Representatives of BNSF and other Rail Carriers in "National Handling" (who collectively compose the National Carriers' Conference Committee) recently circulated a document addressed to "Dear Rail Supervisor" in which the NCCC labels UTU's leaders as hypocrites because of UTU's recent interest in the re-regulation of the rail industry, after opposing such efforts just prior to this round of National Negotiations. It is indeed regrettable that UTU has been forced to take such measures to counter the arbitrary (often illegal) and contentious behavior of the Carriers during this bargaining round. To demonstrate just how caustic the Carriers' actions have been, consider these events precipitated by the Carriers' November 1, 2004 Section Six Notices:
Staffing/Consolidation: This was an outright illegal demand for changes in UTU Crew Consist Agreements on a national level, in direct violation of the various moratoria contained in current Crew Consist Agreements on the individual properties, and in direct defiance of existing case law confirming that Crew Consist is strictly a local (not national) issue. The Carriers made this highly offensive demand their number one priority in this round of negotiations, and then forced UTU to resort to litigation to stop their illegal actions. The Carriers' Notice on Crew Consist was struck down by the court, but that illegal and insulting demand set the stage for all subsequent discussions.
Manpower Utilization and Productivity Improvement: This Notice provides that a Carrier's contribution toward employee benefits would be reduced for any employee who did not meet that Carrier's unilateral definition of "full time" employment; and all of those unspecified "benefits" would be completely eliminated if the employee was not available at least 50% of the time. The Notice further demands that any and all existing collective bargaining agreements relating to attendance or absences would be amended or eliminated to accommodate the Carriers' demand. The Notice specifically calls for amendment or elimination of all rules governing leave of absence, lay off, vacation scheduling, exercise of seniority, displacement, assignment, and pool and extra board regulation. If you are wondering how a rule like this might affect railroad employees, just consider what BNSF has already attempted to impose during this bargaining round. In 2004 BNSF implemented a new policy that forced employees who have been granted time off under the Family and Medical Leave Act to "burn up" their vacation and paid personal leave time whenever they took FMLA time, in effect stripping employees of the vacation time they already had scheduled to spend with their families and dictating when they use their personal paid leave time. UTU went to court again, and again the court said the Carrier had no legal right to do what they were doing. However, BNSF refused to stop the practice, changed their position and asserted that they never needed FMLA to impose such a policy in the first place. That dispute is now moving toward resolution through binding arbitration, and BNSF's employees are still being denied their scheduled vacation time. In the day-to-day operation of the railroad, BNSF has proven itself unable or unwilling to manage railroad operations so as to give employees some reasonable idea of when they will go to work. Even while business volumes (and hours on duty) increase, BNSF refuses to improve its dismal train lineups, leaves outlawed crews on trains for hours waiting for transportation, and refuses to address systemic crew calling and crew planning problems. The situation is not getting any better and the resulting chronic fatigue will inevitably lead to more injuries and accidents on BNSF. If UTU is forced to seek regulatory mandates to stop such irresponsible behavior, then the Carriers have no one but themselves to blame.
Elimination of FELA: Given the Carriers' illegal demands for reductions in crew size and for greater productivity at the expense of safety, I guess it should come as no surprise that they also want to eliminate any law that permits employees (or their families) to seek monetary recovery when they are maimed or killed due to the Carrier's negligence. This Notice was also illegal according to the court. This may be the first time in history that so much of the Carriers' original Section Six Notice has been stricken down by various courts because they had no legal right to make such demands in the first place.
Job Actions: This Notice seeks a rule requiring the Organization to give a Carrier advance notice of a strike or other job action. Strikes are already next to impossible in our industry, but nearly impossible just isn't good enough for BNSF. The last thing an overbearing management team needs is a union with the legal right (and the courage) to say, "enough is enough" and withhold its labor. After UTU struck BNSF last year over the unilateral implementation of a Primary Recall Agreement that drastically altered how Engineers could utilize their ground service seniority, BNSF sued UTU and asked the court to impose a requirement for advance notice of any future job action (similar to the demand made in this Notice). A Texas judge recently rejected BNSF's request, refusing to strip UTU of the only real tool it has to get the attention of railroad bosses who apparently view themselves as being above the law. In that litigation, BNSF asserted that UTU really didn't strike over implementation of Primary Recall, but was actually just mad about the Carriers' attempt to force Crew Consist changes at the National level. Our strike was in fact about a violation of the 1985 UTU National Agreement, but assuming for argument's sake that BNSF was right, here's an irony for you. BNSF serves an illegal Section Six Notice, and then cries foul when UTU calls a strike over (according to BNSF) that same issue. With a rule like the one the Carriers are now seeking, labor would be effectively shackled to the plow, while management would be free to impose its will, no matter how unjust or unreasonable. The court saw the injustice of such a demand in the Primary Recall case on BNSF, and declined to impose the kind of advance notice that the Carriers now seek in National Negotiations.
Suspension of Rules: This Notice seeks the right to suspend rules governing wages and working conditions of employees on any railroad, when other workers in any part of the railroad industry participate in an action that causes the disruption of rail service. Taking the Notice at face value, if the employees of a non-union, one-customer short line in Mexico or Canada go on strike, American Carriers would have the right to pay UTU represented employees minimum wage for the duration of the strike. I'm sure the Carriers would say that's not their intent, and we should just trust them to do the right thing, but given their behavior thus far in this round of negotiations, that doesn't give many railroad employees a warm and fuzzy feeling.
Paid Holidays: This Notice demands the substitution of Martin Luther King's Birthday for President's Day. While this is certainly the least objectionable of all the Carriers' Notices, I seriously doubt that Dr. King would commend BNSF for honoring his birthday by simply taking some other well-deserved holiday away from working people.
I would gladly welcome a return to civility in rail labor/management relations. It really is a shame that UTU must go to court time after time to force the Carriers to stay within the law in the pursuit of their unreasonable demands, at a time when the outlook for the industry overall has never been better, and management salaries and bonuses are going through the roof. Surely we could accomplish more through mutual professional courtesy and rational conversation than by calling one another names and circulating misleading, divisive propaganda. If the NCCC is really concerned about hypocrisy, perhaps they need to look at their own actions before tagging others with insulting labels.