Commuter rail operating agreement

Operator Personnel Conduct and Discipline

Operator Personnel shall be qualified for the work assigned to them and shall perform their duties in a courteous, efficient, safe, and competent manner.

Operator Personnel who fail to meet such requirements shall be deemed to have engaged in Conduct Unbecoming an Employee as described below.

Operator Personnel engaged in the provision of Agreement Services shall not deface, damage, destroy, vandalize or litter rolling stock, station areas, or any other part of the Service Property, Support Property or Service Equipment.

Operator Personnel shall not, while engaged in the performance of Agreement Services, smoke, read personal material, watch or listen to television or other video devices, or use other electronic devices (such as cellular phones, personal digital assistants, tablet computers) for personal reasons.

Operator Personnel shall not sleep or appear to sleep, or fail to perform duties in a timely fashion as assigned.

Uniformed Operator Personnel must avoid congregating in groups in public spaces used by Customers.

Any such conduct as cited in Sections 1.8.3, 1.8.4, 1.8.5 and 1.8.6 of this Schedule 3.9 (Management and Personnel) will be considered Conduct Unbecoming an Employee.

In addition, Conduct Unbecoming an Employee shall include, but not be limited to, the following conduct or behavior:

Misconduct towards a Customer or other person on the Service Property, including abusive, hostile, harassing, discriminatory, argumentative, or demeaning behavior.

Failure to comply with the customer service standards, described in Schedule 3.7 (Operator Customer Service Responsibilities) of this Agreement.

Negligent performance of the Agreement Services.

Use or possession of illegal drugs or alcohol.

Use or possession of firearms or other weapons.

Dishonesty, including without limitation (i) theft, and (ii) the willful failure to accurately complete required reports.

Disorderly conduct.

Fighting.

Insubordination.

Criminal activity or reasonable suspicion of criminal activity.

Failure to comply with the Operator’s safety compliance plan or security compliance plan, or any other act evidencing disregard for safety or security.

Failure to collect Fares on-board commuter rail trains.

Vandalism or other intentional damage to Commuter Rail Property or Third-Party property.

Reporting for work more than 60 minutes prior to the start of a scheduled tour of duty or leaving Service Property more than 60 minutes after completing a scheduled tour of duty unless permitted or required by the MBTA.

Failure to comply with any regulation, rule, procedure or instructions required to comply with the ADA or other accessibility law or regulation.

Failure to make proper and/or required onboard announcements.

Any other instances of Conduct Unbecoming An Employee as may be defined in this Agreement, including but not limited to the provisions of Schedule 3.1 (Transportation Services) of this Agreement.

All Operator Personnel who interact with Customers or the public, including locomotive engineers who work on-board commuter rail trains, must conduct themselves with courtesy and decorum, dress appropriately for the provision of service to Customers, and wear a clearly visible identification badge containing the employee’s first name and badge number at the breast pocket.

All Operator Personnel who interact with Customers or the public, while on duty, shall not eat or drink and shall be clean and attired in uniforms that clearly indicate that they are providing Agreement Services on behalf of the MBTA. Uniform designs for on-board Operator Personnel must be approved by the MBTA. Failure to comply with any requirement of Section 1.8.9 of this Schedule 3.9 (Management and Personnel) shall be deemed Conduct Unbecoming an Employee.

The Operator shall develop and implement an audit plan and reporting protocols that target employee conduct and appearance (ODRL 3.9-028). The plan and protocols must be submitted for MBTA approval no later than 60 days after NTP.

The Operator shall promptly investigate all reports of Conduct Unbecoming an Employee, and shall institute appropriate corrective measures, which shall include:

Disciplinary action;

Barring such Operator Personnel from the Service Property;

Removing such Operator Personnel from the performance of Agreement Services; or

Transferring such Operator Personnel to a job that does not require interaction with Customers or the public.

The Operator shall include in its collective bargaining agreements appropriate provisions that recognize the right and obligation of the Operator to take corrective measures for Conduct Unbecoming an Employee, including provisions stating that such conduct may be “cause” for disciplinary action, including dismissal.

The Operator shall take steps to ensure that similar instances of Conduct Unbecoming an Employee do not occur in the future.

The Operator shall also, at the request of the MBTA, in addition to instituting the corrective measures identified in Section 1.18.12 of this Schedule 3.9 (Management and Personnel) for any Operator Personnel who engage in Conduct Unbecoming an Employee, or who the MBTA deems unsatisfactory on any reasonable basis, prevent such Operator Personnel from entering the Service Property.

Such reasonable basis may include the receipt by the MBTA or the Operator of more than three verbal or written complaints regarding the conduct of any Operator Personnel.

Such complaints need not be documented by complainants in writing or in person if subsequent investigation by the MBTA or the Operator reveals credible evidence of the veracity of the complaint.

