Attendance Guidelines
If you work on the BNSF, you are undoubtedly aware of that wonderful unilateral "policy" called the Attendance Guidelines. Is it really a policy? Well, it certainly was when it was the styled "Avalibility Policy", allowed by an Arbitration in which the arbitrator stated BNSF could implement the "policy" but made no determination as to whether it was reasonable - that to be determined on a case by case basis.
They say you learn something new everyday; today I learned that it's "not" a policy but rather the BNSF Guidelines for TY&E Employee Attendance and it was even suggested that it was not "unilateral" but had some form of approval from the union; in fact, that it was the union that didn't want the alleged "Threshold" document(s) made available to the employees in writing? Say it ain't so BNSF General Chairmen??? IMWTK?
Unfortunately, I had to drive 270 miles to learn this bit of information. I left El Paso at 3:30 am to make a 8 am investigation for Engineer "Z" in Albuquerque. Now I've been doing a lot of these lately because I happen to believe the "Guidelines", whether a policy or not, just plain suck! While I do not object to General Bulletin 18 per se, I object to the fact it is meaningless and is actually governed by the computer generated "Threshold" wherein BNSF employees are being routinely disciplined when they are in full compliance with Bulletin 18. While it was pointed out that less than 1% of employees are charged under the bulletin, no figures were given for how many employees are signing for "counseling", formal repriman, 10 day record suspension, 20 day record suspension, and finally their job? I would assume no one is dumb enough to sign away his job for the alleged 4th or 5th violation of this specious "secret" threshold?
I was going to finally get an explanation . . ., I thought? Instead, I was advised the investigation was cancelled and that witnesses I requested would not be available at any time since Carrier Witness A has all the expertise necessary to answer questions when and if we go to investigation again! Let me set up the scenario with a little history. I have done more than 10 of these investigations and had 20 or more cancelled until the carrier decided to begin giving discipline no matter what the record shows. This particular one was more serious that most because the employee already had 4 minor disciplines on his record this year and this would result in another formal to remove him from service. So I got a little fed up with this as may be evident by this email sent Thursday, September 25,2003, to wit:
From: "Lance Ruck" leruck@elp.rr.com
To: Lynn.Santi@bnsf.com
Cc: Peter.VanTassel@bnsf.com; Gregory.White@bnsf.com; Vicky.Birmingham@bnsf.com; John.Fleps@bnsf.com; Matthew.Rose@bnsf.com; leruck@elp.rr.com
Subject: Mr. "Z" Attendance Guidelines Witness
Date: Thursday, September 25, 2003 9:47 AM
Lynn: Please consider this my request to provide Ms. Vicki Birmingham, via telephone conference, as Carrier witness for the "Z" formal on the attendance guidelines currently scheduled for September 29th at 8 am. In the absence of Ms. Birmingham, I request Mr. "B" be provided as a Carrier witness to answer questions concerning the attendance guidelines that have gone unanswered for numerous investigations.
This request is mandated by the testimony in the recent Mr. "X" investigation, to wit:
(Questions for Carrier witness "A")
"Q. Yeah. You didn’t devise this formula?
A. No, Sir.
Q. Have you asked any of your supervisors for guidance as to how it was devised?
A. Yes, Sir.
Q. Have they been able to give you any guidance?
A. No, Sir.
Q. They have not been able to. Is that correct?
A. That’s correct.
Q. Have you had an opportunity to talk to the person that came up with this policy named Miss Vicky Birmingham?
A. I spoken with her a time or two.
Q. Can she explain it to you?
A. I haven’t been able to get a complete, clear explanation as to how the calculations are done."
In view of this testimony, in view of the statement made by Mr. "A" that an employee laying off for a Doctor’s appointment would be considered unexcused under the policy, in view of his interpretation that overtime is not considered, and in view of the other unanswered questions, I think it is incumbent upon the Carrier to finally provide someone who can answer my question concerning the attendance guidelines.
I have requested Mr. "B" as a witness IF Ms. Birmingham will not be provided since Mr. "X" indicated that Mr. "B" indicated to him that stupidity is no excuse for violating the policy, that he ("B") was not bound by the policy as a Company Officer, and that he ("B") also did not understand the policy (page 18 of the "X" transcript). Absent Ms. Birmingham’s appearance (either personally or via telephone conference), Mr. "B" should be given an opportunity to prove he does understand the policy, thus clearing up all these unanswered questions that have been pending for two years while employees are regularly disciplined albeit pay records indicate that are available or working well over the 75% required by Bulletin 18.
As is evident by those copied, I am tired of this sham as it wastes the time, money, and resources of both BNSF and the Organizations! Thanking you in advance for your cooperation in this matter.
