that “an agency cannot avoid its duty to explain a departure from its own precedent simply by pointing to another agency’s unexplained departure from precedent,” and additionally set forth an alternative procedure to resolve the matter. On February 26, 2018, the matter was resolved when the NMB issued its determination in ABM-Onsite Servs., Inc., 45 N.M.B. No. 12, pages 27, 28 (2018), reasserting the two-part test and its six step analysis of control/influence over the company’s employees and specifically, in a footnote, stated that to “the extent that prior Board cases can be read as treating the ability to dictate personnel decisions as required or necessary to establish carrier control, they are overruled.” This decision was accompanied by a strong dissent.

Six years later came this decision in Swissport. However, the decision in Swissport was not unexpected and was suggested as possible in an article written on the subject of Airline derivative carriers published in 2022. See Return to Decades of Precedent, at Least for Now: Derivative Carriers Under the RLA and NLRB Deference to the NMB, 6 ABA JOURNAL OF LABOR & EMPLOYMENT LAW 1 (2022). This article is an excellent historical view of the matter and seems to be available on the ABA website. See https://www.americanbar.org/content/dam/aba/publications/aba_journal_of_labor_employment_law/v36/no-1/return-to-decades-of-precedent.pdf.

The forgoing may suggest that airline derivative carrier jurisdiction issue may continue to bounce back and forth between the jurisdictions of the NMB and the NLRB providing a forum for advocacy for differing views while continuing to leave the airline community, their contractors, and all involved, in a state of operational and administrative uncertainty.

Suggested reading from several law firms:

NATIONAL MEDIATION BOARD REVOKES JURISDICTION OVER AIRLINE SERVICE PROVIDERS; NLRB LIKELY TO FILL THE VACUUM, December 11, 2024. Morgan Lewis LAWFLASH - https://www.morganlewis.com/pubs/2024/12/national-mediation-board-revokes-jurisdiction-over-airline-service-providers-nlrb-likely-to-fill-the-vacuum.

Derivative Carriers Don’t Exist in the Air Industry, Says the NMB in Swissport. November 20, 2024. Seyfarth Legal Update - https://www.seyfarth.com/news-insights/derivative-carriers-dont-exist-in-the-air-industry-says-the-nmb-in-swissport.html

PEB 252 is the 2nd PEB in NMB Case A-13965 involving NJT and BLET.

The NMB provided a timeline for this case and the following in the remaining portion of the timeline:

Note: a link to the full timeline is provided below.

Link to NMB’s A-13965 NJT/BLET Post-Release Timeline.

NOVEMBER 21, 2024

President Biden Announces a Presidential Emergency Board, Names Members

WASHINGTON – Today, President Joe Biden signed an Executive Order creating a Presidential Emergency Board to help resolve an ongoing dispute between New Jersey Transit and the Brotherhood of Locomotive Engineers and Trainmen (BLET). The appointment of the Board is required under the Railway Labor Act because a party to the dispute has requested an Emergency Board.

The Presidential Emergency Board will provide a structure that allows the two sides to attempt to resolve their disagreements. In the 60 days following its establishment, the Presidential Emergency Board will produce a report to the President that selects the offer that the Board finds to be the most reasonable. The Board’s report is not binding, but the party whose offer is not selected would be prohibited by law from receiving certain benefits if a work stoppage subsequently occurs.

President Biden also announced that he intends to appoint the following members to Presidential Emergency Board No. 252:

• Ira F. Jaffe, Chair, Presidential Emergency Board No. 252

• Sidney Moreland, Member, Presidential Emergency Board No. 252

• Thomas Pontolillo, Member, Presidential Emergency Board No. 252

Ira F. Jaffe, Chair, Presidential Emergency Board No. 252

Ira F. Jaffe has served as a full-time arbitrator and mediator of labor and employment disputes since 1981 and has presided over more than 6,000 cases in a wide variety of industries in the private and public sectors and serves on over 80 permanent arbitration panels. Jaffe has served on six prior PEBs – PEB 236 (2001), PEB 241 (2007), and PEB 242 (2007), and served as Chair on PEB 243 (2011), PEB 244 (2013), and PEB 250 (2022). Jaffe is a member and former Vice-President of the National Academy of Arbitrators (NAA), served as the National President of the Society of Federal Labor Relations Professionals in 1990, and taught several courses as an Adjunct Professor at the George Washington University Law School. He is a Charter Fellow in the American College of Employee Benefits Counsel and has arbitrated and mediated a wide variety of employee benefits disputes. He is also a Fellow in the College of Labor and Employment Lawyers. Jaffe received a B.S. from the Cornell University School of Industrial and Labor Relations and a J.D. from the George Washington University Law School.

Sidney Moreland, Member, Presidential Emergency Board No. 252

Sidney Moreland has been a professional arbitrator for 40 years, during which he has helped resolve hundreds of civil and labor disputes in all industrial sectors and professional sports. Moreland serves on multiple arbitration rosters and panels including the American Arbitration Association, the National Mediation Board, and the Federal Mediation Conciliation Service. He currently serves as Arbitrator for the National Football League and the Players Association, as well as for Southwest Airlines and multiple Unions serving that airline. Moreland has vast experience on transportation issues presiding over 70 Public Law Boards serving every Class 1 railroad in the United States—a form of tribunal established by the National Mediation Board for the arbitration of disputes between unions, airlines, and rail carriers. 

Thomas Pontolillo, Member, Presidential Emergency Board No. 252

Thomas Pontolillo has served as a professional arbitrator since 2022, and has been appointed to the arbitrators’ rosters of the Federal Mediation and Conciliation Service and the National Mediation Board. Prior to 2022, Pontolillo served as Assistant to the National President and Director of Research for the Brotherhood of Locomotive Engineers and Trainmen, a major railroad labor union. He began his career as a member of the Brotherhood of Locomotive Engineers and Trainmen, working as a locomotive fireman and a locomotive engineer for Penn Central railroad, Consolidated Rail Corporation, and New Jersey Transit Rail Operations.

