Shafkat Anowar/AP Photo
A BNSF rail worker monitors the departure of a freight train, June 15, 2021, in Galesburg, Illinois.
Last month, the Warren Buffett–owned BNSF Railway drew attention after a federal judge effectively blocked 17,000 engineers, conductors, and yardmasters from striking. Under the federal Railway Labor Act, workers in key transportation sectors like freight railroads cannot strike over so-called “minor” issues, under the theory that it would cause too much damage to the economy.
The ruling led to an outcry about blocking the right to strike and forcing workers back to their jobs. But less attention was paid to the “minor” issue: a new BNSF attendance policy that employee unions claim penalizes their members for taking time off work, will lead to many having to leave their jobs, and will increase the risk of serious accidents on the freight rail system.
Now the unions have escalated their concerns. Earlier this month, the Transportation Trades Department (TTD) sent a letter to Transportation Secretary Pete Buttigieg and Labor Secretary Marty Walsh, asking their departments to investigate and potentially take action to terminate the policy. In an interview with the Prospect, TTD president Greg Regan questioned whether the policy violates the Family and Medical Leave Act and potentially impacts public safety. “Just doing an investigation can put a significant amount of pressure on these companies,” Regan said.
The attendance policy, known as “Hi-Viz,” is part of a series of actions taken by BNSF and other railroads to cut capacity and squeeze labor costs. As the Prospect has explained, these “precision scheduled railroading” policies, intensely sought by Wall Street, raise railroad profits but make the system vulnerable to becoming overwhelmed during surges in demand for shipping. Sure enough, that’s what’s happening right now during the supply chain crunch, and according to Regan and his affiliated unions, the Hi-Viz policy would exacerbate that.
Under Hi-Viz, which was implemented February 1, BNSF gives every employee a bank of points, and if for any reason that employee cannot take a shift—whether for family and medical leave, conflicts in their schedules, personal illness, or even COVID-19—the employee is docked points. The docked points go up if the scheduled days in question are “high-impact,” like on a national holiday.
“They are punishing someone for being sick in the middle of a pandemic,” Regan contended—and one that is far from over. COVID case rates are currently low in the U.S., but rising cases in Europe because of a new omicron subvariant called BA.2 could soon come here. Wastewater surveillance indicates that case rates are already rising here. Federal policies granting paid leave for COVID have expired.
If an employee runs out of points once, they are subject to a suspension. If they run out a second time, it’s a larger suspension. And if they run out a third time, they are terminated.
“One of our members said he’s a veteran suffering from PTSD, has his own treatments, and his mother is dying of cancer,” Regan said. “He’s told his union, ‘I see no scenario where I’m not out of a job in less than eight months with this policy.’”
The rail industry engaged in systematic cuts in the years before the pandemic, and experts argue that the current workforce cannot meet the industry’s needs.
Railmen already are subject to haphazard, unpredictable schedules, often being called on 90 minutes’ notice to work a shift that can last up to 60 hours. A “train line-up” policy gave a certain expectation of when they would be called into work. Under the new policy, rail employees must be ready at a moment’s notice, under threat of disciplinary action.
The Hi-Viz policy enables BNSF, the largest freight rail company in America, to double up schedules and grind its workforce down to the nub, Regan explained. “When I see railroads complaining about labor shortages, I put my head through a wall,” he said. “Rather than hire up a responsible number of employees, they’re trying to squeeze out every possible hour from existing employees who are already overworked.”
The rail industry engaged in systematic cuts in the years before the pandemic, and experts argue that the current workforce cannot meet the industry’s needs, especially as demand has risen in the pandemic. This has had little effect on corporate earnings: BNSF enjoyed a record $6 billion in profit in 2021. “BNSF continues to be the number one artery of American commerce, which makes it an indispensable asset for America,” said Warren Buffett, whose Berkshire Hathaway conglomerate owns BNSF, in his annual report to shareholders. “You can be proud of your railroad.”
In a statement to the Prospect, BNSF said that the new system “will 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 company argues that the Hi-Viz points system gives “ample time” for employees to take vacation, personal leave, and unplanned absences, “while ensuring that we have sufficient employees available to work.”
TTD has disputed that the system is adequate, and in its letter to federal agencies intimated that the new policy “will reduce the safety of the rail network.” Because employees will need to hoard points to account for future needs, they will be incentivized to come to work while sick or fatigued, the union claims, which raises serious safety concerns. Like any logistics profession, the materials railmen haul are routinely explosive, flammable, or poisonous.
Regan explained that fatigue is already an industry-wide problem. A 2013 Federal Railroad Administration report revealed that railroad workers across different jobs reported getting less than seven hours of sleep on workdays, and that this potential for fatigue increases the odds of accidents. Specific studies on fatigue in railroad signalmen and maintenance-of-way workers yielded similar results. The FRA is currently conducting a study on fatigue and safety among engineers and conductors, who are the workers affected by the BNSF policy.
While it’s too soon to say whether the Hi-Viz policy is correlated with accidents, Regan noted that accidents and derailments have increased after railroads imposed precision scheduled railroading policies. “The increase in minor accidents should be alarming,” he said. “Thankfully no one has been seriously injured or killed, and that’s good. But they go through communities small and large throughout the country. It’s a matter of time before something major happens.”
Regan wants BNSF to go back to the old policy, which gave workers some indication of when they would be called to duty and did not incentivize coming in sick or fatigued. BNSF says that they have modified the program based on initial feedback from workers. “We look forward to continuing to work with our employees to gather input and refine the program if needed,” the railroad said in a statement.
A Transportation Department spokesperson said that “our team is monitoring labor relations every day,” and that the Railway Labor Act, which was the law the federal judge used to dismiss the Hi-Viz dispute as “minor,” is key to getting “prompt and orderly settlement of disputes between companies and unions” while avoiding “interruption of commerce.”
UPDATE: A Labor Department spokesperson told the Prospect that “The Department of Labor has received the letter and is reviewing it.”
