Brotherhood
of Locomotive Engineers & Trainmen
Brotherhood
of Locomotive Engineers & Trainmen
| Matt O. Wilson |
GENERAL COMMITTEE OF ADJUSTMENT |
VICE CHAIRMEN |
|
| General Chairman |
801 CHERRY ST., SUITE 1010 Unit 8 |
SECRETARY-TREASURER
JIM .H. NELSON GALESBURG, IL 61401 |
| June 26, 2012 | |
| File: First In - First Out Dispute |
M. H. Siegele
AVP/BNSF
2600 Lou Menk Drive
P. O. Box 961030
Fort Worth, TX 76161-0030
Dear Mr. Siegele:
This is in response to your letter of June 15, 2012, replying to our letter of June 12, 2012 regarding the carrier's new interpretation of the first-in, first-out rule. Again, the carrier is without the right to change an engineer's turn in the pool. His turn is set upon the arrival of his assignment whether he is on the assignment or on layoff and his assignment is worked by an extra board engineer filling in for him. An engineer is simply prohibited from changing from one turn to another (order of rotation) in his assigned pool as you plan to start doing on June 27th.
It
is true that our agreements were in large part written to accommodate operations with larger crews. However, our agreements were not tied to trainmen, only the fireman. If you studied our agreements, in particular our 700 Rules, you would realize this. In fact, the 700 Rules specifically state that engineers cannot move from one turn to another one in the same pool, except to move to a turn with or without a fireman. See rule 701.3(5). I point this out because this was the only exception provided for in our schedule which allowed an engineer to move to a new position in the same pool without regard to the first in, first out rule.Even though the firemen's position will someday cease to exist through attrition,
it does remain a shadowy fixture under our existing agreements until then. However, the elimination of the firemen's position does not change the meaning or application of our schedule rules. Whether there is a fireman on a turn or not, our rules governing movement within a pool remain the same regardless. These rules may have made more sense to the carrier years ago when crew sizes were larger, but the reduction in crew size has no effect on our agreements. Moreover, if there was a severe downturn in business, we could see firemen return to many freight pools. Many engineers hold seniority as firemen. In the meantime, the lack of firemen on turns simply serves to further restrict an engineer's ability to move to a different turn in the pool as this was the only exception under the 700 Rules.On another note, I want to direct you to the clear language
common to most ID Agreements: "A pool of engineers will be established and
maintained at each home terminal .. "
"A rotation of engineers used in this service will be established and maintained
by agreement. ... "
The written provisions in these agreements do not mention what you propose and implementation of your proposal raises numerous questions. First, how can an engineer upon mark up be placed behind engineers at the home terminal when this engineer's assigned position in the rotation was worked first out as a temporary vacancy protected by an extra board engineer who takes on all aspects of the job that he is called to protect? His position in rotation cannot logically be considered first in until it returns to the home terminal and only then can it be worked up to first out again. Otherwise you have just runaround one or several other engineers.
Maintaining the proper rotation of our pools is essential to ensure that engineers assigned to such service have the opportunity to earn an income equivalent to the miles in the pool mileage regulation range. If a person stays marked up under your new theory it is possible to actually earn less than those who layoff. If you count the miles earned by the extra engineer working the turn which is removed upon arrival, you will be inflating the miles of the pool and adversely affecting the earnings of the engineers assigned to the pool.
Consider these additional scenarios:
Engineer A is first out at the home terminal and an engineer in the pool lays off behind him. This engineer goes back to the board ahead of Engineer A before he returns home. Engineer A just fell back and lost a position in the rotation which he cannot get back. This could cost Engineer A one-half a trip on the pay period or more as it could occur on a regular basis, especially in larger pools.
Engineer B is in ID service as above when two turns are added ahead of him on board adjustment day. He may lose an entire trip on the pay period due to the cumulative affect of both scenarios. Engineer C is first out at the home terminal and 10 engineers layoff behind him. They go back to the board ahead of Engineer C before he returns home. Engineer C just lost 10 positions in rotation and he cannot get these back, which may cost him an entire trip during this or the next pay period.
