Dennis Pierce General Chairman BNSF(CB&Q/GN/NP/SP&S)-MRL	Pat Williams General Chairman BNSF (ATSF)-PHL	Brotherhood of Locomotive Engineers and Trainmen
	Austin Morrison General Chairman BNSF (C&S/CRI&P/FWS)	Rick Gibbons General Chairman BNSF (SLSF)-MNA	IBT Rail Conference

Dear Sirs and Brothers:

This is to update you on our ongoing efforts to address several of the offending components of the BNSF Attendance Policy. Attached you will find recently exchanged correspondence between the four General Committees and Labor Relations wherein both BLET and BNSF documented their final positions on the
attendance policy. This step was the final piece in the on property handling of our ongoing dispute.

We have also attached a copy of our signed agreement creating a Public Law Board to hear all of our attendance related issues that remain in dispute between BLET and BNSF. The attachment includes well over 100 attendance related cases and we are working now to prepare the cases for presentation to the Board.

We will continue to update the group as more information becomes available.

Fraternally yours,

cc:     Don Hahs, BLET National President
        Steve Speagle, Assigned BLET National Vice President

Mr. Roland Watkins                                                                                            February 6, 2008
Staff Coordinator/Arbitration
National Mediation Board
1301 "K" Street, Suite 250 East
Washington, D.C. 20572


Dear Mr. Watkins

Enclosed please an agreement between the Brotherhood of Locomotive Engineers and Trainmen and this Carrier to establish a Special Board of Adjustment under Section 3, Second, of the Railway Labor Act, as amended by Public Law 89-456, as well as an Attachment "A" identifying the cases the parties desire to list to this Board.

The parties have agreed to Chairman and Neutral Member Joan Ilivicky, and she has agreed to serve.

Your assistance in establishing the Public Law Board will be greatly appreciated.

Very Truly yours

/s/ Gene Shire

AGREEMENT
Between
BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN
and
BNSF RAILWAY

For the purpose of establishing a special adjustment board under Section III, Second, of the Railway Labor Act, as amended; by Public Law 89-456, IT IS AGREED:

A     There shall be established a special adjustment board which shall be mown as Public Law Board No.___________, hereinafter referred to as the "Board".

B.     Such Board shall have jurisdiction only of the claims and grievances submitted to it under this Agreement (Attachment A), or those claims and grievances later added by mutual agreement of the parties, arising out of the interpretation of agreements governing rates of pay, rules or working conditions, including discipline. Said claims and grievances shall be only those on which a decision has been rendered by the highest officer designated to handle such claims or grievances. The Board shall not have jurisdiction of disputes growing out of requests for changes in rates of pay, rules or working conditions nor have authority to change existing agreements or establish new rules.

C.     The Board shall consist of three members. One member shall be selected by BNSF  Railway. (hereinafter referred to as the "Carrier") and shall be known as the Carrier Member. Another member shall be selected by the Brotherhood of Locomotive Engineers and Trainmen (hereinafter referred to as the "Organization") and shall be known as the Employee Member. A third member, who shall be Chairman of the Board, shall be a neutral person, unbiased as between the parties. Party members of the Board may be changed from time to time, or at any time, by the respective parties designating them. Notices of such changes shall be made to the other party in written form.

The Carrier member of this Board shall be Mr. Gene Shire, General Director Labor Relations

The Employee Member of this Board shall be Mr. S.D. Speagle, Vice President, BLET

The Neutral Member of this Board shall be Ms. Joan Ilivicky

D.     The compensation and expenses of the Carrier Member shall be borne by the Carrier. The compensation and expenses of the Employee Member shall be borne by the Organization. The compensation and expenses of the Neutral Member and Chairman shall be fixed and paid by the National Mediation Board.

E.     The Board shall meet at Ft Worth, TX, or such other place as is mutually agreed upon; as soon as practical and at regularly stated times thereafter until all matters submitted to it under this Agreement are disposed of.

F.     The Board shall hold hearings on each claim or grievance submitted to it. Due notice of such hearing shall be given the parties. At such hearings, the parties may be heard in person, or by other authorized representatives as they may elect. The parties may present, either orally or in writing, statements of facts, supporting evidence and data and argument as to their position with regard to each case being considered by the Board. The Board shall have the authority to request the production of additional evidence from either party.

G.     A determination that a third party may have an interest in a dispute shall be made by the Board. Where it is determined that a third party may have an interest in a dispute, such party shall be notified by the Board of the dispute. Such third party shall be, together with a copy of the claim and a copy of this Agreement, given reasonable notice of the time and date the dispute it to be heard by the Board and an opportunity shall be afforded said third party to appear before the Board on such date and present its cases to the Board in a manner consistent with the rules and procedures adopted by the Board. The Neutral Member of the Board shall be one of the two or more members of the Board rendering an award in a dispute where notice of hearings has been given to third parties.

H.     The board shall make findings of fact and render an award on each case submitted to it, within ninety (90) days after the close of the hearings of each claim, with the exception of such case or cases as may be withdrawn from the Board by the party submitting the case. No case may be withdrawn after hearing thereon has begun, except by mutual agreement of the parties. Such findings and. award shall be in writing and copies furnished to each of the parties to the dispute, and if in favor of the petitioner, shall direct the other party to comply therewith on or before thirty (30) days after the decision is rendered. Each member of the Board shall have one vote and any two members of the Board shall be competent to render an award and to make any decision which the Board is empowered to make by statute or agreement, except as provided in Paragraph I.

I.     Awards of the Board shall be final and binding on the parties subject to the provisions of the Railway Labor act, as amended by Public Law 89-456. No awards shall be rendered in a dispute involving third or additional parties unless it is resolved as to all parties involved. If, in a judicial proceeding, an award is held not binding on one or more or the parties to the dispute, including third or additional parties, for failure to conform or be confined to matters within the scope of the Board's jurisdiction or for fraud or corruption by a member of the Board making the award, the award shall be deemed not binding on any of the parties.

J.     In case a dispute arises involving an interpretation or application of an award, while the Board is in existence or upon recall within ninety (90) days thereafter, the Board, upon request of either party, shall interpret the award in light of the dispute.

K.     The Board hereby established shall continue in existence until it has disposed of all claims and grievances submitted to it under this Agreement, after which it will cease to exist, except for interpretation of its awards as above provided.

This Agreement signed at Ft Worth TX this 6th day February 2008.

FOR: BNSF RAILWAY:
 

(Attachment "A")
BLET GCA Discipline Cases
127 Cases Listed

(Not reproduced for this article)

 

	Dennis Pierce General Chairman BNSF(CB&Q/GN/NP/SP&S)-MRL	Pat Williams General Chairman BNSF (ATSF)-PHL	Brotherhood of Locomotive Engineers and Trainmen
	Austin Morrison General Chairman BNSF (C&S/CRI&P/FWS)	Rick Gibbons General Chairman BNSF (SLSF)-MNA	IBT Rail Conference

M. H. Siegele                                                                                                        October 31, 2007
AVP/BNSF                                                                                                           File: Discipline Cases
2600 Lou Menk Drive
P.O. Box 961030
Fort Worth, TX 76161-0030

Re: Attachment A (Listing of Attendance Cases)

Dear Mr. Siegele:

This letter is in reference to our conference(s) involving the discipline cases listed on Attachment A.These cases were discussed in conference with your highest officer designated to handle these claims. We are writing to further clarify points made by us during our conference of these claims.

To begin with, the Carrier failed to provide many of these Claimants with a fair and impartial investigation. The Organization has advised the Carrier on many occasions that it is a fundamental violation of due process for an individual Carrier officer to charge a claimant, conduct the subsequent hearing, and then assess the discipline. Nevertheless, the Carrier continues this practice with regularity. In Public Law Board No. 1198, Award No.8, Chairman Preston Moore has reaffirmed our position, stating in pertinent part:

"Evidence of record indicates that the officer who prepared the wording of this charge was the officer who made the decision that claimant was guilty. The Organization contends that the Carrier's charge constituted a presumption of guilt. .. ..However many awards of the First Division and Public Law Boards have held that the claimant is entitled to a fair and just trial. These Boards have held that prejudgment is a violation of the agreement between the Union and the Company" (Emphasis ours).

The Carrier's actions in many of these cases is similar to those in Award No.8, although these are more egregious. In addition to preparing the charge and determining guilt, these cases involve an officer who also conducted the investigation. This argument is more compelling in light of the obvious bias that these conducting officers demonstrated against the Claimants during the investigation.

The Carrier's handling of these cases was also procedurally flawed by the manner in which it failed to serve the investigation notice and/or hold the investigation within the applicable time limit. Under each of the various discipline rules applicable to these disputes, the Carrier has a specific window from the date of an incident to hold an investigation. In each case this window was exceeded. This choice by the Carrier to ignore the time limit for convening these investigations was a choice fatal to the Carrier's case.

In Special Board of Adjustment No. 990, Award No. 30, concerning the Long Island Railroad's Absence Control Policy, Neutral Howard C. Edelman, Esq. stated in pertinent part:

The charges in this case allege lost guarantees on December 23, 1996; May 26, 1997; June 7, 1997 and June 29, 1997. Claimant was not charged until August 12, 1997 or over one month after the last offense. Clearly, this time period exceeds the fifteen day requirement set forth in Article 29(c).

In his findings, he further explained that it is improper to bring an absenteeism related charge and rely on the date the supervisor reviewed the attendance records, as the date certain for determining the timeliness of the charges. At the very least, the latest day of absence for which the employee is being charged must be within the window, and such is not the case before us. For an example of a holding that is on all fours with these facts and Neutral Edelman's findings, supra, please also see Award No. 37 of PLB 6059 (Lynch), which held that:

The employee's work record is a company record and is available to the company at all times. If this Board were to agree with Carrier's argument it would effectively delete the five day notice provision from Article 46(b); i.e. the company officer who prepares the charge letter could wait any length of time before generating the charge letter and then merely state that was the first date he was aware of the alleged infraction. The intent of the rule is quite clear; i.e., the charged employee "shall be notified, within five days after the company has information of the offense, that a charge is pending.

The Carrier defends its actions in these cases on the language in the discipline rules concerning first knowledge. Typically, this type of language is intended to cover situations where the Carrier is made aware of a situation via knowledge or information over which it has no control. However, the instant cases involves a clearly distinguishable situation, inasmuch as the information on which the charge was based was generated by the Carrier itself. The Carrier has programmed its computer system to provide a report weeks after the close of the rolling measurement period. This is in direct conflict with the Schedule Rule which requires the Carrier to hold the investigation within a specified period of time after an alleged incident. If the Carrier can program its computers to run a report after the close of a measurement period, it could just as easily program its computer to comport with our agreement. As Referee Lynch noted above, it would frustrate the purposes of requiring timely charges to allow the Carrier to internally manipulate the availability of internally generated information in order to preserve the timeliness of a charge.

The Carrier also erred in many of these cases by charging and disciplining the Claimant for a period encompassed by an earlier investigation. It is well settled that once a charge is brought and handled to a conclusion, the Carrier cannot bring a second charge in connection with the same facts. See, for example, First Division Awards Nos. 21343 (Hamilton), 25309 (Richter), and 26047 (Kenis). It is evident that the Carrier is unfairly imposing a form of double jeopardy on the Claimant. In addition, where part of the factual basis for a disciplinary assessment is undermined, the discipline must be reduced accordingly. See, for example, Second Division Award No. 13400 (Malin).

The Availability Policy, the instrument relied upon by the Carrier to administer discipline in this case, was unilaterally promulgated, and the subject of extensive controversy and discord (see PLB 6264 and 13446 (Malin), 13447 (Malin), 13448 (Malin) and 13614 (Kenis). Referee Kenis, in following Referee Malin's earlier Awards, held that "In neither instance should an employee be disciplined for exercising a contractual right. .. "

As noted above, the agreements between the parties require the Carrier to "maintain a sufficient number of engineers to permit reasonable layoff privileges" (see M of A dated April 4, 1994). When the Carrier issued its attendance policy, it stated that employees were encouraged to use a pre-approved layoff procedure to layoff. Further stating that once approved, the layoff would not be rescinded. The Carrier's suggestion first enticed many employees to follow this procedure. However, over a period of time afterwards, the Carrier started a practice of regularly denying employee requests for paid leave, i.e. single day vacations and personal leave days, which employees are entitled to as a result of their full time service (based on hours worked) for the Carrier. It must be noted that paid leave is treated as excluded time under the policy. Paid leave does not count as if an employee was laid off, but it does unfairly reduce the amount of unpaid leave an employee can have during any given measurement period.

The consistent reason for the Carrier's denial has been the lack of a sufficient number of engineers to allow for such layoffs, the number of which is set by the Carrier's Operating Vice President or his designee under the policy. The manpower shortage created by the Carrier was the result of the Carrier's reduction. in the number of engineers allowed to work on the extra boards. The Carrier began reducing the staffing levels of the extra boards, because the cost to the Carrier in guarantee to engineers on these extra boards was an operating concern to the Carrier.

It must be noted that the Carrier chose to cut these extra board positions despite its contract with the Organization to "maintain a sufficient number of engineers to permit reasonable layoff privileges". In tandem with these decisions, the Carrier also made it known to employees, those who wanted or needed time off from work, that the Carrier would grant unpaid layoff requests for the same employees as a substitute for paid leave, which was previously denied to them. Many engineers complied with these conditions even though they had first elected to use paid leave in order to attend to their personal needs.

Many of these engineers have subsequently been disciplined for their alleged failure to meet the Carrier's expectations of full time employment. We believe that the Carrier has no right to discipline these employees because of the Carrier artificially creating these circumstances. As the Organization has stated, the Carrier is required by agreement to maintain a sufficient number of engineers to permit reasonable layoff privileges. However, the Carrier has violated this provision of the CBA, when it has artificially created a situation, whereby the Carrier has denied engineers of their paid leave and then disciplines them for their substitution of unpaid leave, such as in many of these cases.

The Organization has frequently informed the Carrier that its Locomotive Engineers Training Program (LETP) is not meeting the needs of the Carrier under the CBA to provide a sufficient number of engineers to allow for reasonable layoff privileges. However, the Carrier has continued to fail in this regard. There is simply no excuse for the Carrier to set such a low number of engineers who can be off work on any given day and then deny the remaining engineers' layoff requests on the basis of a manpower shortage. Not only was it unfair to deny these requests for paid time off, but it was also unfair to force these employees into an unpaid layoff situation for access to their reasonable time off work and to then hold these unpaid layoffs against them after they were denied access to paid leave.

It must be noted that the Carrier finds it reasonable and requires that all operating employees, those who have been granted Family Medical Leave under the Act, to use their accrued paid leave before they can have any additional time off as unpaid leave. It is disingenuous of the Carrier to accommodate one group of employees with paid time off and to then deny others of the same paid leave when they have earned this time off as a condition of employment. We believe that the Carrier is denying the reasonable layoff privileges afforded to engineers who hold such rights under agreement. If it is reasonable on the one hand than it must be reasonable on the other.

On the former BN property, another agreement provision, Appendix Y of the SP&S schedule, clearly states that "Engineers in all classes of service may layoff at any time when the requirements of service permit". The application of this particular rule has always been strictly based on manpower availability until recently when the Carrier implemented its Availability Policy. We have shared many written statements with the Carrier from former crew callers supporting this. We consider the Carrier's policy to be in conflict with this portion of the CBA. The Carrier has argued that its full time measurement, based on 75% availability, simply defines "the requirements of service". We believe that this argument represents nothing more than a construction to the agreement, which was not bargained for by the Carrier,
as this was not the intent of the language when the agreement was made, as further shown by the past practice on that property.

This is evident in that over the years preceding the current attendance policy, the Carrier never interfered with what was recognized as the employee's right to layoff at any time whenever manpower was available. Appendix H of the former SP&S agreement specifically refers to engineers "who layoff for an indefinite period". Moreover, Schedule Rule 41(d), references "when an engineer holding a regular run lays off for ten days or over, such run will be considered temporarily vacant." These references clearly illustrate that the parties had a contract to allow for extended layoffs of at least ten days or more.

The other former BNSF properties have similar references in the CBA concerning extended layoffs whereby it is clearly evident that the parties had an implied contract to allow for such layoffs. It was only after the 1995 merger and a new management team that the Carrier ever considered establishing a policy measuring unavailability rather than the amount of time worked. This history on the property clearly shows that the Carrier is attempting to gain something that it does not own.

As the Carrier is well aware, this is not our first rodeo together on issues concerning attendance. We have had a long history of issues in this regard, which are reflected in the numerous letters of correspondence between us, for example on the North lines (former BN property), whereby we have shared our positions on the matter in the past. As such, we believe that a brief review of the history on the matter is in order so that we can put this instant dispute in proper perspective. Over the years, the Organization has often put the Carrier on notice when its various attendance policies have or had the potential of conflicting with our CBA.

For example, former General Chairman ID. Shell notified the Carrier in a letter dated August 20, 1987 of a conflict with the CBA when the Carrier issued Nebraska Division Notice No. 73 on July 17, 1987. For your reference, Mr. Shell stated in pertinent part,

Exception is taken to the language and intent of Superintendent Zimmerman's notice. According to terms of our current agreements, in particular Article III, BN 4/24/81 Ops 3381 reasonable layoff privileges will be granted to regular and extra employees alike.

Mr. Zimmerman lacks agreement authority to restrict Extra Board employees to layoff only on account of illness. He further lacks agreement authority to restrict layoff of "any employees" on the (sic) call except for illness or bona fide emergency.

We would expect both regular and extra engineer employees to work when they are able and needed. We would also expect that they be allowed reasonable layoff privileges for any cause when they are not needed. Our agreements are clear and understandable. Mr. Zimmerman's notice is clearly in violation of those agreements.