Lance E. Ruck
Representative for Mr. "Z"
Ah . . ., obviously some names have been changed to protect the innocent . . . or guilty as the case may be? Below is the last of 4 appeals within the last month on this specious "threshold" that conflicts with the clear and unambiguous language of Bulletin 18:
Lance E. Ruck
4704 Post Road
El Paso, Texas 79903
(915) 565-9741
September 29, 2003
Mr. Greg A. White
General Manager, BNSF Railway Co.
106 N. first Street
Belen, N.M. 87002
RE: Appeal of Engineer "X"
Certified Mail - RRR - 7002 3150 0001 2445 0974
Dear Sir:
Please consider this the appeal of Engineer X from the discipline issued via certified mail postmarked September 8, 2003. No dissenting decision is attached as it was not provided with the transcript. Suffice to say I dissent to the decision as it has no basis in fact or reason pursuant to the evidence in the transcript.
In discipline cases, the burden of proof is upon the Carrier to prove a violation. In the instant case, simply ignoring all the facts, the Carrier’s own records, the collective bargaining agreement, simple math, and the clear and unambiguous language of the Attendance Guidelines Policy in favor of discipline for discipline’s sake is unfortunate. Indeed, the same facts that caused this Carrier to exonerate Yardmen "Y" and cancel the next 18 or 19 notices were present here, i.e., Engineer "X" was working or available approximately 76 days out of 84 by the Carrier’s own pay records (Employee Exhibit C). The testimony in the Transcript on pages 9 and 10 clearly shows the problem, to wit:
(Questions by this representative; answers by Carrier witness "A")
"Q. Okay, Mr. A, so 84 days in this 89 day period were considered?
A. Yes
Q. And five of these were not considered because he was on the bump or something that wasn’t counted.
A. Correct.
Q. Okay, the work record then still shows 50 days worked, 17 days on the extra board and 12 days on rest days for a total of 79 days. Apparently three of those day possible are, as you indicate, even given that, I show him available or working 76 or 84 days. When I divide that out, he was available 88 percent of the time– either available or working. What is the percentage according to bulletin 18 that he has to be available or working?
A. 75 percent of the time.
Q. So if he was actually available 88 percent of the time, would he be in violation of the bulletin?
A. According to the calculations and the days he worked . . .
Q. Well, that’s not the question. What I asked is, is he in violation of the 75 percent that’s mentioned in the bulletin?
A. Yes.
Q. Well, according to this bulletin, you have to be working or available 75 percent of the time, and off 25 percent of the time.
A. According to the calculations that are used, he . . .
Q. In other words, he’s available 88 percent of the time by the work records of the Carrier and in compliance with bulletin 18, which is the only thing published, but he’s not in compliance with whatever this threshold is that’s not printed. Would that be correct?
A. According to the calculations and the formulas that the computer has used, or that are input into the computer, he is out of compliance.
Q. Yeah. You didn’t devise this formula?
A. No,Sir.
Q. Have you asked any of your supervisors for guidance as to how it was devised?
A. Yes,Sir.
Q. Have they been able to give you any guidance?
A. No,Sir.
Q. They have not been able to. Is that correct?
A. That’s correct.
Q. Have you had an opportunity to talk to the person that came up with this policy named Miss Vicky Birmingham?
A. I’ve spoken with her a time or two.
Q. Can she explain it to you?
A. I haven’t been able to get a concise, clear explanation as to how the calculations are done."
While Carrier witness "A" continues to show up at each investigation with a computer printout that says the employee is in violation of Bulletin 18, he has no clue how the calculations are made nor can he get an explanation from any of his superiors, including the Carrier officer who devised the policy! Yet, incredibly, Mr. "A" continues to interpret the policy himself,i.e., that overtime plays no part in policy and that laying off for Doctors appointment is not an excused absence. Indeed, that "interpretation" is at page 6, to wit: "it goes against the guidelines. It’s understood or it should be understood that he employee should attempt to make doctor’s appointments on day off when possible."
A reasonable person might wonder how an employee is to do that when they frequently move from job to job and Doctor’s appointment are now usually given weeks or months in advance, if you can get an appointment at all? Possibly this alleged "understanding" is as much a secret as the alleged "Threshold" that no one can view or explain relative to the clear and unambiguous language of bulletin 18!
Obviously, the Carrier has no obligation to answer any questions concerning this specious policy and you are content to deny every appeal with a form letter. Such disregard for common sense and fairness to the employees caused my recent email concerning these questions to be copied to you, Ms. Birmingham, Mr. Fleps,and Mr. Rose; it is noted some 4 days have passed with no response from anyone. It is my guess that if and when this appeal ever goes before a neutral, there will still be no response from any Carrier Officer.
Again, the Carrier decided to ignore all facts in this investigation and rely upon a one page computer printout that relies on some alleged "threshold" which has never been printed and/or explained. As in the numerous previous investigations on this matter, the Carrier refuses to resolve the conflict between the clear and unambiguous language of General Notice No. 18 and the alleged "threshold"! Moreover, the Carrier refuses to supply any competent Carrier witness who can explain the policy and answer pertinent questions.