Link to While House announcement: https://www.whitehouse.gov/briefing-room/statements-releases/2024/11/21/president-biden-announces-a-presidential-emergency-board-names-members-2/

The PEB 251 Report is now available to download at PEB 251 - NJT & BLET, as well as from the NMB website. The report is dated August 23, 2024, and the potential next step in the process, if there no agreement, would be a public hearing conducted by the NMB on September 20, 2024, based on the previously provided NMB Post-Release Timeline. There are a number of complexities discussed in the report that deal with the pattern issue, as well as other issues, including the number of sequential settlements with a number of the unions. The Board did determine a pattern existed in this case.

The National Mediation Board (NMB), pursuant to the Railway Labor Act (RLA), released the parties, New Jersey Transit Rail Operations (NJT) and the Brotherhood of Locomotive Engineers and Trainmen (BLET),  from statutory mediation on June 24, 2024, and started a “30-day cooling-off" period begining on June 25, 2024. Absent agreement or the establishment of a Presidential Emergency Board (PEB), the parties would have been able to exercise self-help as of 12:01 a.m. EDT, July 25, 2024. However, NJT officials requested President Biden to form a Presidential Emergency Board, thereby avoiding the potential rail strike by locomotive engineers that could have shut down its daily commuter operation.

By Executive Order, on July 24, 2024, President Joseph R. Biden, Jr. established Presidential Emergency Board No. 251 to investigate collective bargaining disputes between New Jersey Transit and their Locomotive Engineers represented by the Brotherhood of Locomotive Engineers and Trainmen and announced the appointment of the three Presidential Emergency Board Members the same day. It should be noted that both Elizabeth Wesman and Barbara Deinhardt, named in the announcement, had served as Presidential Emergency Board Members on PEB 248 which was a prior NJT PEB.

The BLE on their website included a PDF of a “NMB provided” timeline for the settlement of the dispute.  This timeline charts the time frame for the two PEBs, if required, including the creation of the 1^st PEB, due date for the 1^st PEBs report (August 23, 2024), the date for status quo period ends at midnight if no settlement is reached, unless a second PEB is requested by any party to the dispute (November 21, 2024), the due date for the 2^nd PEB’s report (January 20, 2025), and date for the initiation of self-help at the end of the Section 9A process (March 22, 2025). The period for this two PEB process is often measured two ways, 270 days from the release from mediation or 240 days from the creation of the 1^st PEB.

The issues of this dispute, as generally referenced in published articles, seem to pit “pattern bargaining” against arguments for wage “equity/parity” involving other commuter rail operations.   While these issues have not been addressed in previous Presidential Emergency Board (PEB) Reports for the NJT, these issues have been handled by other PEBs for other commuter rail carriers. There may be other more well developed positions the parties will advance to the PEB.

To date, the following principles appear well established in Commuter Rail PEB decisions and may affect this case:

1.     When an internal pattern is established/determined, i.e., a pattern within the business entity/railroad, there is only one case in the railroad industry that a PEB has chosen not to recommend the “internal pattern” for the employees/union before the PEB; the one exception was a freight railroad case, PEB 225 Soo Line – UTU (1994), and unique circumstance were present in that case.

2.     In Commuter Rail operations due to both historical bargaining and practicalities/realities, several commuter railroads have been linked to their non-railroad transit operations in terms of settlement parameters:  at both the LIRR and MNRR great deference is paid to the MTA settlements; and at SEPTA Rail Division great deference is paid to the SEPTA – TWU settlements. This has not been applicable to NJT.

3.     All Commuter Rail union attempts to seek “equity”, or “parity”, pay with other employees on a different carriers have been rejected by PEBs. The rationales for this are found in each PEB addressing the subject and are rooted in an extensive bargaining history for each Commuter Rail operation and, for MNRR, NJT, and SEPTA particularly, this history started in 1983 after significant strikes on each of these three commuter railroads. However, in determining wages increases, historical developments on a carrier and historical comparisons to wages increases on other carriers are relevant, particularly when there is no established “internal” pattern.

4.     In the application of patterns, certain select items due to the facts present in particular cases have also been addressed where pattern bargaining has been accepted, such as certification pay, longevity pay, Training allowance, wage adjustments, etc.

5.     While initially “patterns” may have been viewed as identical settlements for all, over time, and particularly in Commuter Rail, patterns have been more an “economic parameter patterns,” the parties adjusting settlements to specifically address the needs of the parties for settlement while staying within the “economic parameters of the pattern.”  Modifying wage increases, wage increase timing, or wages themselves were counterbalanced with efficiencies.  This process requires a willingness and ability of both parties to address matters that include costing complexities, and potential adverse consequences, not usually left for third party determinations.

The following is a selection of 13 Commuter Rail PEBs addressing pattern bargaining or “equity/parity” adjustments both involving pattern bargaining and when there was not an established pattern:

PEB 199 LIRR – Multiple Unions (1983)

In PEB 199, the “pattern” with “half the organizations” was buttressed by agreements between MTA and its unions and the MNRR’s PEB 198, as well as other factors. (PEB 198 was a PEB established under the Section 10 amendments to the Rail Passenger Service Act enacted through the Northeast Rail Service Act (NERSA) of 1981).

PEB 204 & 207  PATH – BRS (1984)

With eight other unions on PATH having established the pattern in effect, PEB 204 and PEB 207 recommended rate and pension adjustments for the BRS to eventually bring them more in line with the shop mechanics based on the unique aspects of their prior historical comparison. PATH included a means of accomplishing in its 2nd PEB final offer that was selected.

