Brotherhood of Locomotive Engineers & Trainmen

M. H. Siegele
AVP/BNSF
2600 Lou Menk Drive
P. O. Box 961030
Fort Worth, TX 76161-0030

Dear Mr. Siegele:

This is in reference to our ongoing discussions concerning the Carrier's application of the "Alternative Handling" portion of our Safety Summit Agreement. As we have discussed, there have been several instances where BNSF has unilaterally taken positions denying alternative handling that we view as inconsistent with the spirit and language of the Safety Summit Agreement. Despite our complaints, the Carrier continues to deny alternative handling on an ever increasing basis, again, contrary to the agreed upon language found in the Safety Summit Agreement. We have met with senior management on several occasions to address these issues. While some in the management team have recognized that your positions now vary from original application, no one has been willing to bring the Carrier's application into an agreed upon form of compliance.

One of the first areas where the Carrier unilaterally denied alternative handling involved cases where the employees allegedly failed to immediately accept responsibility for their actions during an incident, or in the moments immediately afterwards. In some cases, the Carrier deemed them ineligible suggesting "dishonesty" even though the involved employees had not even been charged to attend investigation when the so called "dishonesty" occurred. The Organizations met with the management team when these incidents first occurred and all parties discussed the fact that the agreement as written gave the Carrier no rights to deny alternative handling based solely on "when" the involved employee agreed to accept responsibility. To address the Carrier's concerns, we were even willing to consider a settlement between the parties that would have established time limits for the employees to accept responsibility, that due to our recognition that the current agreement has no such time limits. To date, no modification or additions to the Agreement have been agreed upon by all parties, yet the Carrier continues to deny alternative handling in many cases, violating the Safety Summit Agreement in the process.

The Carrier's decisions to deny alternative handling on the alleged basis of "dishonesty" have since expanded to include many types of cases. The Carrier has denied alternative handling in some cases because of alleged attempts to conceal an incident. In most cases, these incidents were nothing more than unintentional acts of omission during a rules violation covered by the Agreement, rather than an intentional act to conceal an incident. Many of the Carrier's decisions to the contrary in these cases have relied on nothing more than assumptions, which are not a substitute for evidence.

For example, the Carrier has denied alternative handling to engineers who provided the best information available to them regarding speed or other operational acts following an incident. Alternative handling was later denied because the downloaded tapes showed slight variances as compared to the engineer's recall of the incident. In one recent case, the engineer did not dispute the data recording, he accepted it as compared to his memory. However, he was denied alternative handling because of his alleged dishonesty. Those that do their best to provide information, all from memory without the benefit of recorded data, are hardly dishonest if their recollection varies from the data on the tape. Nonetheless, the Carrier is denying these employees access to alternative handling on a regular basis, all in violation of the agreement.

The Carrier has also unilaterally changed its application of the three events "of any kind" provision of the Agreement. In some cases, the Carrier is now unilaterally including any and all incidents, i.e. warning letters, coaching, counseling, as well as PEPA discipline to reach the three event threshold. However, the Agreement is specific in that its references to "events of any kind" only include incidents falling under the three categories of alternative handling as defined in the agreement.

As we have advised, the counting process of the alternative handling portion of the Safety Summit Agreement was not written to include formal disciplinary incidents, such as the formal reprimand on the Claimant's personal record, as an "event of any kind" found in Part I, Section VI, Item B, Paragraph (iii) of the Alternative Handling Agreement. The intent of the paragraph cited above was to count only those "events" where alternative handling was utilized as described in Section VI of the agreement. Pursuant to the Agreement, eligibility is determined on the basis of the type and/or combination(s) of the Classes of offenses and resulting alternative handling as listed in Section VI of the agreement. Furthermore, the parties had no disagreements over this application in the months after the agreement was implemented. While the Carrier now tries to recreate the intent of the parties, it is overlooking that fact that the initial application of the agreement most accurately portrays the intent of the parties. The Carrier's unilateral change of that application is evidence of its change of heart, but that change of heart is no entitlement to a change of the agreement.

This change of heart was further in evidence when we were advised by your Office that the Carrier's later position regarding this interpretation of the agreement was, in fact, an afterthought to the signing of the Alternative Handling Agreement. Further, it was a reaction to a similar incident some time ago, where the Carrier found itself in what was characterized to us as a "paradox". Paradox or not, the position put forth by the Carrier is not logical or a believable conclusion when the application of that position is studied. The position put forth by the Carrier would allow the Carrier to deny alternative handling three times, placing discipline entries on the employees personal record instead, later denying access to future alternative handling on the basis that the employee had used up his access. Access to three alternative handlings is exactly that, it is access. Access denied or not utilized for any reason cannot replace that. This latest position is not supported by the Agreement, nor can it be used to support the assessment of discipline if valid requests for alternative handling are denied while applying it.