In a letter of response dated September 29, 1987 to Mr. Shell, Vice President E.H. Harrison agreed with Mr. Shell, clarifying the intent of the notice, stating,

Mr. Zimmerman did not restrict Extra Board employees to layoff only on account of illness but limited these lay-offs to the caller and all other lay-offs to the appropriate operating officer. ...The only time an employee should layoff on call is under an emergency or due to illness....We agree with you that both regular and extra engineer employees should work when they are able and needed. We are allowing them reasonable lay-offs and all other layoffs must be approved by the appropriate operating officer.

As the years passed, the Carrier (former BN) communicated to the Organization of its increased need for better utilization of its workforce. In a letter dated September 20, 1994, General Manager of Crew Management and Payroll Services, Mr. George LaValley wrote to former General Chairman D.L. McPherson, attaching a letter from Network Operations Vice President Don Henderson concerning "less than Full-time" employees, whereby Mr. Henderson stated,

In the past, we have allowed part of our train, yard and engine service employees to work less than full time to provide a surge capacity for crews. In today's environment this aggravates an already critical crew shortage and places an unfair burden on the majority of our TY&E employees who are working full time schedules. Management takes responsibility for allowing these imbalances to occur but also must take responsibility for taking the necessary steps to correct and insure that we have sufficient crews for our trains. Our goal is to have full time employees in sufficient numbers to allow all employees regular time off work. To do so, we must equitably balance the workload across the entire workforce.

Therefore, by October 1, 1994, we will establish fair, consistent and reasonable standards as to what constitutes full time employment for all train, yard and engine service employees across the railroad. We will then compare actual employee work history against those standards and where we see a consistent pattern of falling below the standards we will arrange a conference with the employee to define an action plan to meet

6265). It has never been accepted by this Organization as a legitimate exercise of managerial discretion, and has been protested at every turn. Of course, it is well settled that unilaterally promulgated policies cannot contravene the Agreement. See, for example, First Division Award No. 25920 (Fischbach):

Ordinarily, the employer has the right to establish reasonable work Rules and policies that do not infringe upon the Labor Agreement (emphasis added).

The Availability Policy runs afoul of a myriad of Agreement provisions, and is unenforceable in those respects. For instance, the policy, as applied in many of these cases, counts instances of illness in calculating an employee's availability, and thus bases discipline, at least in part, on an employee marking off when sick. By letter dated November 30, 1999, the Carrier was put on notice that existing provisions of the Agreement already contemplated employee illness. Under both the train and engine service agreements, employees are allowed to mark off sick and are not required to produce a doctor's certificate unless their illness exceeds six days. See precedential claim settlement agreed to by all operating crafts dated May 9, 1949, which provided that the Carrier would "require no certificate from the Doctor unless the illness runs over six days."

Thus, it is obvious that the Parties have long understood that employees cannot be disciplined for being sick, and that in cases involving illnesses of short duration (six days or less), return to service cannot even be conditioned upon the production of a doctor's certificate. Indeed, previous tribunals have recognized that it is improper for a carrier to condition return to service from illness on a doctor's certificate when the absence does not exceed the agreed-to threshold for requiring same, and has sustained claims for time lost when this type of provision has been violated to the detriment of the employee. See, for example, First Division Award No. 24902 (Dennis).

Furthermore, in previous discussions concerning the treatment of employee illnesses with respect to attendance issues, the Carrier has conceded that they are limited by the Agreement in this respect. By letter dated March 20, 1998, addressing the resolution of the Organization's challenges to an earlier attendance policy, the Carrier agreed that:

Second, we agree that sick is sick. That is why we have discontinued the supervisor approval process for employees laying-off sick, unless they have been identified as being on the absolute low end of the peer history work history list...

When settling a group of disputes surrounding this issue, the Carrier stated in a letter to the Organization dated April 15, 1998 that:

Effective immediately, no employee will be withheld from service for excessive layoffs. Instead, the employee will be formally notified and counseled that his attendance has placed him at the bottom of his peer group with regard to protecting service... In this regard, the employee will not be withheld from service, but will have ten days from the date he lays off sick to manage his business so that he can get his medical examination.

Thus, the above makes it crystal clear that the Parties have a long established history of not dealing with sicknesses as a disciplinary matter, and to the extent the Attendance Guidelines attempts to do so, it is invalid. The Organization will show below in this document that even before the Kasher Board, the Carrier argued that the latest policy would not change the "ability of the employees to take time off for legitimate purposes, such as their own illness or that of a family member." The record in this case makes it quite clear that the Carrier's application after the Board convened is quite different than the representations made before that Board. While Kasher may have upheld the Carrier's right to implement "a" policy, we doubt that his ruling can be stretched to condone the opposite of what he considered prior to his ruling.

It must also be noted that the Carrier, in applying the current "Attendance Guidelines", has chosen to ignore a multitude of other existing agreements between the parties concerning layoffs, as well as measurements for full time employment. Although Referee Kasher upheld the Carrier's right to have such guidelines, it was hardly carte blanche for the Carrier to disregard the provisions of the existing CBA. In fact, Referee Kasher stated in his award that any policy would give way to the CBA. On this point, we submit that the parties have previously agreed to several methods of determining full time employment, such as in the 1991 and 1996 National Agreements, which addressed the issue of full time employment in several ways. In the 1991 National Agreement, for instance, Article II - COST-OF-LIVING PAYMENTS addressed in Section 6 thereof the issue of "Employees Working Less than Full Time," and provided a means for pro-rating the lump sum payments for employees working fewer hours than those deemed "full time" by the Agreement, which defined full time as "2,000 or more straight time hours paid for. .." during a year. Since the attendance policy ignores the hours an employee works, and focuses solely on the hours he is available pursuant to its distorted formula for deriving same (as will be more fully discussed below), it fails to account for the previously established means of measuring full time employment evidenced above, and thus contravenes the Agreement. Another example is found in the 1996 National Agreement, also known as the "Core" Agreement, which changed the formula for determining employee eligibility for various fringe benefits. Prior to 1996, employees in the operating crafts needed to only work one day per month to remain eligible for fringe benefits; however, the 1996 National Agreement changed this to seven days in Articles III, IV and V. In Side Letter NO.7 to this Agreement, the Parties signified their understanding that this change was made to address:

[T]he relationship between time worked and benefits received. The carriers were concerned that certain employees were not making themselves sufficiently available for work, but due to the then current eligibility requirements such employees remained eligible for health and welfare benefits....As a result of these discussions, the parties agreed to tighten one eligibility requirement from any compensated service in a month to sevencalendar days compensated service in a month (the "seven-day rule") ...

The above was further amplified in Q&A NO.7. Thus, we have yet another example of how the Parties have historically addressed the question of full time employment by measuring the time or frequency with which an employee works, not any other measure, such as availability. Furthermore, we have an example
of an agreed-to measure of full time employment, which in this case is seven days per month, and which represented at the time the Employees made this concession a seven fold increase in the qualification threshold. Clearly, the attendance policy violates this understanding and is thus invalid on that account.
Other Agreements variously refer to "reasonable layoff privileges," condition same on the availability of sufficient manpower, and obligate the Carrier to maintain same. To the extent the attendance policy violates these Agreements, it is invalid as well. It is also well settled that a carrier cannot discipline an employee for absenteeism when the absence(s) subject of the charge are a function of the charged employee exercising a contractual right. See for example, Second Division Awards Nos. 13445 (Malin),

full time employee standards. If the "less than full time" pattern persists, then further corrective action steps may need to be taken.
Our objective in this endeavor is to provide full time employment to all, fair and consistent standards across the work force and to deal fairly but firmly with employees that do not meet full time criteria.

In response to this letter and as a cautionary note, General Chairman McPherson replied to Mr. Henderson in a letter dated September 28, 1994, wherein he stated,

At the outset, your letter appears to imply that the shortage is caused by those who take time off on weekends or holidays. While weekend and holiday layoffs exacerbate the impact of the shortage, let us not forget that the shortage of engineers is the Carrier's responsibility. Early warnings of the eminent shortage were given to BN over four years ago, but were ignored for at least two and in case of some seniority districts, three of those four years.

Since, at this time, your letter does not specify what specific "standards" for a full time employee are to be, this office can only advise that we are skeptical with regard to the fairness and reasonableness with which your office will administer your program. Certainly we are not unreasonable, and we expect application of the full time will not be unreasonable either. We are confident you and your staff are aware that some "reasonable standards" (full time) as set by other railroads have not been considered reasonable when reviewed by arbitrators. There should be no cause to have to test them again here. I agree
that BN should be able to expect full time employees, even though we may have a different idea what constitutes full time.

You also may be aware that all three BLE General Chairman have suggested that if engineers had the ability to schedule time off and if they had the ability to use paid leave on a one day at a time basis, the availability problem would be less severe; even though it would not completely cure the shortage.

Finally, the agreements contain provisions which address matters such as laying off, marking up and discipline. You can be sure that we expect and will endeavor to ensure that those agreement provisions are fully complied with.

As planned, the Carrier subsequently established a standard for full time employment. The Carrier then informed its employees of the criteria to be used for determining whether or not a TY&E employee had met the full time requirement. The criteria used by the Carrier recognized that the CBA, supra, had already established criteria for determining full time employment and incorporated these criteria into its attendance policy. As an illustration, Mr. D. J. Galassi, General Superintendent of Crew management and Payroll Services wrote a letter dated April 4, 1995 to Local Chairman D. J. McCarthy, informing him of the full time standard, stating,

Contrary to your assertion that the Carrier made changes in the working conditions and rules without informing the Organization, the guidelines for determining full time employment were provided by PEB 219, "Employees with 2000 or more straight hours paid for (not including any such hours reported to ICC or constructive allowances such as overtime except vacations, holidays, and guarantees in protective agreements or arrangements)" will be considered as full time employees, for lump sum payments. Public Law Board 3352, Award Number 15 states "An employer has the right to expect any
employee to fulfill the measure of a current year (2000 hours) criteria that the industry uses as a standard work year".

Given the above facts, the guidelines the Carrier is to use in determining part or full time employment are quite clear and any further declaration of policy concerning part or full time employment is unnecessary.

In addition to the correspondence noted above, Division Superintendent Cliff Tye also forwarded the Carrier's an explanation of the Carrier's full time standards to Mr. McCarthy. These were contained in a letter dated February 7, 1995 from Mr. Ed Beil, Manager of Crew Utilization, to Mr. Tye, wherein he stated,

Mr. Tye,

Per your request, following are the guidelines for determining if an employee is full or part time.

The 1991 PEB established as standard for lump sum payments = "Employees with 2,000 hours or more straight time hours paid for (not including any such hours reported to ICC or constructive allowances such as overtime except vacations, holidays, and guarantees in protective agreements or arrangements".

Public Law Board 3352, Award # 15 states "An employer has the right to expect any employee to fulfill the measure of a current year (2000 hours) criteria that the industry uses as a standard work year".

Some agreements provide specific number of days an employee can be absent from service so long as a full time level of service (2,000 hours) is maintained. Two thousand hours requires an employee with assigned rest days to work an average of 21 days per month, yard service employees would be able to mark off one extra day per month or one 15 consecutive day layoff per year under union contract.

Extra board employees are expected to be available 21 days per month and average marking off 9 days per month.

Mr. Beil further discussed that "Marginal employees" would qualify for the interview process, as was contemplated in the Carrier's previous notice, adding that other factors to be considered in qualifying an employee for an interview were, but not limited to, comparison to other employees, nature of absences, total number of days lost over length of period being considered, patterns of absences, number of absences, and whether an employee earned less than 2800 miles per month.

He closed his letter stating, "It behooves the individual employee to manage his layoffs within the guidelines as previously mentioned. I believe you already have a copy of the recommended full time employment standards which can be shared with the local chairman, if you so desire."

This correspondence and policy statement stands as clear evidence of how the parties had mutually recognized the importance of issuing attendance policies, which comported with the CBA. When the above noted attendance policy was implemented in 1995, it recognized that the criteria for determining full time employment was based on hours worked rather than hours laid off work. The Carrier made a similar representation of these same intentions in its case before Referee Kasher, whereby the Carrier presented the average amount of time it expected its operating employees to work, (see PLB No. 6264 and 6265, page 20-25, reference to Carrier Exhibit 13, Affidavit of Vice President Dave Dealy). However, the Carrier failed to incorporate these criteria in its current policy when it was implemented. In most cases, employees are working over and above those expectations, but their work is given no consideration. The Carrier has unilaterally chosen to invoke a policy that does not remotely recognize the time an employee does spend at work, only the amount of time that he or she is away from work. For these reasons, we
believe that the Carrier is without the right to unilaterally impose any new description or method that disregards these agreements, as it has done in this case.

In light of the forgoing, it is evident that the Carrier has previously acknowledged that any attendance policy must comport with the CBA. While the Carrier showed an intention to comport with the CBA in its past policies, those CBA provisions were ignored in the latest policy. That is why the Organization originally filed a grievance when the Carrier introduced the current attendance policy. Throughout the history of the railroad industry workers have always been measured for the amount of work that they have performed for their employers. The Carrier's attempt to shift this paradigm from measuring full time employment based on hours worked to a measurement based on hours unavailable for work cannot stand considering the clear language of the agreement and the practice on the property.

In regard to the above, it must be further noted that the Carrier has also introduced a provision in its current attendance policy, by which the Carrier measures an employee's availability separately from weekdays and weekends. However, the standard for full time employment previously recognized in the CBA did not provide for this type of full time measurement. The former policy in recognition of the CBA simply required that employees work the equivalent of2000 hours in a calendar year to maintain full time status. It must be reiterated that the former BN memorialized these criteria when it issued its attendance policy in 1995.

Though the BNSF management as new landlord may attempt to abrogate the agreements established between the Organization and the former railroads, our previous mutual understandings, as defined by and reflected in the past practice on these properties, prohibit the Carrier from utilizing its current policy. The past practices, which occurred prior to the merger, clearly provide meanings to what was agreed to and was understood between the parties. Under our previous understanding, employees were only considered as less than full time if they failed to work the equivalent of2000 hours per year, obviously setting mitigating circumstances aside.

As a condition of the merger, the BNSF recognized its obligation and agreed to honor the previous contracts between the former BN and its employees, including any implied agreement established between the parties, unless changed under the Railway Labor Act. However, as the years have passed, the Carrier has chosen to disregard its obligation. As the matter stands, the Carrier is without the right to implement its current policy, since it obviously conflicts with the previous understanding of how the CBA was to be applied to the employees on the former property.

In the Carrier's 1999 Section Six notice, the Carrier proposed a rule that would modify this definition of full time employment, which to this point in time was already embodied in the Agreement by virtue of a full time standard based on hours worked, and also vacation and health/welfare qualifying criteria as well as provisions guaranteeing reasonable layoff privileges. It is beyond citation to authority that the service of such a notice is a clear admission that the serving party does not possess the right it seeks, and in this case it is clear that the Carrier cannot expand on their definition of full time employment in a manner contrary to the Agreement.

These Committees have made many attempts to advise the Carrier when its guidelines went beyond the limitations of the agreements, all apparently to no avail. Mr. Kasher clearly advised that the reasonableness of the Carrier's policy was not ripe for consideration at the time of his award and for that reason, the award gave no blessing to the Carrier's current application of the policy. These Committees were also advised, as were the employees we represent, that the Carrier's policy would not be applied in a "wooden" or "rigid" fashion. We were further advised that special circumstances would be taken into consideration before discipline was assessed. However, the Carrier has refused to properly consider the special circumstances in the cases at hand.

These actions fly in the face, and are opposite, of the testimony provided by the Carrier during the arbitration of the Carrier's attendance policy, which resulted in Public Law Board Nos. 6264 and 6265. In the combined Awards, Neutral Kasher expressly noted that,

The Carrier further points out that the Availability Policy establishes a procedure whereby an employee, whose individual circumstances require absences that would otherwise be in violation of the Availability Policy, can obtain approval for such absences, so that the absences do not count against him/her. The Carrier argues that the Availability Policy represents no real change in the ability of employees to take time off for legitimate purposes, such as their own illness or that of a family member.

These same sentiments were also stated by CEO Matt Rose in a letter dated October 4, 1999 to Local Chairman Don May, wherein he stated,

As I hope you can see, most BNSF TY&E people have no cause for concern about the policy. In order for BNSF to be successful in our highly demanding marketplace, we need all BNSF TY&E people who do not have a special medical or family problem to be "full time" employees (emphasis ours).

Despite this, it is evident in the case at hand that the Carrier has refused to acknowledge these exceptions and instead has disciplined many employees involved in the cases at hand regardless of their special circumstances.

On a similar note, Neutral Kasher also noted that,

The Carrier asserts that fatigue-related rest will continue to be permitted under the policy, which treats tying up for rest or booking rest at the home terminal as "available time", and that no employee will be penalized or disciplined for such rest.

However, despite the Carrier's previously stated commitment, the Carrier routinely counts fatigue layoffs against employees and disciplines them as a result of such layoffs.

On a similar note, the Carrier has stated in a letter dated May 15, 2001 from Division Superintendent Kelly Duryea, again to Local Chairman Don May, that "if a person has to lay-off prior to vacation or other pre-approved lay-oft: then they need to talk with their supervisor and this will not be held against them" (emphasis added). However, the Carrier is routinely counting these days against employees at various locations. It only seems fair to provide this same consideration to all employees if the Carrier finds this application reasonable on a part of its system.

In many cases, the Carrier has disciplined employees for allegedly violating the attendance policy when it is clear that these employees have had no way of knowing that they were in violation of the policy prior to the triggering incident. This has occurred because many of the Carrier's reasons for assessing a violation are not stated in the posted policy. These nuances to the policy are only found in the Carrier's User and Trainer Guide, which the Carrier has only provided to its operating supervisors and not the employees governed by the policy.

