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Rail unions ask court to force BNSF to negotiate over vaccine mandate

Similar lawsuits involving Norfolk Southern, Union Pacific are ongoing

BNSF and Union Pacific are both engaed in lawsuits with the railroad unions over the COVID-19 vaccine mandate. (Photo: Jim Allen/FreightWaves)

Two rail unions want a federal court to dismiss BNSF’s lawsuit over its ability to implement a COVID-19 vaccine mandate. Instead, they want the court to compel the railroad to negotiate any vaccine requirements.

The Brotherhood of Locomotive Engineers and Trainmen (BLET) and the International Association of Sheet Metal, Air, Rail and Transportation Workers – Transportation Division (SMART-TD) contend that the company’s vaccine mandate violates the Railway Labor Act (RLA).

The unions are asking the court to issue a preliminary injunction requiring BNSF and Chicago-area commuter rail Metra to bargain with the unions, according to a Thursday filing. 

They want Judge Edmond E. Chang with the U.S. District Court for the Northern District of Illinois to rule that this situation is a “major dispute.” A major dispute stems from a desire to change the terms of an existing collective bargaining agreement.

“Regardless of whether the [executive order] applies to BNSF and whether BNSF must bargain over the mandate itself, at a minimum, the RLA commands that it engage in effects bargaining,” attorneys for SMART-TD said in the Thursday filing. 

“As applied here, bargainable issues surrounding any mandate may include the amount of time before the mandate takes effect; the impact on an employee who fails to comply with any mandate; any paid time off to get vaccinated, to deal with any adverse reactions from vaccination, and/or for testing; how vaccination status will be confirmed; whether there are any viable alternatives to a vaccine mandate; and incentives to encourage vaccination,” SMART-TD continued.

“BNSF failed to bargain over any of these effects, but has instead unilaterally implemented its own, including payments directly to represented individuals. … Indeed, if pay is now properly part of the Section 6 handling as BNSF admits, they cannot unilaterally change it. In addition, it has stated that while no adverse employment action is imminent, no guarantee can be made with respect to any employees who fail to get vaccinated. 

“The transparent threat of future adverse employment action only exacerbates the supply chain crisis the country is experiencing due, in part, to railroads, such as BNSF, cutting workforce and [they] now find themselves unable to adequately fill needed positions,” SMART-TD said.

BNSF (NYSE: BRK.B) last month sued the two unions, as well as the Brotherhood of Railway Signalmen, over its ability to institute a COVID-19 vaccine policy. 

These lawsuits — there are additional lawsuits over the vaccine mandate between the unions and Norfolk Southern (NYSE: NSC) and Union Pacific (NYSE: UNP) — come as the unions and the freight railroads have been undergoing negotiations for a new collective bargaining agreement. Those negotiations have yet to be fruitful, SMART-TD and the Brotherhood of Maintenance of Way Employes Division said Friday.

BNSF has contended that it has the right per the RLA to comply with the federal mandate requiring U.S. government workers and contractors to be fully vaccinated against the COVID-19 virus, per a September White House executive order. That mandate is scheduled to go into effect early next year.

Although BNSF must bargain with SMART-TD and the other unions over the collective bargaining agreement, “such an obligation does not preclude BNSF from exercising its existing contractual rights, including with respect to implementation of the vaccine mandate,” attorneys representing BNSF said in a Friday filing for BNSF’s lawsuit. 

BNSF wants the federal court to agree that this situation is a “minor dispute,” which would prevent the unions from striking.

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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.