HI-VIZ Q&A

How can the judge call this a “minor” dispute when the railroad’s policy is so extreme and unsafe?

“Minor” is just a legal designation under the Railway Labor Act, not a comment on the importance of the dispute. For practical purposes, this means that workers are prohibited from strike action, and that the unions' challenge to the Hi-Viz attendance policy must be through arbitration. Your General Chairperson is working to do just that, and union leadership is providing them additional assistance as needed.

Is it even possible for us to go on strike?

Not in this situation. Under the Railway Labor Act, there are a few very narrow paths to a strike. One path would be a court ruling that a matter is a “major” dispute. The court’s ruling that the Hi-Viz attendance policy is a “minor” dispute makes any strike action illegal.

A strike can also occur if national contract negotiations fail to reach an agreement after exhausting mediation. Last month, the Coordinated Bargaining Coalition (which includes SMART-TD and BLET) declared an impasse in their negotiations with the railroads. Since then, the unions have requested a mediator and are charting out next steps. If the assigned mediator releases the unions from mediation, there will be a 30-day “cooling off” period, and then we will be free to strike.

Why were the unions quiet during the weeks while the Hi-Viz case was being considered?

The Temporary Restraining Order issued by the court effectively served as a “gag order.” It was one of the most-restrictive orders the unions had ever been dealt. If the unions took any steps to organize any sort of job action, or if the carrier could misconstrue the unions’ actions or statements as appearing to organize job action such as sick-outs, protests, etc., the legal repercussions could be so severe that it would imperil the existence of the unions themselves.

The unions have been careful in its communications as a result, keeping members informed while operating under the strict ruling.

Now that the court has issued its ruling, we are able to speak more freely on this issue, and we will provide frequent updates to our members and respond to questions with as much information as possible.

Why didn’t the unions submit witness testimony in this case? Why didn’t they handle certain aspects of this lawsuit differently?

In its briefs submitted to the court, the union did include real-world stories, provided through General Chairpersons, showing how this severe and draconian policy is hurting real people.

However, in court hearings on January 24 and February 7, the judge made it clear that he did not see the need to have witness testimony since all of the necessary arguments had already been submitted. Submitting witness testimony likely would not have served much of a legal purpose

The Railway Labor Act (RLA) is a unique law. Knowledge of other areas of federal law, including the Federal Employees Liability Act, does not translate to an understanding of the RLA.

In this particular case, it was not up to the judge to determine whether or not BNSF’s policy is good or bad. Instead, he was only to determine whether BNSF’s actions constituted a “major” or “minor” dispute under the RLA.

What are the unions doing about the Hi-Viz policy now?

The unions are aggressively pursuing arbitration to challenge the Hi-Viz policy and working with General Chairpersons to gather additional evidence of harm caused to members. SMART-TD President Jeremy Ferguson and BLET President Dennis Pierce have been in contact with the Secretary of Labor and the Secretary of Transportation in an effort to end this draconian policy. The union is also considering every legal avenue to end this policy.

What can we do to help the unions end the railroads’ atrocious attendance policies? (Note that this advice applies to all rail carriers, not just BNSF!)

Document real-world examples of how the carriers’ attendance policies have affected you and your families. Collect screenshots of your work history and record the timeline of events that led up to the carrier threatening or imposing discipline against you. Write up statements explaining all aspects of your unique situation.

Forward the information to your Local Chairperson, your General Chairperson, your Legislative Representative, and your State Legislative Director. If you are unsure of who these contacts are, there is a customized directory in the SMART-TD app, which can be downloaded from the Apple or Google app store. Directories are also posted on the SMART-TD website at www.smart-union.org and the BLET website at www.ble-t.org, or you can call (216) 228-9400 for the SMART-TD or the BLET at (216) 241-2630 and we will be happy to provide you with that information.

Contact your federal representatives and tell them that the railroads are abusing their rights under the Railway Labor Act. Elected officials must be made to understand the abuse that is occurring; hearing directly from constituents is the best way to do that. SMART-TD has an online tool to help members find the contact information for their federal representatives, click here to learn more.

A website at www.HiVizTruth.com is being established to draw additional awareness to this issue and to post updates in the coming days and weeks.

Am I allowed to talk to the press now? Can I post about this on social media?

Our guidelines on speaking to the press and/or posting on social media remain unchanged from before. That is: It is generally a bad idea to make statements to the media on behalf of your employer unless authorized to do so, and one should always be mindful of what they post on social media.

Why hasn’t Congress changed the Railway Labor Act to allow workers to strike?

Congress began passing legislation governing railroad disputes nearly 50 years prior to the RLA as a direct result of employees engaging in strikes in the late 1800s, which disrupted supply chains that were (and still are) vital to the survival of the nation. Early versions of this legislation didn’t infringe on our ability to strike and relied on non-binding arbitration to resolve our disputes. Strikes continued to disrupt the nation’s supply chain through the early 1900s, and when the government took control of the nation’s railroads during WWI, the strikes posed a major threat to U.S. war efforts.

After the war, when Congress decided against nationalizing our railroads and returned them to their owners, it created a “Railroad Labor Board” to help resolve labor disputes. After the Board proved ineffective at resolving disputes without disrupting supply chains, in 1926 Congress passed the RLA, which has remained in effect ever since.

We agree that the introduction of new legislation and modifications to existing legislation is warranted and long overdue, which is why the unions have a robust legislative agenda. As much as we believe we should have the right to go on strike, when you consider the past, it is extremely difficult to convince lawmakers that we should move in that direction.

How long will arbitration take? Will the union win?

As you know, we are confident that many aspects of BNSF’s policy run afoul of the law and our agreements. We are fully prepared to make that case to an arbitrator, and we are confident in our position, as we have had success in beating back some of the other carriers’ draconian attendance policies. However, for obvious reasons, we cannot guarantee or predict the outcome. This entire process generally takes between 1-2 years to reach a conclusion, but there are some methods to expedite this process that the unions are exploring.

Will the attendance policy be collectively bargained in the new CBA? What will we have to give up to get rid of it?

We have always wanted to collectively bargain over attendance policies, but so far, the carriers have refused and the courts, mediators, and arbitrators who have been involved in our disputes have failed to compel the railroads to bring the issue to the bargaining table. This is one of the major issues in our current round of bargaining, and we are hopeful that in light of recent events we can persuade the mediator, or possibly a Presidential Emergency Board, to reverse course.

Why are you taking up this fight on BNSF only? I work for another railroad with a terrible attendance policy – what do you plan to do about that?

We are well aware of the other railroads’ policies, which are each terrible in their own unique ways. Given that BNSF’s policy is the worst we have ever seen, our General Committees wanted to take a slightly different approach in their response, and we supported that decision in the hopes that we would get a different outcome. We also made this decision knowing that, if we were successful in convincing the courts that this was a major dispute under the RLA, it would set precedent across all railroads. Even though your railroad isn’t directly involved in this case, the outcome is still very relevant to your situation and you are being represented by your unions.