Though the Organization believes that many of these nuances to the policy are patently unfair, as we will discuss below, the Carrier nonetheless has an obligation to explain these nuances to its workforce before considering any discipline against an employee. However, to date, we are not aware of any instance where the Carrier has provided any employees with access to or a review of the Carrier's User and Training guide. In fact, the Carrier has gone out of its way to hide the guide from not only its employees, but also from the Organization. Without knowledge of the nuances to the policy and a complete explanation the Carrier's expectations, it can hardly be considered fair to discipline an employee under the circumstance. Especially considering how complicated the policy is to understand without the aid of the
user guide, particularly the mixed service measurement.

The trainer guide states that in regard to mixed service an employee's monthly layoff threshold, the number of days counted against an employee's availability, changes if an employee changes any class of service in the month. In many cases, employees have already laid off during the early part of the month while in a particular class of service and then find themselves in violation of the policy when they later are placed to another class of service. In many cases, the employee has no control over his movement to another class of service because of his lack of seniority. In other cases, employees are caught in a catch 22 if they choose to exercise their seniority, rights they hold under their collective bargaining agreement and move to another class of service. Again, this is not stated in the attendance policy, which the Carrier posted for employees to read.

As another example, the Carrier's User and Trainer Guide explains that the Carrier considers a layoff as a ''weekend'' layoff if the layoff runs into a weekend day by more than thirty minutes. Therefore, if an employee lays off at 0031 on a Friday for 24 hours, typically the minimum allowable layoff period, and the employee is then marked up at 0031 on Saturday, this layoff is considered as a weekend layoff even though the vast preponderance of the layoff period, all but 31 minutes, was on a week day. Numerous cases have occurred that involved just such a situation. Further, the Carrier has been adamant that it was not required to explain this to its employees beforehand. We contend that this is patently unfair. It is a matter of record that the majority of violations alleged by the Carrier are based on alleged breaches of the weekend threshold. This is no wonder when the program, created unilaterally by the Carrier, is configured to turn weekday layoffs into weekend layoffs. The Organization has complained of the unfair weight being given to weekend layoffs, but our complaints have fallen on deaf ears.

The Carrier's trainer guide also explains that paid leave reduces an employee's threshold for unpaid time off during a measurement period. This again is not explained in the policy posted for employees to read. In some cases, employees have used four weeks of vacation during a month, only to find out at the investigation that this reduced their layoff threshold to zero and these employees were disciplined for this, nonetheless. We submit that it is not only unfair to reduce a layoff threshold because an employee used paid leave, but it is also unfair to hold these layoffs against an employee when it has not been explained to him that this is how the Carrier applies its policy.

The Carrier's trainer guide also explains that employees can access an event calculator to determine whether a future layoff would cause an employee to exceed his layoff threshold for any given 90-day measurement period. The Carrier has been critical of employees for not using this calculator. However, we contend that this is unfair of the Carrier to hold an employee accountable for not utilizing the attendance calculator when the calculator has a design flaw in that every calculation provides a result without considering the past thirty days of an employee's work history. Consequently, the result fails to add in any layoff in the previous thirty days from when the calculation was made. Few employees are aware of this and the Carrier has not explained this flaw to the employees. For this reason, the Carrier is
without the right to enforce a policy that is arbitrary not only in its design, but also in its application.

The Carrier's trainer guide also explains that the policy has three avenues of appeal, wherein an employee can appeal a supervisor's decision to deny excusing a layoff from the measurement period. The employee can appeal to either local management, the medical department or labor relations. While the Carrier now relies on attendance awards with other committees, even one of those awards noted that the employee did not avail himself to this appeal process. That is no wonder when one considers that the Carrier makes no effort to inform an employee of this so called appellate process.

Under the circumstance, we believe that the Carrier must be barred from disciplining these Claimants. The Carrier failed its duty to inform these Claimants of the opportunity to appeal their layoffs that were held against them at the investigation. As the matter stands, the Carrier has no way of knowing whether these layoffs mayor may not have been excused since the appellate process was not afforded to these Claimants.

Without prejudice to the above, the Carrier has also failed to establish just cause for the discipline assessed in this instance. While it was established that the Claimant's attendance arguably failed to meet the attendance criteria set forth in the policies relied on by the Carrier, that was all that was established.
When assessing the Claimant's attendance, the Carrier was not interested in knowing why the Claimant was absent on any particular day. All that interested the Carrier were the statistics, not any underlying reasons or causes. While many arbitrators hold that over a long period involving the assessment of progressive discipline for chronic absenteeism, underlying reasons cease to be relevant, this is not such a case. In terms of these cases, the Carrier must consider the circumstances surrounding the absences and take them into consideration, as held by Neutral Fredenberger in Award No. 14 of PLB 6045. It cannot merely apply a numerical test in a mechanical fashion that ignores individual circumstances. See, also, Award No. 18 of PLB 5714 (Harris).

The Availability Policy, the basis for the discipline assessed in this case, is simply unreasonable in both its design and application. While the Carrier will no doubt argue in this case that the "Kasher Award" was a ringing endorsement of its policy, Mr. Kasher expressly declined to go any further than holding that the Schedules then in effect did not serve to bar the implementation of the policy; however, he expressly declined to rule on the reasonableness of the policy or its application, holding that such would have to be determined as it was actually applied to employees such as the Claimant in this case:

In any event, as observed above, the issue of whether the policy is reasonable is not ripe for consideration on its merits.

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 wait justifiable disputes at the time the Carrier implements and then applies the Policy in matters involving individual employees.

While agreeing with the Carrier that it had a right to promulgate a policy, he also qualified that right by recognizing that such policies, when challenged, must pass a test of reasonableness:

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.

Mr. Kasher went on to say that:

Ordinarily, in a case of this type, an arbitrator is faced with a general claim that a policy, such as the one here under consideration, is unreasonable per se or that the policy has been applied in an unreasonable manner" (emphasis original).

We submit that this case represents a showing that the policy is both unreasonable on its face and has been applied unreasonably to these facts. The heart of the policy's unreasonableness is its focus on availability, as opposed to service performed. The policy counts days of availability in a harsh and unrealistic way. For instance, if an employee works an early morning assignment and is rested in the afternoon and lays off, he is counted as "unavailable" for that day, despite the fact that he worked a complete assignment. If an employee is unavailable for just a small portion of a day, he is deemed unavailable for a full day. This often results in an employee being deemed in violation of the policy for being unavailable for a number of days reached only because of the policy's treatment of partial days of
unavailability as full days. In short, the policy tends to deflate the time an employee works and inflates the time he is not available. This creates a false and misleading picture of the employee's actual work contribution, and certainly fails any test of reasonableness.

The policy is also applied in a consistently unreasonable manner. By its own terms, it is not supposed to be applied in a "wooden" or "rigid" manner, with due consideration afforded individuals with special circumstances. Carrier transportation supervisors being what they are, consideration of individual circumstances is a bit much to expect. Thus, it is no surprise that a policy that may have been designed with an intent to consider individual circumstances will, in this industry, inevitable be applied in a rigid, inflexible, mechanistic, rote fashion, leading to results such as those underlying these cases.

We submit that these claims should be sustained solely due to the Carrier's failure to charge the Claimants in a timely manner. Alternatively, and without prejudice to the above, many of these claims must be sustained due to the Carrier's improper use of double jeopardy with respect to the first and/or second month of the three month window subject of this case. On the merits, and without prejudice to our procedural arguments summarized above, the discipline cannot be allowed to stand because it is based on a unilaterally promulgated policy that conflicts with many Agreement rules, is unreasonable on its face, and has been applied in an unreasonable manner.

Even if any of these Claimants were at fault, though they were not, the discipline was not commensurate with the offense. Previous courts and tribunals have clearly recognized that discipline must be fair and reasonable. For example, in Davis Fire Brick Co., 36 LA 124, 127 (Dworkin, 1960)(BLE Exhibit L) the court ruled:

"Inherent in the contractual provision that an employee may be disciplined for just cause, is the fairness and reasonableness of the penalty. While the basis for discipline may be clearly established, unless the penalty is reasonably commensurate with the improper conduct of the employee, then "just cause" is wanting in regards the penalty imposed."

In regard to each of these cases, the Organization concludes that a discipline imposed was far from commensurate with these Claimants' actions and that "just cause" is definitely wanting.

In the event that any of these cases result in back pay, it is the position of the Organization that the Carrier is without the right to offset earnings when the Carrier is required to pay the Claimant for time lost as a result of this wrongful dismissal. Your position is contrary to our on-property understandings and past practice. There is also a long arbitral history of requiring the payment of all wages lost without allowing any deduction for outside earnings, including awards from the First Division.
 We have shared many of these with you in the past.

While the Carrier might introduce Awards and Interpretations involving other crafts and other Carriers where deductions have been allowed, it has not provided any evidence to show that on this property. Absent any affirmative showing that such offsets were contemplated by the Organization's Schedules, it is improper in this craft to allow them, and it is improper herein.

Furthermore, if the Carrier makes any attempt to offset a claim by deducting for outside income earned during the period in question or any other disputable form of offset, we will most certainly request an interpretation of the Arbitrator's intent of the award.

Our appeals in these cases were denied in conference and this is to advise that the Organization does not accept these declinations as final handling for these cases. If you choose to reply, setting forth the Carrier's position(s) in these cases, please do so in a timely manner. Otherwise, absent a change in the Carrier's position, these cases will be listed for handling in arbitration.

Sincerely,

Gentlemen: ,

This letter is to address issues that you identify in your joint letter of October 31,2007 to Milton Siegele regarding our disputes regarding the Attendance Guidelines. This letter has been passed to me for further handling. The letter is intended to make the reader believe that these claims present issues of the first impression, that there is little if any arbitral authority on any of the issues that you have raised. But in fact, there have been scores of arbitration awards addressing the Attendance Guidelines from every angle.

Every issue you raise has already been resolved many times over, starting with your basic proposition that "the discipline cannot be allowed to stand because
it is based on a unilaterally promulgated policy that conflicts with many agreement rules." That proposition was raised before and rejected by the very first arbitral forum that considered the Availability Policy. Every other proposition that you raise has likewise been addressed and re-addressed in, literally, dozens of earlier awards. Often, the awards resolving all the other issues that you raise have been in disputes between the same parties as here: BLET and BNSF. The rest of the awards address the exact same guidelines and the exact same issues, but were in disputes between UTU and BNSF. The awards involving the same issues and the same parties are covered by the principle of res judicata. The awards involving the exact same attendance guidelines, the exact same issues and one of the exact same parties (and one different party) are covered by the principle of stare decisis. Both are controlling principles in labor arbitration. Both promote stability in
labor relations. Both assure certainty in the handling of like issues in subsequent cases. Both involve respect for the teachings of the earlier arbitrators, their thinking, their holdings, their awards. As will be seen throughout the rest of this letter, it is BNSF that is honoring those principles here. It is BLET that is attempting to reinvigorate settled matters and settled issues, all as if they had never even been argued, let alone decided, many times before."

All that said, what I intend to do is address all of the issues associated with the discipline cases involving the application of Attendance Guidelines. I say this
because your letter does not mention the disagreement concerning the application of Alternative Handling, an issue that has been discussed on the property. If there are other arguments that you intend to advance that are not addressed herein, please let me know what they are at your earliest convenience.

My understanding is, in general terms, that it is BLET's position that BNSF (1) does not have the right to promulgate the Guidelines because, among other things the issue was the subject of a Section 6 Notice; (2) that the Guidelines are not reasonable; (3) the term "full time" has been defined by national agreements; (4) the Guidelines conflict with existing agreement provisions; (5) BNSF does not properly apply the Alternative Handling Agreement to discipline cases arising pursuant to the Guidelines; (6) disciplinary hearings under the Guidelines are flawed because of Officers assuming multiple roles, (7) there are time limit violations regarding notification to attend a disciplinary hearing; (8) the allegation that employee are subjected to double jeopardy; and (9) There are cases demonstrating that BNSF is both unreasonable and "wooden and rigid" in its application of the Guidelines.

BNSF's right to Implement the Attendance Guidelines

As you may recall, BNSF published, for informational purposes, an Availability Policy during the spring of 1999. BNSF intended to implement the Policy on or
about October 1, 1999. Labor, including the predecessor Organization to the Brotherhood of Locomotive Engineers and Trainmen (BLET), took exception to
the unilateral implementation of the Policy and fl1ed suit. The result of that litigation was the establishment of two Public Law Boards (one for the Engineers, the other for the United Transportation Union representing ground men) to resolve the issues. These Boards were combined and the issues were addressed.

Among other points, BLET took the position, as here, that BNSF did not have the right to "...unilaterally impose its conflicting "Availability Policy...". BLET
also asked the question, "Is the Carrier's 'Availability Policy' also invalid on the grounds that it conflicts with the aforementioned provisions of the collective
bargaining agreements between BLE[T] and BNSF...?" Stated succinctly, the Board(s) found that BNSF had the right to unilaterally regulate attendance through the issuance of the Availability Policy, and that there were no existing collective bargaining agreement provisions that would bar implementation of the Policy. Subsequent on-property arbitration decisions have upheld these principles.

Award 38 of Public Law Board 6345 (BNSF and BLET Referee Vaughn):

The Carrier is entitled to have its full-time employees be available and report for work, as scheduled. When the Carrier holds a fulltime position for an employee, an implicit part of the bargain is that the employee will be available on a reasonably full-time basis. The Carrier is, of course, in the business of providing reliable, scheduledservice. TY&E employees who are excessively absent threaten the Carrier's ability to deliver this most basic part of its
business. The absences of such employees must be covered, requiring extra employees and resulting in extra costs. For these reasons, it has been consistently held that the Carrier is entitled to promulgate and enforce reasonable rules to ensure regular attendance by its employees, to take disciplinary action to correct attendance problems and, ultimately, after progressive efforts to correct unacceptable attendance have
been exhausted, to dismiss such employees from service. (bold mine)

Award 12 of Public Law Board 6586 (BNSF and UTU Referee Quinn):

It has been established through arbitral review that the Carrier has the right to institute a policy addressing attendance and that the Carrier can assess discipline when employees fail to meet their obligation to perform service on a full-time basis. See Award 17 of PLB 3566, Award 374 of PLB 717 and PLB 6264 and
6265. (emphasis added)

Award 491 of Public Law Board 3304 (BNSF and UTU Referee O'Brien):

On August 27, 2003, Public Law Board No. 6345 concluded that the Attendance Guidelines for TY&E employees was properly promulgated by the Carrier to effectuate its right to reliable, fulltime attendance on the part of its employees. (emphasis added)

Award 5 of Public Law Board 6523 (BNSF and BLET Referee O'Brien)

As observed previously, Public Law Board No. 6345 found, in a well reasoned Award, that the BNSF Attendance Guidelines for TY&E employees were properly promulgated by the Carrier to effectuate its right to reliable, full-time attendance on the part of its employees. (emphasis supplied)

Award 11 of Public Law Board 6586 (BNSF and UTU Referee Quinn)

The Board is persuaded that the Attendance Guidelines have been properly promulgated to effectuate its right to reliable full time attendance on the part of its employees. See PLB 6345 Award 38 (bold mine)

There really is no question, at this point, as to whether BNSF has the right to promulgate an initiative addressing employee availability. Furthermore, I would like to point out that the Availability Policy addressed by PLBs 6264 and 6265 is not the policy that was ultimately implemented. Once it was determined that BNSF clearly had the right to promulgate the Availability Policy, BNSF met with BLET and UTU to see if a mutually acceptable policy could be developed. While there are many similarities to the Availability Policy, the current Attendance Guidelines are, at the very least, an initiative that considers the input and attempts to address the concerns of the Labor Organizations, including the BLET. It bears mentioning that during the discussions eventually resulting in the Attendance Guidelines, it was Labor (BLET and UTU) who requested that the conditions be published to the employees on one page of paper. BNSF believed that a more comprehensive
explanation to the employees would be preferable, but yielded to the desires of the Transportation Organizations.

Finally on this point, you contend in your letter that the comments made by Vice President Dealy during hearings before PLBs 6264 and 6265 were not made part of the Policy and that employees "...work over and above those expectations." I have reviewed the Award and searched for anything attributed to Mr. Dealy that was not part of the Availability Policy or the Attendance Guidelines. Therefore, I find nothing to support either contention. Particularly the contention that employees are working above and beyond BNSF's availability expectations, yet find themselves being charged with not fulfilling their obligation to be available for service.

I will address the Section 6 argument in a separate section of this letter.

The Guidelines are Reasonable

Engineers in unassigned service, or on 7-day assignments are, technically, obligated to either work, or be available for service, every day. Engineers on 6day
assignments have one assigned day off per week and those on 5-day assignments have two assigned rest days per week. In a general sense, most of the working population outside of the railroad industry works five days per week, having two days per week where they are not usually expected to work. The Attendance Guidelines are designed to balance railroad service so that engineers, regardless of the assignment held, are obligated to be available for service for a period of time close or equal to the general working population.

Using November as an example, an engineer on a 5-day assignment works 22 days per month, with eight rest days. This is an availability threshold that is "close or equal to" the normal availability of the general working public. Furthermore, under the Attendance Guidelines this engineer is allowed one additional day off per month.
An engineer on a 6-day assignment during November works 26 days, with 4 rest days. If that engineer does not layoff on any workday, availability is 87%.
In order to allow for time off that would be "close or equal to" that of the general working public, this engineer is allowed 3 additional days off during the month, bringing the availability threshold to as close to that of the general working public, or about as close to 75% as possible, without dropping below that percentage.

In order to address unassigned service, BNSF looks at 75% availability during weekdays and 75% availability during weekend days. 75% of the 22 weekdays
is 17, giving the engineer 5.5 weekday absences without being in violation of the Guidelines. Of the eight weekend days, the engineer may be absent on two of them and remain in compliance. The engineer may, during the month, be absent up to seven days, so long as no more than two of the absences are on weekend days, and remain in compliance with the Attendance Guidelines. This is certainly a reasonable application.

