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