BNSF unions can’t strike over attendance policy, judge rules

A federal judge ruled Tuesday that union workers from one of the country’s largest freight companies must resolve a dispute with the company over a new attendance policy through arbitration, effectively blocking them from striking.

U.S. District Judge Mark T. Pittman of the Northern Texas District ruled in favor of BNSF Railway, which said in court papers that a strike would deprive shippers of transportation, hurt revenue, threaten the safety of the general public, force other employees out of work and cause immediate and substantial schedule disruptions.

BNSF had asked the federal court to block thousands of union members who help transport agricultural and industrial goods nationwide from striking, arguing that the two unions representing 17,000 workers would be in breach of their obligations because the nature of the dispute was "minor" and it didn't rise to a level that would justify a work stoppage.

Pittman agreed, writing that BNSF had established that implementing the new “attendance standards is ‘arguably justified by the terms of the parties’ collective bargaining agreement’ such that the dispute is minor.”

In a statement, BNSF said it was pleased with the ruling and that the attendance policy would "provide more predictability for our train crews while also providing more reliable crew availability, which is essential to meeting our customers' expectations and the demands posed by an increasingly competitive global supply chain."’

The decision means the company and members of the Brotherhood of Locomotive Engineers and Trainmen and the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers will head to mediation over a new attendance policy set to go into effect Feb. 1.

The policy is a complicated system that would allow employees to earn and lose points depending on when they work or take off.

"I think it's going to hurt us and take us away from our families. If I can get another job, I would do it," said union member Robert Moore, a freight train conductor based in Winslow, Arizona. "I would say the majority of guys out here feel the same way."

About 17,000 workers — more than half of the 30,000 employees — had threatened to stop working over the policy dispute, which would have disrupted the transportation of goods and commodities across the U.S.

BNSF, which operates more than 30,000 miles of track in 28 states, ships steel, crude oil, ethanol, lumber, sugar, cars, chemicals, wheat, corn and soybeans to thousands of industrial and commercial customers.

It hauled 4 million carloads of industrial products and agricultural commodities in 2020, according to company officials.

Freight workers, in many cases, don't have assigned days off and are typically on call 24 hours a day. The current attendance policy allows union members to have seven days off per month. The new policy, a points-based system, penalizes employees for taking days off, the unions say.

In its lawsuit, BNSF characterized the disagreement as a "minor dispute" over the interpretation of existing rights under its collective bargaining agreements with the unions, which meant the matter must be resolved by negotiation or arbitration, not by striking, according to court records.

The unions claimed the new policy constitutes a unilateral change and a violation of their collective bargaining agreements that could be considered a "major" dispute.

"I hate the policy. We feel unappreciated," said union member Douglas Prather, 37, a freight train engineer based in Temple, Texas. "It's really not a place to be, but you need 30 years to retire, so I'm trying to ride it out."