One of the reasons you cite in support of your position that the Guidelines are unreasonable is because they address time available, not time worked. If I understand you correctly, it is the position of BLET that an engineer's measure of full time employment should be based upon how long that engineer works. While this may be an appropriate measure in some cases, in unassigned service, time worked, as the only criteria, is not a reflection of the degree to which an engineer satisfies the obligation to work full time. Frankly, in order for BNSF to operate efficiently and effectively, engineers have to be available to accept a call for service when BNSF needs to order a train. It is reasonable, then, to measure an engineer's availability over a period of time as opposed to how long that engineer actually works after having been called to service.

Another contention of BLET regarding the "reasonableness" of the Guidelines is that weekdays and weekend days are measured separately. The reason for this
separate measurement is driven by legitimate concerns grounded on the general conduct of people who work in this industry, and perhaps others. The concern is that there is a propensity for people to be unavailable more often during a weekend than during the traditional Monday through Friday workweek. Again, the nature of our business is such that trains must move on weekends. Engineers are expected to work on weekends. Therefore, there is certainly nothing unreasonable about requiring that engineers be available for 75% of both weekdays and weekend days, measured independently.

I would like to point out that the majority of the Attendance Guideline issues are associated with weekend availability. I would like you to consider the following data for the three-month period August - September - October, 2007:

As the above numbers reveal, fully 90% of the exceptions involved weekends. It  is not only reasonable, but it is also absolutely necessary to measure weekday
and weekend availability separately. People tend to prefer time off during the weekend; therefore, if every engineer were allowed to take all of their time off
during weekend days, then BNSF would not be able to operate trains on the weekend. And that clearly cannot be considered as an option.

There is another element to weekend/weekday availability that must be recognized. Engineers in unassigned service, under the current agreements, are able to place in motion forces that allow them to earn sufficient wages Monday through Friday, thereby, financially speaking, allowing them to be unavailable during the weekends. The Guidelines cannot, and do not, change that provision of the collective bargaining agreement - a principle that will be discussed in detail shortly. Therefore, while those agreement provisions remain in full force and effect, BNSF has the right to obligate engineers to be available throughout the entire time that trains need to be run. Recognizing and stipulating that while regulating pools on the higher mileage end of the range may be contractually supported, engineers must remain available to
protect the weekend work. It is for this reason, among others, that the Guidelines do not contemplate hours worked; rather, the standard is time available, as well as why weekends and weekdays are considered separately when applying the 75% standard to unassigned service.

Your letter also suggests that the Attendance Guidelines are unreasonable because they are complex, unclear and difficult to understand. BNSF disagrees because there is nothing difficult about understanding that engineers must remain available for 75% of the time in order to perform the service that they were hired to protect. If a person looks at the total number of weekdays and weekends during a measurement period, it is not at all difficult to determine a number that is 25% of those days and remain in compliance by not being unavailable for more than that number of days. In assigned service where engineers have assigned days off, the calculations are even simpler.

Considering that assigned rest days are actually days off, then the number of additional workdays that an engineer may be absent is driven by the number of
rest days attendant to the assignment. In addition, the involved engineer has an obligation to read, understand and comply With the properly promulgated Guidelines. If, in any individual case, the engineer legitimately feels confused or does not understand what the Guidelines, or any other rule or instruction for that matter, mean, then it is the responsibility of the engineer to ask for an explanation. It also needs to be understood that locomotive engineers are required to understand and apply much more complex calculations during their working time. Figuring horsepower per ton, tons per operative brake, the appropriate number of powered axles based upon grade and trailing tonnage, train consist load and empty distribution driving appropriate train handling decisions, and other elements of an engineer's responsibility are far more complex than determining availability thresholds. In any event, the "complexity" and employee responsibility associated with the Attendance Guidelines has already been taken to arbitration on BNSF. Public Law Board 6345 in their Award No. 38, (BNSF and BLET Referee Vaughn) addresses the argument that the Attendance Guidelines are "unclear" and therefore unenforceable:

The Organization complains, at the outset, that the Guidelines are unclear; and it urges, on that basis, that they cannot be enforced against Claimant. The Board is not persuaded that the Guidelines are unclear on their face; and any lack of clarity as the Guidelines are applied must be demonstrated in the record. The Board notes that it is the obligation of employees to familiarize themselves with rules and that the Carrier has worked to counsel and clarify the Guidelines. The evidence is that Claimant was responsible to understand, and in the end did understand, the Guidelines. In particular, the methodology by which the 75%/25% availability figures are derived are set forth in the Guidelines themselves; Claimant knew, or should have
known, what was expected of him. (bold mine)

This issue has been subjected to arbitral scrutiny already and the Guidelines have been found to be understandable.

BNSF has promulgated a reasonable initiative to regulate availability AND has administered the Guidelines in a reasonable manner. The percentage of
employees who are initially believed to be in violation of the Attendance Guidelines is small. Furthermore, of that percentage who technically fall short of the minimum requirements of the Attendance Guidelines, only a fraction of them are actually disciplined. The point is that BNSF is very liberal when working with employees who are suspected to be working less than full-time when they can demonstrate legitimate extenuating circumstances that cannot be addressed during their approved time off or, in many cases, the absences are approved by supervision or the result of a collective bargaining agreement.

During the entire year of 2006, there were 14,428 times where the hard numbers indicated an employee failed to meet the standards. This is the result after having looked at 226,142 work histories over the year.1 Of the 14,428 exception count, only 3600 were given further handling. This means that 10,828 potential violations of the Attendance Guidelines were excused for a variety of reasons. Of the remaining 3,600, 2,204 of them were dealt with by Alternative Handling, the non-punitive and non-record marking initiative bargained between BNSF and certain Labor Organizations - including BLET. Employees signed waivers accepting responsibility 729 times. There were only 667 disciplinary investigations held. Looking at this from a different perspective, there were 226,142 work histories examined, resulting in 1,396 cases where there was administrative action taken - 52% of the cases handled by waiver. And do not overlook that there were10,828 instances where it appeared that the Guidelines may have been violated that were excused outright.

1 This number is the sum of the number or records examined each month, i.e., 18488 records in January yields 1160 exceptions, 18401 records examined in February yield 1127 exceptions, and so on. It is not reflective of the number of employees. Rather, a summation of every employees performance during a given month as compared to the number of exceptions embedded in the total.
2 See Footnote No. 1

The pattern for 2007 is no different. Through September 2007, there were 10,150 times where the hard numbers indicated an employee failed to meet the standards. This is the result after having looked at 174,558 work histories over the year.2  Of the 10,150 exception count, only 2551 warranted further
action. This means that 7,599 potential violations of the Attendance Guidelines were excused for a variety of reasons. Of the remaining 2,551, 1,447 of them were dealt with by Alternative Handling. Employees signed waivers accepting responsibility 511 times. There were 407 disciplinary investigations held and 186 in "pending" status.

The Guidelines only affect a very few engineers. If you will refer back to the Table on page 5, the initial reporting identified only 5% on the engineers at Lincoln, Springfield, Seattle and Amarillo; 2% of the engineers at Alliance and Winslow. In addition, I would remind you that only a small percentage of those identified may be subjected to any further handling. The vast majority of BNSF's workforce have no difficulty, whatsoever, living up to the Guidelines' standards. This fact standing alone proves that the Guidelines are reasonable.

Looking at the Guidelines on their face and in light of how BNSF administers the Guidelines makes it abundantly clear that the Guidelines, globally, are reasonable in all respects.

"Full Time Employment" Has Been Defined Nationally

If I am understanding you correctly, it is BLET's position that the 1991 National Agreement, while discussing the application of COLAs, utilized 2000 hours per 12-month period as the standard for eligibility for the entire COLA payment. This National Agreement went on to provide, under a section entitled "Employees Working Less Than Full-Time," that a proportional COLA would be calculated and due those employees.

It is BNSF's position that the 2000 hour per 12-month period was utilized while contemplating something close to a 40-hour workweek in order to determine
COLA eligibility for railroad employees. This number did not represent an agreement between BNSF and BLET that 2000 hours per year is recognized as "full-time" employment vis-à-vis engineer availability.

In unassigned service, an hourly threshold, standing alone, simply does not work. Where there is a mileage component, even embedded in a trip rate, and the fundamental basis of compensation contemplates miles and not time worked, then the sole measure of service performed cannot be time worked. It must be time available. I think that you would agree that when we consider compensation, that the amount of money that an engineer is paid oftentimes has little or no relationship to how many hours that engineer actually worked. 2000 hours per 12-month period is not an agreed-upon threshold defining fulltime employment when considering actual service rendered and would not be a fair measure to apply to engineers in any case.

You then go on to suggest that since the 1996 National Agreement extended the Health and Welfare qualification period from one day per month to seven days per month that, implicitly, full time employment could be construed to be seven days per calendar month. I have a hard time accepting that you are seriously advancing this notion. Clearly, working only seven calendar days per month is not reasonable.

The National Agreements did not set a standard definition of full time employment for working engineers. These agreements defined standards for qualifying for COLA payments in one case and health and welfare benefit qualification in another. BNSF, as has been shown, has the managerial right to promulgate reasonable attendance standards, including the right to determine how to measure compliance with those standards, so long as those standards do not conflict with or violate schedule rules.

The Attendance Guidelines and Schedule Agreement Provisions

The Attendance Guidelines do not affect or change any schedule rule. The schedule rules, in some cases, allow engineers certain periods of time to place
themselves after being displaced. The Guidelines do not take that right away. There are some agreement provisions that address engineers being off due to sickness. The Guidelines do not take those rights away either. As you point out in your letter, there is an agreement provision that allows engineers to be off up to six days without being required to provide an excuse from a physician. The Guidelines do not change that provision. There are even schedule rules saying that an engineer may be off for extended periods of time before being required to secure a leave of absence. Those provisions remain unchanged by the Guidelines. In fact, you cannot identify any agreement provision that has been modified or eliminated as a result of promulgating the Guidelines. What you are saying, if I am understanding you correctly, is that certain agreement provisions that provide for time off insulate employees from being challenged on availability because they exercise a right under the agreement. BNSF submits that these contractually provided absences are absences nonetheless. In some cases, the Guidelines excuse the absence without question. In other cases, like the individual who believed that he only had to work one day in thirty through the leave of absence agreement, the absences are hot excused. The point is this, engineers have the same contractual rights that were in place prior to implementation of the Attendance Guidelines. Utilizing those rights
makes the engineer unavailable. There is a significant difference between changing or infringing of a collectively bargained agreement, as compared to potential consequences to an engineer utilizing the provisions of that agreement. BNSF will stipulate that if the Attendance Guidelines legitimately eliminate or change any portion of any collective bargaining agreement, then that agreement must supersede the Guidelines. However, should an employee believe that erroneously exercising a perceived "right" under an agreement allows for extended unavailability, the absence will be handled pursuant to the terms of the Attendance Guidelines.

On this property, for example, a yardman was of the opinion that since he could be off for any period of time that was less than 30 days without obtaining a leave of absence, that he then had the contractual right to be off for any period of less than 30 days. The case went to arbitration and the claimant was reinstated, without pay for time lost (as if there would be much based upon his attendance) due to a procedural error. The Board did, however, address the notion of a contractual provision vis-à-vis an employees obligation to work full time. PLB 717 Award No. 374("Frisco" portion of BNSF and UTU Referee Criswell)

This claimant is one of many who seek to work with the railroad and soon thereafter, act with total disregard for the needs of the Carrier's service. If there was no need for the position, the Carrier would not have it existing. The strange theory that employees - as did this claimant - - can continually miss calls and layoff for no good reason without penalty is an error.

There are those who believe that the Agreement allows them to retain an employment status by working one day in thirty. There is no such guarantee. The rule provides that they will eventually be separated if they do not work, u1iless leave is granted, for 30 days. But it does not assure them that the practice of flaunting the Carrier's needs for service will not surely result in discipline. (emphasis added)

This principle was upheld several years later, on BNSF, when another yardman attempted the same thing. PLB 5691, Award 86/89 (BNSF and UTU Referee
Criswell)

In this case the Board finds that it is not necessary to rule on the issue of the "reasonableness" of the Carrier's Attendance Guidelines. From the record it is clear that the Claimant in this case simply refused to improve his dismal attendance record after repeated warnings. His testimony indicates that he believed it was his right to be absent whenever it suited him for whatever duration he felt necessary, so long as he worked one day in thirty. That is simply not the case, and a number of Awards on this property have so held. The leave of absence rule, which provides that an employee will be considered to have "quit" his employment if he is absent for more than 30 days without securing written leave, has nothing to do with any measurement of excessive absenteeism or failure to protect one's assignment. (emphasis added)

The point here is that while the CBA may provide that an employee will not be considered to have "quit" unless the 30-day limit is exceeded, the absence,
regardless of its duration, remains subject to application of the Attendance Guidelines.

In yet another BNSF Award, it was determined that there are no inconsistencies between the Attendance Guidelines and the labor agreements.

PLB 6721, Award No. 40 (BNSF and UTU Referee Vaughn)

As to the organization's claims of inconsistency between the Policy and various agreements between the Parties, the claim herein does not appear to challenge the validity of the Policy as being inconsistent with the provisions of any agreement between the Parties. In addition, insofar as the record herein reveals, there is substantial evidence that the Policy is not inconsistent with the agreements of the Parties.

You are correct that we cannot discipline an employee for being off account exercising a right under the schedule rules, but we can hold engineers to an availability standard. In fact, you provided some arbitral authority on that very issue. What you must understand, however, is that the Guidelines require a minimum amount of availability - regardless of the reason for the absence. Employees disciplined for failing to maintain full time employment are being disciplined for being unavailable, not for utilizing any schedule agreement provision.

In the three CSX cases that you cite in support of your position, in each case CSX charged the individual with the wrong rule. The Referees had to sustain
the claims, but at the same time opined that had the issue been approached differently, the result may well have been different.

Award 14 of 6045 involves a situation where an employee's earnings were not at an acceptable level, thus indicating absenteeism. CSX charged and disciplined the employee on their Rule 500 that provides that ''Without permission from their immediate supervisor employees must not (1) absent themselves from duty..." The Board found that CSX did not carry the burden of proving a violation of THAT rule. However this same Board, in this same Award reasoned:

This Board is mindful of the proposition in the railroad industry, too well established to require citation to authority, that absenteeism which extends beyond a reasonable level may be considered excessive even if in accordance with applicable schedule agreements and/or applicable rules. (emphasis supplied)

You also provided Award 18 of Public Law Board 5714 that, in your view, supports the position that BNSF's Attendance Guidelines run afoul of schedule
rules. In this case, again on CSX, an arbitrary standard of earnings was set as a measure of absenteeism. UTU argued that this was in violation of an agreement provision that requires employees to exercise displacement rights within 30 days or obtain a leave of absence. The Board, while. sustaining the case because of the imposition of an arbitrary earnings standard and failing to follow its own policy, provided CSX guidance on how it should have been handled:

It may well be that the reasons for the establishment of Rule 8(d)(2) are no longer valid in the carrier's view; however, if the carrier wishes to limit the time an individual can take before exercising his or her displacement rights, it must do so through the collective bargaining process and not by trying to create a policy which contradicts what it has negotiated with the representatives of its employees. The standard of earnings set forth in Superintendent's Notice No. 1001 may form an administrative basis for the carrier's investigating the absentee record of an ·individual employee, but it cannot, by itself, form the basis for the imposition of discipline. The carrier already has a system of progressive discipline which it was required to follow, rather than a mechanical earnings test. It failed to follow its policy of progressive discipline in this case and the action taken by the carrier against
claimant must be set aside. (emphasis added)

It is clear that had CSX followed its own policy of progressive discipline, and had they utilized the earnings as a basis for administrative action, but not the foundation for assessing discipline, the result would have been different.

You further suggest that BNSF is in violation of the schedule rules because there are not enough promoted engineers. The number of engineers being hired/promoted is not, in any fashion, affected by the Attendance Guidelines. If there is a contractual issue here, then it is a stand-alone issue. Whether the BNSF hires/promotes enough engineers to permit reasonable lay-offs has nothing to do with the engineer who is laying off excessively. How could we possibly be embroiled in this dispute regarding engineers who are actually laying off for unreasonable periods of time if, as you suggest, BNSF does not have a sufficient number of engineers to allow for reasonable lay offs? These two notions simply do not comport. On the one hand we have BLET's assertion that there are not enough engineers to allow for reasonable lay offs, and hard evidence showing that there are a number of engineers who are off for unreasonable periods of time. In any event, the Attendance Guidelines have not affected this agreement provision in any manner.

That said, you are correct that, under the schedule agreements, BNSF is obligated to hire/promote a sufficient number of engineers to permit reasonable layoff privileges. BNSF is complying with this provision. As of November 13, 2007 BNSF had 988 engineers in demoted status. This is not an anomaly by any stretch because, at any given time, BNSF has demoted engineers working in ground service throughout the system. If I am reading your position correctly, particularly the suggestion that engineers need only work seven calendar days in any calendar month to be considered full time, I can see where you might believe that this schedule rule is being ignored. If all of our engineers decided to work only seven days each calendar month, then BNSF would need many more engineers. If, however, you will accept that BNSF can expect engineers to be available and work at least 75% of the time, then there certainly are a sufficient number of engineers to allow for reasonable lay offs. It becomes a matter of how one defines "reasonable."

If you have examples where BNSF has not hired or promoted a sufficient number of locomotive engineers to permit reasonable lay offs, I would be glad to address them. At the same time, we need to look at the availability percentages at any location at the time of the alleged denial of a request of a "reasonable" layoff. My understanding is that across BNSF, lay offs are restricted when the availability of engineers reaches the point where BNSF will not be able to operate its business. In addition, without exception, restricting lay offs at any location is due to engineers making themselves unavailable, i.e., laying off. Layoff restrictions are not because there are not enough engineers. Layoff restrictions happen when too many engineers make themselves unavailable.