As if this was not enough, the Carrier then initiated another dispute in regard to how the Carrier's attendance policy affects eligibility for alternative handling. While the parties have no dispute that violations to the attendance policy are Class III offenses under the Agreement, the Carrier again unilaterally later decided that employees would only be allowed access to one Class III offense for attendance. This position varies from the application that both parties utilized for the first two years that the agreement was in effect. Again, the initial handling best represents the intent of the parties during negotiations. During those first two years, up to three Class III alternative handlings for attendance were afforded and our records are replete with examples of this handling. As with the other unilateral changes addressed in this writing, this issues was also taken to the senior management of the Carrier and they openly admitted that this was a unilateral change as compared to the first two years of the agreement.

Regardless of these facts, the Carrier now puts forth a position based on a theory that if the attendance policy is violated more than once, than the employee did not accept responsibility for the first offense. While the senior management team has agreed that alternative handlings are not to include probationary items, the notion that future behavior affects the success of a previous alternative handling is exactly that, probationary. Ironically, due to our agreement that probation would not be included in the first offense, the Carrier has no venue to reopen the first offense due to actions that could lead to a second offense. At the same time, the agreement clearly allows three offenses of any infraction deemed to be a Class III offense and the so called "success" or "failure" of a previous alternative handling has no bearing on a second request under the language of the agreement. For these reasons, we disagree with the Carrier's position that employees charged with more than one attendance infraction can be denied alternative handling for not accepting responsibility.

The bottom line is that the agreement as written allows for alternative handling following any qualifying charge, that so long as the employee accepts responsibility for that charge after being charged. Actions prior to a second charge for attendance can hardly affect access to alternative handling in the later charge under the language of the agreement.

While there are more issues that the parties need to discuss, there is one last item that we must include in this writing. Recently, the Carrier has started denying alternative handling based on its own unilateral determination of whether a rule infraction was intentional or unintentional. The agreement specifies all of the exceptions for eligibility; that is why they are called exceptions. This latest exception and resulting denial that the Carrier has created is not on the list in the Agreement and the Carrier is without the right to add this exception without the concurrence of the other parties to the agreement. So you are clear, the Organization has not agreed. Perhaps even more frustrating than the Carrier's position itself is the hypocritical manner in which the Carrier applies it. As you will recall, our discussion during the recent incident in Kansas City where a remote control operator took it upon himself to operate in conventional fashion included your position that the involved crew was entitled to alternative handling. As we told you then, if those remote control operators who knowingly violate the Carrier's rules by operating conventional are entitled to alternative handling, we will expect that none of the employees that we represent will ever again be denied due to some unproven position by local officers that an alleged violation was an act of intent rather than an act of omission.

The Carrier's actions in searching for new reasons to deny alternative handling are disingenuous at best. We have made a good faith effort to resolve all of the issues raised in this letter with the Carrier, but the Carrier continues to ignore our valid complaints and our efforts to make improvements based on the true intent of the alternative handling portion of the Safety Summit Agreement. The Organization only wishes that the Carrier would put as much time into creating meaningful alternative handling plans for some of these cases as it does into finding ways to keep employees from having access to alternative handling. We remind you that the parties all signed an initial letter of intent that lead us to the Safety Summit Agreement. It is attached for your ready reference, it is clear to us that the spirit and intent that the parties displayed in that letter has been ignored when compared to the positions that we complain of herein.

Although this letter is rather lengthy, it was necessary to establish the handling of these matters on the property. As we have advised throughout this process, we have no option but to submit these grievances to third party resolution absent the Carrier's reconsideration. That is not our first choice, but it is the only choice that you leave us. While the Carrier openly disdains arbitrators who sustain the Organization's claims that the agreement has been violated, you leave us with no choice but to make every effort to see that exactly that happens.

Sincerely,
/s/ Dennis R. Pierce
General Chairman

MOW
cc:     All BLET Local Chairmen, BNSF Northlines
         BLET General Chairmen, BNSF
        UTU General Chairmen, BNSF
        Dave Dealy, VPO BNSF
        Chris Roberts, VP BNSF
        Steve Goodal, VP, BNSF
        Mark Kotter, VP, BNSF
        Kathy McGinn, AVP, BNSF
        Randy Luther, General Director, BNSF
        Gene Shire, General Director, BNSF