"Availability Policy"

   While I have clearly categorized this as "much ado about nothing" in the latest Convention Special of the El Paso Express, that is a personal view from a local chairman who looks forward to each battle comprising the war! Indeed, Sac-C and "little bb" are suggesting the BNSF, by virtue of having their position sustained by Kasher, has won the battle but will lose the war? Yet the policy has again been postponed until December 1 now.  Why?

    I sincerely hope it is not to realize my greatest fear - the antics of Sac-C result in a "voluntary loss of the war", i.e., and agreed upon "Availability Policy" which does not serve the varied interests of the UTU and BLE members! Of course, in theory, "us" members would have to vote on that, wouldn't we?   And not to be sarcastic or facetious, CSXT members did get a vote on whether they wanted the mutually agreed to discipline policy, didn't they?

    Let me explain with that old Hewitt-Packard saying "what if"? What if this is all a sham just like Smoot's Public Law Board?  What if this is all a sham just like Smoot's "summary bench trial on damages"? What if it is all a sham like Smoot's bankruptcy proceeding? What if the whole purpose of this exercise was to yield a "settlement" much like the infamous "Settlement Agreement and Release" wherein the working members paid for the folley and took it in the shorts also! No, I am in no way suggesting that the General Chairmen are part of this alleged plan, but rather will be the dupes IF it is successful!  Bluntly stated, I don't think it will be successful account the collective wisdom of the various BNSF General Chairmen!

    Having said that, please read my letter to my Superintendent concerning this matter, to wit:

Lance E. Ruck

Local Chairman (CT&Y)

UTU Local 1571

1525 Howze St.

El Paso, Texas 79903

(915) 565-9741

November 22, 1999

Mr. Scott A. Hulstrom

Superintendent - BNSF Railway Co.

121 South Main

Clovis, NM 88101

Re: Availability Policy - Certified Mail - RRR - Z 580 697 458

Dear Superintendent Hulstrom:

I noticed the above referenced policy will now take effect on December 1, 1999 and that various meetings are scheduled at work locations to explain the policy and take questions. While I did not see a meeting scheduled for El Paso, I have several questions pertaining to the policy. You will recall it was originally explained in the last Local Chairmen’s meeting and you indicated your concerns in that it does not seem to adequately address fatigue and your willingness to change current 7 and 6 day assignments to 5 day assignments to address this issue.

However, instead we have now changed the Belen locals (all 3) from 6 days to 7 days a week and three (3) trips. Terminal Superintendent McGuinn indicated this was at the request of Albuquerque for the remainder of "peak season" for UPS. Mr. McGuinn assured me that those employees on these jobs would be given their 25% off time! First question: Will these men be given 7.25 days off per 30 days, i.e., two weekend days and 5 weekdays? Also, as this now appears it will be a 12 hour a day job, will the employee be able to layoff each fourth day having worked 36 hours in the previous 3 days (25% non-availability)?

With reference to the "practice counseling letters" which have already been sent for September and October, will these letters be placed in the employees files or in any way be referred to in the future? May we also expect more "practice letters" for November? It is my position that these letters may not be placed in any file nor used in any manner since the policy was not in effect! However, I appreciate having received them as it shows how unreasonable your policy truly is to enforce, or at least how inadequate the program is which determines violations. Is this a system wherein the computer program identifies those allegedly in violation and generates "form letters" with your rubber stamp signature?

I previously addressed two examples from the September letters: Mr. Payan who was in violation because crew management failed to lay him off company business for a Sac-P meeting and Mr. Dominguez who was shown laid off sick account trauma (3 days paid leave account hitting a car at a crossing involving death to occupant(s)). I also indicated Mr. Dominguez record was charged with an "injury" account this layoff. Will time off trauma be considered a "personal injury" in an employee’s file which also subjects him to violation of the availability policy?