Recognizing that any imposed Policy or Guidelines must be constructed to not infringe upon nor violate provisions of schedule rules, it is logical to conclude that BNSF, and other Carriers, would desire to change some of these schedule rules. This brings us to your contention that a Section 6 Notice was served under the amended Railway Labor Act; therefore, according to BLET's take on the issue, BNSF recognized that it did not have the right to promulgate the Attendance Guidelines. That is simply not the case. While the Carriers' desired to change some agreement provisions, their efforts were not successful and the agreement provisions that were sought to change remain unchanged.

The Carrier's National Section 6 Notice

The Carrier's sought to change or eliminate agreement provisions that allow employees extended periods of time to mark up after being displaced, the provisions providing for extended periods of time that an employee could be absent before securing a leave of absence, and other agreements that provided for extended and, in this day and age, unreasonable amounts of time off. These requested changes did not find their way into an agreement; therefore, these schedule rules remain in effect. They are as viable today as the day they were written. The Carriers' did not serve a notice to negotiate or implement an initiative such as the Availability Policy or Attendance Guidelines. It was then, and is today, a managerial right to regulate employee attendance and, as discussed earlier, that principle has been repeatedly upheld on BNSF.

The Attendance Guidelines Address Availability

The reason that BNSF has the right to promulgate policies such as the Attendance Guidelines that address employee availability, even if the absence is in connection with the provision of an agreement, is because employees have an obligation to BNSF, indeed to each other, to be available to perform the work that they were hired to perform. It is axiomatic that people are hired to fill a need and that they are obligated, once hired, to fulfill that responsibility. The Attendance Guidelines address availability in concert with the CBAs.

People are not being disciplined for being sick or for finding themselves in a position where they must have time off. People are not being disciplined for exercising a right under the schedule rules. The issue is availability. Regardless .of the reason or the purported contractual right, employees have the obligation to work full time. Unusual situations are addressed and extenuating circumstances may excuse absences from being counted toward the availability threshold. In practice, as discussed earlier, this is exactly what happens because the vast majority of exceptions are excused for various reasons. That said, this issue has been taken to arbitration several times on this property and this principle has been consistently upheld.

PLB 7026, Award No.6 (BNSF and UTU Referee Easley)

The Claimant argued that the lay-offs were caused by difficulties at home, his wife was in the early stages of pregnancy experiencing nausea and the Claimant needed to care for their young children. There is a record of the Claimant discussing his problems with management in December at which time he was given information on the Family Medical Leave Act.

OPINION OF THE BOARD:

The FMLA had not been submitted by the end of the three month period let alone approved. When we view the Claimants personal record involving the Attendance Policy and find that he had been disciplined five times prior to the present case it is hard to understand how he could run afoul of it a sixth time, but he did. The Board will not modify the discipline assessed by the Carrier.

The above Award raises an interesting issue. Factually, an employee experiencing legitimate health or family issues has options-FMLA being one of them.

PLB 6721 Award No. 40 (BNSF and UTU Referee Vaughn)

The Policy recognizes that an employee's availability to perform his/her duties is crucial to the employment relationship. The Carrier has a right to expect employees to be available for work on a regular basis. Claimant's attendance did not meet that test. As to the argument that Claimant's lay offs were due to sickness, the Board finds that there is substantial evidence in the record that lay offs due to sickness are not distinguished from other lay offs in the Policy and such days count against the percentage total for the rolling three month period. There is no allegation in the record that Claimant's lay offs are protected pursuant to the Family and Medical Leave Act, or any other similar circumstances. (emphasis mine) -

Once again, if the claimant was experiencing incapacitating illness, he had options such as FMLA. The important point here is that even though the absence was allegedly due to sickness, the claimant was unavailable nonetheless. The next two Awards support the same principle.

PLB 3304, Award 504 (BNSF and UTU Referee O'Brien)

The Claimant exceeded the BNSF Guidelines for TY&E employees on the Chicago Division by either five or six days during the three month period April- June 2001. He explained that he laid off on these days due to migraine headaches that he had been experiencing for several years. If the Claimant's migraine headaches incapacitated him from working he should have applied for leave under the Family and Medical Leave Act, which he never did.

PLB 6345, Award No. 38 (BNSF and BLET Referee Vaughn)

Claimant's seniority entitled him, in addition, to a considerable number of contractual days off. The record does not indicate that he exhausted those days. FMLA entitled him to additional unpaid time off for medical reasons which would not have counted as absences for purposes of the Guidelines. However, it was the responsibility of the Claimant to take steps necessary to obtain FMLA designation to cover such absences. The evidence does not establish that he took steps to satisfy his obligation in that regard. He could have requested a leave of absence, but there is no indication that he did so. The Guidelines also provide mechanisms for appeal of designation of particular days or types of days as absences under the Guidelines, both for medical absences and for other, extraordinary circumstances. If Claimant had personal problems outside the four corners of his work schedule, he could have availed himself of the Carrier's EAP or other professional assistance. Any of these avenues could have reduced the Claimant's absence percentage under the Guidelines, but insofar as the record indicates, he pursued none of them. (bold mine)

In another case, again on BNSF, the claimant provided medical documentation regarding some of the absences. Although the discipline was upheld, the time
where it was shown that there were legitimate medical concerns were considered "excused" absences. Even deducting the excused absences; however, the claimant remained in violation of the Guidelines.

PLB 6523, Award No.4 (BNSF and BLET Referee O'Brien)

During the September 19, 2001, investigation, the Claimant submitted medical documentation, which demonstrated that during May, June and July 2001 he was being treated for allergies; an injured shoulder; sore throat and cold; back pain; and mouth sores. The Carrier excused his absences on the days for which he
submitted medical documentation. Therefore, for the three months in question, the Claimant had 30.5 days of unexcused absences, 14.5 more days than he was allowed.

I want to make it clear at this point that the submission of any manner of documentation attendant to an alleged illness does not, ipso facto, excuse the absence. As you know, and as we have both experienced, anyone can secure a doctor's excuse. In fact, they are available through the internet. On the other hand, there are excuses that are specific and legitimate. Unquestionably, anyone on a medical leave have those absences excluded. This is not to say, however, that at some point, even a legitimate illness may cause an engineer to be in violation of the Guidelines. That is why there are avenues such as FMLA and EAP.

Paid Time Off As Excluded Time

You argue that paid time off being considered as "excluded" time is improper. Obviously, BNSF disagrees because compensated time off deprives BNSF of
that engineer's abilities for that period. As you are likely aware, paid time off is most often associated with a condition in the schedule rules or an arrangement
with supervision. It is not a workday, nor is it the type of absence that the Guidelines were designed to address.

The Attendance Guidelines are driven by an engineer's availability as compared to the amount of time that the engineer would otherwise be expected to be
available. When an engineer is off on vacation, or any other "excluded" absences such as paid personal leave days, FMLA, etc., that time off should not be counted against that engineer. Since the engineer was not available for service, that time should not be counted as available time either. In fact, it would be just as unreasonable to count the absence against that engineer's availability obligations as it would be to consider it as. time worked.

I would like to compare two engineers in order to illustrate the point. The first engineer is available for the entire month and, is allowed 7 days off - five weekdays and two weekend days. That engineer has earned the right to be absent on those days because he remained available and worked during the balance of the month. The second engineer takes a two-week vacation. He is then, at best, available for service during 16 of the 30 days. In this example, the engineer would have something like 12 weekdays and 4 weekend days to protect. If we were to ignore the fact the employee was already off 14 days in the month, this engineer would only have to be available for 7 of the weekdays and 2 of the weekend days. That would mean 42% weekday availability and 50% weekend availability. That is not reasonable. 75%, at a minimum, is reasonable.

Alternative Handling

BLET has taken the position on the property that attendance problems should be subject to Alternative Handling. BNSF agrees. Attendance issues are a Class III Offense under the agreement and the first violation after counseling is eligible for Alternative Handling; provided that the individual otherwise qualifies therefore. As discussed earlier, in 2006, 2,204 cases were handled in this manner, in 2007, through September, the number is 1,447. The dispute, obviously, does not involve whether Alternative Handling is being utilized in attendance cases, the dispute is your contention that the engineer is entitled to three Alternative Handling events before being subjected to possible discipline.

Under the Alternative Handling agreement, a violation of the Attendance Guidelines is a Class III offense. BLET's position, as I understand it, is that an engineer would be entitled to Alternative Handling so long as that engineer did not have three or more events of any kind occurring in the previous 12 months. That position would then allow an engineer to have three violations of the Guidelines handled with Alternative Handling, and it would not be until the fourth violation of the Guidelines that the engineer would be subjected to formal administrative action. BNSF's position is that the engineer is entitled to only one Alternative Handling. If a second violation occurs within the 12 month period, the engineer is no longer entitled to this handling because that engineer has obviously not accepted responsibility for his unacceptable behavior regarding availability. Voluntary absences are intentional acts. When, after completing the Alternative Handling process, an engineer knows that committing a deliberate act is contrary to what the Guidelines require, then that engineer has not taken responsibility for his conduct nor the obligation to be available on a full-time basis.

Certainly, if an engineer is coached, counseled and trained regarding the obligations to perform service full time, and that individual is aware of the attendant obligations and expectations, then a subsequent violation within a 12-month period demonstrates that Alternative Handling did not produce the desired behavioral change and that the involved engineer did not accept the responsibility to work full time. As you know, one of the threshold requirements for being eligible for Alternative Handling is that the engineer first accepts responsibility.

The concept of working full-time is not difficult to grasp and understand. The Attendance Guidelines are not, in BNSF's opinion, complex, and the expectations regarding full-time employment are published for all engineers to read, understand and, if there is lack of clarity, ask questions about. Should an engineer become one of the very few who finds himself in trouble with the Guidelines, he may accept Alternative Handling; provided, as clearly stated in the Alternative Handling Agreement, he takes responsibility for the violation. A subsequent violation within a 12-month period suggests that the engineer did not take responsibility for his conduct by making an attempt to change behavior; therefore, a second Alternative Handling for a second Attendance Guidelines violation, is not appropriate, nor provided for pursuant to the Alternative Handling Agreement. An arbitration decision on BNSF recognizes that only one instance of Alternative Handling is appropriate.

PLB 6851, Award No.9 (BNSF and UTU Referee Quinn)

The record indicates that (1) Claimant failed to perform service as a full time employee on several occasions prior to the instant violation of the same Attendance Guidelines, (2) was shown leniency by the Carrier in that discipline was not assessed for the previous attendance violations, and (3) he received alternative handling prior to him again violating the Carrier's Attendance Guidelines..... (bold mine)

The claimant involved in the above case received only one instance of Alternative Handling and the Board, obviously, found that to be sufficient under the agreement.

So far, it is apparent to BNSF that it has the right to promulgate the Attendance Guidelines, that the Guidelines do not infringe upon nor do they eliminate any schedule rule, and, finally, the principles contained in the Guidelines are reasonable. With those principles firmly established, the issues now turn to your procedural and case-specific issues.

Multiple Roles

BLET argues that the disciplined employees, in many cases, were disadvantaged because a single Carrier Officer performed multiple roles during the disciplinary process. In your words, ".. .it is a fundamental violation of due process for an individual Carrier officer to charge a claimant, conduct the subsequent hearing, and then assess the discipline." BNSF's position is that this may be true, but only if the engineer's right to an acceptable standard of fairness is compromised. In attendance cases, however, the claimant creates a record that is not subject to interpretation. The reasons for the absences may need clarification or discussion, but the fact that the absence occurred is a matter of record. The individual was either available or not available and that information is presented as documentary evidence.

There are a host of Awards on BNSF supporting the general notion that the "multiple roles" procedural argument may have merit, but only when there is demonstrated prejudgment, or where the claimant's rights to a reasonable standard of fairness have been compromised. Following are representative samples of Awards supporting this principle on BNSF.

PLB 4901, Award No. 157 (BNSF and UTU Referee Wallin)

After a careful review of the Agreement language and the evidentiary record, we must reject all of the procedural objections. Rule 24 of the parties' Agreement specifically establishes few procedural requirements. In the absence of such negotiated obligations, it is well settled that it is permissible for a single Carrier official to play multiple roles in the disciplinary process. (emphasis mine)

None of the applicable agreements involved in the disputes contemplated by this letter have any clear prohibition on Carrier Officers filling multiple roles during the progression of a discipline case on BNSF. There is, however, a very real obligation on the part of BNSF to demonstrate that a reasonable standard of fairness is afforded the accused.

PLB 5939, Award No. 17 (BNSF and BLE[T) Referee O'Brien)

This Board looks askance at the multiple roles played by M.K. O'Neill in this dispute. Mr. O'Neill was Manager of Crew Management. He was the author of the July 18, 1996 letter instructing the Claimant to submit medical documentation. He also authored the notices sent to the Claimant apprising him of the charges. Further, Manager O'Neill was the Conducting Officer at the August 27, 1996, investigation and signed the letter advising the Claimant of his termination.

An argument can be made that Manager O'Neill's multiple roles in this case deprived the Claimant of due process. However, the critical facts are not in dispute. The Claimant was away from work for over 90 days without contacting his supervisors or requesting a leave of absence. These facts are irrefutable. Therefore, the
multi-faceted role played by Manager O'Neill did not prejudice the Claimant, in this Board's opinion. (bold mine)

This Award most clearly demonstrates principles applicable to our attendance disputes. The critical facts are not in dispute. Documentary evidence coldly reports that the Claimants were absent on certain days. The reasons for the absences are explored and the totality of the number of absences coupled the reasons for the absences are placed up against a standard measure of availability. Stated another way, the facts are irrefutable. The dispute between BLET and BNSF is grounded on a disagreement regarding the propriety of establishing and enforcing the Attendance Guidelines' standards to those facts. There is no possible prejudice, prejudgment or anything less than a reasonable standard of fairness associated with Officers performing multiple roles in an Attendance Guidelines case.

There are a host of other Awards in support of this principle that involve BNSF and, in some cases, BLET as well.

Time Limits

Another argument that you have advanced is that many of the claimants were not properly notified to attend the investigation into the alleged Attendance Guidelines violation. Specifically, your position is that the notice to attend the hearing was served outside the applicable time limits. The foundation of our difference of opinion is the moment when BNSF becomes aware that the engineer may be in violation of the standards. The measurement periods for attendance are "rolling three-month" periods. In fact, after the decision of PLBs 6264 and 6265 regarding the Availability Policy, while BNSF and Labor were attempting to come up with a policy that both side could live with, Labor Representatives desired the rolling three-month measurement period so, among other reasons, that employees could "bunch"
their allowable days off.

Availability statistics are generated by a sophisticated computer program that looks at 19,000 employees, concurrent with the close of a payroll period and are usually completed in their rough form by the 8th day of the following month. For example, for a rolling three-month period of January - February and March, the rough data is compiled and available on about Apri18th. Crew Support and local supervisors "scrub" the data and, as has been demonstrated, only a very small percentage of potential exceptions are given further handling. BLET's position is that should the engineer potentially be in violation of the Guidelines during the middle of February, it is then that the time limits begin to toll. BNSF's position is that since the Guidelines contemplate availability throughout a defined time period, a rolling three-month period, then it is not until after that entire period is examined that any determination as to compliance with the Guidelines can be made. There are a number of reasons for this.

I have already pointed out to you that when the report is initially examined, there are many employees identified as being in violation of the Guidelines. Supervision "scrubs" the data and, as has already been demonstrated, the majority of potential violators are excused for a variety of reasons. It is entirely possible that an engineer that may appear to be in violation of the Guidelines during the middle of February may not actually be in violation (if at all) until much later in the rolling three-month period. It is unreasonable, and perhaps even illogical, to argue that performance during any rolling three-month period must be determined prior to the expiration of that period of time.

Your position and argument has been advanced on BNSF several times and has not been upheld.

PLB 7026, Award No. 17 (BNSF and UTU Referee Easley)

The Organization raise procedural question concerning timeliness of the hearing. The hearing was held within the thirty days. The Carrier had knowledge of a possible infraction when the attendance records for December were available on January 8th and the hearing was scheduled within thirty days of that date.
(bold mine)

PLB 6721, Awards No. 35 and 40 (BNSF and UTU Referee Vaughn)

The Organization complains that the Carrier failed to conduct the hearing in a timely manner, counting the 30 day period from the date of Claimant's last non-contractual absence. The Carrier points out that Management does not receive attendance figures for any three-month period until eight days after the close of the last month of that period and argues that, based un that date, the hearing was timely. The Board has previously addressed this argument, finding in PLB No. 6721, Case No. 40, that the 30 day period runs from the date the attendance is compiled and submitted to Management. The Board concluders] that the hearing was not untimely. (emphasis added)

PLB 6523, Awards No.3, 4, 5 and 6 - No.3 cited below - (BNSF and BLET Referee O'Brien)

It is the Organization's contention that Rule 50 of the Coast Lines Schedule Agreement was violated when the Carrier did not hold an investigation within 30 days of all the Claimant's putative unexcused absences. There is no question that the July 27, 2001, investigation was scheduled to review the Claimant's unexcused absences during April, May and June 2001. These absences occurred more than 30 days prior to the investigation scheduled for July 27, 2001.

As observed above, at the end of each rolling three-month period, Crew Management accumulates employee layoff records. These records are then forwarded to the Operating Department in each Division on the 8th day of the following month. In this Board's opinion, when the Operating Department receives an employee's attendance record for a rolling three-month period, this is the "occurrence of the incident for which the engineer is being investigated." An investigation must be scheduled within 30 days of the date on which the Operating Department actually receives an employee's attendance record for a three month period.

