Surface Transportation Board Chairperson Robert E. Primus has rung a tocsin, alleging a toxin is skulking about in the rough-and-tumble environment of railroad-shipper relations despite the lawfulness of capitalist acts among consenting adults. He might as well call for repeal of the laws of gravity as to suggest imposing on commercial interests a 6th grader’s version of permissible interactions.
Yet that’s the door Primus kicked ajar Jan. 16 with an evidence-lacking, hearsay-fueled statement nailing railroads to the mast for allegedly bullying shippers—no matter that the victims typically dwarf in size and capitalization their claimed tormentors.
Despite no rail or private-sector background and never having signed the front of a paycheck, Primus often lectures CEOs on business strategy while berating them for earning the profits that sustain revenue adequacy—essential to creating world-class customer service.
Comes now from Primus a factually bereft rant that further paints him as having brought from a staff career on Capitol Hill the worst traits of frustrated back-benchers. Choosing confrontation over mediation, Primus has eviscerated Board collegiality—other Board members demonstrating no interest in pursuing his factless excursions. No wonder.
Primus says, “allegations have been made in [shipper] letters, filings and testimony in specific proceedings,” yet he provides not a single verified example, even though such submissions are in the public domain.
He says railroad “retaliation” against shippers includes “actual or threatened increases in rail transportation rates, cutbacks in local service, and refusals to provide new service upon request.” Where shippers lack effective transportation alternatives, actual malice is actionable, and alleged “threats” may be no more than, as the saying goes, “locker room conversations.” He pays not even courtesy lip service to the STB’s RCPA (Rail Customer and Public Assistance) Program.
As for Primus’ allegation that “shipper trade groups have explained that their members often are reluctant to contact the Board due to fears of railroad retaliation,” trade groups—none a shrinking violet—are each fit, willing and able to file complaints on their members’ behalf.
Shippers may not be enthused over the years with their won-lost record in rate and practice cases before the STB even though they have won many high-value ones. No matter. Allegations of railroad retaliation are a different issue, and allegations are allegations until proven.
If there exists a provocation for punishing railroads for aggressively pursuing revenue maximization and profits—the stuff of capitalism pursued equally by every railroad shipper—Primus has the obligation to lay out an evidentiary case. He has not. Meanwhile, railroads remain partially constrained by economic regulation while wrestling with the loss of bedrock coal traffic and the challenge to maintain a revenue-adequate future amidst less regulated and rights-of-way-subsidized competing motor carriers.
As for Primus and his Jan. 16 rant, in his four years as a Board member—and eight months as Board chairperson—he has never advanced a regulatory reform initiative. His preference is a soapbox from which to admonish railroads—and at the expense of the docket he controls, as evidenced by numerous missed statutory deadlines. This is creating for Primus an unfavorable legacy—unfortunate, as he is a smart fellow.
Imagine had Primus instead detailed the types of evidence a shipper needs to prove their case and the specific penalties or sanctions for the railroad found to have retaliated.
Imagine had he instead proposed Whistleblower protection for aggrieved shippers.
Imagine had he instead collaborated with staff on how better to inform shippers of their existing remedies and Board resources.
Primus is now in his waning days as Chair, ahead of the President-elect picking a successor, although he will remain an STB member through Dec. 31, 2027.
The reality of Primus’ latest tocsin is its being woefully out-of-order, given the absence of factual support. It thus seeds and fertilizes arguments for sunsetting the STB by a new Administration desperate for budget cuts.
For the good of the STB and its stakeholders, Mr. Primus must take the kettle off boil.
Railway Age Capitol Hill Contributing Editor Frank N. Wilner is a former STB chief of staff and president of the STB bar association. For two decades he was Assistant Vice President for Policy at the Association of American Railroads and for a decade was Director of Public Relations for the United Transportation Union and its successor International Association of Sheet Metal, Air, Rail and Transportation Workers. He is author of “Railroads & Economic Regulation: An Insider’s Account,” available from Simmons-Boardman Books on line or 800-228-9670.
