While two rail unions plan to abide by a temporary restraining order banning BNSF employees from striking over a new attendance program, they are not abandoning legal action.
Brotherhood of Locomotive Engineers and Trainmen (BLET) and the Transportation Division of the International Association of Sheet Metal, Air, Rail, and Transportation (SMART-TD) will continue to use every legal means available to prevent the implementation of the proposed policy, the two groups said in a Friday release. They said more information would be forthcoming.
On Thursday, the unions filed answers and counterclaims in the U.S. District Court for the Northern District of Texas in Fort Worth, the court that issued the order Tuesday preventing the unions from striking. The unions are seeking a preliminary and permanent injunction against implementation of the BNSF’s “Hi-Viz” attendance policy.
BNSF (NYSE: BRK.B) has contended in court filings that it developed the Hi-Viz, or high-visibility, program in response to employees saying that it was unclear under the existing attendance program when they would exceed the threshold that subjects them to progressive discipline. The program becomes effective on Tuesday. The railroad has also said the policy is consistent with practices across the transportation industry.
But the unions say their arguments against the attendance program qualify as a “major dispute” under the Railway Labor Act (RLA), which means they should be allowed to strike. BNSF says the unions’ arguments constitute a “minor dispute” under the RLA, preventing them from taking “self-help” actions such as going on strike.
“BNSF’s draconian Hi Viz policy will effectively force COVID-19 positive engineers who fear for their jobs to eschew tests or eschew staying home from work to stop the spread. They will likely cause more infections at BNSF as well as at BNSF employees’ homes and communities. The so-called Omicron variant is widely reported to be incredibly contagious through just airborne exposure, and for the unvaccinated, poses a risk of death. It is resistant to monoclonal antibodies,” attorneys representing BLET said in a Thursday court filing.
As a result, BLET’s concerns constitute a major dispute, attorneys said.
BNSF’s policy also violates the Family Medical Leave Act “by punishing employees who use FMLA leave, by treating them differently than those on military leave or company business leave,” attorneys representing SMART-TD stated in a court filing.
Judge Mark T. Pittman issued the temporary restraining order, requested by BNSF, reasoning that “a strike would exacerbate our current supply-chain crisis — harming the public at large, not just BNSF.”
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