Court rules Wisconsin's two-person crew law preempted for hostling and helper operations

Court rules Wisconsin’s two-person crew law
preempted for hostling and helper operations

CHICAGO -- The U.S. Seventh Circuit Court of Appeals has upheld requirements of the State of Wisconsin’s two-person rail crew law for over-the-road freight operations, but not for hostling and helper operations.

In a ruling handed down on July 23, the court held that the state’s two-person crew law requirements are not valid with regard to hostling and helper operations because those are preempted by federal regulations issued by the Federal Railroad Administration (FRA) that address related blue-flag protections.

"The court said the state cannot adopt a regulation where the federal government has already covered the subject matter," said UTU Designated Legal Counsel Lawrence M. Mann.

"You can still negotiate to ensure a two-person crew is involved in hostling and helper operations," Mann said, "but this ruling means that such requirements cannot be included as part of a state law."

Mann said UTU members should know that if they seek similar legislation in other states, it should not include anything but a requirement for a two-person crew aboard a locomotive.

Wisconsin’s law was crafted, in part, in reaction to the Wisconsin Central’s plan to use one-person crews and remote-control operations.

Concerned over safety on the WC, and not willing to wait for disaster, UTU State Legislative Director Thomas P. Dwyer II worked with State Representative John Dobyns, who introduced the two-person crew measure.

In December 1997, the Wisconsin legislature adopted the legislation, and in signing it into law, Governor Tommy Thompson called it the "UTU Bill" because of UTU members’ efforts to get it passed. Shortly afterward, UTU International President Charles Little urged all state legislative directors to work for the adoption of similar legislation in their respective states.

A group of railroads including Burlington Northern Santa Fe, the Soo Line, Union Pacific, and Wisconsin Central immediately challenged the law, claiming it was preempted by federal regulation, but the U.S. District Court for the Eastern District of Wisconsin ruled in late 1998 that the law was valid.

The railroads’ appeal of that finding led to the recent ruling regarding hostling and helper operations.

"I think the decision regarding hostlers and helpers in this court is wrong," Mann said, "but we want another court to challenge this provision."