Brotherhood of Locomotive Engineers

November 5, 1999                                                                               File: BNSF Availability Policy

ALL LOCAL CHAIRMEN
BNSF NORTHLINES (FORMER
CB&Q, GN, NP AND SP&S)

Dear Sirs and Brothers:

As you are all well aware Neutral Richard R. Kasher rendered his decision regarding the BNSF's Availability Policy. Neutral Kasher determined that the provisions in existing collective bargaining agreements do not bar BNSF from issuing the 1999 Availability Policy.

At first blush one may conclude that the dispute regarding this issue is over. That would be far from the truth. It is the opinion of this office that Neutral Kasher set the table quite well for the Organization's arguments in next round of this dispute.

Neutral Kasher stated in his decision:

"It is well established that an employer in exercising its management rights to publish and enforce rules of conduct is obligated to ensure that those rules meet the test of reasonableness."

He went on to say the parties "do not raise the question of whether the Policy was unreasonable as published; and, as the Policy has not yet been implemented, there is no basis for speculating that it will be applied in an unreasonable manner."

In this regard he further stated:

"However, the Board will observe, by way of dicta, that certain provisions of the Policy have the flavor of unreasonableness. In any event... .the issue of whether the policy is unreasonable is not ripe for consideration on its merits."

Regarding the BLE's arguments that the policy conflicted with several collective bargaining agreements Neutral Kasher found:

"... .the issues of whether the Policy conflicts with certain provisions of the BLE's agreements are not, in this Board's opinion, before us on the merits"

and, therefore;

"Absent any specific cases in controversy, it is the Board's opinion that, at this time, some of the apparently meritorious issues raised by the BLE will have to await justiciable disputes at the time the Carrier implements and then applies the Policy in matters involving individual employees." (Emphasis ours)

Neutral Kasher concluded:

"Although the Board has concluded that the BNSF has the right to promulgate and implement a policy that governs employees' availability/absenteeism, it is clearly, in the Board's opinion, that the implementation of the Availability Policy may, unfortunately, have a long-term negative impact upon the parties' relationship....

The NCCC and the UTU and BLE worked diligently to find common ground to achieve two equally important objectives. The operational requirement to timely meet the Carrier's business goals balanced against the need to ensure that employees receive adequate rest in order to avoid fatigue.

It is also clear that the BNSF expended minimal effort to work with responsible Organization representatives to fashion an arrangement which would satisfy both of these critical ........

With these two competing social changes, it is this Boards' opinion that the parties would have been far better served had they been able to fulfill the principles of cooperation and mutual problem solving....

While the BNSF's position will be sustained, the Board strongly encourages the parties to find a mutually satisfactory compromise which would address the needs of both the employees and the Carrier."

Although including all of the above excerpts increased the length of this letter greatly, I felt it important for all to note the language and positions taken by Neutral Kasher. Although he could not find his way to rule against the Carrier's right to have and implement an availability/absenteeism policy he chided the carrier in the manner in which it handled this issue.

As stated earlier, we feel Neutral Kasher set the table very well for when we may have to arbitrate specific applications of this policy. Further, we feel he did his utmost to convince the Carrier that it was in its best interests to set down with the Organizations in an effort to address this issue and see if we could not come up with something that both parties could live with. The BLE General Chairmen have requested a meeting with Labor Relation Vice President John Fleps in an endeavor to do just that. We will find out from that meeting whether or not the BNSF took heed to Neutral Kasher's opinion or whether they will continue their arrogant ways.

If they are not, this office is prepared to see them in front of another neutral to prove the unreasonableness of this policy and that it does, in fact, conflict with our collective bargaining agreements. The carrier set before Neutral Kasher and concurred with this Organization that if and where the policy conflicted with our collective bargaining agreements, the collective bargaining agreements would prevail. That is one of the reasons that Neutral Kasher found our question was not yet ripe for a decision as the Carrier concurred with our position. Until we see the actual application of this agreement by BNSF, this question cannot be answered.

I would like to thank all of the local chairmen and members who provided information and documentation to use in our case. Your efforts were greatly appreciated.

As a sidelight, we have received numerous calls as to whether or not this office was going to direct the divisions regarding participation in any and all company programs. We have been down this road before. It will be up to the individual divisions to determine that question.

We fully understand the reasoning behind such a decision and we do not object to such a decision. But if this office sets forth that edict, the Carrier just goes to the government agencies and states that Merle Geiger will not let his members participate. Believe me it has a much greater impact when the employees make this decision on their own.

As I stated in the beginning of this letter, upon first blush one may think this battle is over. That is not the case in the least. This office will attempt to show the Carrier the error of its ways. We will continue to inform the Carrier of the need to set down with the Organizations and resolve this issue. If the Carrier continues its arrogant ways, then this Office will be ready to take it on whenever our members rights are infringed upon by this totally unreasonable and unacceptable availability policy. The battle has just begun.

Due to the length of the arbitration award, 56 pages, it is not being included in this mailing. For those Local Chairmen who have not had a chance to review it in another venue and would like a copy, please contact Patty and one will be forwarded to you.

Fraternally Yours,

M.W. Geiger Jr.

General Chairman

cc: E. Dubroski, President - BLE.
H.A. Ross, General Counsel - BLE
DM Hahs, Vice Pres. - BLE
T.R. Murphy, GC- BLE
A.G. Morrison, GC- BLE
J.D. Mullen, GC - BLE
J.H. Nelson, Sec./Treasurer