A major point of contention with this newfound theory is that as time goes on every engineer that does not layoff will continue to lose more positions in the rotation and more trips just by virtue of staying marked up to work. If an engineer never lays off he could lose a trip per pay period, possibly more, and 10 to 20 thousand dollars over the course of a year. By allowing turns to be marked to the board which are returning from layoff ahead of the working turns causes just the opposite of your miss-aligned intentions. The man who protects his service regularly suffers an earnings loss.
What if Engineer D lays off and his assignment returns prior to his mark up and begins to move up in rotation before he is auto-marked to it? Is his job to be placed waiting for him rather than him "being placed waiting turn"? (Does he go to the bottom or is he marked up to his former turn in proper rotation?)
What if Engineer E lays off last out and his turn works into the second out position and he is auto-marked 24 hours later? Does he go second out or to the bottom of the board? That dentist appointment he was not sure that he could make may have just gotten more expensive when he otherwise would not have missed any time at all.
Also what happens when Engineer F lays off to make a doctor appointment and he is able to mark back up in 8 hours and catch his job before it leaves town. Is he to go to the bottom of the board and lose a trip when our agreements allow us to mark back up prior to the prearranged time? There was never any contention about proper board position by the carrier in this respect in the past.
Moreover, fatigue in the railroad industry is a prevalent danger. It is no secret that the Organization has pressured the Carriers for predictable line-ups for many years. In the case at hand, the Carrier's arrogant approach at pool placement multiplies the problem. For a 100 years Engineer D followed Engineer C who followed B who followed A. Your new application of our placement rule will cause a multitude of problems for engineers trying to secure rest. To "shotgun" crews into rotation leaves the employee in a compromising position. None of which has been discussed in any previous negotiations to secure "meaningful rest" in agreements to date.
While these scenarios can go on and on, let's look at the problem that your new interpretation has with regard to the Active/Inactive process found in our agreements. As an example, the following language is typical and cited from the Lincoln-Creston, Dilworth-Minot and Minot-Glasgow Agreements.
ARTICLE I
Section 1
A pool of engineers will be established and maintained at each home terminal sufficient to take care of traffic in the manner prescribed hereinafter with the understanding that the total number of engineers in the pool will be adjusted so that the pool will average between 3600 and 3800 line miles per month.
Section 2
At each terminal (listed above) a crew board having an "active" and "inactive" list will be maintained in the manner described below:
(a) The "active" list at each terminal will be the list from which engineers will be called in turn to man trains operating to the other terminal
EXAMPLE: At Terminal "A", there are eight (8) engineers assigned.
The number of engineers designated for the active list is five (5).
An engineer whose home terminal is at "A" arrives when there are already three (3) engineers on the "inactive" list. The top engineer on the "inactive" list will immediately be moved to the bottom of the "active" list, since if this were not done, there would be four (4) engineers on the "inactive" list which would exceed the quota.Section 3
(a) Engineers will be called in order (first-in-first-out) from the "active" list at each terminal provided that the first-out engineer will have 8 hours to work within the limitations of the Hours of Service Act. If the first-out engineer does not have 8 hours to work under the Hours of Service Act, the next following engineer who has 8 or more hours to work will be used. If there are no engineers available with 8 hours to work on the "active" list, then the first-out engineer from the "inactive" list will be called. Should there be no engineers on either the "active" or "inactive" lists who have 8 hours, then an extra engineer may be called at the home terminal to operate for one round trip. The use of engineers as described in this paragraph will not be construed as "runarounds."
(b) Engineers operating in interdivisional service who are run around by another engineer operating in interdivisional service shall be allowed 100 miles at the applicable rate for each time he is run around at the terminal and shall retain his position on the board.