The Operating Department in Los Angeles received the Claimant's layoff records on July 8, 2001. It scheduled an investigation for July 27, 2001. Therefore, the investigation was scheduled within the requisite 30 days required by Rule 50. (underscore and italic in the Award, bold mine)

It seems apparent, if not axiomatic, that the time limit must begin when the Operating Department gains access to the raw data. The process of administering the Guidelines examines the attendance behavior of an employee during a rolling three-month period. That behavior cannot be evaluated until the rolling three-month period is completed. For BLET to take the position that an absence that occurs within that period, an absence that mayor may not place the engineer in violation of the Guidelines, starts the time limit clock, simply does not make sense. Considering that the vast majority of potential violations are excused once the three-month data are scrubbed, it becomes even clearer that the period of time being considered must be completed before any determination of a possible violation can legitimately be made.

Double Jeopardy

Before addressing this issue that you advance in your letter, I would. draw your attention to a settlement reached between BNSF and BLET on October 3,2007
settling, at least in BNSF's opinion, this issue. A copy of that settlement is attached for your ready reference. That said - The basis of the argument, as I understand it, is that engineers cannot have any month considered while examining a rolling three month period if that month was involved with disciplinary handling as a result of an earlier three month rolling period. For example, if an engineer is disciplined for violating the Guidelines for the January - February - March rolling three month period, then regardless of the behavior of that engineer, February and March may never be utilized for the subsequent February - March - April and March April-
May rolling three month periods. This is, indeed, an interesting position. However, this is not a double jeopardy issue.

The rolling three-month periods are discrete. Availability behavior for January - February and March is one period. Attendance behavior in February - March
and April is a separate period. We do agree; however, that if an engineer is disciplined for absences in any given month, those infractions are satisfied and will not be counted a second time.

Suppose an engineer is found in violation of the Guidelines for the January - February - March rolling three month period. Then during April, that same engineer, who is in unassigned service, lays off on seven of the eight weekend days. Since the weekend day number for the entire February - March - April rolling three-month period is 6, the engineer, during the calendar days in April alone, violated the Attendance Guidelines. Counting the April absences against
that three-month rolling period is appropriate. Counting absences in February and March would not be appropriate because they have already served as the basis for discipline associated with the preceding rolling three-month period. This same application would apply for subsequent months. Assume that an engineer was to be found in violation of the Attendance Guidelines for the January - February - March rolling three-month period and assessed discipline. That engineer, during April, does not exceed allowable absences for the February - March - April rolling three-month period. Then during April and May this engineer is off in excess of the time allowed for the entire March April-May rolling three-month period. Discipline may well be appropriate, so long as the March absences are not counted against the total allowable absences for the entire rolling three-month period.

Engineers are not being subjected to double jeopardy. The rolling three-month periods are discreet and overlapping. Our process ensures that an absence during any month can serve for the basis of discipline only once. That absence is not considered during the examination of any subsequent rolling three-month period.
Cases where discipline was assessed when absences were counted twice, meaning that the same absence served as a basis for two charges and separate discipline, have been appropriately modified, or at least the offer to modify has been made. I understand that there have been offers of settlement that have not yet been officially accepted by Labor.

As with the other issues, this procedural dispute has also been advanced to arbitration on BNSF.

PLB 7026, Award No.5 (BNSF and UTU Referee Easley)

The organization also questioned the propriety of using the months of October and November because the Claimant had been previously charged with attendance violation for the months of September, October and November thus creating a situation where a single violation would be counted more than once. The Carrier in property handling agreed not to count lay offs in October and November, however, the seven day lay off in December was sufficient to exceed the three day threshold of the Attendance Policy.

PLB 6523, Award No.5 (BNSF and BLE[T] Referee O'Brien)

The Organization further argues that the Claimant was subjected to double jeopardy since he had already been disciplined (20-day suspension) for his reputed unexcused absences in July and August 2001. As explained in Award No.4 of this Board,. the BNSF Attendance Guidelines trace an employee's unexcused absences on a rolling three-month period. Each rolling three-month period is discrete. If the Claimant had not exceeded his allowable days off during September 2001, he would not have been subject to discipline under the BNSF Attendance Guidelines. Contrary to the Organization's contention, the Claimant was not subject to double jeopardy when his unexcused absences in July and August were juxtaposed with his September absences.

Whenever employees are charged with overlapping three-month periods, any month or months that contained absences which have already served as the basis for discipline are not counted. By definition, then, there is no double jeopardy. Each absence is only counted once toward the possible assessment of any discipline.

Generalities

Your letter also contains several allegations that are general in nature. For example, you contend that the employees do not know why they are being disciplined. The allegation is that the nuances of the Availability Policy are contained in the User and Training Guide, and that this Guide is only available to supervision. Your letter goes on to state that BNSF has gone out of its way to hide this Guide from the employees. That is simply not true.

As I pointed out earlier, after the arbitration decision of PLBs 6264 and 6265 that the Availability Policy was properly promulgated, BNSF and Labor, including BLET, worked on a compromise. The General Chairman pressed for, and were successful in getting, BNSF to agree to a one-page published Policy for the employees. Labor complained that if there were "too much" information published, then supervision would become more "wooden and rigid" regarding the application of the Policy. While BNSF was willing to accede to Labor's "one-page" distribution and explanation of expectations to the employees, we also
exercised our right to educate supervision. It seems improper for Labor to demand less information on one hand, and then criticize BNSF for not providing more information on the other.

Furthermore, the User and Training Guide addresses the administration of the Guidelines to those who are obligated to administer the Guidelines. The operational parts, meaning what is expected of the individual employee, has not been hidden and is not the central theme of the Guide. Again, engineers are trained professionals who are entrusted with millions of dollars worth of equipment and lading every day. If there is anything that they do not understand, then they are empowered as well as obligated to ask questions, i.e., apply to the proper authority. The obligation to be available 75% of the time is not a complicated matter. That is proven by the fact that only a very small percentage of BNSF transportation employees ever find themselves conflicting with the Guidelines. I think it reasonable to conclude that this same majority of employees have read, and understand, the Attendance Guidelines.

To answer the specific question, the employees do know why they are being disciplined. Prior to any formal administrative action the employee is, upon request, afforded Alternative Handling. In addition to providing formalized coaching and counseling, there is a computer based training program that the employee must go through that thoroughly explains the Guidelines and requires the employee to answer question regarding its proper application - as well as making BNSF's expectations concerning attendance standards abundantly clear. The formal discipline process does not begin until an individual employee violates the Attendance Guidelines for a second time within a 12-month period. By that time, if the engineer does not understand the provisions of the Guidelines, then that person should not be operating a locomotive.

I would also point out that the progression of discipline is quite lengthy. The first violation is Alternative Handling. The second violation occurring within 12-months results in an entry of censure on the employees personal record. If another violation occurs within the next12-months, the individual is subject to the assessment of a 10-day record (not actual) suspension. Should a fourth violation happen within 12-months of the third violation, then the employee is subject to a 20-day record suspension. It is not until the fifth violation of the Attendance Guidelines within a l2-month period (from the date of most recently assessed discipline) that the individual may be subject to dismissal. Certainly an employee is, or certainly should be, aware of what is expected and why discipline is being assessed prior to finding himself on the brink of dismissal.

You make the general accusation that BNSF disciplines people who are experiencing "special circumstances." In view of the fact that most potential Attendance Guidelines violations are excused immediately, I have a hard time believing that discipline has been assessed unfairly. If it has, then I am confident it will be resolved on a case-by-case basis.

Another complaint is that BNSF forces employees to take unpaid leave instead of affording them the ability to take paid leave, such as personal leave days or
single-day vacations. That was true on one Operating Division of BNSF. It came to light that the Powder River Division was declining request for paid leave in lieu of unpaid leave. The thinking was that if an employee was not getting paid for time off, then that employee would be less likely to be absent. That thinking was wrong on every level imaginable when viewed in concert with the agreements and, as soon as corporate level management became aware of this practice, it was immediately stopped. Any. discipline issues associated with that misapplication have been, or should have been, rectified. However, there is another side to this story.

The theme of this entire attendance dispute is that BNSF has the right to regulate attendance and availability. That process involves looking at the needs of the service and in the case of BLET, available engineers. Based primarily upon those criterions, when an engineer requests paid time off, such as a personal leave day or vacation day, Crew Support makes the decision to either grant or deny the request. In most cases, the requests are granted. Crew Support, however, needs to factor in the "sickness" element. Employees who want to be off, will find a way to be absent. They will call in asking for paid leave and if it is denied, they suddenly become ill. This, also, could be considered being "required to use unpaid leave" in lieu of paid leave, without recognizing that the request for paid leave had been denied based upon the needs of the service. Sometimes the next step is that the employee .later claims a personal leave day or single day vacation in order to ultimately get paid for the alleged sick day.

Labor's answer to this is usually that it only happens because BNSF is inept at managing the workforce. That, truly, is not the case. Disputing a sickness is a
dangerous thing to do because there are times when an employee is legitimately too ill to perform service. To force such a person to come to work is dangerous and foolhardy. On the other hand, taking on a case to prove that an employee lied about being sick is arduous and difficult to prove. Thus, if an engineer wants to be off, that person will be off. And all to often will claim paid leave later, thereby accomplishing exactly what was desired, in spite of the needs of the service.

In your letter you contend there are not enough engineers on the extra, board. In order to respond to that, I will need some specific examples. I will say, however, that if extra boards become exhausted, it is likely on a weekend or holiday when the number of engineers laid off is much larger than the number of absent employees necessary to operate the railroad.

There is the allegation that there are no provisions in the agreements that allow BNSF to calculate availability on weekdays and weekends separately. That is
correct, and there need not be such a provision. Promulgating a reasonable initiative to regulate employee attendance is a managerial right. It would only be a case Where the agreement said that such a method of calculating availability could not be utilized that would prevent considering weekday arid weekend availability separately.

As a general observation by BLET, it is contended that the Guidelines are applied in a wooden and rigid manner. Based upon the number of cases where there may be a violation compared to the number of times administrative action is take, I believe that this allegation bears no support at all. I would hasten to point out in addition that there are a significant number of cases handled by waiver. This means that the employee recognizes the behavior violated the Guidelines and that a measure of discipline is appropriate. The letter comments that engineers are not allowed to tie up for rest.

Engineers are allowed to tie up for rest. In fact, there is a Federal Law that governs rest. I am unclear as to what BLET is alleging here. It is pointed out that, in BLET's opinion, an absence taken prior to going on vacation was not to be counted toward availability. I do not find that to be the case, but if you have some evidence to support that notion, I would like to see it. If that commitment was made, BNSF will honor it. I say this in light of the negotiated provision addressing this issue that was reached earlier this year.

Another issue that you identify is how weekday and weekend layoffs· are calculated. Specifically, you seem to take exception to BNSF counting a layoff from 0830 Friday to 0830 Saturday as a Saturday layoff. I cannot understand how you can argue that this is not a Saturday absence. BNSF runs trains on
Saturday mornings and the employee was not available to perform that service. To accept your position would be tantamount to saying that an engineer would
be able to mark up at 11:59 p.m. on Saturday and not be charged with a Saturday absence. A standard had to be set and it was - at 30 minutes. BNSF will allow a 30-minute grace period. As an example, so long as an engineer marks up by 12:30 a.m. on Saturday, that engineer will not be charged with a Saturday absence.

The letter also contains a complaint that an engineer may be charged with an absence on a day that was actually worked. This application is wholly appropriate because, in some cases, engineers may very well work twice in one day. As you know, there are short districts where the miles are regulated such that engineers work on their rest, or near to on their rest, each trip. In fact, BLET progressed a claim for an engineer in one of these "turn and burn" districts who claimed a runaround when he was not called short rested out of the home terminal to perform service. That case was sustained in favor of BLET. Another example is a case where an engineer marks up at 10:00 p.m. on Saturday night and is called to go on duty at 11:59 p.m. Clearly, that engineer was absent on Saturday. There have also been cases where the allegation is made that so long as an engineer marks-up on a calendar day, that day cannot be counted as an absence. That is an improper application as well because and engineer may mark up shortly after his pool turn is called, thereby spending a few days not working while waiting for the turn to return to the home terminal. The point here is, as it has been all along, that the Attendance Guidelines contemplate engineers being available for service, i.e.,
the basis is "time" available and "time" unavailable. Whenever an engineer becomes unavailable, for whatever reason or under whatever conditions, there is the possibility that the engineer will be held accountable for that ;3.bsence. There certainly are exceptions, in fact there are many of them according to the statistics, but a voluntary absence is a voluntary absence.

The letter also contains some historical documents tracking correspondence addressing availability. I can find nothing in that correspondence that addresses any issue that we have not already discussed. If I have missed something, please let me know at your earliest convenience. I feel compelled to say that this correspondence is just that. I would not want anyone to conclude that simply because BNSF received a letter from a General Chairman in 1987 saying that the then attendance initiative violated or conflicted with an agreement, and there is no cited rebuttal, that this means that such was the case.

Another contention is that the attendance calculator is flawed because every calculation provides a result without considering the past 30-day. I believe that you misunderstand what the calculator is intended to do. The attendance calculator does not tell an employee whether an anticipated layoff will or will not place that individual outside of the Guidelines. All that this calculator does it tell the employee how the days will be counted, i.e., full days, partial days, weekday or weekend day. That determination is made without any need to look at the past 30 days.

All of that said, there may be cases out there where employees may have been handled inappropriately. If that has happened, it has occurred outside the proper administration of the Guidelines. BNSF endeavors to settle those cases short of arbitration because it is, Without question, the right thing to do. I am confident that arbitration will guide both parties toward the appropriate administration of the Guidelines on a case-by-case basis.

If I have failed to address any of your issues and/or arguments, please let me know.

Sincerely ,

/s/ Gene L. Shire

	Dennis Pierce General Chairman BNSF(CB&Q/GN/NP/SP&S)-MRL	Pat Williams General Chairman BNSF (ATSF)-PHL	Brotherhood of Locomotive Engineers and Trainmen
	Austin Morrison General Chairman BNSF (C&S/CRI&P/FWS)	Rick Gibbons General Chairman BNSF (SLSF)-MNA	IBT Rail Conference

Mr. Gene Shire                                                                                                        January 28, 2008
General Director Labor Relations                                                                             Re: Attendance Guidelines
The BNSF Railway Company
Post Office Box 961 030
Fort Worth, Texas 76161-0030

Dear Mr. Shire:

This is in reference to your undated letter hand delivered by you to the BN Northlines General Committee offices on December 6, 2007. In that letter, you have addressed Our position letter dated October 31, 2007 concerning the Carrier's Attendance Guidelines. We have thoroughly reviewed your letter and wish to respond.

To begin with, your rhetorical attempts to persuade BLET, or any other reader, that our claims are without merit due to the principals of res judicata and stare decisis could not be further from the truth. The majority of the arguments we intend to make in arbitration have not been presented to an arbitrator by BLET prior to now. Though it could be argued that a few of the issues underlying our arguments have been brought before an arbitral tribunal, we do not feel that these issues were properly examined due to the quality of those claims. Because of this, those claims resulted in palpably erroneous decisions, which have yet to address the policies'
conflicts with our particular Collective Bargaining Agreements and the unreasonableness of BNSF's attendance policy in both design and application.

Arbitrator Kasher only "confirmed" in PLB 6264 and PLB 6265 that BNSF has a right to promulgate an attendance policy. You must remember that he also stated that "some of the meritorious issues raised by the BLE will have to wait justifiable disputes." That being said, we will address the new arguments found in your letter noted above.

First, you state that our letter specific to October 31, 2007 does not mention the disagreement concerning the application of the Alternative Handling. While that may be true, our position in this matter was provided to BNSF by separate letter dated January 10, 2007 (attached) and was properly discussed during the on property handling of this matter.

Furthermore, in your letter you repeatedly assert that no existing CBA provisions barred the implementation of your policy. That is a misrepresentation of Referee Kasher's findings. Referee Kasher did not rule that BLET's CBA's would not be violated through the application of BNSF's policy. Rather, he simply noted that the CBA issues were premature and that it would take a real live case to decide the matter. That is exactly what the parties are positioned to do, resolve real live cases that reflect the application of the policy in comparison to the involved CBA's. BLET is not arguing that the Carrier does not have the right to promulgate an attendance policy as that issue has already been decided by Referee Kasher. Instead, we are convinced that the policy itself conflicts with BLET's CBA's and even Referee Kasher recognized that the policy had to give way to the CBA where any conflict arose.

You also argue in your letter that the Attendance Policy addressed by PLB 6264 and 6265 is not the policy that was ultimately implemented on the property. You further argue that the current policy is somehow a different policy changed after input from the organizations. That claim is nothing more than a red herring wherein you attempt to legitimize your policy by suggesting that the Organizations somehow agreed with your policy. It is obvious now that your outreach to the organizations after Referee Kasher's ruling was disingenuous at best. BLET's suggestions were ignored for the most part and we have been vocally public ever since in expressing our disagreement with the current policy.

Specifically, one of the changes that is mentioned in your letter was the Carrier's decision to publish a one page explanation of the policy. You further assert that BLET requested this one page explanation. Again, your claim is incorrect. BLET has argued early and often that you should publish a comprehensive policy so that employees can understand the complexities of the BNSF policy. BLET has gone so far as to request that BNSF provide copies of its User and Trainer Guide to all employees, which BNSF has refused at every turn. Instead BNSF has gone out of its way to keep this document from BLET and its membership. In addition, BNSF has materially changed this User and Trainer Guide no less than three times and in each case, BNSF has never mentioned to the employees how it has changed the application of the policy.