PEB 214 & 217 PATH - TCU-BRC Carmen (1988)

Pattern accepted. PEB 217 stated “We believe that the wage relationships among the various classifications of PATH employees that have evolved in collective bargaining over a period of many years adequately measure differences in skills and responsibilities as well as the presence or absence of work rules that impact on productivity. Thus, we cannot accept the Organization's contention that the nature of the Carmen classification in and of itself makes inappropriate the same settlement for the Carmen as for other employees.”

PEB 216 PATH – BLET (1988)

PEB 216 concurred in Emergency Board 214's assessment that collective bargaining, over the years, has adequately measured the differences in skills and responsibilities among PATH employees and we find no justification to recommend a wage increase greater than the wage pattern accepted by a majority of the crafts.

PEB 226 MNRR – Multiple Unions (1995)

In MNRR’s first Section 9A PEB the unions sought pay equity, or parity, with the LIRR, and the parties sought to bargain close two rounds of bargaining, 1992 – 1994 and 1995 – 1997.  As will be discussed later in Claims for wage pay equity or parity,” the PEB rejected the unions proposals, along with the carrier’s proposal for a wage freeze.  However, while settlement with some organizations were made to address the earlier 1992 – 1994 period, there were no settlements regarding the 1995 – 1997 period. The Board’s recommendations were clearly stated based on several factors: “Metro-North's wage levels and wage increases since 1983 place it at the top of a comparison with carriers such as New Jersey Transit, Conrail and Amtrak. As to recent settlements, those within the MTA family cannot be ignored. The trend, whether generally or in the railroad industry, is for moderate increases.”

PEB 231 SEPTA – BLET (1996)

Pattern accepted. Certification pay provided due enactment of the Rail Safety Improvement Act of 1988 (PL 100-342, June 28, 1988) (RSIA) and its impact on locomotive engineers; and Training Allowance: engineers with five years of seniority, who indicate their availability to serve as instructors and who are so directed by SEPTA, would a payment of $.50 per hour while engaged in instructing trainees.

PEB 237 SEPTA – UTU (2004)

Pattern accepted. Longevity pay be extended to UTU Conductors is premised upon the unique character of the "crew" relationship between Engineers and Conductors.

PEB 240 MNRR – Multiple Unions (2007)

In argument to the Board, the Coalition urges that the pattern of wage increases for Metro-North employees should mirror the wage levels of comparable crafts and classes on the LIRR because it is a rail commuter carrier like Metro-North that is also part of the MTA.

This single central fact, the Coalition asserts, justifies its position that substantial movement toward pay equality with the LIRR must be achieved during this round of negotiations to produce what it says would be a fair and reasonable result

Moreover, as concerns a comparison of rates of pay, rules and working conditions of Metro-North employees with those of the LIRR, it would seem to the Board that is a subject to be considered when and if there is a consolidation of workforces, such as when the LIRR is brought to New York City’s Manhattan’s East Side under a $2.6 billion grant by the federal government that New York State Governor Pataki signed off on this past December.

It is, therefore the recommendation of the Board that the parties be in agreement to the pattern of wage increases as proposed by Metro-North, and contained in the Term Sheet initialed by the parties, i.e., a one-time lump sum payment of $1,000 for 2003; 3% general wage increases January 1, 2004, 2005, and 2006; 4% January 1, 2007; and, 3.5% January 1, 2008.

PEB 241 MNRR – IBT (2007)

The Board concludes that the approach set forth in the Carrier's final offer is the more reasonable approach. First, and foremost, the equalization of wage rates between Metro-North and the LIRR for maintenance of way classifications is not a matter of entitlement, but rather a matter for traditional collective bargaining. The Carrier's final offer has the advantage of affording the IBT a means by which the wage rates of those titles with the greatest disparity relative to LIRR wages may narrow that gap, without disrupting the internal equity within Metro-North and the pattern bargaining that has already taken place and resulted in ratified agreements for the vast majority of represented Metro-North employees.

We further conclude that the Carrier's final offer does a better job of accomplishing traditional collective bargaining goals. Specifically, given the pattern settlement and well-established considerations of internal pay equity, we cannot recommend that the Carrier be required to provide the IBT the full benefits of the TA and then, on top of those gains, also grant additional significant wage increases to the 93% to 95% of the LIRR rate range sought by the IBT without obtaining, in return, work rule or other concessions as a quid pro quo for wages above the pattern settlement.

PEB 246 SEPTA – BLET & IBEW (2014)

Consistent with the parties' historical practice of treating pensions as being outside the pattern set by the TWU agreement, every other rail union, including the UTU, settled on the basis of the 2009 TWU agreement with no additional wage increase based on the pension enhancement received by TWU. That those terms proved acceptable as a basis for all the other rail unions reaching agreement with SEPTA provides strong evidence for concluding that the Organizations' demand for a percentage wage increase based on the 2009 TWU pension improvement is outside the pattern.

PEB 248 NJT – Multiple Unions (2015) - [1st NJT PEB 32 years after 1983 inception of NJT and strike preceding first agreement.]

The union coalition suggested “that the proximate commuter railroads and their recent settlements should be the relevant comparators to guide the Board's recommendations on the disputed issues. In particular, the Coalition points to the recommendations of PEBs 244 and 245 in the dispute between the majority of Organizations represented in this PEB proceeding and LIRR, and to the subsequent Memoranda of Agreement. Other comparators proposed by the Coalition include Metro-North, SEPTA and MBTA. In addition, the Coalition asks that the Board consider their prior individual agreements with NJT.” Page 13.

“. . . Nevertheless, it cannot be denied that over the years wage settlements at NJT have closely followed the general trend of wage changes at the other large commuter railroads in the region, including LIRR, Metro-North, SEPTA and MBTA. Comparisons are instructive, at the very least because they provide relevant evidence of industry standards and of what other carriers and organizations engaging in similar commuter rail service within NJT's proximate geographical area deem to be fair and equitable settlements.