A simple reading of my final statement (page 19 of transcript) indicates the pitiful position upper management is placing front line supervisors by their inexplicable refusal to exhibit the simple "common sense" allegedly part of Bulletin 18 itself. In almost thirty years on this railroad, I have never seen the Carrier so arrogant in their refusal to provide answers to legitimate questions concerning unilateral policy. I can only assume the policy is so flawed that there are no rational answers.
Accordingly, please consider this the appeal of Engineer "X" for removal of a formal reprimand for violation of Rules 1.3.3,and 1.4 of General Code of Operating Rules, Fourth Edition, effective April 2, 2000, as supplemented or amended, and Southwest Division General Notice No. 18, effective January 15, 2002 and any probation period, if assigned.
Sincerely yours,
Lance E. Ruck
Representative for Mr. "X"
So you see the Carrier's dilemma when the 816's are attached as an employee exhibit, a nice monthly calendar marked with every day worked (including OT, if any), every day available but didn't work, lay off days (lop, los, lof, etc), rest days*, and other days not counted such as pl days, vacation, etc., and a one page employee exhibit that divides 76 by 84 to get . . . 90.4% . . . what the hell? Damn, I left the % from the origninal 79 by 89! Oh well, if he's guilty for not being available over 75% of the time at 88%, he still got to be guilty at 90% . . ., right? Hell, computers don't lie!!!
* Seems the carrier now wishes to refute my theory that employees (particularly yardmen who have not put in a letter to be unavailable on rest days and engineers) are in the order of call for rest days and therefore rest days are considered as days available? However, Bulletin 18 is specific in two areas: "Application of these Guidelines also must yield to any conflicting labor agreement provision" and "The company's basic measurement of full-time status considers all time an employee is not marked off, and also jury duty, bereavement leave, engineer recertification, and layoff union or company business, to be the same as on-duty time."
So tell me Miss Vicky (you're not married to Tiny Tim, are you?) . . . , ah ... I digressed, IF my labor provisions has me available for call on rest days and I don't mark off, how should that be counted under the clear and unambiguous langauge above? IMWTK? Not that it makes much difference in the instant case, i.e., take out 12 rest days from both figures and you get 64 by 72 =88.8% working! Ah . . ., no Mr. Neutral, even though it says that, that's not what we meant! Or as Cluster of Smoot fame might say, don't tell me you said Monday but you meant Tuesday! (hehe)
So the investigation's cancelled but when the Carrier Officer goes to advise the Principal how many days he will be allowed in October for the three month rolling period, it turns out he can work everday in October and still be in violation? Ah . . . , well, I'm going to consider your attendance in October before I make any determination??? Hmmm, and these lower echelon officers have been telling me after investigations that they didn't want to do this but upper management made them? Good thing rule 1.6 doesn't apply to Carrier Officers! And, of course, I don't have a clue who's making the decisions; I only know there is an extreme lack of common sense being used in the majority of investigations!
OK, I'll see you next month IF you charge him; here's an exhibit I was going to use; feel free to have anyone answer those questions in writing and provide them to me before the next "attendance guidelines" investigation! The Carrier Officer said he would forward them to Miss Vicky and I shall post her written response here as soon as I recieve it!
Employee Exhibit _______
Questions on Attendance Guidelines
Employee "Z" Formal - 9/29/03
1. Does the Carrier have anything in writing that explains the "Threshold"? If yes, please provide said documents and explain why such has not been posted in the General Bulletins for all employees.
2. What are the alleged allowed days off for a 7, 6, and 5 day assignment and what are the alleged allowed days off for an extra board employee per month?
3. Why is overtime not considered in the Attendance Guidelines Policy? Example: employee works 12 hours 4 days a week and lays off one day each week, thus the employee has laid off 4 days in one month but is averaging a 48 hour work week. Is he is violation of the policy for a 5 day assignment? If yes, where is the common sense in such a determination?
4. Why are no doctors excuses accepted when considering alleged violations of the Attendance Guidelines? Comment: Numerous charged employees have provided medical documentation that has not been accepted.
5. When an employee is required to lay off for a Doctor and/or Dentist appointment, will his absence be counted as layoff under the attendance guidelines?
6. Why are employees whose work record shows they are working or available well over 75% of the time being disciplined for violation of Bulletin 18?
7. How many hours per week does the Carrier require an employee to work to be considered a "full time employee"?
8. Has the computer program that determines violation of the Attendance Guidelines been changed since the Availability Policy was changed to the Attendance Guidelines? If not, why not?
9. How does the Carrier reconcile the disparity between the computer generated "threshold" and the clear and unambiguous language of Bulletin 18?