For example, one BNSF rewrite of the User and Trainer guide, not shared with the organization, eliminated all three employee avenues of appeal for an unexcused absence that were included in the original Guide. Prior to September 2005, BNSF's User and Trainer Guide, even though
never shared with the employees, allowed each employee to appeal any unexcused absence through Labor Relations, the Medical department or Operations. With the issuance of the updated User and Trainer Guide in September of 2005, BNSF eliminated this appeal process and no longer provide any opportunity to have a local decision overturned. Ironically, one of the few on property awards involving BNSF's Attendance Policy used this appellate process as its justifications for upholding BNSF's application of the policy. While you still assert that the award is controlling, we doubt that you have shared this material change in policy with the arbitrator that rendered that decision.

BNSF has also changed the application of the policy regarding availability thresholds when an employee changes from one class of service to another during one month. This occurred no less than three times with each new User and Trainer guide that was issued and this was not shared with employees. BNSF has changed the application of the policy regarding Rest Day Boards at Vancouver, Washington and Wishram, Washington no less than three times as well, which BLET will document in arbitration. Yet you have never published these changes so that the affected employees would have an opportunity to understand the Carrier's expectations.

To further complicate these matters for the employee, the labor organizations on BNSF were recently exposed to yet another attendance trap, if you will. This latest policy change by BNSF involves a new unilateral standard surrounding how many hours an employee works in comparison to his peers. This process supposedly is running concurrent with the already implemented attendance policy and does not replace or supplant it. I guess one could suggest that the BNSF fisherman were not catching their limit and needed to add another hook to their proverbial trout line. Unfortunately for BNSF, the BLET General Chairman were responsible in requesting that these new standards also be published in fairness to the employee. However, as of this date, no such information has been shared with the employees, nor have any employees been exposed to this new "policy" prior to being charged with violating it.

Regarding BLET's contention that employees are required to work over and above the expectations set forth by Mr. Dealy before the Kasher board, please see Carrier Exhibit 13 of BNSF's submission to Kasher. Mr. Dealy stated to Referee Kasher that the Carrier was only expecting employees to work what was the average among their peers. For engineers in freight service that average was 35 hours per week. We have shown the Carrier many examples where employees are exceeding these hours but they are being disciplined nonetheless.

In your letter, you also attempt to describe the reasonability of the guidelines. We note that you go to great lengths to point out the number of weekend exceptions compared to week day exceptions. BLET must point out that your figures are misleading because you routinely charge employees for a weekend layoff even though the vast preponderance of the layoff was on a Friday or Monday rather than the actual weekend. In addition, these employees are often counted as if laid off on a weekend day when in all actuality they have performed a full shift on that particular day, if not sometimes two.

You also contend in your latest letter that engineers in unassigned service are able to initiate "forces" that allow them to earn significant wages Monday - Friday, freeing them to be unavailable on weekends. This again is nothing but a red herring and it is very difficult to keep from laughing at such a contradictory position. For the record, it was the Carrier that pursued the changes in the basic day found in Arbitration Award 458 and PEB 219 that reduced almost every engineer's earnings by 30 miles in total for each call or one way trip. It was also the Carrier that then encouraged the Organizations to "index" the missing 30 miles out of the mileage calculations, allowing if not requiring the employees to work more to make what they made prior to the erosion of the basic day. This all occurred years if not decades prior to the Carrier adopting the unreasonable attendance policy we now labor under. Mileage regulation has not been increased for the sole purpose of allowing employees to pick their days off no matter how you spin the facts and distractions from the real issues such as this one are clearly obvious.

Bottom line, it is simply unreasonable to require engineers to be available for 75% of the weekends without consideration for the amount of time an employee may have already worked, and, without regard to employee's needs to bunch weekend layoffs over a reasonable period during the course of the year. Under your current policy, if an engineer does not use each available weekend in each 3 month period, none of them carry over for the rest of the year and the permissible absences are gone. This use it or lose it application often results in engineers receiving much less than 24 weekend days for the whole year out of the more than 104 possible weekend days.

In your letter you also argue that the attendance guidelines are reasonable because only a fraction of the employees violate the policy. The fact that employees are complying now and grieving later, does not prove that BNSF's policy is reasonable. It only proves that employees can continue to work for a period of time under unreasonable working conditions without violating your draconian policy.

You also write that national agreements do not define a full time measurement for how much an engineer must work to be considered full time. BLET must disagree. The former Burlington Northern Railroad recognized that the national agreements included a full time measurement based on 2000 hours worked in a calendar year and we have documented that recognition. The new merged BNSF railroad has an obligation to also recognize those agreements in the same manner as was practiced on the property prior to the merger of the new company.

In your letter you also argue that the attendance policy does not conflict with the CBA. The citations offered to support your arguments are not on point as none of them cite a single rule between the parties to this dispute.

In regards to the carrier's obligation to provide a sufficient number of engineers to allow for reasonable layoffs, BLET has always maintained that it is unreasonable to deny the large numbers of paid layoff requests that are denied. It is clear that BNSF's policy is much more forgiving to those that take a paid absence, yet the Carrier makes it all but impossible to do so.

Instead, BNSF forces employees into unpaid layoff situations to obtain a reasonable amount of time off work and then disciplines them for not taking the paid leave that was denied. This "Catch 22" has not gone unnoticed, nor does BLET agree that it is reasonable. If the Carrier properly staffed its extra boards, engineers would have access to a reasonable amount of time off with pay and their unpaid layoffs would diminish to the point where few would be in violation of the policy.

As for the statistics in your letter, the fact that you found 988 engineers in demoted status across the property does not support your argument that you have a sufficient number of engineers to allow for reasonable layoffs for engineers. It is commonly recognized that the Carrier under staffs engineer extra boards by keeping demoted engineers in train service so that the Carrier can use them to supplant shortages in yardmen service, hostling service, brakeman service, conductor service, utility service, etc. These demoted engineers are seldom available to protect any additional needs in engine service as a consequence. In fact, we have attached a
letter to BLET, signed by your direct supervisor and the Carrier's highest designated officer, taking a position exactly opposite the one you now present on the value of demoted engineers.

Mr. Siegele's attached letter clearly denotes that the existence of demoted engineers has no bearing on the Carrier's ability to approve lay offs for promoted engineers. The letter even states that "Setting up demoted engineers to protect lay offs is not practical nor is it good management in many cases". This "moving" position by BNSF, varying from previous positions given in writing to the Organization, can only be viewed as an act of desperation to defend an indefensible policy.
We would further add that the Carrier's inability to utilize the 988 demoted engineers that you crow about has compounded the staffing problems on the property rather than improved them.

We would remind BNSF that with only limited participation from the organization, BNSF alone determines the staffing levels for engineer extra boards. All to frequently, the Carrier under staffs its engineer extra boards and then resorts to such things as paper deadheading, dropping turns, removing turns, and/or generally manipulating the pool turns because there are no extra board engineers available to cover reasonable vacancies. As a result, the entire engineers pool is forced to work faster than even the mileage agreement allows when vacant turns are removed from the rotation rather than worked on trains. BNSF previously argued in your letter that it was the employee who intentionally works more than they should to pick their days off, yet it is the railroad's own practices that cause engineers to work much faster than the agreements allow or than they desire to work. Please see our attached correspondence to the Carrier (Discipline Case, BNSF File #70-06-0509 and SACP Complaint filed March 28, 2001) regarding the issue of paper deadheading; this is no new issue. These problems are not being caused by engineers laying off excessively. Instead, they are the result of poorly staffed engineer extra boards while demoted engineers abound.

Please remember that in your letter, you assert that only a very small number of engineers are violating the attendance policy. If that is true, then engineer lay offs can hardly be blamed for the shortages that lead to paper deadheading. In addition, and contrary to what you state, the Carrier's 1999 Section 6 Notice did in fact seek to "Amend existing rules to eliminate provisions permitting less than full-time availability for active service". We have attached Page 3 of the Carrier's notice. Your notice was not limited to what you state in your letter, in fact, you have only provided half the story.

BLET recognizes that employees are hired to fill a need. However, employees have situations during the course of their careers, special circumstances if you will, which require them to miss time from work as they work through the issues that confront all humans. This is not to mention the fact that these employees are not indentured servants from the Middle Ages and should have a life outside the confines of work to enjoy the benefits they work so hard to accumulate.

The railroad industry is unique to others. Employees who strike a bargain with a railroad are attempting to make a lifetime commitment to the proposition of railroading and over time they become heavily invested to that proposition. Throughout their career additional money is set aside from every paycheck for their retirement and the retirement for their spouse through Tier II payments. All this stands to be lost if the employee is dismissed. BNSF needs to recognize that this cannot be taken lightly. When employees in this industry have temporary life events, often events directly connected to a railroad lifestyle of always being on call, with few scheduled days off to plan for even the smallest of life's pleasures outside of working, the carrier has an implied obligation to assist these employees through their hard time without severing their employment relationship. In recent times, the carrier has moved away from this obligation and instead has treated employees as if there is nothing at stake.

Prior to the attendance policy, the carrier routinely excused legitimate sickness layoffs. Now the carrier cites access to FMLA as noted in your letter, as if this can be the only avenue to excuse an illness. This is not what the carrier stated to Kasher when he recognized your right to promulgate your attendance policy. Since the implementation of your policy, the carrier has continually moved further and further away from what was claimed to be the intention of your policy. More and more engineers are having their absences for sickness held against them even though CEO Matt Rose personally committed to help these employees work through their
illnesses or those of their family. These are not employees with systemic problems but more often only episodic in nature.

One thing that we have found in your letter that we can agree on, is your statement that "nor is [the policy] the type of absence that the guidelines were designed to address", but perhaps we agree for different reasons. We believe that the collective bargaining agreement provides for an engineer to remove himself from service for the duration of his paid "leave" without paying an additional price for his absence, including having his time off held against his availability under the classification of excluded time. If this paid leave was intended to affect an engineer's availability thresholds, we believe it should have been included in the bargain for paid leave.

Furthermore, BLET's position on alternative handling and its application to attendance violations is a matter of record as noted above. However, we are compelled to address new issues raised in your letter for the first time.

The fact that an engineer might fail to "produce the desired behavioral change" after one alternative handling, that according to your characterization, does not diminish the fact that the Safety Summit Agreement provides for 3 alternative handling events within any given 12 month period for Class III events of which attendance violations are included. The number was set at three. It was obviously recognized that employees would be granted up to three "training and education" alternative handling events for attendance charges. It was further understood that and employee could only be subject to punitive discipline after access to three alternative handling events had been granted in any 12 month period. It must also be remembered that for that reason, employees were given up to three alternative handling events within any given 12 month period when the Safety Summit Agreement was first implemented. It is obvious that the manner in which any agreement is initially implemented most closely reflects the intentions of the parties. In fact, we had no dispute or argument over this issue until well into the application of the Safety Summit Agreement. We have also reminded you previously that even the Regional Vice President assigned by the Carrier to address so called Organization "appeals" of the Carrier's application of the Safety Summit agreement concurred with the organization that three events should be allowed for attendance. That handling was consistent until that Regional Vice President, who was fully authorized to resolve disputes such as this one, was overruled by a new "corporate" viewpoint. Suffice it to say that we do not agree that your arbitral citation supports your assertion that an engineer is only entitled to one alternative handling in any given 12 month period. Even if the award were to read as you suggest, though it does not, it is obviously erroneous and of no precedential value. One cannot tell from merely reviewing the award how many alternative handlings occurred nor any indication as to whether the issue at hand was in dispute.

In your letter you also attempt to address our dispute over single officers serving in multiple roles, the so called "judge, jury and executioner" argument. You argue that the "absence of such negotiated obligations" all but allows the Carrier to have a single carrier officer serve in multiple roles, but this position is without regard for the principles of due process that are engrained in the various CBA's. We believe that allowing a single officer to serve in multiple roles is in and of itself prejudicial. To add insult to injury, many of these cases involving multiple roles also include clear examples of bias by the officer.

You also claim that Labor Representatives desired a 3 month rolling period measurement. BLET has never asked for a "rolling" measurement of any kind. In fact we disputed the "double jeopardy" inherent in any rolling count that utilized any given month more than once until that issue was recently resolved. We would further remind you that after BLET complaints were registered with the senior management team over the rolling measurement formula, BNSF adopted a flat quarterly attendance measurement after the Safety Summit agreement had been implemented. That non rolling flat quarterly measurement, requested by BLET, continued until
the Carrier decided it wasn't terminating enough employees for attendance and the policy was returned to the rolling measurement.

In addition, you argue that our position and arguments regarding time limits have already been advanced and not upheld. However, you have not shown what arguments were made or upheld. As BLET and BNSF have previously discussed, there are General Committees involved in this attendance arbitration process that are yet to advance any arguments to a board regarding this issue. We have never hidden the fact that BLET intends to do just that, nor has BNSF ever suggested that it would be inappropriate for BLET to do so prior to now.

Our position on double jeopardy has also previously been made in recent correspondence to the Carrier. Ironically, the parties resolved that dispute but it is not clear that the agreed upon resolution has been applied to all of the affected cases. In your letter you also refer to "generalities" and contend that BLET General Committees pressed for a one-page policy. Again, we disagree as noted above.

You further contend that the Carrier has not been hiding the user and trainer guide from employees. While it is apparent that you have "cherry picked" a few transcripts wherein the Carrier introduced snippets of the Guide to support its position, you have ignored the cases wherein the Carrier's conducting officer would not even allow the BLET representative to introduce the Guide once he obtained it after the charge was levied. One only has to read a few of the transcripts of these cases to clearly understand that the Carrier's Guide was intended for supervisors only and was not to be shared with employees. Even more obvious is the cover on
the Carrier's latest version of the Guide. It is attached and clearly states, "Not intended". How more apparent could it be that the Carrier is hiding the Guide from the scheduled employees.

You also contend that employees have access to a computer based training module. Again the Carriers representations are disingenuous. Here is the part of the story that you have omitted. BLET tried to work jointly with BNSF to develop training modules for attendance cases as part of a compromise effort by both parties to resolve the dispute over the numbers of alternative handling events for attendance that are permissible. The Carrier then finalized the modules without BLET concurrence, as is required in the Safety Summit Agreement, and also withdrew from the joint compromise attempt to resolve the involved dispute. BLET is not sure why you have chosen to rely on this handling. When the full story is considered it hardly adds credibility to BNSF's defense of an indefensible policy. In any event, it must also be noted that the module that you reference was not even in place when the cases being listed occurred. Furthermore, our review of the module shows that it does not share the missing details of the policy with the employees that BLET has already complained about. It is hardly of any substantial value in this dispute.

You also suggest in your letter that only one division was declining paid leave and requiring employees to substitute unpaid leave. However, you fail to advise as to when Labor Relations became aware of this problem. The truth is that we have seen it across the railroad without correction, even though you claim that those cases were rectified. We should inform you that the majority of our cases are off the division that you mention, the Powder River Division, and BNSF has not afforded BLET any opportunity to rectify any of those cases.

You have also asked us for specific examples of where there are not enough engineers on the extra board. BLET has been complaining continually about under staffed engineer extra boards, this since General Chairman McPherson first complained in 1994 shortly after BN, now BNSF, obtained control of extra board staffing. This has gone on for 13 years with multiple exchanges with LR showing examples of engineers used off turn and demotes called to supplement understaffed extra boards. The fact that you may not have handled those letters or exchanges does not diminish the fact that they occurred. Furthermore, BNSF has supposedly
even developed computer programming to identify "dwell time" at the home terminal for all engineers assigned to extra boards, as well as how many times an engineer's extra board has been augmented / supplemented by demoted engineer's or engineers from another extra board or regular assignment. All of these events are due to understaffing or not enough engineers to provide for the service needed. Even with this data, BNSF continues to under staff extra boards.

You also reference a 1987 letter that BN received from the BN/Northlines GCA advising that the then current attendance policy violated and conflicted with the BLE CBA. You are correct that there was no rebuttal, but now you try to distance BNSF from the fact that "uncontroverted assertions" are exactly that. It remains apparent that there was no reply in 1987, and BN, now BNSF's acquiescence to BLET's position should serve to prohibit you from challenging our position on the matters contained in that letter under the principal of estoppel.

With regard to your claim that the calculation only informs an employee whether the day will be counted as a full day, partial day, weekday or weekend day, you are incorrect and we stand on our assertion in that matter as well. If we have failed to address any of your issues and/or arguments, please let us know. We expect that the parties have exhausted the local/on property handling of these matters and we would request that we finalize the Board Agreement that we have been discussing as soon as possible.

Respectfully,

cc: Steve Speagle, Assigned BLET VP

 

	Dennis Pierce General Chairman BNSF(CB&Q/GN/NP/SP&S)-MRL	Pat Williams General Chairman BNSF (ATSF)-PHL	Brotherhood of Locomotive Engineers and Trainmen
	Austin Morrison General Chairman BNSF (C&S/CRI&P/FWS)	Rick Gibbons General Chairman BNSF (SLSF)-MNA	IBT Rail Conference

M. H. Siegele                                                                                                        January 10, 2007
AVP/BNSF                                                                                                          File: Attendance Cases/Alternative Handling
                               
2600 Lou Menk: Drive
P. O. Box 961030
Fort Worth, TX 76161-0030

Dear Mr. Siegele:

 Re: Attachment A (Listing of Attendance Cases)

This is in reference to our ongoing disputes concerning the Carrier's application of the "Alternative Handling" portion of the 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.

Specifically, this dispute involves those cases where the Carrier has unilaterally denied alternative handling on the Carrier's position 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. As we have stated before, 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. This issue 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

The Alternative Handling Agreement divides rule violations into three categories, based on severity, ranging from Class I, the most serious, to Class III, the least serious. Part I, Section 6(B) of the Agreement, quoted in part above, sets out a method for determining an employee's eligibility for alternative handling, based on previous participation in the alternative handling program, and limits the number of times within a given period that an employee may utilize alternative handling. The pertinent section of the rule is set forth below:

(i) Class I offenses - An employee is ineligible for alternative handling if he/she has: (1) more than three prior alternative handling events for Class I violations, (2) three violations of any kind in the previous twelve months, (3) a Class I violation in the previous 12 months, or (4) a violation of the same Class I offense in the previous 24 months.
(ii) Class II offenses - An employee is ineligible for alternative handling if he/she has had: (1) three alternative handling events for Class II offenses, (2) one Class I or two Class II violations in the previous 12 months, or (3) a violation of the same rule in the previous 12 months.
(iii) Class III offenses - An employee is ineligible for alternative handling if he/she has more than 3 events of any kind in the previous 12 months.