These commuter railroad settlements provide guidance from two important standpoints. First, the most recently negotiated agreements suggest that the Board's wage recommendations are consistent with the average annual uncompounded wage increases at the four other large commuter rail carriers.

Second, it is undisputed that NJT has historically ranked in the middle of the five Northeast commuter rail carriers when top step base hourly rates are compared. The historical data shows that LIRR and Metro-North have ranked first and second, respectively, with regard to wage rates for benchmark job titles that broadly reflect the range of commuter rail workers represented by the unions participating in the Coalition. Put a bit differently, employees at LIRR and Metro-North are paid wages that are higher than NJT, SEPTA and MBTA. Employees at SEPTA and MBTA are paid top step base hourly rates that are lower than the comparable hourly rates at NJT. Thus, in the ranking, NJT is third. The Board's recommended 2.6% nominal wage increase maintains NJT's relative wage standing among these comparable commuter railroads.” Pages 21 & 22.

In the event there is not a settlement as a result of the RLA Section 9A process, the self-help provisions would apply; however, there would be the possibility of Congressional Intervention. There has been only one post PEB Congressional Action in the Commuter Rail industry under Section 9A. See 4. Post-PEB Congressional Intervention with Table & Links.

Other helpful sections:

3.4. Commuter Rail PEBs (§ 9A)

3.3. Presidential Emergency Boards (PEBs): PEB List & PEB Links

2.5. Pattern Bargaining

Read more

Pattern bargaining developed and became accepted relatively early under the Railway Labor Act (RLA).  Essentially, under the "pattern" bargaining concept, great deference is accorded to the settlements reached with a very high percentage of the represented employees; however, this is generally a rail industry concept. Patterns may be formed in national negotiations or in local negotiations.  When a pattern is determined to exist, it will be influential, if in not determinative, in the analysis and recommendations of PEBs.  However, significant settlements may be reached in the same round of negotiations that may not be accepted as a "pattern" but still may be considered and may influence the analysis and recommendations of PEBs.

By the mid-1950s pattern bargaining, along with other factors, was credited with the decrease in the labor disputes going to PEBs and in the reduction in strikes.  The prevalence of this dominating influence was so accepted before PEB 116 in 1957, referenced below, that the PEB noted that testimony to that effect was not even challenged.
 
Today, pattern bargaining addresses industry-wide bargaining with multiple labor organizations, as well as bargaining between one carrier and its multiple labor organizations and in bargaining within industry sectors such as commuter rail operations, including commuter rail operations that are a part of larger mass transit authorities with non-RLA operating units.
 
In the discussion of pattern bargaining, a useful dichotomy has been presented, internal patterns and external patterns.  Internal patterns pertain to a pattern of agreements between one carrier and its labor organization, and external patterns pertain to a pattern of agreements between other carriers and their labor organizations.  While useful, this dichotomy becomes a bit ambiguous in treating with entities such as Commuter operations that have multiple rail and non-rail operations under the umbrella of a larger mass transit authority. 
 
Patterns developed on other carriers may be found to be informative but may not be controlling on the settlements of a different carrier.  In such cases, generally there is deference to an "internal pattern" of a particular carrier.  However, there is at least one instance where an external pattern was deemed appropriate when there was an internal pattern.  When there is no internal pattern, the asserted external pattern may still not be controlling.  The facts of the specific cases and the bargaining history are extremely important to the outcome.  

In order to address pattern bargaining in its historical context, the initial development and rational for pattern bargaining use will be reviewed and, then, there will be a review of the pattern bargaining assertions in more recent years, both under Section 10 and Section 9a PEBs.  For more detailed discussion on PEBs see both 3.3. Presidential Emergency Boards and 3.4. Commuter Rail PEBs.

Often in discussion of pattern bargaining, as well as in non-pattern bargaining cases, one or both parties to the dispute will advance arguments as to the appropriateness of comparators.  The appropriateness of comparators will usually relate to either the propriety of comparing one carrier with one or more other carriers or the propriety of drawing a comparison of one labor organization with another.  As it seems with pattern bargaining concepts generally, the appropriateness of comparators will likely turn on a number of factor.
 
The pattern bargaining issues addressed in Section 10 PEBs are those found in PEBs from 1992 forward that applied to freight operations and to Amtrak.  The pattern bargaining issues in Section 9a PEBs for commuter operations are those found in PEBs established pursuant to said section, as amended in the NERSA Act of 1981 and applied to commuter rail operations operated by local entities.
 
For a full appreciation of exactly how pattern bargaining is addressed in theses PEBs, it is suggested the entire PEB report be reviewed. (Links to referenced PEBs are provided)
 
The following points should be kept in mind in relation to the pattern bargaining discussion:

1. Although early rationale for patterns contained certain criteria of large % of the represented employees that had settled, and other criteria, significant settlements representing employees when there is no determination of a pattern, even if less than 50%, may be taken into consideration by a PEB when circumstances are deemed appropriate. (PEBs 220, 221, 222, 228, 229, 230, 234, 243, 244, & 248)

2. Even when there is a determination of a pattern by a PEB, in limited instances, exceptions have been made when supported by compelling arguments that warranted altering the pattern's application for those seeking such exception. (PEBs 204, 225, 231, 237, 242, & 246)

3. A recurring and dominate voice in support of pattern arguments is the destabilizing effect of not applying it. (PEBs 116, 220, 222, 242, & 243)

4. While various rationales are given to support patterns, a prominent rationale rested on the "combined judgments" of the union and management officials that formed the pattern settlement.​ (PEB 116) 

5. When the settlements advanced as a pattern include settlements established by awards, or other 3rd party determinations, and not by voluntary agreements, the settlements may not be viewed as patterns but may be given substantial weight in the PEB's recommendations. (PEBs 220, 222, 228, 229, 230 & 234).