I must remind you that while BNSF’s Availability Policy was sustained by Neutral Referee Kasher, he specifically did not rule on reasonableness. He also made strong statement that the "protracted cleansing period" (three years) did not appear reasonable to him. And of course, I agree with him fully on that issue as was recently set forth in my appeal concerning the discipline of Mr. D. L. Sintas. What does Mr. Sintas have to do with this; your availability policy will be handled the same as non aggravated minor offenses under what is commonly called the "unilateral discipline policy" currently know as the Burlington Northern Santa Fe Policy for Employee Performance Accountability. While I previously averred that there was no offense on the railroad more insignificant than a missed call that does not subject the carrier to blanking the job, that will quickly be replaced by the unreasonableness of this ill fated policy.

In essence, you were right to be concerned about fatigue. The biggest failing of this policy is that there is no correlation of availability to hours worked. Example One: Mr. S. Espinoza who apparently given a letter for October because his threshold was 2 weekdays and 1 weekend day but he laid of fatigue on Sunday, October 31 and that was his second weekend day thus putting him in "violation". His weekday layoff was September 30 so I am not even sure that it should be counted, albeit I remember this policy was supposedly kept from the 8^th of each month to the 8^th of the next month? In any event, during the 7 day period wherein Mr. Espinoza violated the policy, he worked 52 hours (during the last half of October he worked a total of 106 hours, i.e., 53 hours per week). Do you think it’s reasonable to discipline Mr. Espinoza? Do you think a neutral referee will think it’s reasonable to discipline Mr. Espinoza?

Example Two: Mr. D. A. Bullard who was given a letter for October because his threshold was 1 weekday off but he took 1.5 off? Mr. Bullard was on the YEP202 yard job, on duty at 15:30 Monday through Friday, with rest days Saturday and Sunday. He laid off sick on October 4 at 10:25 am and changed his layoff to company business at 11:10 am the next day for service on October 6 and was compensated for both days (under the new pay policy for voluntary company programs (safety committee) Mr. Bullard would have received two basic days for a total loss of $180.28 assuming you paid two basic days?). Obviously the future of the El Paso Safety Committee is in serious jeopardy due to the new pay policy. Mr. Bullard’s crime was he was charged with .5 or ½ day off for the "extra" 45 minutes his layoff exceeded 24 hours under the policy. It was necessary for Mr. Bullard to be off on the 5^th because the job he works ("Valley Job") normally works 12 hours and he would not have been rested to perform company business.

In October, Mr. Bullard worked 18 of 21 possible work days and was compensated for 2 of the 3 he was off. He was off 24 hours and 45 minutes. He worked 203 hours and 27 minutes during those 18 days for a daily average of 11 hours and 19 minutes per day. He averaged 51 hours per week without counting the two compensated days for company business! Do you think Mr. Bullard violated the "availability policy"? Do you think a neutral referee will sustain the violation? What greater proof could I give you to show how asinine and inane this policy is because it does not reflect actual time worked! Sure, had Mr. Bullard been more aware, he could have changed his layoff to company business before the expiration of 24 hours and avoided the letter. Sure, Mr. Bullard could have brought a Doctors statement that he had a Doctors appointment to check his prostate cancer and make arrangements for his operation. But why should he have had to?

Have you tried to get a dental appointment or Doctor’s appointment lately? Unless you are willing to go to an emergency room, it generally takes one to three weeks to get an appointment. This creates a giant problem for the employee who is on an extra board (particularly road board) or a regular turn. Does an employee have a right to go to a Doctor or Dentist? Does he have a right to lay of 24, 36, or even 48 hours in advance if that is the only way he can make his appointment. Will "lay me off Doctor’s appointment" be a sufficient excuse with your medical officer to cover two or three days off? Or do you expect the employee to go to Belen (away from home terminal) and find his own way home at his expense to make his appointment? Have you ever tried to lay off at the away from home terminal? I would appreciate written answers to all my questions as this is being posted to the employees and on my web site.

Having read Mr. Ice’s September 24, 1999 letter stating in pertinent part: "The policy specifically permits an absence which would normally be considered excessive to be excused if it’s unavoidable due to a medical or person situation. We will accommodate extraordinary situation in your lives; however, fortunately, most employees don’t get sick or face an emergency every month.", I can only assume Mr. Ice does not consider that a dental/doctor appointment will rise to the level of an "extraordinary situation"?