The parties had no disagreements over the application of Class III to attendance cases in the months after the agreement was implement. Employees were given alternative handling up to three times within 12 months for attendance violations. Each of the three cases was handled as an unrelated individual event with its own alternative handling. The only way that the alternative handling was considered as unsuccessful was if the employee failed to meet the agreed upon alternative handling conditions. If those conditions were not met, new charges were not to be assessed, but the original charge was to be reactivated as described in the Safety Summit Agreement. In addition, those conditions were not to include probation.

Now with no mutual agreement to change the Safety Summit Agreement, the Carrier now argues that a second or subsequent attendance violation means that the employee did not accept responsibility for the charge. Unfortunately for the Carrier's position, the agreement only requires that the employee accept the agreed upon alternative handling plan are only to be counted as "events" under the eligibility clause and have nothing to do with the determination of whether or not the employee accepts responsibility for the later charge at hand.

When the new position first surfaced, the Organization contacted the Regional Vice President (RVP) at the time, seeking the Carrier's position. The Organization has transcribed the voice mail reply received from the RVP wherein he advised that the Carrier would not be pursuing this position. While the RVP was later "outvoted" and the position was adopted, this voice mail is evidence of the fact that the Carrier's new position is contrary to the original application of the agreement. While the Carrier now tries to unilaterally 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. This unilateral change of that application is evidence of the Carrier's change of heart, but that change of heart is no entitlement to a change of the
agreement.

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 above, 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.

Our appeal in these cases involving the disputes noted above have been denied in conference and this is to advise that the Organization does not accept these declinations as final handling for these cases. If you choose to reply, setting forth the Carrier's position(s) in these cases, please do so in a timely manner. Otherwise, absent a change in the Carrier's position, these cases, and or the issue in dispute, will be listed for handling in arbitration.

Sincerely,

October 17, 1997                                                            RE: Carrier's File No.  EFA 96 12 13BI
                                                                                        Organization's File No.   961213.98
Mr. D. L. McPherson
General Chairman, BLE
Army Corps of Engineers Centre
190 E. Fifth Street, Suite #105
St. Paul, Minnesota 55101-1637

Dear Mr. McPherson:

This is in reference to claim conference held October 6, 1997 in Fort Worth, Texas. During that conference, Dennis Pierce (Associate General Chairman-BLE) and Nick Markos (Manager-Labor Relations) discussed your appeal on behalf of Engineer __________, claiming eight hours pay on August 4, 1996 account denied layoff.

This letter is to advise you that our position remains unchanged. After further review of this incident, there is no indication that Carrier acted in bad faith when Engineer ____ was denied layoff. It is the prerogative of management to decide whether to permit layoffs. It was the discretionary authority of Crew Caller
_____ to see that sufficient available employees were rested and available to protect service at the time of Mr. ___'s request to layoff.

Furthermore, you fail to accept the fact that Carrier faces unscheduled layoffs at any given moment and because of this exists the necessity for Crew Management to have sufficient personnel to meet these conditions. Setting up demoted engineers to protect layoffs is not practical nor is it good management in many cases. Demoted engineers who do not stand for service in their present craft are not subject to protect service as engineer unless they can be contacted. In this case, you have shown no evidence that any of the demoted engineers would have been available for call. All you have shown is that there were demoted engineers at the time Mr. ___ requested layoff privileges. This does not automatically mean that every demoted engineer would have been available to accept call if, in fact, the Carrier attempted to call them.

The parties have agreed to a once a week board change for the Engineer Guaranteed Extra Boards. If you are suggesting that Carrier should make board changes anytime, I suggest that you give us a letter indicating that it is permissible for Carrier to increase or decrease Engineer Guaranteed Extra Boards at Carrier's whim.

Sincerely,

/s/ Milton H. Siegele

Labor Relations

Brotherhood of Locomotive Engineers & Trainmen

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

Re: 70-06-0509

Dear Mr. Siegele:

This letter is in reference to our conference(s) involving the above noted discipline case for Engineer __________ This case was discussed in conference with your highest officer designated to handle this claim. We are writing to further clarify points made by us during our conference of this claim.

The record clearly indicates that the Carrier has failed to prove that the Claimant violated the rules for which he was assessed discipline. The material and substantive facts clearly show that the Claimant was fatigued through no fault of his own at the time of call. Considering the circumstances surrounding this incident, it is unreasonable of the Carrier to find fault in the Claimant. Moreover, the Claimant was allowed to 1aybff "fatigued" at the time of call without any problem. It is obvious from this that the Claimant's request to layoff was reasonable considering the situation and circumstance.

The Carrier has assessed discipline in this case that is wholly without foundation. However, prior to addressing the particulars of the instant case, the Organization must first address the Carrier's actual policy forbidding "Layoff on Call", or "LOC", as a general practice.

While some tribunals may have held that the Carrier has certain rights in maintaining a predictable workforce, the manner in which BNSF is managing its' current policy regarding "LOC" is hardly a reasonable application of that theory. To fully understand just how unreasonable the current policy is, it is important for the Carrier to understand the other events that 'preceded it.

On March 1, 2000, the Carrier implemented a new Attendance Guidelines policy. In general terms,' the new policy determined "full time" employment by measuring how much time an employee was unavailable for service. This was accomplished by measuring time any employee spent "laid off' from his/her assignment. Prior to the 2000 policy, employees who worked the equivalent of 2000 hours per year were considered full time, see attached policy. The key change in the new policy was to depart from a time spent working measurement. Instead, the Carrier now utilizes a "time spent laid off' measurement without any credit given for time spent working. Prior to the new policy, so long as an employee protected his assignment when it worked, he was not faulted for being "laid off' between trips. In fact, employees with weak cellular phone coverage would often layoff while out of range to avoid being missed called. With the new policy, all of that changed.

As the policy, by Carrier design, requires employees to stay marked up and available for their assignments or face possible discipline, employees were required to reduce the hours actually spent in laid off status. While an employee could layoff for one round trip prior to the policy and the hours away were not measured, the new policy measures exactly that. To avoid violating this measurement, employees are required under threat of discipline to stay marked up until they have t6 layoff It is incredulous that the Carrier even feigns surprise that this application of its attendance policy lead to an increase in those who "Lay of on Call", or LOC. Not only is the increase in LOC a visible and predictable offshoot of the attendance policy, both BLET and UTU advised the Carrier of that fact both verbally and by letter (see attached), putting the Carrier on notice of our position regarding the LOC policy.

As the Organization advised the Carrier in 2003, the simultaneous application of the two policies has the net affect of applying a "double jeopardy" of sorts. On one hand, the employee is advised that he had better remained marked up for service or face possible charges for every hour laid off. The same employee stays marked up for service to comply with that requirement, but then due to the unpredictability of his schedule is called prior t6 laying off and given no option, but to layoff On call. This all even comes more "full circle" when you consider that the involved employees work in "unassigned" service. Their assignments have no fixed time to report, all involved in this LOC stand ready by the telephone and are required to report with as little as. I hour and 30 minutes 'notice. Carrier predictions, or lineups, are often in error by as much as 24 hours, effectively giving the employee no fixed or predictable start time for work. These lineups, coupled with the nature of the "unassigned" service, give the employee no fixed time to layoff ahead of. The Carrier has ,also previously informed its employees in a letter, (see attachment), dated July 1, 1996, that they would be allowed to layoff "if they feel it is unsafe for them to work account of a poor lineup and the employee is not properly rested."
This is just one more example of the unreasonable nature of the Carrier's LOC policy. Employees must layoff before they are called, but Carrier cannot tell them when they will be called. Only those with truly psychic abilities could ever truly meet these totally unreasonable demands.

It is obvious to the Organization that while the Carrier looks for reliability from its employees, it is willing to do nothing to insure that this happens. The Carrier makes no effort to provide the employees with even a modicum of the predictability that they demand in return. Accordingly, the LOC policy places the employee in an untenable position, and it must fail as an unreasonable expectation on that basis alone.

The Carrier must also note that no employees charged under this unreasonable policy have ever refused to perform service, rather they have laid off to the proper authority as with any approved layoff. Prior to this latest LOC policy, this Carrier on multiple occasions confronted those who attempted to layoff on call and demanded that they report for work or they would be charged for the insubordinate act of refusing service. This Committee has represented more than one employee charged for not reporting in those circumstances. Conversely with this latest policy, while the employees are allowed to layoff on call, no one has even been asked if they are refusing to perform service. The Carrier does not charge the employee for laying off, but only for when they laid off. This application is hardly equitable when the layoff was allowed.

The Carrier's unreasonable application of the LOC policy is even being applied to those who are ill and unable to work. Those that are caught fatigued due to the unpredictability of the Carrier's lineups are also blanketed by this policy. Forcing employees into a disciplinary setting for laying off on call when they do not feel that they are capable of reporting for work fully focused on their duties is perhaps the most unreasonable part of the policy.

. While the Carrier bases the discipline in this case on their circular/rule prohibiting marking off on call, the rule is unreasonable when applied to the circumstances surrounding Claimant. In the instant case, the Claimant was lead to believe that he was going to work on the following day at 13:15 hours rather than at 22:57 hours when he was called. Moreover, the Carrier moved the Claimant up in the line-up by "paper deadheading the turn ahead of him, which is a violation of the schedule rules. Furthermore, the schedule rules, Appendix Y of the SP&S agreement has a provision permitting an engineer to layoff at any time, including layoffs at the time of call.

Although we understand the Carrier's desire for predictability, its policies cannot be arbitrary in their design or application, nor, can they violate any provision of the Agreement (either violating the discipline rule, when used to base discipline that is arbitrary or specifically contravening another provision of the Agreement). The Circular relied on by the Carrier in this case, which all but ensures that anybody who marks off on call will be disciplined, is simply unreasonable on its face, as evidenced by the fact that Claimant, through no fault of his own, simply had no choice, but to mark off on call on the day in question, and simply could not have afforded any earlier notice.

Again, while the Carrier has an admittedly legitimate interest in minimizing mark offs on call, its current approach to this problem is faulty. It has been held many times that it is simply unreasonable to discipline an employee for failing to accomplish an impossible task. For instance, in Award No. 25005, Referee Simon considered a case of an employee disciplined in connection with a request for his medical records, which the charged employee's personal physician failed to comply with to the carrier's satisfaction:

The record in this case establishes that Claimant forwarded the Carrier's requests to his personal physician, asking that the necessary information be sent td the Carrier. He had every expectation that his doctor would comply with this request. More than that, he simply could not do. Claimant could not have provided the information himself; it had to come from his doctor. If the doctor was tardy in providing the information, Claimant should not have been made to suffer the consequences. The discipline is this case, therefore, was unwarranted and must be vacated.

In Award No. 143 of SBA 928., Referee Mikrut held similarly:

It is manifestly unfair to require an employee to perform an impossible task, and then base that employee's subsequent dismissal upon his/her failure to accomplish the requisite task. For this reason, therefore, we conclude that Carrier's decision to dismiss Claimant from service because he failed to obtain additional evaluation/treatment - which he attempted to do, but could not complete due to circumstances beyond his control - - is an abuse of managerial discretion.

Under both the train and engine service agreements on this property, employees are allowed to mark 'off sick and are not required to produce a doctor's certificate unless their illness exceeds six days. See attached, precedential claim settlement agreed to by all operating crafts dated May 9, 1949, which provided that the Carrier would "require no certificate from the Doctor unless the illness runs over six days." The Carrier has agreed on this property that only those layoffs for illness that exceed six consecutive days will require either medical attention or result in discipline. That policy had no exclusion based on "when" the employee lays off, only that illnesses will be respected.

Evidence in support of our position is clearly shown in a letter, (see attachment), dated September 29, 1987 from Vice President E.H. Harrison to former General Chairman J.D. Shell, wherein Mr. Harrison recognized the provisions of the Collective Bargaining Agreement, stating,

Mr. Zimmerman did not restrict Extra Board employees to layoff only on account of illness but limited these lay-offs to the caller and all other layoffs to the appropriate operating officer.. ..The only time an employee should layoff on call is under an emergency or due to illness ....We agree with you that both regular and extra engineer employees should work when they' are able and needed. We are allowing them reasonable lay-offs and all other layoffs must be approved by the appropriate operating officer (emphasis ours).

While Mr. Harrison respected emergency, such as in the case at hand, and illness-related layoffs as a legitimate exclusion from any policy concerning layoffs on call, the current policy does not, and for this reason, we believe that in light of the forgoing, the Carrier is without the right to contravene the CBA with the establishment of a policy, which does otherwise.

While Carrier may promulgate rules and policies, their discretion is not unfettered, and they cannot do so arbitrarily or in a manner that violates the Agreement. With respect to acting arbitrarily, please see Third Division Award No. 36994 (Benn), which found that, while management has the "right" to make "wrong" business decisions, they cannot do so arbitrarily. With respect to policies that conflict with the Agreement, please see Award No. 24902 (Dennis), which found that a carrier cannot establish a requirement for post-illness doctor's notes when such conflicts with the Agreement and there is no reason to
doubt the legitimacy of the illness. In the instant case, the carrier is without the right to promulgate a rule, which prohibits an employee for laying off on call when an emergency exists. It is evident in the record that the Claimant was hundreds of miles away from home when he was called and his need to layoff on call was most certainly an emergency situation under the circumstance.

In addition, it is a matter of record that the parties have entered into many collectively bargained agreements through the years that addressed the handling of those who layoff on call As in Third Division Award No. 36994, noted above, the Carrier cannot arbitrarily implement policy when there is already agreement language between the parties addressing the issue.

Although the Carrier may implement ·a policy prohibiting layoffs at the time of call, the Carrier must recognize that the CBA, specifically, the Engineers Extra Board Agreement allows for reasonable layoffs to be granted to engineers requesting such. The Carrier does not unilaterally own the right to determine what is a reasonable layoff and what is not a reasonable layoff. The parties' signatory to the agreement crafted this specific language together. Considering the circumstances surrounding the incident at hand, the Organization believes that the Carrier was without the right to either deny the Claimant's request to layoff or discipline him as a consequence. As the matter stands, the transcript clearly reflects that the Carrier has failed to fulfill the burden of proof necessary to support its decision.

Our appeal in this case was denied in conference and this is to advise that the Organization does not accept that declination as final handling for this case. If you choose to reply, setting forth the Carrier's position(s) in this case, please do so in a timely manner. Otherwise, absent a change in the Carrier's position, this case will be listed for handling in arbitration.

Sincerely,
/s/ Dennis R. Pierce
General Chairman
MOW

 

Brotherhood of Locomotive Engineers & Trainmen

M. David Dealy                                                                                                                                                          March 28,2001
Vice President Northern Lines                                                                                                                                     File: SACP
Burlington Northern Santa Fe                                                                                                                                      Dropping turns
P.O. Box 961030
Fort Worth, Texas 76161-0030

Dear Mr. Dealy:

Dave, at our last SACP meeting we expressed the problems we have been having with local officers and the crew office paper deadheading, and hanging turns in our pools. We view this as a serious problem for two reasons, 1) it is a violation of our agreements and 2) it contributes to the inaccuracy of lineups and the uncertainty of when our members will actually be required to be rested for duty.

We have been advised that at Gillette, Wyoming, on more than one instance, an almost wholesale abuse has occurred. On March 9th and 10th five (5) turns were simply dropped from the pool. This occurred again on March 23rd when three (3) turns were dropped. As a result Engineers were required to report for duty out of sequence and ahead of their line up times.

The local BLE officers have assured this office that demoted Engineers were available for this work, yet no attempt was made to order them for this service. Further, our local BLE officers are ignored when they complain regarding this issue. So now we are faced with a third issue, we will have to progress claims for those demoted Engineers who were not ordered, and you as a company will have to pay them, because, they are valid.

We believe with a little direction from your office this type of behavior can be stopped, and local officers and crew people might realize the seriousness of their actions. We fully believe that our Schedule and Agreements are being trampled in this regard.

We request that you take action to bring the process of dropping turns and paper deadheading of.turns to a halt.

Sincerely,
/s/ S.J. Bratka ..
Vice Chairman

cc: M. Reardon, LC Div 94

(Enclosure not reproduced here)

November 1, 1999

:Mr. M. W. Geiger
General Chairman
Brotherhood of Locomotive Engineers
Bank One Tower
500 Throckmorton, Suite 1820
Fort Worth TX 76102

Dear Mr. Geiger:

This is to advise you that The Burlington Northern and Santa Fe Railway Company has joined with other railroads in authorizing the National Carriers' Conference Committee (NCCC) to represent them with. respect to the 2000 wages, rules and benefits round of collective bargaining on a concerted national basis with respect to their employees represented by your organization.

In that connection enclosed as information is a copy of a letter from Mr. Robert F. Allen, Chairman of fhe NCCC,. to Mr. Edward Dubroski, Brotherhood of Locomotive Engineers, serving a Section 6 notice (also enclosed) on behalf of the carriers represented by the NCCC and notifying him. of the intention to handle that notice nationally, concurrently with any Section 6 proposals that may be served by your organization.

Very truly yours,
/s/ John J. Fleps

enclosures

cc:    Robert F. Allen

(Section 6 notice, November 1, 1999 for 2000 round of bargaining not reproduced for this document)

 

TY&E Attendance
System

Training and User Guide

This manual is for BNSF Supervisors only and is not for distribution
Burlington Northern Santa Fe Railway, Standards & Development Group
December 2007

(Cover page for management regarding attendance)