6. While there is a preference for internal patterns over external patterns, in unique instances, arguments have been coupled with factors that have proven to warrant an exception from an internal pattern and the application of an external pattern. (PEB 225)

7. In determining the application of patterns to Commuter Rail operations, a PEB‘s determination that relatively large non-rail agreements were included as a component part of an overall transit authority’s economic pattern has been an element of the recommendations (PEBs 231, 237, 240, & 246), even when not asserted by the Carrier. (PEB 244)

PEB 116 (March 15, 1957) & Pattern Bargaining

PEB 116 involved approximately 175 Class 1 railroads and the employees represented by the BRT (Road Brakemen, Yard Conductors, and Brakemen).  At the time of the PEB, 80% of the industry (approximately 800,000 employees) were under the "pattern" settlements.  The Board took specific attention to the unchallenged testimony that earlier Emergency Boards recognized the dominating influence of the pattern settlement principle.  
It should be noted that the pattern, in this instance, was established through a process that involved: 1. a concerted joint goal by 80% of the industry to establish a "settlement plan or settlement pattern which would combine uniform and non-discriminatory across-the-board treatment of all classes and crafts . . . ", 2. views that "were the result of 20 years' of experiences," 3. recognition that a "departure from the pattern method of settlement already established in the railroad industry would not be a settlement at all, but would inevitably have the effect of destroying all previous settlements and would prolong and complicate the disputes involved before this Board," and 4. the "combined judgments of the officers and members of the railway employees' organizations, particularly in view of the rivalry existing among organizations." 
After stating the above, as well as other elements of its rationale, the PEB enumerated other reasons for its "decision to approve and recommend adoption of the settlement pattern plan:

1. "It is right and sound and fair that the remaining 20% of railroad workers be given the same package . . . as their fellow workers in the 80% . . . ."

2. "The pattern plan offers the best hope of preventing discriminatory treatment among the various crafts."

3. "No specific challenge of the propriety or fairness of the pattern settlement" was made.  

4. "Earlier pattern plans have proven their worth as stabilizing influences."

5. The pattern settlement was "wholly sound and practical, and works no injustice on the employees."

6. The acceptance of the pattern settlement was "an excellent opportunity to give heed to the recent appeal made buy the President . . . to halt the inflationary wage-price spiral." 

2018 Developments in Pattern Bargaining cases
​
While often Presidential Emergency Boards (PEBs) are the source of information and developments in cases involving pattern bargaining, three arbitration awards following the National Handling round concluded in 2017 and 2018 have addressed a unique aspect in the application of pattern bargaining: Arbitration Board Nos. 602, 603 & 604.  

In these national negotiations, the NCCC was dealing with three coalitions of unions:

1. The CBG (Coordinated Bargaining Group) coalition, consisting of six unions (ATDA, IBB, NCF&O, BRS, BLET, & SMART-TD) and representing roughly 80,000 employees, reached tentative settlement on October 6, 2017.  Five of the six unions ratified and the IBB did not. The technical start date for the agreement was January 1, 2015. The ratified agreements went into effect January 1, 2018.

2. The CRU (Coalition of Rail Union) coalition consisted of five unions (TCU, BRC, IAM, IBEW, & TWU) and representing about 31, 000 employees, reached tentative agreement December 2017. Three unions quickly ratified the agreements and two did not, the IAM and the IBEW.  Ratification process for the three TCU coalition unions that did ratify their agreements was not completed by January 1, 2018. The changes to the prior health and welfare plan for the TCU coalition’s ratified agreements went into effect on February 1, 2018.

3. The MWSM coalition, consisting of two unions, the BMWED and the SMART-Mechanical and representing approximately 26,000 employees, never reached a tentative agreement and never went through the ratification process. The MWSM coalition and the NCCC agreed to send the disputed issues to an Arbitration Board.

In mid-April 2018, the IBB, after two failed ratifications, reached an agreement that was authorized by the IBB President. This agreement applied a January 1, 2018, effective date for the new healthcare plan changes with a “true-up” provision that was calculated to approximate the Carrier’s lost savings for the delayed implementation.

The NCCC and MWMS coalition reached agreement to arbitrate on February 27, 2018. This dispute involved both the application of plan design changes and question a “true-up” to reflect the Carrier’s lost savings due to the delayed plan design changes.

On May 8, 2018, the NCCC and the IBEW signed a ratified agreement with a June 1, 2018 effective date for the healthcare plan changes. At the same time, the NCCC and the IBEW agreed to submit the questions of whether the employees should be required to deduct a amount from their retroactive wage increases because of the four-month delay in reaching the agreement with the IBEW (February through May).

On August 16, 2018, an interest arbitration agreement was entered into by the NCCC and the IAM to resolve the dispute placed before the Arbitration Board, involving both requests for additional compensation and the matter of the “true-up” to reflect the Carrier’s lost savings due to the delayed health care plan design changes.
  
Arbitration Board No. 602, NCCC – MWSW (May 23, 2018) Opinion & Awarded Agreement (Two Documents)
The Arbitration Board utilized the pattern rationale in resolving both issues: the Board issued a decision in favor of the Carriers, adopting the Pattern Plan Design changes in all respects; and the Board found that the date on which the plan design changes were implemented was critical part of the overall agreements reached between the Carriers and the unions and awarded a “true-up” amount per-employee-per month to account for the Carriers’ lost savings caused by the delay in settling the agreement..
 
Arbitration Board No. 603, NCCC – IBEW (July 17, 2018) Opinion/Award & Mediation Agreement (Two Documents)
The Arbitration Board was confronted with a sole issue: whether the Carriers were “entitled to a deduction from the payment of retroactive wages equal to the $74.24 per month per employee, dating from February 2018 through May 2018 (four months), on account of the delay in the implementation of the design changes.  In deciding in the Carriers’ favor, the Board stated that a “central feature of those health care design changes were savings which were lost for each day they are not implemented.”  Additionally, the Board cited to Arbitration Board No. 602’s award, the IBB agreement, and the number of unions that made voluntary agreements that were implemented soon after their first tentative agreements.
 
