PLB No.6264 and 6265

BNSF and BLE and UTU

Availability Policy Dispute

Findings and Opinion

BNSF's Management Prerogative

The Carrier has cited a legion of cases which support its position that management retains certain rights, unless those rights are specifically waived or modified in the terms of a collective bargaining agreement or as the result of a consistent, long-standing, mutually-recognized past practice. A significant number of those cases have addressed the employer's right to manage employees' attendance through the promulgation and implementation of a reasonable attendance/availability policy.

This Board recognizes that the BNSF had such a right, and did not relinquish that right. The questions of whether the 1999 Availability Policy is a reasonable policy and whether the BNSF's right to promulgate and implement the 1999 Availability Policy has been vitiated or superseded by the Carrier's obligations under the Work/Rest Guidelines/Principles will be addressed in a subsequent section of this opinion. 

 
Letter, Spirit and Intent of the Work/Rest Guidelines

It is well-recognized that in grievance arbitration, when a union claims that the employer's interpretation and/or application of a policy, rule or contract provision violates a term(s) of the parties' collective bargaining agreement, that the arbitrator's first responsibility is to determine whether there is clear and unambiguous language in the contract which supports the union's claim. The Work/Rest Guidelines represent a broad-based  effort by the parties to resolve issues of mutual concern involving the "impact" of work schedules upon the "health, quality of life, and safety on the job" of operating craft employees represented by the UTU and BLE. The parties have embarked upon a multi-faceted effort to find the means to resolve these issues, the "fatigue-related problema", through "good faith arms-length collective bargaining".

However, a thorough review of the language of the Work/Rest Guidelines/Principles does not disclose that the parties agreed that a carrier would be restricted from enforcing an existing availability/absenteeism policy or from modifying an existing availability/absenteeism policy.Clearly, there is some merit in the position of the UTU and the BLE that the Work/Rest Guidelines contemplated that the parties would address the question of employee availability, in the context of train and engine service employees' need for rest and relief from fatigue; and that resolution of this question would be pursued through negotiations that addressed this mutually-recognized "problem".

However, although the parties contemplated that this issue of rest and fatigue could be pursued through negotiations, it is equally clear that the specific language of the Work/Rest Guidelines does not speak to any limitation of a carrier's right to publish and implement rules/policies regarding availability and absenteeism.

Accordingly, it is the Board's conclusion that the "letter" of the Work/Rest Guidelines does not support the Organizations' position that the issuance and  proposed implementation of the BNSF's 1999 Availability Policy violates the Guidelines.

Insofar as the ‘intent" of the Work/Rest Guidelines/Principles are concerned, the testimony Of UTU President Little was persuasive. This Board found his testimony regarding how the UTU viewed the principles and purposes of the Work/Rest Guidelines to be compelling. President Little testified that the UTU "believed we were talking abut availability and absenteeism" when the parties addressed the question of fatigue in the context of accidents which had occurred cm the nation's railroads.

However, there is insufficient evidence in this record to persuade the Board that it was the intent of the negotiators for the carriers to limit a carrier's right to continue to implement and/or to modify existing rules regarding the availability/absenteeism of operating craft employees.

In the absence of sufficient evidence that the parties mutually intended that the implementation and/or application of availability policies/rules would be held in abeyance until the parties could resolve the question of fatigue/rest through "good faith arms-length collective bargaining", this Board is constrained to conclude that there was no "meeting of the minds" insofar as the application of availability policies was concerned.

Clearly, however, the Carrier's unilateral publication and intended implementation of its 1999 Availability Policy egregiously violates the "spirit" of the Work/Rest guidelines/Principles. One merely has to review the testimony of the witnesses presented by the Organizations regarding their understanding of the purposes o f the Work/Rest Guidelines and view UTU Exhibit No. 19, the Wage and Rule Panel videotape, to reach the conclusion that BNSF's proposed implementation of the 1999 Availability Policy undermines the high-minded purposes of the negotiators of the Work/Rest Guidelines.

In that video presentation, prepared in April, 1999 at or about the same time that the BNSF was first making known its intention to issue a new Availability Policy, International President Little made the following observation:

I think this National Wage and Rule Panel gives us an opportunity to sit down and look at those issues that have never been resolved or new issues that are creating problems In the industry and address them together.