Any criminal conviction, or reasonable suspicion of criminal activity, that in the discretion of the MBTA or the Operator, indicates that any Operator Personnel poses a threat to Customers, MBTA employees or the Service Property, the Support Property or the Service Equipment, shall constitute Conduct Unbecoming an Employee.

In the event any Operator Personnel barred from the Service Property or the performance of Agreement Services pursuant to Sections 1.8.12 or 1.8.14 of this Schedule 3.9 (Management and Personnel) disputes such action, through arbitration or other proceeding set forth in a collective bargaining agreement or through a judicial proceeding or other forum recognized by law or contract and such employee prevails in such proceeding, the MBTA shall pay due deference to the results of such proceeding and shall consult with the Operator regarding the appropriate resolution of such Operator Personnel status, taking into account whether restoration of any such Operator Personnel to the performance of certain Agreement Services may threaten the public safety, or the provision of Customer Service in a manner that is consistent with the requirements of this Agreement.

At all times, the Operator will satisfy its obligation to maintain adequate personnel, both in number and qualifications, to provide Agreement Services in conformance with the approved staffing plan, regardless of the number of employees held out.

Availability of Employee Records

The Operator shall maintain such records as may be necessary or desirable in order for the MBTA to determine the Operator’s compliance with applicable laws and regulations, and to assist in future transitions to a Successor Operator. As of NTP, such records consist of:

Operator Personnel lists, including each employee’s name, employee number, craft or position, and badge number (where applicable);

Hire dates;

Wage and benefit records;

Records of Operator Personnel competency tests, qualifications, certifications, and training; and

Records of all Operator Personnel regarding attendance, discipline, drug and alcohol testing, and criminal violations that directly relate to the performance of the Agreement Services.

All such records shall be available for inspection and copying by the MBTA upon its request during the Operator’s normal business hours (ODRL 3.9-010).

The Operator shall provide to the MBTA on or before September 1 of each Agreement Year a report as to the matters referred to in Sections 1.9.1.1 thru 1.9.1.5 of this Schedule 3.9 (Management and Personnel) above for the immediately preceding Agreement Year (ODRL 3.9-011).

The Operator shall also submit to the MBTA a monthly employment report containing authorized headcount by function and current Operator Personnel lists as described in Section 1.9.1.1 of this Schedule 3.9 (Management and Personnel) above (ODRL 3.9-012). Any information received by the MBTA pursuant to this Section 1.9.4 of this Schedule 3.9 (Management and Personnel) shall be accorded the requisite confidential treatment as required by law.

The Operator shall prepare an annual staffing report (ODRL 3.9-013). This shall be a cumulative report that includes staff at all levels in all departments. It shall include forecasts for attrition and a hiring plan. The goal of this report is to ensure that the Operator has an effective staff management process and hiring plan as well as a reasonable forecasting protocols.

The Operator must prepare for and participate in an annual staffing review and evaluation conference with the MBTA by October 1st each year. The purpose of this meeting is to discuss whether the Operator’s staffing levels are appropriate to handle ongoing and planned work (ODRL 3.9-014). In addition, interim review sessions with the Operator and the MBTA shall be scheduled in advance on a quarterly basis in order to review progress and make adjustments to the plan. This meeting schedule will be included in the annual staffing report.

Competency Tests

All employees hired by the Operator or its subcontractors shall be qualified and experienced in the work for which they are engaged, and shall possess all necessary and current certifications from appropriate regulatory authorities.

No later than 120 days after NTP, the Operator shall submit to the MBTA a Training Program, as required by Schedule 3.10 (Training of Operator Personnel) of this Agreement, that ensures that all Operator Personnel are capable of performing the Agreement Services for which they are responsible. This plan must include a plan to administer baseline competency testing for all mechanics and supervisors to verify specific training needs. Said training program shall include training for existing Service Equipment and any Service Equipment anticipated to be added (ODRL 3.9-015).

All Operator Personnel identified as deficient in required qualifications will complete necessary training prior to performing Agreement Services.

The Operator shall develop and establish appropriate competency tests and procedures for all Operator Personnel.

The Operator shall determine, using competency tests or other procedures, that all Operator Personnel are competent to perform the jobs to which they are assigned.

The Operator shall further require, to the extent permitted by relevant CBAs, that an employee’s promotion or advancement to a higher pay grade be contingent on the employee passing a competency test tailored to that higher pay grade and experience level.

Work in Harmony

The Operator shall furnish labor that shall work in harmony with all other elements of labor employed in the provision of Agreement Services, and shall work in harmony with Other Contractors and Third Party Railroads.

The Operator shall make reasonable efforts to minimize disputes between itself and such Other Contractors.