Arbitration Board No. 604, NCCC – IAM (September 26, 2018) Opinion & Award (One Document)
The Arbitration Board was confronted by the selection on the Carriers’ proposal or the Union proposal.  In following the general logic of the prior to Board’s and specifically citing Arbitration Board 603’s award, Arbitration Board No. 604 selected the Carrier’s proposal that included the “true-up” provision that reflected the Carrier’s lost savings due to the delayed implementation of the plan design changes.

Developments under Section 10.

PEB 220  NCCC & CSX - IAM
The unresolved contract issues before PEB 220 between the carriers and the IAM covered the same subjects as those considered by PEB 219.  The recommendations of PEB 219, except as modified or clarified by a Special Board or otherwise modified by mutual agreement of the parties, were made effective between the carriers and all organizations except the IAM. See Post-PEB Congressional Intervention for PEB 219.
The same carriers before PEB 220 were before PEB 219. The organizations before PEB 219 represent about 95 percent of the organized work force employed by the freight carrier.  The International Association of Machinists (LAM), the single organization before PEB 220, was not party to the PEB 219 proceedings; it represents an estimated five percent of the organized work force (approximately 7800 employees) on the Class I railroads.
The threshold question concerned the impact on Presidential Emergency Board 220 of the recommendations of PEB 219 as enacted by Congress, and as reviewed by the Special Board. 
PEB 220 considered "it critical to the public interest that labor relations and collective bargaining on the nation's railroads be fair, stable, and reasonably consistent."  Conversely, they believed "that political competition between and among unions for supremacy of benefits, with its ineluctably destabilizing consequences, is damaging to the public interest."  Because the recommendations of PEB 219 were then in effect for most of the unionized employees in the railroad industry, they concluded "that significant variations for the IAM-represented employees that change previously linked or stabilized economic and work relationships with other rail employees would produce the destabilization" that they thought needed to be avoided. They said recognized, however, that exceptions may be made in special, compelling circumstances. They treated the recommendations of PEB 219 as "presumptively applicable to the IAM and the carriers" in the case before them, whether or not they are characterized as a "pattern."  The presumption, however, was said to be "a rebuttable one."  
When the IAM rejected the PEB recommendations, Congressional intervention ensued. See  Post-PEB Congressional Interventions.

PEB 222 Amtrak - Multiple Unions
PEB 222 was held concurrent with PEBs 220 and 221.  However, Amtrak had settled with a number of organizations representing about half of its employees on a wage package different from that recommended by PEB 219 and introduced an "internal model” for about 50% of its employees different from that established by PEB 219.  In short, through negotiations and its position before the PEB, Amtrak "removed itself from the so-called pattern resulting from the PEB 219 wage recommendations and the resultant federal law."   In evaluating the Amtrak "internal model," the PEB concluded that ignoring "that pattern" and granting "each of the organizations  . . its own wage demand would reduce Amtrak's wage structure to chaos" and they declined "to make such recommendation."  Referencing its decision in "companion" PEBs, the PEB reiterated its thoughts that it was "critical to the public interest that labor relations and collective bargaining in the nation's railroads be fair, stable, and reasonably consistent" and "that political competition between and among unions for supremacy of benefits, with its inevitable destabilizing consequences, is damaging to the public interest." 
However, the PEB specifically stated that it was not to saying "that the PEB 219 recommendations were not relevant, but that they would be considered, where appropriate, on the same footing as other probative material.  It should be noted that where Amtrak sought work rule changes, the “pattern” sought by Amtrak failed to be convincing where the work rule impact fell on the majority of employees to whom it would cover.  The PEB 219 recommendations under consideration by the PEB 220 & 221 that ran concurrent with PEB 222 and whose Board Members also served on PEB 222 could be seen as influencing the PEB 222 recommendations on work rules.  See Post-PEB Congressional Interventions.

PEB 225 Soo Line - UTU
In PEB 225, the Soo Line contended that it was essential to settle the common issues with the UTU on the basis of the "local pattern" established in 16 agreements and maintained that there were no circumstances peculiar to the UTU that justified treating trainmen represented by the UTU differently and more favorably than their fellow employees in other crafts, particularly locomotive engineers represented by the BLE. However, the Board found that the percentage increases, the lump sum payments and the cost of living adjustments recommended by PEB 219 and the dates upon which those pay elements were made effective for trainmen represented by the UTU on the other Class I carriers were appropriate for UTU-represented employees on the Soo Line.  The recommendation was based, in significant part, upon the finding that, as the result of the recommendations concerning crew consist, the Soo Line's trainmen represented by the UTU, vis-a-vis their fellow Soo Line employees, would be contributing the overwhelming preponderance of the labor cost savings required to meet the Carrier's critical need for improved and more flexible operations.

PEB 228    NCCC-TCU
PEB 228 was established by Executive Order 13001 on May 8, 1996.  In this PEB the Carriers involved in this dispute included most of the Nation's Class I line haul railroads and terminal and switching companies.  The Transportation Communications International Union (TCU) was the collective bargaining representative under the Railway Labor Act for approximately 39,000 Clerks and Carmen.
As with PEB 230, established May 17, 1996, the agreements settled prior to the PEB include an arbitrated agreement (UTU), and two other agreements, one of which was not ratified and the other of which required further negotiations.  Also, combined these agreements did not exceed 50% of the work force and none of which applied to shop craft unions, three of which were before PEB 230. Despite the Carriers' assertions, the Board concluded that "We view it as less than the clear and compelling 'pattern' which the Carriers suggest it to be."  However, based on other factors, i.e., by " appreciation of all the foregoing discussion as a cohesive whole," the Board concluded "we see no proper way for declining to apply the Carriers-UTU wage package as the wage package to be recommended for adoption by the Carriers and the TCU."  

