Railway Age magazine

Democrat Robert E. Primus, fired Aug. 27 from his Senate-confirmed seat on the Surface Transportation Board (STB) by POTUS 47, wants his job back—and he is suing the Republican POTUS, as well as the STB and its Republican Chairperson Patrick J. Fuchs to make it happen. Primus alleges the firing is illegal.

His alignment with rail labor on issues over which the STB has no jurisdiction—carrier employment levels and implementation of operating strategies such as Precision Scheduled Railroading, plus his “thank you for letting me represent you” comment to the largest rail union—suggest a conflict with impartial execution of STB responsibilities. This only partly explains the fine kettle of fish in which Primus finds himself, although his firing did not provide a reason.

Primus’ additional hurt flows from Union Pacific’s (UP) desire to merge with Norfolk Southern (NS) to create the United States’ first seamless transcontinental railroad—a transaction the STB has exclusive authority to approve or deny. Primus’ sole dissenting vote on a previous rail merger—CPKC—and his publicly stated opinion that mergers stifle competition, harm supply chain stability, and throttle rail safety, may be more significant to his present circumstance. Indeed, POTUS 47, who fired Primus, has been priming the pump in favor of the UP+NS hook-up. Notably, Primus has not stated an opinion on UP+NS; and, again, no reason was provided for his firing.

Perceptions of UP involvement in Primus’ termination are buoyed by UP CEO Jim Vena’s Oval Office cheshire smile during a photo-op with POTUS 47 ahead of extracting a “sounds good to me” endorsement of the merger. That UP is on the hook for a $2.5 billion break-up fee should STB deny the merger feeds perception that UP is exercising its political clout. At the White House level, that clout is stuff of legend.

President Ronald Reagan’s Transportation Secretary Drew Lewis became UP chairperson and CEO. Andrew Card, who was President George H.W. Bush’s Transportation Secretary and then President George W. Bush’s chief of staff, became a UP Board member, as did Republican Vice President Dick Cheney. A UP “funeral train” transported the casket containing remains of the elder Bush from Houston to College Station, Tex., for burial.

Unfortunately, Vena’s Oval Office tête-à-tête with POTUS 47 has tossed the independent (from the Executive Branch) STB into a thorny briar patch and will make a Primus return a sticky wicket should courts so order. As explained in a separate commentary, there is no evidence a sitting member of the STB has been pressured by UP or POTUS 47 on how to vote.

Primus is likely to be asked to recuse himself from participating in a UP+NS merger proceeding. An appearance of partiality with regard to UP+NS arises from his having being fired by a POTUS supporting the UP+NS merger, and suspicion that the CEO of one of the merger applicants (UP) may have urged his firing.

Peculiarly with regard to Primus’ situation, the union with which he is alleged to be most closely aligned—the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD)—has come out in support of the UP+NS merger.

Primus is represented in his lawsuit by the non-profit Democracy Forward Foundation that has been active in challenging POTUS 47 Executive Orders and policies.

Fired Democratic members of the Federal Trade Commission (FTC) and National Labor Relations Board (NLRB) earlier filed similar lawsuits as filed by Primus. Although those petitioners were granted by a federal district court injunctive relief to nullify the terminations and allow their return to office, the Supreme Court delayed the effectiveness of the injunctions pending further litigation—the law not settled as to court authority to order reinstatement.

In those cases, the Justice Department (DOJ), which supports the firings, argued that even if the POTUS 47 terminations are unlawful, courts have no authority to order reinstatement.

Primus, as well, argues his termination unlawful—that the STB is independent of the Executive Branch and that the STB’s statute provides for termination only where “inefficiency, neglect of duty or malfeasance in office” is shown—none of which was cited in his firing.  

If Primus’ case follows the path of the FTC and NLRB cases, where injunctive relief has been delayed pending finality of litigation, Primus could be on the outside looking in well into 2026. And if he does return to work at the STB, he would, as explained earlier, face demands to recuse himself from participating in a UP+NS merger proceeding.

Further muddying Primus’ STB future is the government shutdown. The United States Courts website advises that the Judiciary has sufficient funds “not dependent on a new appropriation” to remain open only through Oct. 17. However, if government has not reopened by then, federal courts and agencies may operate under terms of the Anti-Deficiency Act that allows essential work to continue during a lapse in appropriations. This could include Primus’ request for an injunction allowing him to return to work.

STB and Fuchs are being sued because they are enforcing the Primus firing by denying him access to his office and STB files. Fuchs, as chairperson, is the agency’s chief administrative officer.

As with the FTC and NLRB cases, the STB and Fuchs will be represented by DOJ attorneys who can be called back to work in emergency situations (but pay would be delayed until after the government reopens). STB attorneys may similarly be called back to work if required to assist in defending the STB.

If a formal UP+NS merger application is filed as expected (Oct. 29 at the earliest), a timetable proposed by merger applicants provides for a final STB decision in early 2027.