It is understood that the Carrier may remove an engineer from the train for which called and place him on another train in order to prevent "runarounds" at the terminal.Section 4
Engineers will only be relieved at their home terminal except in cases of emergency. Vacant positions of engineers relieved at the distant terminal in emergency will be filled by engineers standing for extra service from the source of supply at the distant terminal and the extra engineer so used will be deadheaded to his home terminal as soon as possible after arrival at the opposite terminal.
This Article specifically states that the pool will be established and maintained in the manner described hereinafter ... " It further states, "At each terminal (listed above) a crew board having an "active" and "inactive" list will be maintained in the manner described below ... " These carefully chosen words leave no room for the carrier to modify the manner described in the article as you are attempting to do with your new interpretation of "first in, first out" and "waiting turn". In fact, you are creating a conflict with the application of the rules noted above, if you place an engineer under these agreements behind the inactive crews on his mark up. His turn that is out of town is supposed to go into the rotation on its arrival behind the inactive turns. Per previous application, if the quota of inactive turns is full, the placement of his arriving turn pushes the first out inactive engineer to the bottom of the active list. If you add the engineer behind the inactive engineers on his mark up, you stand to push the first out inactive engineer to the bottom of the active list out of order. This prematurely activated engineer will stand ahead of all of the away-from-home terminal engineers who arrive at this terminal between the time of his mark up and the arrival of his turn worked by the extra board engineer. Each of these away from-home terminal engineers will be runaround. The situation grows worse if several engineers are marked up at the same time, which is very common when allocations of engineers are laid off for calendar day layoffs in groupings.
If you implement the changes suggested in your letter of June
7th, you must also recognize that the vast majority of engineers who arrive at the home terminal will request to be placed ahead of any engineer marked up behind the turns in town under the "turn restoration" provisions of the ID agreements. For the sake of brevity, I will only cite the Portland-Vancouver ID Agreement's language, which is typical and reads as follows:"Upon arrival at Portland-Vancouver, engineers in all three of these long pools will be marked up on their respective pool list in the order of their last order of call at Portland-Vancouver (on-duty or report-for-deadhead time)".
The Agreement further reads:
"If no engineer (assigned to these pools) is available for a service or deadhead call at Portland-Vancouver to which the particular pool is entitles, an extra engineer will be called and used. Such extra engineer will be treated as though he was an assigned long pool engineer until he returns to Portland-Vancouver."
It is clearly evident from these two provisions that the intent of turn restoration is to maintain the integrity of the pool's rotation and each position in that rotation relative to each other, including when the regular engineer was off and his assignment was filled by the extra board. If you chose not to honor the restoration requests, you will be further violating our contract.
On a closing note, it is amply evident that we have the right to maintain our rotation in the manner described herein. It is not only written into our agreements but it is also validated by years and years of past practice, which serves to provide unquestionable authority to the matter.
Many previous Tribunals have wrestled with the intent of contracts and these Arbitrators provided guidance which you should take to heart before you implement your new application cited herein. Arbitrator Jacob Seidenberg once stated,
"A collective bargaining agreement, as distinguished from a commercial contract, covers established practice and customs, which can be just as binding and conclusive upon the parties as any explicitly clear and unequivocally written contract provision. All practitioners of collective bargaining and administrators of collective bargaining agreements know there are many facets and aspects of the employment relationship that are not committed to writing. This relationship is bottomed on more than the written word of the Agreement." He also stated, "An established practice in this industry can only be changed in the same way as any written contract provision, i.e. by negotiations consistent with the terms of the Railway Labor Act."
Arbitrator John Fletcher once stated,
"In this industry it is well developed that a working condition may be established and accepted, and when it continues uninterrupted for a reasonable period of time,it has the same force and effect as a written rule."
While each letter of understanding cited in our previous correspondence, in and of itself, may not be controlling, it is clear evidence of a long standing practice of retaining the order of rotation established by the order of last arrival of engineers in pool service. There is no evidence that the parties agreed to terminate it or that we adopted a different practice or that we waived these benefits. The fact that the practice which you suggest is not referred to in the schedule rules is not a persuasive consideration that you retain such a right. For these reasons above, we request that you cancel your plans to implement the changes under consideration. If you choose otherwise, we will certainly make your decision known to the arbitrator during the remedy phase of this dispute.