PEB 229 NCCC-BMWE
PEB 229 was established by Executive Order 13003 on May 15, 1996.  Unlike PEBs 228 and 230 that were also established in May 1996, the PEB's recommendations did not mention pattern but appeared to be tailored to the parties and based on a specific set of principles, while tracking prior settlements on wages and health insurance:
"In assessing the parties' respective positions and in reaching its recommendations, the Board been (sic) guided by the following principles:
1. The parties have been given every opportunity to state their case and provide the Board with a complete understanding of the issues.
2. Each issue would be considered on its own merits as well as its relative position within a total contract.
3. The competitive and economic conditions so necessary for the carriers' survival are balanced with employment and institutional security so critical to the unions' survival.
4. Our recommendations would provide a framework for a stable, self-reliant and durable collective bargaining relationship."

PEB 230 NCCC - IAM, IBEW, & SMW
PEB 230 was established by Executive Order 13004 on May 17, 1996.  As with PEB 228, established nine day earlier, the Carriers included most of the Nation's class I line haul railroads and terminal and switching companies.  The labor organizations were four named in the Executive Order creating the Board, but the BRS reached an agreement and did not participate in the PEB with the other three labor organizations, the IAM, the IBEW and the SMW.
As with PEB 228, the agreements settled prior to the PEB include an arbitrated agreement, and two other agreements, one of which was not ratified and the other of which required further negotiations.  Also, combined these agreements did not exceed 50% of the work force and none of which applied to shop craft unions, three of which were before the PEB.
The carriers argued that a pattern existed and should be followed, but such was challenged by the labor organizations.  The PEB reviewed the carrier’s assertions and the unions’ contentions and found that under the circumstances before them “the pattern upon which the carriers rely is not as clear or compelling as the carriers would have us believe. We find that the wage level and other benefits set forth in the UTU, BLE and BRS agreements ought to be a large influence on our decision but cannot be treated as presumptively correct or controlling.”

PEB 234 Amtrak - BMWE
In PEB 234, without much discussion of patterns, the Board made its recommendations with heavy reliance on the recent freight settlements with the BMWE following PEB 229.  However, after recognizing that the parties were best suited to forge such answers on certain unresolved issues, the Board then recommended a dispute resolution procedure for the parties' unresolved issues.

PEB  242  Amtrak - Multiple Unions
In PEB 242, the Board both noted the importance of pattern bargaining in the railroad industry had been the subject of commentary by a number of PEBs over the years and that pattern bargaining principles served a number of functions:

1. 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. 

2. 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.  

3. These principles provide benchmarks in bargaining, enhancing the likelihood of voluntary agreements.  

4. 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. 

5. 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. 

There are a number of reasons why this Board rejected Amtrak's assertion of an "internal pattern" and refused to accept Amtrak’s argument that the claimed internal pattern trumped or modified the Freight Agreements as the appropriate relevant pattern in this case.  First, the record contained no evidence that the agreements constituting the alleged pattern had historically been used as patterns for the settlements of the Agreements for the Organizations involved in this dispute.  Second, the settlements covered 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 based upon that claimed “pattern” failed ratification by significant margins.  Third, there is no real “pattern” at all regarding the period after December 31, 2004 (bargaining began in late 1999 and early 2000 and the PEB report was dated December 2007). No Agreement that passed ratification and became effective for Amtrak employees was introduced.  Fourth, even if there was 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.
The Board specifically noted that "the finding in this case that the Freight Agreements provide the most fair and appropriate pattern for the Organizations in this dispute" was "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." 
It should also be noted that some adjustments were made to the accepted pattern where deemed appropriate.

PEB 243 NCCC - Multiple Unions
In PEB 243, the carriers asserted a pattern and the labor organizations vigorously challenged the assertion.  The Carriers had settled with one operating union (UTU) that represented 38,000 employees.  The eleven labor organization challenging the pattern represented approximately 92,000 employees, both operating and non-operating employees.  While acknowledging the pattern arguments, the Board chose not to formally address the issue: ". . . we need not and do not resolve that issue.  Rather we find it sufficient to consider the UTU agreement for what it unquestionably is: relevant evidence of what the carriers and one independent union agreed was a fair and equitable settlement."
In support of the Carriers' "contention that to permit competition in the area of compensation among fragmented unions would be destabilizing to a sensible bargaining process, and therefore, be damaging to the public interest," the Carrier cited a number of PEBs, including PEBs 242, 231, 228, 221, 220, 211, 195, 194, 187, 186, 185, 181, 174, 169, 159, 157, 137, 116, and 114.  While the PEB used the UTU agreement as guidance in its analysis, in terms of general wage increases they reommended variations and specifically stated its rationale.  In regard to the changes for the National Health and Welfare plan, the PEB recommended the Carriers' proposal that was based on its UTU agreement with slight modifications. 

Developments under Section 9A (Commuter Rail Operations).

PEB 199 - LIRR - Multiple Cases

In the first PEB established under Section 9A, PEB 199 (LIRR), the Board, noting at the time of its report, BRAC and IBT have concluded negotiations, and their agreements are in effect. BRS, IBBB, IBFO, and SMWIA have reached agreement with LIRR on all issues, and only formal ratification procedures remain to be carried out. The IBEW and ARASA reached tentative agreement with LIRR, but ratification was not accomplished, The Board recommended that the parties follow the pattern “already established with half of the organizations.” Additionally, the Board buttressed its recommendation stating that this “package is comparable to the agreements between MTA and the unions representing bus and subway employees, as well as the recommendations of Emergency Board 198 with respect to the MetroNorth Railroad which MTA also operates.” It should be noted that PEB 198 was established under Section 10 of the Rail Passenger Service Act and was not a Section 9A PEB.