The MBTA shall use reasonable efforts to cause Other Contractors engaged by it to work in harmony with the Operator, and shall use reasonable efforts to minimize disputes between the Operator and Other Contractors engaged by the MBTA.

All Operator Personnel shall conduct themselves at all times in an orderly and proper manner so as not to annoy or offend Customers or other persons using the Service Property or employees of the MBTA.

The Operator shall, at the request of the MBTA, prohibit from entering the Service Property any Operator Personnel, agent, consultant, supplier, and/or Subcontractor who should cause any annoyance or offense.

Damage to MBTA Property

None of the Operator’s Personnel, or agents, consultants, suppliers, Subcontractors or representatives of the Operator will not deface, damage, destroy, misuse, litter or vandalize rolling stock, stations, shops or shop equipment, track cars or machinery or any other part of the Commuter Rail Property. This includes the application of unauthorized or inappropriate decals, advertising or other artwork.

The Operator shall assume liability for all such actions on the part of its Operator Personnel or agents, consultants, suppliers, subcontractors or representatives and shall indemnify and hold the MBTA harmless from and against all claims, damages, losses and expenses incurred by the MBTA arising out of such actions.

HIRING OF EXISTING WORKFORCE

Establishment and Filling of Union Positions. The Operator shall establish employment positions for the provision of the Agreement Services equal to the number of Commuter Rail Employee Positions in existence on December 31, 2012 with the Massachusetts Bay Commuter Railroad (“MBCR”), hereafter referred to as the “Workforce Positions.” The number of Workforce Positions to be established by the Operator, by category, shall be as follows:*

Transportation -

Mechanical -

Engineering -

Administration -

*to be provided with final Agreement

The Operator shall initially offer employment for all Workforce Positions in seniority order from the rosters of Eligible Union Employees, and shall fill all vacancies (if the Operator elects to fill such vacancies) during the Agreement Term from the rosters of Eligible Union Employees if such rosters have not been exhausted. In the event that the Operator exhausts such rosters or such rosters do not provide employees who are qualified to fill an initial position or a subsequent vacant position, the Operator may fill such positions with employees not on such rosters.

Beginning the fourth Friday after the NTP or on another schedule proposed by the Operator, but not less than weekly, the Operator shall provide weekly written reports to the MBTA on the status and progress of the hiring process (ODRL 3.9-016). Such weekly updates shall include, without limitation, a listing of the filled and open Workforce Positions and a list of the Eligible Union Employees by employee name and number, based on seniority rosters indicating whether the employee:

Applied for a position,

Was interviewed for the position,

Was offered the position,

Was not offered a position based on failure of a physical or drug or alcohol testing,

Accepted or declined the position, or

Was given a general physical examination and the outcome of any such examination.

The Operator shall also list and identify each individual who was offered and accepted a position on the Operator’s workforce and who was not previously employed by MBCR, including a complete and detailed explanation regarding why the position was not filled by an individual who belonged to the existing MBCR workforce and was on a seniority roster (ODRL 3.9-017).

The Operator shall keep all MBCR employees who are on disability due to work-related injuries at the time of the workforce transition on the roster of Eligible Union Employees for 36 months starting on the Agreement Services Commencement Date. If at any point during that 36 months the employee passes a physical and drug/alcohol test as described in Section 5 (Drug and Alcohol Testing Requirements) of this Schedule 3.9 (Management and Personnel) below, the Operator shall follow the applicable seniority rules in force at the time to determine the employee’s eligibility for a position.

The Operator shall keep MBCR commuter rail employees who are on disability due to non-work related injuries or illness at the time of the workforce transition on the roster of Eligible Union Employees for 12 months from the Agreement Services Commencement Date. If at any point during that period the employee passes a physical and drug/alcohol test as described in Section 5 (Drug and Alcohol Testing Requirements) of this Schedule 3.9 (Management and Personnel) below, the Operator shall follow the applicable seniority rules in force at the time to determine the employee’s eligibility for a position.

Hiring of Management Employees

Subject to Section 5 (Drug and Alcohol Testing Requirements) of this Schedule 3.9 (Management and Personnel), the Operator shall offer employment in supervisory and management commuter rail positions to Eligible Management Employees (i.e., all management positions not reporting directly to the Operator General Manager) for a four month probationary period beginning on the Agreement Services Commencement Date during which the Operator will evaluate each individual’s performance for consideration of future continued employment.

At the expiration of the four month evaluation period, each Eligible Management Employee’s future employment by the Operator shall be at the discretion of the Operator and subject to the Operator’s personnel policies and procedures.

Each employee working or hired under this subsection shall be provided pay, health and welfare, retirement, and other benefits substantially equivalent to those provided to such employee in his or her position with MBCR.

