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Federal court rules unions can’t strike over BNSF attendance policy

‘Infuriated’ BLET and SMART-TD considering appeal, arbitration, assistance from lawmakers

A BNSF locomotive. (Photo: Jim Allen/FreightWaves)

A federal judge has ruled that two major rail unions can’t go on strike against BNSF over their objections to the railroad’s new “Hi Viz” attendance policy. 

Judge Mark T. Pittman of the U.S. District Court for the Northern District of Texas in Fort Worth said the dispute between BNSF (NYSE: BRK.B) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the International Association of Sheet Metal, Air, Rail and Transportation Workers – Transportation Division (SMART-TD) is a minor dispute per the Railway Labor Act. As a result, the unions can’t go on strike over BNSF’s Hi Viz attendance policy, which went into effect on Feb. 1. Hi Viz stands for high visibility. 

Pittman said Tuesday that although the Hi Viz attendance standard is harsh, the proceeding was not about whether it was good or bad policy, but rather whether the dispute was a “major” one or a “minor” one, per the Railway Labor Act. (RLA).

“Analyzing whether BNSF’s action is arguably justified, however, must be kept separate and distinct from analyzing whether the result of that action — here, the Hi Viz attendance standard — violates a specific term of the parties’ agreements. The former is for this court; the latter goes to the merits of the issue and is solely for the arbitrator,” Pittman said.

He said BNSF showed that its argument carries four essential elements that enable the court to grant a preliminary injunction in favor of the railroad. Besides legal precedent, those elements include that a strike could cause public harm and not be in the public’s interest.

“Two things are clear: BNSF faces irreparable harm, and any strike would be unlawful under the RLA. Thus, the harm that BNSF and the public at large would suffer from an illegal strike far outweighs any harm the unions would face from the court enjoining an illegal strike,” Pittman said. “Even with an injunction, the unions are not without recourse. The unions remain free to follow the appropriate dispute resolution procedures set forth in the RLA. The court therefore concludes that the balance of the harms favors an injunction.”

Union leaders said Tuesday they were “infuriated” with the decision and are considering several options: appeal the district court decision but delay arbitration of the policy; pursue arbitration as a means to challenge the attendance policy; call upon state and federal lawmakers to pass laws to protect employees from retaliation “for laying off for legitimate reasons”; and/or work with federal agencies to end “draconian” policies on all rail carriers, not just BNSF. 

The unions also called upon members to contact their congressional representatives and ask them to amend the Railway Labor Act. 

“This is only the first round in our fight against the Hi Viz policy. In the coming days, the unions will determine if the best course of action is to appeal today’s decision or to move swiftly to arbitrate the policy before it can be used to terminate any employees,” BLET National President Dennis Pierce and SMART-TD President Jeremy Ferguson said in a joint statement  “An arbitrator can strike down the policy. If that path is chosen, the unions will move swiftly to make their case there instead of in the courtroom or on the picket lines.”

Meanwhile, BNSF applauded the court decision.

“We are pleased that today’s ruling upheld our ability to continue working with our employees to do what we do best — providing service that is essential to our customers and the American economy,” BNSF said. “BNSF’s new system will provide more predictability for our train crews while also providing more reliable crew availability, which is essential to meeting our customers’ expectations and the demands posed by an increasingly competitive global supply chain. Our program is designed to provide ample time for obligations outside of work, including planned vacations, personal leave days and unplanned absences while ensuring that we have sufficient employees available to work.” 

The railroad continued, “Based on initial feedback, BNSF has already modified the program. We look forward to continuing to work with our employees to gather input and refine the program if needed. BNSF team members drive our success and we couldn’t deliver the nation’s goods without them. We understand that change can be an adjustment, but we believe we can adapt together to meet today’s competitive freight environment.”

According to Tuesday’s decision, BNSF and the unions began negotiating attendance standards two years ago. During those negotiations, BNSF implemented the Hi Viz attendance standard, causing the unions to threaten that members would go on strike. 

BNSF has previously described the Hi Viz program as assigning varying “points” to different types of absences (weekday, weekend, holiday, a missed call, etc.). Progressive discipline occurs if an employee’s points go to zero. The program includes a dashboard where employees could check their points totals and see how particular events subtracted or added to those totals. The change was made in part because it was unclear under the previous attendance program when employees would exceed the threshold that subjects them to progressive discipline.

But the unions have said the program forces employees to work even though they might be sick with COVID-19 or other ailments for fear of losing their jobs.

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One Comment

  1. Andrew Davis

    I find it sad while railroad personnel worked thru the whole covid thing no raise no recognition nothing. The world hand everyone hazard pay praises and discounts. We started paying everyone else 15 to 20 dollars a hour just to come to work. Meanwhile railroad employees haven’t seen a raise or a contract in years. Yet the the federal government tells them we are to important to go on strike. Going on strike will hurt the company and the country. This Judge is a joke and is in bed with bnsf. If funny how a man who does work in that field can tell a union it is a minor disagreement. I guess he doesn’t realize the union had a vote to decide if it was worth going on strike and they voted yes. I really wish he was I a position that he could be voted out of. I am glad to see the railroad money can still buy a public official. Of the people for the people who line his pocket.

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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.