Since the implementation of the Carrier's new Attendance Guidelines, this office has received various reports (usually attributed to someone who heard it from someone else) about how BNSF's new attendance guidelines were formulated and how they will be implemented. This article outlines the events leading to the new guidelines and the position of this office as to their implementation.

When the Carrier first promulgated the Availability Policy in August last year, the UTU viewed it as an illegal change in working conditions and declared its intent to strike. On September 8, 1999, Judge Buchmeyer in Dallas, Texas issued a Preliminary Injunction Order, ruling that the case involved a "minor dispute" in the terms of the Railway Labor Act, and strike action was therefore enjoined (barred). However, because of the seriousness of the dispute, the court ordered expedited arbitration.

Pursuant to the court's order, expedited arbitration took place before Referee Richard Kasher in Washington, D. C. on October 14, 1999, with international officers and General Chairmen from both UTU and BLE participating. The Organizations argued that the Carrier's unilateral implementation of the Availability Policy violated both the System Work/Rest Guidelines/Principles and the respective collective bargaining agreements in place throughout the railroad. Referee Kasher rendered his decision on October 29, 1999, finding that neither the Work/Rest Guidelines/Principles nor the collective bargaining agreements prohibited the Carrier from implementing the Availability Policy. He went on to warn the Carrier that implementation of the Policy as written would almost certainly violate the Agreements, destroy the Work/Rest initiative, alienate the workforce and completely discredit the Carrier. However, because of the dire consequences of implementing the Policy as written, the Board strongly encouraged the parties to seek a mutually satisfactory compromise.

On November 4, 1999, BNSF Vice President Labor Relations John Fleps advised all BNSF General Chairmen that he was willing to discuss the dispute in order to identify specific problems and investigate possible modifications to the policy. Some General Chairmen met with him and others did not. Those who did made numerous requests for changes that would have resulted in a more reasonable attendance standard, and presented examples of the unreasonableness of the original Policy as written. Some of those recommendations were heeded and some were not. Among the changes adopted by the Carrier were:

1. No application to employees in assigned service


2. Expansion of list of excused absences


3. Rolling 3-month measurement period


4. Reduction of the 3-year "cleansing period"


5. 1 year in compliance completely clears record of any prior violation


6. Carrier commitment to cooperate with local chairmen to insure "common sense" approach and focus only on real attendance problems

Because the Dallas court and the Public Law Board said the Carrier has the legal right to adopt and implement an attendance standard, and because we have not been able to reach an agreed-to standard, we are left with the task of pursuing each individual grievance or claim on its own set of unique facts, in order to determine if the Carrier applied a reasonable standard in that particular case. This may ultimately require a series of arbitration cases over a protracted period of time, eventually providing a body of precedent defining "reasonableness." Frankly, I hope that is not necessary. It is my intent to continue communicating with the Carrier in whatever forum is most effective in securing further change to the policy or guideline or standard in place. As difficult as that process is, I am convinced that wrestling with the problem ourselves is better than turning our fate over to an unknown arbitrator. As always, I welcome any suggestions for other workable means of addressing this matter.

Employees who are off more than the general 75% availability standard should document the reasons for their absences. If questioned about their attendance, they should request that the Carrier review the record in light of that documentation and correct any erroneous record of absenteeism for medical reasons, family emergencies, union or company business, held off for mileage restrictions, etc., or for any paid absences such as vacation, personal leave days, attending court or investigation, etc. If absences still exceed 25% of the remaining days, the employee should explain any other extenuating circumstances such as excessive work hours or shifts, irregular rest cycles, etc. Based on the Carrier's stated commitment to use a "common sense" approach to application of the guidelines, employees might also point out any unusual events affecting work habits. These may include grade crossing incidents or other disturbing or traumatic events at work, or special events or activities at home.

All of the above factors must be given due consideration under the guidelines as written today. If a Carrier officer refuses to evaluate any of these factors; if an officer refuses to discuss these matters seriously; if an officer refuses to confer with the Local Chairman or attempts to discourage an employee from involving the Local Chairman, please contact the General Chairman's office immediately with all of the facts, so we can handle the matter expeditiously with Labor Relations.