However, the Board has proposed a revised version of the schedule, which could shorten the time for completion of the evidentiary record by months, perhaps allowing a final decision before the end of 2026. Importantly, that is only a proposal at present, and expect it to be opposed by CPKC and other stakeholders.

The five-member STB currently has two vacancies, including Primus’ now empty seat. Looking to 2027 (or late 2026), additional seats could become empty. Conceivably, the STB could consist of just one member by 2027—and since the agency’s statute has no quorum requirement, a merger could be decided by two or even a single STB member. That is highly unlikely.

Here is the current STB member consist (note that the statute allows members whose term expires to remain in office up to 12 additional months if a successor has not been Senate confirmed):

• Republican Fuchs, age 36, is serving his second and final term that expires Jan. 14, 2029.

• Republican Schultz, age 53, whose first term expires Jan. 11, 2026, and who has been renominated by POTUS 47, awaits Senate confirmation to a second and final term expiring Nov. 30, 2030.

• Democrat Karen J. Hedlund, age 76, whose first term expires Dec. 31, 2025, awaits nomination (followed by Senate confirmation) to a second and final five-year term that would allow her to vote in 2027. She could become the oldest member to be confirmed in the 138-year history of the STB and its Interstate Commerce Commission predecessor. There has been speculation she may retire. If she does, another Democrat could be nominated to succeed her. Notably, when asked by a shipper if there might be another rail merger (following CPKC) she responded, “Bring it on.”

• Recently nominated by POTUS 47 to a vacant seat—formerly held by Democrat Martin J. Oberman, who retired—is Republican Richard Kloster, age 67, who awaits a Senate Commerce Committee hearing into his qualifications prior to a Senate confirmation vote for a first five-year term. The reason a Republican is nominated for a previously Democratic seat is the statute permits the political party of the POTUS (now a Republican) to hold a politically partisan majority of seats on the five-member STB.

• If Primus, age 55, is permitted by courts to return to the STB, his second and final term expires Dec. 31, 2027. Otherwise, a vacancy exists for another Democrat to be nominated by POTUS 47.

(Although the STB is closed as part of the government shutdown, the compensation of sitting Senate-confirmed members—Fuchs, Schultz and Hedlund—is tied to their official position and not annual congressional appropriations. Thus, they remain on the job.)

Railway Age Capitol Hill Contributing Editor Frank N. Wilner, a former STB chief of staff and career railroader, is author of “Railroads & Economic Regulation,” available from Simmons-Boardman Books, 800-228-9670.

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CTA on Oct. 1 marked its 78th anniversary by bringing out two cars from its Heritage Fleet to serve riders on the inner loop. The 4000-series cars were built by the Cincinnati Car Company in 1923 and ran through 1973. They feature the orange-and-brown paint scheme they wore in the 1940s and are adorned with reproduction advertisements from the era.

According to CTA, the steel bodied cars have wooden interior floors, cushioned seats, and electrically controlled pocket doors. They are outfitted with sash windows riders could open and a collapsible cab the motorman would operate from.

“Initially, these cars would have a conductor who would stand outside, between each car and open the doors immediately adjacent him at every stop—rain or shine or blizzard,” according to CTA. “Later, the cars were upgraded to allow for all the doors to be open from one place, but conductors still generally did this from outside the cars.”

While today’s cars can easily reach CTA’s systemwide speed limit of 55 mph (and frequently do on many lines), these 4000-series cars tended to max out around 45 mph, according to the transit authority.

“Transit services by our predecessors date back to the late 1850s, with the first horse-drawn streetcar service operating south on State Street from downtown,” according to the CTA. “Since those days, local transit in Chicago has been provided through a variety of cable cars, electric streetcars, elevated railways, and subways and many types of buses, all of which have been a part of the important role transit has played in the Chicago and its region’s development, by linking people, jobs and communities. The CTA you ride today is an independent government agency incorporated by the State of Illinois. The first services operated under the CTA name ran in October 1947 when we acquired the then-private Chicago Rapid Transit Company (elevated and subway lines—the ‘L’ system) and the Chicago Surface Lines (which ran streetcars and buses), followed later by the acquisition of the Chicago Motor Coach company (buses). This consolidation formed one, unified public transit system whose services became complementary to each other. In fact, many of the services we provide today are descendants or evolutions of those once provided by these three companies, around which the city and its many neighborhoods grew. Today we operate a fleet of more than 3,300 railcars and buses, which operate over 1,500 miles of bus and ‘L’ routes. On a typical weekday, our modern fleet travels about 380,000 miles, providing roughly 1.6 million rides to the people of Chicago and 35 neighboring communities.”

WTTW, the Chicago PBS station that covered the CTA anniversary, noted that it “comes as Chicago-area transit systems face a $770 million fiscal cliff next year that could lead to drastic service cuts on the CTA, Pace and Metra.” Over the summer, “$74 million in funding was reallocated to the CTA, which is projected to hit its fiscal cliff first, in an effort to delay service cuts, according to the Regional Transportation Authority.”