What about court orders? I only have 25 years seniority and I can only hold a regular yard job with Wednesday and Thursday off (work 1^st, 2^nd, or 3^rd trick). I get custody/visitation rights 2 weekends a month on Saturday and Sunday. Can I take of 4 weekend days a month to be with my children? If no, will I eventually be dismissed if I do? Doesn’t appear to be real good choices, be with my kids and get fired wherein I can’t pay child support any longer, or see them 1 weekend day per month and deny them their father. Damned if I do and damned if I don’t! Do you think this policy is reasonable? What accommodation can you make that addresses this "quality of life" issue? How about it Mr. Ice, are you the answer man?

It is not necessary to go into the other two records as they involve violations because of leave of absence and sickness in family which are moot issues until the policy it actually in effect. I have one employee who considers the providing of medical records for laying of sick to be an invasion of privacy and I am not sure that I don’t agree with him to a certain extent. I will wait to see the answer to the medical appointments before I further address that issue.

Suffice to say I consider these "counseling letters" as the first step of discipline in a process which has already been identified above (non aggravated minor offense) and can be boiled down to a counseling letter and 3 strikes you are out (dismissed). The unilateral policy (discipline) is not reasonable concerning non aggravated minor offenses and when coupled with this ill fated "availability policy", is anything but reasonable! Accordingly, I have developed my own policy concerning this matter. No employee will be counseled by letter without personal meeting wherein I am present (to place the accurate information in the file along with the letter) and no employee will accept any discipline whatsoever without formal investigation.

It appears that management has created a nightmare in record keeping and administrative requirements which will ultimately be so time consuming that they will be counter productive to the best financial interests of the Company.

One thing is now certain, the employees need to adapt to the new system of counting hours as a half day or full day. Another words, the employees need to cut down their layoff time to use the policy as it intends to abuse the employee. Got a medical appointment at 8am and you stand for the midnight switch engine? Lay off an hour before call and mark back up at 23:59 provided you will not stand to work in the morning. Why take a day when you only need less than 4 hours to conduct personal business that no one else in any industry would deny you out of pure common sense!

Also, those employees who constantly work 12 hours and come under the 75%/25% category, use your layoff (fatigue, availability policy, personal business, whatever) and when they have men available and deny you "reasonable" layoff, claim a basic day denied reasonable layoff and put all the facts on the claim, i.e., men available on extra board, days/hours work in preceding days, reason for layoff, etc. In fact, they are lucky I am not on one of the Belen Locals because I would put in a pre-approved request for every 4^th day off. The first day back each time, I would put in another one and keep a record of denials, extra board men available, and claims for a basic day! In my view, as soon as they admit the non-available time can’t actually be taken, or say it can be but won’t let you off, their case goes belly up before a neutral!

It is unfortunate that I must write this letter to you, knowing your own feelings of concern about the policy relative to the safety/rest/fatigue issues. Nevertheless, it appears your hierarchy has assigned you the task of policing this ill conceived policy even though you probably have much more important issues with which to deal. The bottom line is morale adversely effects safety and this policy has directly impacted morale as no other issue I can recall during my 25 years with the railroad. I will be more than happy to print your response on my web site if you so request. I can only hope that the next time you get ready to send out these letters, you actually check the work hours involved as I don’t believe you can expect to maintain discipline on an employee who is averaging 50+ work weeks in front of any neutral. The "protracted cleansing period" will be ruled unreasonable whenever it goes before a Public Law Board.

In an unrelated item, I recently talked with Mr. Ken McDonald and we shall not be appealing your 60 day suspension in view of the circumstances. While I appreciate your consideration in that matter, I still believe the Carrier illegally accessed private medical records that they were not entitled to and to which I will strenuously object if it occurs again in the future.

I look forward to your answers concerning the availability policy.

Sincerely yours,

Lance E. Ruck

Local Chairman (CT&Y)

UTU Local #1571, El Paso

cc: Mr. J. A. Huston, GC

Membership (posted)

El Paso Express (posted internet)

   My apology to Mark Gwinn; I am not even sure where that came from?  I suppose we must write that off to "shit happens", "minor brain fart", or early stages of senility?  In fact, if we are not going to actually get our "non-available" time as time off, can I have occupational disability for mental? Hell, I can't even remember where I put my guns so I can kill everyone?