PEB 204 PATH - BRS  (1984)
In PEB 204, the BRS, one of the nine labor organizations on PATH, represented 54 employees.  In total, the 9 labor organizations at PATH represented 937 employees.    Prior to the PEB's creation, the other 8 labor organizations had settled with PATH in what PATH referred to as a pattern settlements.  The Board in this case recommended, due to the unique facts of this case, the history of negotiations, and the historical relationship among certain labor crafts, wage and pension adjustments to re solve a "perceived inequitable relationship."  PEB 207, the second PEB, in the process selected PATH's proposal that was fashioned on PEB 204's recommendations.

PEB 226 MNRR - Multiple Unions

In MNRR’s first Section 9A PEB, PEB 226, the unions sought pay equity, or parity, with the LIRR, and the parties sought to bargain to closure two rounds of bargaining, 1992 – 1994 and 1995 – 1997.  The PEB rejected the unions proposals for pay equity, or parity, along with the carrier’s proposal for a wage freeze.  However, while settlement with some organizations were made to address the earlier 1992 – 1994 period, there were no settlements regarding the 1995 – 1997 period. The Board’s recommendations were clearly stated based on several factors: “Metro-North's wage levels and wage increases since 1983 place it at the top of a comparison with carriers such as New Jersey Transit, Conrail and Amtrak. As to recent settlements, those within the MTA family cannot be ignored. The trend, whether generally or in the railroad industry, is for moderate increases.”

PEB 231 SEPTA - BLE  (1996)
In PEB 231, the Board accepted the internal pattern based on prior agreements, including from its largest union in its transit (non-rail) operation.  However, while the Board did accept the concept of no retroactivity, it both introduced the concept of ensuring the "full value" of other settlements, in particular the most recent, and recognized the uniqueness of the BLE craft in considering certification pay and limited training allowance.

PEB 237 SEPTA - UTU  (2004)
In PEB 237, the Board again acknowledged the general pattern on SEPTA and noted the different years primarily with one organization that did not fit the pattern.  In recommending the pattern and no retroactivity for the UTU, they also recognized the "commonality" between  Conductors and Engineers and recommended longevity pay for Conductors similar to what the Engineers had in their agreement.  
​
PEB 240  MetroNorth - Multiple Unions  (2007)
In PEB 240, there were several settlements on MetroNorth at the time the PEB was created.  The Board took notice of the facts that the collective bargaining agreements between Metro-North and its unions, representing 12 bargaining units/crafts/cases, had been based over the years on the principle of pattern bargaining and settlements that included other than Commuter Rail operations.  Accordingly, Board recommended the pattern of wage increases as proposed by Metro-North and contained in the "Term Sheet" that had been initialed by the parties. Certain aspects of the recommendations took other matters into account.  The "Term Sheet" factored significantly into the recommendations, and "other equities" played a role, particularly in the fashioning of its unique healthcare employee contribution recommendation. 

PEB 244  LIRR - Multiple Unions (2013)
In PEB 244, there were no settlements on the LIRR at the time the PEB was created and functioned.  The LIRR took the position that the MTA non-Commuter Rail settlements, namely the MTA TWU 100 arbitration award, and other similar arbitration awards, should not constitute a "pattern" that should be applied to them and argued for the "pattern" of certain NY state settlements.  After reviewing the MTA awards, other commuter rail operations, and non-commuter rail operations, the Board rejected the LIRR's arguments and fashioned its recommendations based in part on the MTA awards for the first part of the term of the recommended settlement and turned toward other Commuter Rail and non-Commuter Rail settlements for the remained of its wage recommendations.

PEB 246 SEPTA - BLET & IBEW
In PEB 246, SEPTA presented its internal SEPTA pattern based on a large non-rail union and 15 of the 17 commuter rail unions (approximately 95% of the SEPTA unionized workforce).  In including the "pattern" in its recommendations, the Board did also make certain accommodations for certain issues raised by the unions. 

PEB 248  NJT - Multiple Unions 

​In PEB 248, NJT had no prior settlements.  The unions advanced the settlements from LIRR and MNRR, that had their basis in PEBs 244 and 245, along with settlements at SEPTA and MBTA, as appropriate comparators that would maintain the relative wage relationship of the NJT employees with other Northeast commuter rail operations.  NJT based its wage proposals on its representations of the state's financial condition and its labor agreements with its state employees.  While the PEB did not hold that other commuter rail labor settlements were controlling, the PEB did regard them as informative, particularly in addressing the relative relationship of NJT employees compensation levels with those of other Northeast commuter rail operations. The Board’s recommendation was intended to maintain “NJT’s relative wage standing among these comparable commuter railroads.”

The following diagrams demonstrate the Railway Labor Act negotiation processes for both the more traditional rail and airline operations and for the Commuter operations.  The traditional diagram referencing PEBs established under RLA Section 10 applies to all rail freight operations, Amtrak, and Airlines.  See 3.3. Presidential Emergency Boards (PEBs). The Commuter diagram applies to the rail Commuter operations and references PEBs established under RLA Section 9A of the RLA (Section 159A. Special Procedures for commuter service). See 3.4. Commuter Rail PEBs.

In these first two diagrams the color red is used to signify when neither party has control of the decision although they both may try to influence it.  The main emphasis is to focus on the process in its entirety for a strategic assessment of were the process may potentially lead.  Any strategic analysis will vary depending on the participants, the situation in which the participants find themselves, and the the assessment of the mindsets of those third parties that may directly affect the course of the process.

Bargaining Process including Section 10 PEB

Bargaining Process including Section 9A two PEBs

These second two diagrams were earlier versions the RLA bargaining process. In these a circle is used to show that at certain points in the process neither party has control of the decision.  These diagrams were done more to focus on the potential for third party direct intervention; the diagrams are geared more to risk analysis approach focusing on the decision points with emphasis on third party control in the decision process.

Bargaining Process leading to Section 10 PEB

Bargaining Process leading to Section 9A two PEBs