The evidence before the Board belies any argument that BNSF made a sufficient effort to "sit down together" with the Organizations and address the issue of availability, an issue inextricably linked to the issue of rest/fatigue.

The BNSF has presented substantial evidence in support of its position that the Carrier is experiencing a serious problem in having a sufficient number of train and engine service employees available to operate on-time schedules, particularly on weekends. Although it is not clear that the problem is system-wide and could not have been resolved by focusing on "hot spots" on the system.

It is also clear to the Board that the BNSF management did not exercise the type of joint efforts to address the problem, as was contemplated by the 'spirit" of the National Wage and Rule Panel.

The narrator of the videotape made the following observation:

Finding resolutions that are acceptable to both Labor and Management often requires field studies or pilot projects. General Chairmen identify areas for pilot projects.

Following that statement by the narrator, BNSF'a Vice President of Labor Relations, Mr. Fleps, who is also a member of this Board, expressed the following opinion:

Most of these ideas, the things we developed, were the creation of our employees. The projects or models we are most proud of were really designed by our people. And they work. They're different. They entail a lot of change. But that change is for the good. And it takes, I guess, a little faith and a little courage to give them a try.

One can most reasonably assume that Vice President Fleps was speaking of "projects or models" similar to the "10 and 5" arrangement testified to by Local Chairman Hickman. That arrangement was an innovative method of scheduling, intended to address the Carrier's need for the availability of a sufficient number of train and engine service employees.

On the videotape, Local Chairman Hickman made the following statement:

Before 10 & 5 our layoff rate was 18%  a day. And on payday holiday weekend it went up to 26% plus. Now it's less than 2% any day.

Local chairman Hickman's endorsement of the innovative method for resolving availability was seconded by BNSF Train Master Gary Anderson and others. Clearly, the above-quoted excerpts from UTU Exhibit No. 19 conclusively establish that the Carrier violated the "spirit" of the Work/Rest Guidelines and the National Wage and Rules Panel by its unilateral promulgation of the 1999 Availability Policy.

However, as observed above, there is no language in the Work/Rest guidelines that restricts the BNSF from modifying or issuing an Availability/Absenteeism Policy.

The Reasonableness of the Availability Policy

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. 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.

That is not the issue before this Board. The issues, as articulated by the parties and reproduced at pages 20 and 21 of this Opinion and Award, do not raise the question of whether the Policy was unreasonable as published; as the Policy has not yet been implemented, there is no basis for speculating that it will be applied in an unreasonable manner.

Accordingly, this Board will neither make a ruling nor issue a finding regarding the reasonableness of the Policy.

However, the Board will observe, by way of dicta, that certain provisions of the Policy have the flavor of unreasonableness.

Just one example can be found in the Policy Administration Section. In this Section of the Policy there is a requirement that after a first violation of the Policy, which is to result in a counseling session with the Superintendent or his/her designee, an employee must maintain a clean record for three years in order to avoid more severe treatment under the BNSF's progressive disciplinary system.

The Chairman of this Board, who has had the opportunity to consider the reasonableness of many policies of this type, is not familiar with any that require such a protracted cleansing period.

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

Conclusion

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

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

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

The Carrier's traffic has increased dramatically, as testified to by Vice President Dealy. At the same time this increase in traffic has been correlated with requirements by shippers and receivers to have “just in time' inventories. So carriers face increasing needs for speed in delivery schedules.

At the same time employees face increased demands upon their off-duty time, in view of social changes which have severely limited the working man's and working woman's opportunity to attend to necessary personal business, much less for them to enjoy any significant leisure or "rest time".

With these two competing social changes, it is this Board's opinion that the parties would have been far better served had they been able to fulfill. the principles of cooperation and mutual problem solving espoused by the labor and management spokespersons who "testified" on the videotape, UTU Exhibit No. 19.

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

AWARD

1. The Work/Rest Guidelines/Principles did not vitiate BNSF's management prerogative to unilaterally regulate attendance through the issuance of the 1999 Availability Policy.

2. Provisions in existing collective bargaining agreements do not bar BNSF from issuing the 1999 Availability Policy.

This Award was signed this .29th day of October, 1999.

Richard R. Kasher

Chairman and Neutral Member