FORT WORTH, Texas — The video above was published on Jan. 24, 2022.
A federal judge in Fort Worth has once again blocked about 17,000 BNSF Railway employees from striking against the freight company's new attendance policy, saying it was "arguably justified" despite calling it "harsh," according to new court documents filed Tuesday.
Judge Mark T. Pittman of the U.S. District Court for the Northern District of Texas in Fort Worth ruled that the dispute between BNSF and two unions is "minor" under the Railway Labor Act (RLA). Thus, Pittman concluded that the unions cannot strike over the new attendance policy, titled "Hi-Viz," which went into effect on Feb. 1.
Hi-Viz works by granting all employees 30 career points, which can be deducted based on different types of absences. To avoid exhausting all points, the policy gives employees opportunities to "earn 'good-attendance credits,'" per court documents.
"Specifically, an employee can earn four points for any 14-day period that the employee is available for work," court documents state. "An employee could potentially make-up for any absence that caused a point deduction by being available to work for a 14-day period."
The unions -- Brotherhood of Locomotive Engineers and Trainmen, as well as the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation -- threatened to strike over this new policy if it went into effect, describing it as a point system that violates their rights under the RLA, as well as other labor agreements revolving around time-off.
Though Pittman described Hi-Viz to be a "harsh" attendance policy in the new court documents released Tuesday, he said it wasn't up to the courts to decide if it was a good or bad policy. Instead, he had to decide if the dispute was "major" or "minor" under the RLA.
“Analyzing whether BNSF’s action is arguably justified, however, must be kept separate and distinct from analyzing whether the result of that action — here, the Hi Viz attendance standard — violates a specific term of the parties’ agreements. The former is for this court; the latter goes to the merits of the issue and is solely for the arbitrator,” Pittman said in the documents.
Thus, Pittman said the dispute was "minor;" BNSF's attendance policy was "arguably justified" and wasn't an "alternation to an existing policy" as argued by the unions.
"While it is arguable that the Hi-Viz attendance standard violates a term of the Parties' agreements, there is nothing to indicate that BSNF is attempting to unilaterally 'change the terms' of the agreements or to acquire new 'rights for the future," documents state.
"The Court concludes that there is no violation ... of the RLA for two reasons: First, the Hi Viz attendance standard is not a fundamental attack on the union or union representation, and second, the RLA's dispute resolution procedures are available for the Parties," the documents continued.
Additionally, Pittman said a strike could cause harm to the public, not just BNSF.
"The harm that BNSF and the public-at-large would suffer from an illegal strike far outweighs any harm the unions would face from the court enjoining an illegal strike... The unions remain free to follow the appropriate dispute resolution procedures set forth in the RLA."
Despite the ruling, the two unions said they will continue the fight against the new attendance policy.
“This is only the first round in our fight against the Hi Viz policy. In the coming days, the unions will determine if the best course of action is to appeal today’s decision or to move swiftly to arbitrate the policy before it can be used to terminate any employees,” BLET National President Dennis Pierce and SMART-TD President Jeremy Ferguson said in a joint statement “An arbitrator can strike down the policy. If that path is chosen, the unions will move swiftly to make their case there instead of in the courtroom or on the picket lines.”
BNSF is one of the nation's largest freight companies. The company transports agricultural and industrial goods nationwide on almost 33,000 miles of track. A potential strike would affect 17,000 union workers.
Below, you'll find a few more details about the arguments made by the two unions.
Unions: Working 90 percent of the time
In their motion, the unions argued that the Hi-Viz policy requires employees "be available over 90% of the time," thus "strips employees of their reasonable lay off privileges, which are contractually guaranteed," per documents.
BNSF, on the other hand, said the union mischaracterized the policy, according to documents.
"By increasing availability and reducing the number of employees who take excessive unplanned time off, BNSF employees overall should have more time at home with their families because they will be called upon to cover shifts or travel less," the Court ruled.
Unions: Violates the Family Medical Leave Act (FMLA)
In the argument that Hi-Viz violated the Family Medical Leave Act (FMLA), the unions were shot down by the court over a technicality.
"[The unions] is not an 'eligible employee' within the meaning of FMLA; thus, it cannot bring an independent FMLA claim," per the court.
"The FMLA defines 'eligible employee' as an individual 'who has been employed (i) for at least 12 months by the employer... and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period," documents state.
"Based on plain language, a union does not qualify as either an 'employee' or 'eligible employee,'" the court ruled.
Unions: Penalizes unions and union representatives
The court also said a union can't bring a claim on its own on behalf of one of its members.
When it came to the argument of how Hi-Viz punished unions and its representatives for missing work due to official union business, the court said BNSF's policy recognizes union business absences as excused absences.
"The Hi-Viz attendance policy deducts attendance points when a union official lays off or misses call for an unexcused reason," it argued.
"The Court concludes that there is no violation ... of the RLA for two reasons: First, the Hi Viz attendance standard is not a fundamental attack on the union or union representation, and second, the RLA's dispute resolution procedures are available for the Parties."