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BNSF asks for court intervention in tussle over attendance program

‘Even a partial or temporary shutdown would have a drastic impact on large segments of the public and the national economy’

BNSF is seeking court intervention to prevent a strike over a newly modified attendance program. (Photo: Jim Allen/FreightWaves)

BNSF is asking a federal court to classify the railroad’s tussle with two rail unions over a new company attendance policy as a “minor dispute,” which would prevent the unions from striking.

By declaring the dispute as a minor dispute under the Railway Labor Act, the two unions — the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD) — would be required to negotiate with BNSF over the vaccine policy.

BLET and SMART-TD said last week that they are considering going on strike as a result of the change in the attendance program and that they are preparing to take action toward that end.

In a Thursday filing to the U.S. District Court for the Northern District of Texas in Dallas, BNSF (NYSE: BRK.B) said it announced to company employees on Jan. 10 that it was modifying its attendance program, effective Feb. 1, to “meet the ever-changing needs in service.” 

“BNSF’s new attendance program is permitted by that long-standing past practice, the express and implied terms of the parties’ agreements, arbitral authority and legal precedent,” attorneys representing BNSF said in the filing.

BNSF developed the “Hi Viz” program, 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, according to BNSF. 

The Hi Viz program assigns varying “points” to different types of absences (weekday, weekend, holiday, a missed call, etc.) and it triggers progressive discipline if an employee’s points went to zero, BNSF said. The program would include a dashboard where employees could check their points totals and see how particular events subtracted or added to those totals, the railway said.

BNSF warned that if union members went on strike, it would not only potentially result in immediate, substantial and lasting disruptions to the railroad’s schedules, it would affect the traffic of its interchange partners as well.

Any strike or action “will most likely result in delays long after any strike is ended. Such strikes or job actions will result in a substantial loss of business by BNSF, both during the duration of the work stoppage and during the period of lingering delays after it ends. Moreover, delays and disruptions resulting from a strike or other self-help by the unions will likely cause BNSF to suffer a loss of customer goodwill and future business,” BNSF said.

It continued, “Because of the scope of BNSF’s operations, even a partial or temporary shutdown would have a drastic impact on large segments of the public and the national economy. Thus, any strike or other self-help has the potential to interfere with the nationwide transportation in interstate and international commerce.”

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Joanna Marsh

Joanna is a Washington, DC-based writer covering the freight railroad industry. She has worked for Argus Media as a contributing reporter for Argus Rail Business and as a market reporter for Argus Coal Daily.