By Geoff Mirelowitz and Marilee Taylor

March 2, 2022—As locomotive engineer Marilee Taylor explained in the February 11 post on World-Outlook “BNSF Railroad Workers Resist Cruel Attendance Policy,” workers at the largest freight railroad (RR) in the U.S. are under fierce attack by the company owned by billionaire Warren Buffett.

Workers who move the freight—engineers, conductors, brakemen, and switchmen—frequently face workweeks of 60 hours or more, producing enormous profits for Buffett and the other wealthy RR owners. Many are on call to work 24 hours a day, 7 days a week with little or no predictability about when they will be called to work. Shifts are routinely 12 hours and perhaps longer before workers arrive at a destination where they can obtain some rest, often a hotel far from home. Trains are longer and heavier than ever, often carrying hazardous material, as the RRs seek to squeeze the maximum profit out of every trip. This poses serious safety risks for RR workers and the communities these trains pass through.

GUEST EDITORIAL

Now Buffett’s BNSF wants more. It has imposed a new policy, called “Hi-Viz,” that demands employees work even more hours. This cruel and dangerous policy has been upheld by a federal court judge who has ruled that the unions’ challenge to this policy is a “minor dispute,” and has denied the right to strike to oppose it.

A statement by the presidents of the two unions representing RR operating employees, the Brotherhood of Locomotive Engineers and Trainmen (BLET) and Sheet Metal Air Rail Transportation (SMART) explains, “One of the largest and richest corporations in America has been given a free pass to continue forcing its employees to work even when they or their families are sick, and when they are fatigued beyond the point of being able to work safely.”

BNSF workers and their families are rightfully enraged by this attack, which is by no means the first of its kind. RR workers have routinely worked long hours, including weekends and holidays when many other workers expect to be home with their families and friends. That’s why for decades union agreements with the rail carriers stated reasonable layoff from work will be allowed.

History of a brutal attendance policy

In 1999 the BNSF unilaterally imposed an “Availability Policy” that sharply restricted workers’ rights to a reasonable amount of time off work. The rail unions challenged the move, but a “neutral” arbitrator ruled the RR had the right to impose such a policy. Many younger workers may not be familiar with this history. It is instructive.

While allowing the BNSF to impose the policy, the arbitrator wrote that the BNSF “violated the ‘spirit’ of Work/Rest guidelines and the National Wage and Rules Panel by the unilateral promulgation of the 1999 Availability Policy.” He added that certain provisions of the policy, “have the flavor of unreasonableness.”  Nevertheless, in truly contorted reasoning, he went on to rule that because the policy had not yet been implemented, he made no finding on whether it was reasonable or not.

Top union officials hailed this as a victory and assured union members future arbitration decisions would confirm that implementation of the policy would not be reasonable. Such promises proved hollow. The policy was implemented; it was unreasonable, and many BNSF workers were unfairly disciplined up to and including termination of their employment. As the national legislative director of the United Transportation Union (predecessor of SMART) said at the time, “This is not an availability policy. It is a discipline policy.”

More than 20 years later the BNSF wants another pound of flesh.

At the same time, the national contract between the major rail freight carriers and the unions representing all RR workers—not only the operating crafts—has expired. The video shared by World-Outlook features Ron Kaminkow, General Secretary of Railroad Workers United (RWU), which describes itself as “an inter-union, cross-craft solidarity ‘caucus’ of railroad workers, and their supporters, from all crafts, all carriers, and all unions across North America.” RWU’s winter 2022 newsletter, The Highball, features a “Resolution on National Rail Strike.”

‘Frustrated, angry, ready to fight back’

It says, “the major rail carriers continue to refuse to bargain in good faith, leaving national negotiations with the unions at a standstill.” It continues, “these same carriers… have been making record profits for years, including all through the pandemic… firings and furloughs; increased discipline and harassment; massive job cuts, short-staffing, and chronic fatigue; together with unpaid claims [failure to pay per union agreements for work performed or failure to provide agreed upon working conditions – W-O] and wholesale abrogation of the union contract has left railroad workers frustrated, angry and ready to fight back.”

All of these observations are accurate.

The RRs and rail unions are governed by the Railway Labor Act (RLA), enacted in 1926 and amended in 1934 and 1936. It ensnares RR workers in a complex system of bargaining, arbitration, and mediation aimed at preventing them from using union power to shut the RRs down with strike action when workers cannot defend their rights any other way.

It is this law that denies workers the right to strike over a “minor dispute.” The RRs never have a problem finding a judge to rule that virtually any dispute is “minor.” The last national strike by RR workers was over 30 years ago, in 1991. It lasted 19 hours. Under the provisions of the RLA, then U.S. president George H. W. Bush appointed a Presidential Emergency Board (PEB) with the power to determine the terms of a settlement. If the unions object, Congress is empowered to impose the PEB decision.

Can railroad workers go on strike?

One consequence of this setup is that every new worker on the RR hears very soon after they are hired, “RR workers can’t strike.” It is true the law is intended to guarantee that outcome. If we accept that, it leaves workers no alternative than to go along with whatever policies billionaires like Buffett—and the government acting in their interests—decide to impose.

The recent statement by the presidents of the BLET and SMART says as much. Referring to the judge’s decision to uphold BNSF’s cruel “Hi-Viz” policy they said, “It means that any further action to pursue a strike would be illegal, exposing the Unions and their members to serious legal attacks as well as Carrier discipline up to and including dismissal.”

However, as BNSF’s “Availability Policy” did in 1999, the new policy will continue to expose the rank and file to “serious…attacks as well as Carrier discipline up to and including dismissal” right now. Looking beyond this draconian BNSF policy—which will be emulated by other RRs—fear of using the strike weapon will ensure that the next national agreement between the unions and the rail carriers—whenever one is finally imposed—will satisfy the needs of the billionaire owners like Buffett, not those who actually move the freight.

Most workers know our unions have become weak. The only way we can change that is by union members beginning to act together to defend our rights. By fighting together against attacks like the “Hi-Viz” policy we can learn to be more effective in defense of our interests and to have more confidence in one another. That is the challenge that needs to be faced. RR workers who are “frustrated, angry, and ready to fight back” will need to find the ways and means to take back control of our unions in order to wage the kind of fight that is necessary to defend our working conditions and standard of living.

Solidarity Forever

If we accept that an unjust law can deny RR workers the democratic right to withhold our labor power, we will be giving up without a fight. BNSF workers have made clear that is not their choice. When Buffett and his managers announced the new policy, BLET members voted 100% and SMART members 99.5%, to authorize strike action. If the carriers will not back down from their arrogant stance, this is the one tool we have to prevent them from imposing policies such as those BNSF workers are enraged about.

We can expect them to quickly find a judge to rule strike action illegal. They may well arrest union officers and some pickets as well. But in the words of an old anthem of the labor movement, “Solidarity Forever”:

They have taken untold millions that they never toiled to earn
But without our brain and muscle not a single wheel can turn
We can break their haughty power, gain our freedom when we learn
That the union makes us strong 

Marilee Taylor retired in February from the BNSF RR as a locomotive engineer and member of the BLET Division 32 in Aurora, Illinois, after more than 28 years of service. Geoff Mirelowitz was a switchman on the BNSF for over 17 years and a member of SMART Local 845 in Seattle.