The media outlet reported that state legislators, “who failed to pass a transit funding bill during their previous legislative session, are expected to try again in the fall,” and Illinois Gov. JB Pritzker “told reporters in July he’s confident legislation will pass to address the fiscal cliff facing Chicago-area transit agencies.”

MDOT MTA on Oct. 1 reported the implementation of a policy to ban individuals who commit physical or verbal assaults against riders or employees. Supported by legislation enacted this year, the agency said it will begin to issue permanent or temporary bans across all modes including Local Bus, Light Rail, Metro Subway, MARC Train, Commuter Bus and Mobility. The agency also reported launching the Elerts SeeSay® mobile app, enabling riders to “discreetly” report safety concerns and communicate in real time with the Maryland Transit Police. The app is available for free download in both the Apple App Store and Google Play Store or on the MTA website at mta.maryland.gov/safety.

The Elert SeeSay® platform is a safety communication tool used by other transit agencies across the U.S., including MBTA, DART, SEPTA, CATA and BART, according to MDOT MTA. “While riders are strongly encouraged to report safety concerns immediately to transit operators and station attendants, the SeeSay® app allows riders to report concerns in multiple ways: directly through the app, via text to 410-888-0675 or through an online form on the MTA’s website www.mta.maryland.gov,” the agency said.

Beginning Oct. 6, app users may submit photos or videos when reporting a safety concern. Each report is routed to Maryland Transit Police dispatch staff for review and response. The app integrates geo-location technology to provide MTA police dispatchers with the rider’s precise location, which MDOT MTA said allows for a “faster and more accurate response.”

The agency’s Code of Conduct, “Rules of the Ride,” was issued in August and outlines what MDOT MTA said are “clear expectations for behavior while on buses, trains and in stations.” The Code of Conduct is organized into three categories  of behavior:

• “Courteous Conduct: Everyday respectful actions that contribute to a safe and comfortable environment for everyone. This includes keeping seats accessible, speaking at a low volume, using headphones when listening to audio content, and being mindful of others.
   
• “Prohibited Conduct: Actions not permitted on MTA property or vehicles. Examples include smoking, vandalism, carrying concealed weapons illegally, and disruptive behavior.
   
• “Bannable Conduct: Unlawful acts that will result in a ban. This includes any type of assault—physical or verbal—threats, sexual harassment, or fighting against an MTA employee, another passenger, or anyone else on MTA property.”

Enforcement of the Rider Code of Conduct and the policy to suspend or ban individuals who violate the code will be conducted by the Maryland Transit Police, according to MDOT MTA. “If a rider is banned, they will receive formal notice of suspension or banning, as well as the process to appeal,” it said.

The agency is sharing information about the Code of Conduct and enforcement policy on its website, social media and through announcements on buses, trains and at stations.

“Our riders and employees deserve to feel safe every time they take transit,” Maryland Transit Administrator Holly Arnold said. “By holding accountable those who commit assaults and by providing riders with a new tool to report concerns, we are reinforcing our commitment to a safe and respectful transit experience.”

More Metro Vancouver employers are offering transit as a benefit to employees, to ensure their staff’s commute is easier and more affordable, according to TransLink, which is responsible for planning, financing, and managing transportation modes and services in the region. Among those services: British Columbia Rapid Transit Company, Coast Mountain Bus Company, and West Coast Express.

The agency on Oct. 1 reported that more than 50 organizations are now participating in its Transit-Friendly Employer program, with nearly 15,000 employees receiving subsidized Compass transit passes.

Through the program, employers can cover half the cost of a monthly or Stored Value Compass Pass. Certified employers can display the exclusive “Transit-Friendly Employer” stamp on their websites and job postings to help attract talent and highlight their commitment to a cleaner environment.

According to TransLink, “Canada’s first-of-its-kind” Transit-Friendly Employer program launched in 2022. To be eligible for the program, large employers (defined as having 200 or more staff) must have at least 10% employee participation and small employers (fewer than 200 staff) must meet at least 25% participation.

Among the 54 participating organizations, 21 are large employers and 33 are small employers, TransLink reported. Participants include YVR Vancouver Airport Authority, Lush Handmade Cosmetics, Vancouver Coastal Health, Fairmont Vancouver Airport, Rivian Automotive, Herschel Supply Co. Canada, Melanie Auld Jewelry, and Grouse Mountain. A full list of participating organizations is available at translink.ca/transitfriendlyemployer.

“The Transit Friendly Employer program highlights how vital transit is to the success of our region,” said Kevin Quinn, CEO of TransLink. “By supporting workers and connecting communities, we’re helping build a healthier, more sustainable future for everyone.”

“The TransLink Transit-Friendly Employer program is immensely valuable to surrounding communities as well as Rivian employees in Vancouver,” commented Tim Waldrop, Senior Manager, Commute & Mobility Programs, Rivian Automotive. “Programs like Transit-Friendly Employer help to keep costs low, reduce traffic congestion and emissions, and provide a safe and efficient alternative to drive-alone commutes.”

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