    It is an undisputed fact that despite the insructions of Sac-C, I have remained in Sac-P and the Diversity Council.    In Diversity, we are taught that  the BNSF Diversity Vision views diversity as a business necessity, a business opportunity, and a moral imperative. Diversity at BNSF "respects and values the differences and similarities of the employees"!

    We have differences out here not related to race, gender,  age, or ethnicity. Namely, we have employees out here who are financially secure but still work 60 and 70 hour weeks.  We have employees out here who are not financially secure but must work 60 or 70 hour weeks just to pay their bills. We have employees out here who are financially secure but only desire to work a 40 hour week or less.  And finally, we have employees out here, like me, who are not financially secure but still only want to work a 32 to 40 hour week. Why, because they value  "quality of life" over money and they don't fear the future.   Not simple their own family but for others, i.e., they regularly take time off to be with their own family and to help others in our society (kinda like a good union rep? - actually one who is not completely compensated for everything lost)!

    Does BNSF's Availability Policy recognize these differences consistent with their avowed "Diversity Vision"?   Methinks NO!  But I am not worried because I have a plan ("my policy") and I have talked with my General Chairman and I am not worried about him agreeing to anything that will be detrimental to his membership, i.e, he was the one who expressed the concern about divorced employees with court orders and/or visitation rights. Bottom line, doesn't make any difference how many weekend days or weekdays the "policy" allows or an "agreement" allows, each case may need individual attention and the policy will still not be "reasonable"!

    So I say let me fight the "battles" for 5 or 6 months, expend countless hours in couseling and formal investigation, and overall embarassass them in investigation and in front of PLB referees before we see if we need to actually "agree" to a policy.  I am perfectly happy with the current policies; both discipline and availability!  In fact, I don't want a "mutally agreed to discipline or availability policy" unless it involves membership ratification!!!!

    "u" get the picture? Yes, some of  "u" see!  If  "u" don't, speak up, this ain't no virgin ass here, but don't come to the ass kick'in contest with one leg or even on cruthes! Be a man: tell me I'm full of shit, tell me why, and put your name on it and expect a response to be published! Oh, and hang in there and have a nice day!

Update:  I was one of two employees who attended a scheduled 3 hour meeting on Availability with the Superintendent in El Paso form 4pm to 7pm on Monday Dec. 13.  I was satisfied with the answers I received from Superintendent Hulstrom and he apologized for not answering my letter and said he would answer soon.  His answer came this date via email and is posted at his request:

The Belen locals (Albuquerque flyer) was made a seven-day assignment and falls into the unassigned service portion of the policy. Our goal is to work these jobs eight hours of a minimum of overtime.

"Practice counseling letters". I issued letters to employees across the entire division that had lay-off issues that would have put them in non-compliance of the availability policy. These letters were never intended to be used for any type of discipline. It was apparent after the letters issued in October that there was "tweaking" to the system that was necessary.

The involvement of the local chairman in the "filtering" process has helped immensely in avoiding letters being sent to employees that apparently were not in compliance with the availability policy. The examples you sited in your letter could have been avoided had we used the local chairman as we are now doing.

Excused absences- I understand how difficult it is to schedule and make a doctor or dental appointment. The policy allows for absences of these types to be excused if the employee supplies a written explanation from the doctor or dentist. This written document can be in the form of an actual written note or any evidence that an appointment was scheduled and held.

Court appointed visitations – there is no special agreement for this. If an employee has exhausted all opportunities to position his/her self on a job that has week ends off, would it be possible for the days of visitation to be changed to correspond with the employees’ weekends?

There is currently no portion of the policy that addresses the number of hours an employee works. Only the days or time per month that an employee is marked up in normal status.

As you are aware, the Availability Policy will not be placed "on line" until February 2000. This will allow the BNSF and Organizations an opportunity to agree upon a policy that will address Crew Availability. There very well may be changes to the policy as it currently exists. I will convey those changes to the employees on the New Mexico Division via Supt. Notice or mini-Town Hall Meetings as I did in November and December.

Please feel free to post this in your Web Site. I welcome any questions not only about the Availability Policy but any other issues as well.

Scott Hulstrom

Division Supt.

New Mexico Division