Workforce Management

The requirements of this Schedule 3.9 (Management and Personnel) shall not be construed to:

Impose a mandatory staffing level for the Agreement Services throughout the Term;

Restrict the Operator’s ability to manage the number of positions and size of workforce it determines to be necessary to perform the Agreement Services, as vacancies occur or as services are added or adjusted during the Term or

Restrict the Operator’s ability to dismiss employees for cause, including the failure to meet training requirements under Schedule 3.10 (Training of Operator Personnel) and drug and alcohol testing as provided by Schedule 3.5 (Safety and Security).

The Operator shall not offer employment to any person who fails to successfully complete (1) drug and alcohol testing and (2) a physical examination tailored to the particular demands or requirements of the position being filled (e.g. a “color blind” condition would render a person ineligible to fill a position as a locomotive engineer).

If an Eligible Union Employee or Eligible Management Employee who is not on disability due to a work related injury fails a physical examination during the Mobilization Period, and the Operator does not offer employment to such employee, such employee shall remain on the roster listing eligible employees for 12 months following the Mobilization Commencement Date.

If such employee passes the physical examination during said 12 month period, the Operator shall follow the applicable seniority rules in force at the time to determine the employee’s entitlement to a position.

The Operator may take an individual’s criminal background history into account in making hiring decisions under this Agreement, as follows: Any hiring decision made on the basis of a prior felony conviction shall be made by the Operator on a case-by-case basis, taking into account the nature and gravity of the criminal offense committed, the relationship of such offense to the nature and requirements of the job involved, considerations of business necessity, the time elapsed since the commission of the offense and/or completion of the sentence, and other relevant factors set forth in applicable Equal Employment Opportunity Commission guidance.

LABOR OBLIGATIONS

General

The Operator shall establish its initial terms and conditions of employment in accordance with the mandatory labor terms and conditions set forth in Appendix 1 (Labor Provisions) to this Schedule 3.9 (Management and Personnel).

The Operator shall negotiate a collective bargaining agreement that includes, without limitation, the terms and conditions in Appendix 1 (Labor Provisions) to this Schedule 3.9 (Management and Personnel) with each of the labor organizations identified in that Attachment, unless the Operator and a union agree to alternative terms.

Initial Discussions

At the time of NTP, the Operator shall

Provide written notification to each union listed in Appendix 1 (Labor Provisions) to this Schedule 3.9 (Management and Personnel) that it has been selected as the Operator; (ODRL 3.9-018)

Provide each union with a copy of the mandatory labor terms and conditions set forth in Appendix 1 (Labor Provisions) to this Schedule 3.9 (Management and Personnel) and a written assurance of the Operator’s intention to fully comply with those terms; (ODRL 3.9-019)

Commence negotiations with each union.

SECTION 13(c) OBLIGATIONS

Except as provided in Section 4.1.2, the MBTA shall be administratively and financially responsible for claims and obligations arising under Section 13(c) of the Federal Transit Act (49 U.S.C. § 5333(b) (“Section 13(c)”).

The Operator shall be administratively and financially responsible for any Section 13(c) claims or obligations concerning the commuter rail workforce that arise out of acts or omissions of the Operator that are not approved in writing by the MBTA or that are not otherwise directed by the MBTA, or that are based on an alleged failure to negotiate over terms and conditions of employment or failure to honor the terms of an existing collective bargaining agreement. The Operator shall consult with the MBTA on 13(c) obligations and claims for which the Operator has responsibility, shall vigorously defend any such claims and allegations, shall consult with the MBTA on the selection of counsel and the defense of claims and shall obtain MBTA approval for any settlement of claims or litigation concerning 13(c) issues. The MBTA reserves the right to assist in the defense of 13(c) claims and litigation, and commits to work cooperatively with the Operator on such matters.

The Operator shall cooperate with the MBTA (including, but not limited to, providing employee records and other requested information) in the resolution and defense of any Section 13(c) claims or disputes for which the MBTA has responsibility, and in the implementation of any Section 13(c) remedies.

The Operator shall not assist or encourage any Operator Personnel to file or otherwise pursue a Section 13(c) claim against the MBTA, or take any action which is contrary to the interests of the MBTA under Section 13(c), relating to the termination or conclusion of services under this Agreement, any future transition from the Operator to another service provider, or any other action or event relating to this Agreement or commuter rail service. If the Operator fails to comply with this obligation, the Operator shall be liable to the MBTA for all costs incurred by the MBTA (including attorneys’ fees) associated with any Section 13(c) claims or disputes, or delays in the receipt of FTA grants.

DRUG AND ALCOHOL TESTING REQUIREMENTS

The Operator shall establish all drug and alcohol testing requirements and policies required by Schedule 3.5 (Safety and Security) of this Agreement.