Respectfully,
/s/ Matt O Wilson
General Chairman
Cc: Dennis R. Pierce, BLET ND
President
Lee Pruitt, BLET ND
First Vice President
Mike Priester, BLET ND
Vice President
Mike Wooly, Esquire, BLET
ND General Counsel
Tom Pontolillo, BLET ND
Director of Research
Rick Gibbons, BLET
General Chairman
Alan Holdcraft, BLET
General Chairman
Bobbie Brown, BLET
General Chairman
All BNSF BLET Local
Chairmen
| BNSF Milton
Siegele Assistant Vice President Labor Relations |
The Burlington Northern and Santa Fe Railway Company |
| PO Box 961030 Fort Worth TX. 76161-0030 2600 Lou Menk Drive Fort Worth TX 76161-0030 Phone: 817-352-1068 Fax: 817-352-7319 milton.siegele@bnsf.com |
June 15, 2012
Mr. Matt O. Wilson, GC
Bhd. of Locomotive Engineers and Trainmen
Dear Mr. Wilson:
This is in reply to your letter of June 12, on your file First In - First Out Dispute, replying to our letter of June 7, which advised how employees, returning from layoffs, would be handled on and after June 27.
Without going into the finer points of whether the word "turn" is being used as a noun or a verb, suffice it to say that you have not shown what you must: that this handling is in any way barred by, or in contravention of any collective bargaining agreement with your committee. Simply, nothing in any of your schedule agreements states, directly or otherwise, that "an engineer, returning from layoff, must await turn." And since there isn't any such rule, you have had to resort to a whole variety of authorities that go to a whole variety of points, but none of which addresses that situation or goes to that point. Most particularly, restoration-of-turn rules, and the authorities concerning them (upon which you principally rely), are themselves exceptions to the "first in, first out" rules that are to be found in every BNSF schedule agreement that you handle.
Thus, the authorities cited in your letter all go to different points and so are not determinative. For example, the question and answer which you excerpt only addresses the relative placement of those actively working, and is silent on how people are handled when they return from absences. The 1947 settlement letter (with a different union) was nothing more than a money compromise: the parties explicitly didn't agree on the principle ("I cannot concur in such viewpoint.") for resolving an altogether separate issue concerning proper re-placement in the pool after working off turn. The one 1957 (freely-cancellable) "local understanding," if not superseded by subsequent interdivisional runs and line sales, is, in any event, just a restriction on the engineer's free exercise of seniority. The other 1957 (freely-cancellable) local agreement, if not superseded by subsequent interdivisional runs, enunciates standards for determining the relative placement of those actively working. Simply, none of these purported authorities held that "an engineer, returning from layoff, must await turn."
Moreover, a completely disabling flaw in your position is its disregard for the company's inherent and critical right in this and every other case to conduct its business entirely as the company sees fit, absent a law or agreement rule to the contrary. It is fundamental to essential principles of property ownership that we do not need union permission to do anything--unless we have already, in an agreement, plainly given up the right to do that thing. Accordingly, even longstanding operational methods may freely be changed by the company as operational circumstances have changed-which, in this instance, they plainly have. For example, our engineers no longer have assigned engines, the return of which they must await.
Further, the parties do now have an agreement principle solidly in place which affirmatively supports this adjustment: the basic "first-in, first-out" rule--which is found in all of your collective bargaining agreements and which has always been the over-arching principle governing calling for unassigned through freight service.
In short, we are absolutely not taking a schedule rule away from anyone. Rather, you simply do not have the rule that, seemingly, you wish you had. Certainly, the parties could negotiate a new agreement that produces the same result. But-and most importantly-you have shown nothing which already prevents, let alone bars, the handling outlined in our June 7 letter.
We are, of course, willing to meet to discuss this matter: call, or email or write me to schedule such a meeting.
Sincerely
/s/ Milton Siegele