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A BNSF freight train rolls through the northeastern Colorado town of Peetz on February 12, 2020, in Logan County. (Andy Colwell, Special to The Colorado Sun)

Thousands of railroad workers in Colorado can’t strike over a new attendance policy that two unions say is so punitive it could lead employees to clock in while sick or exhausted, potentially leading to accidents. 

The unions said in late March they would enter arbitration, after a judge ruled in February that union workers can’t pursue any “self-help” against BNSF Railway, one of the largest freight railroads in the U.S., including calling for work stoppages or picketing. 

U.S. District Judge Mark Pittman, in Fort Worth, described the attendance policy as harsh. A strike could exacerbate supply chain disruptions, Pittman wrote in a previous order. 

At issue is a points-based attendance policy called “Hi-Viz” that took effect Feb. 1. Under the policy, conductors, engineers and other employees start with 30 points. They are docked points for absences. Being unable to work on a holiday like Christmas or during an event like the Super Bowl costs 7 points. An employee taking off a Friday or Saturday because they are sick or dealing with a family emergency would lose 4 points. Running out of points leads to suspension and, ultimately, termination. Employees can regain 4 points by being available to work 14 days in a row. 

Erin Stephens-Marner, the wife of a BNSF engineer, said her husband’s schedule has always been unpredictable but he could take a vacation day or personal day to see their kids’ plays or sporting events.

“Not anymore,” said Stephens-Marner, from Palisade.  Her husband has been with the railroad for 16 years.

She wrote a letter to Gov. Jared Polis and Transportation Secretary Pete Buttigieg warning that derailments and other accidents could increase if employees were forced to work while exhausted. 

“Twenty-two tank cars carrying liquified natural gas has the equivalent energy of a Hiroshima bomb — enough to easily destroy a city the size of Denver,” she wrote in an email sent Feb. 24, while Buttigieg was visiting Colorado to tout the federal infrastructure law and its impact on national supply chains.

“Bottom Line: BNSF has been given a license to mistreat employees while putting them (and our communities) in great danger,” she wrote. 

Union says policy could have devastating consequences

BNSF, owned by Warren Buffett’s Berkshire Hathaway, operates 32,500 miles of rail tracks across 28 states including Colorado. The Fort Worth, Texas-based company said the attendance policy would incentivize consistent attendance, making work assignments less unpredictable and helping BNSF remain competitive in the industry. 

The program has been modified based on initial feedback, the company said in a statement, but it did not respond to a question asking how it had been modified. 

“We understand that change can be an adjustment, but we believe we can adapt together to meet today’s competitive freight environment,” the statement said.

BNSF sued the Brotherhood of Locomotive Engineers and Trainmen and the International Association of Sheet Metal Air, Rail and Transportation Workers in January after the unions threatened to strike over the policy. The unions together represent about 17,000 BNSF employees nationwide.

The attendance policy took effect shortly before two BNSF accidents happened in the Denver area. A BNSF employee died after falling from a train on Feb. 9. Three days later, a BNSF train derailed. Three cars fell into the South Platte River. 

It can take 12 to 24 months to determine the likely cause of an incident, according to the National Transportation Safety Board, which is investigating the Feb. 9 incident. It is not investigating the Feb. 12 derailment.

Employees and union representatives have said they are barred from speaking to the media under the terms of the judge’s order. 

In court filings union lawyers said the attendance policy could have devastating consequences for employees.

In one example, a conductor used up his family and medical, vacation and personal leave days during his wife’s 10-month battle with brain cancer. Had the new policy been in effect, he would have lost his job, union lawyers alleged. The conductor tried to go to counseling after losing his wife but did not have enough leave days. He is now unable to assist his daughter battling thyroid cancer due to the Hi-Viz system, the filing said. 

Because of the long distances employees travel and their unpredictable hotel stays, they might have to take off a Saturday and Sunday, for example, to ensure they make it home for a Monday doctor’s appointment. They often get called into work with a 90-minute warning and are almost always on call.

The spouses of BNSF employees have also spoken out.

In Missouri, Megan Lundy’s husband has worked for BNSF for nearly 17 years, and could typically take off five weekdays and two weekend days a month. He loved the challenge of running the train, but often wasn’t home for holidays or special events like Thanksgiving, Halloween and sports games, Lundy said. Some years, the family of eight would celebrate Christmas Dec. 23. Other years, it was Dec. 28. 

“It was all based on when he would be home,” Lundy said. 

“Now, with this new policy … he won’t be able to attend those events, or he will have to pick and choose. Do I make my doctor’s appointment this month, or attend the father/daughter dance?” she said. 

She expects her husband will miss several events in the months ahead, as the couple’s twins graduate high school, prom happens and another son leaves for the Marines. 

The weeks since the policy has gone into effect have been “horrible,” she added. “He’s exhausted, he hasn’t been able to do anything outside of work and sleep, or try to sleep.”

A BNSF freight train motors north past wind turbines near Peetz, Colo. on February 12, 2020, in Logan County. (Andy Colwell, Special to The Colorado Sun)

Union appealing to Biden administration

Rail and airline labor relations are governed by the Railway Labor Act, passed in the 1920s when railroads were considered critical infrastructure, said Art Wheaton, director of Labor Studies at Cornell University’s School of Industrial and Labor Relations, in Ithaca, New York. The act was designed to avoid interrupting the flow of goods and differs from the U.S.’s main labor law passed a decade later; it typically only allows employees to strike over major issues. 

Union representatives have said they may ask lawmakers to amend the Railway Labor Act. They have also considered asking lawmakers to pass laws protecting employees from retaliation for taking leave or working with other agencies to “end draconian attendance policies” on all railroad carriers. 

Union representatives have already appealed to the administration of President Joe Biden, who vowed to be the “most pro-union president” and frequently commuted by train while representing Delaware in Congress. Biden’s signature infrastructure package includes $102 billion to fund rail improvements.

“He — more than any president previously in the last 50 years — is a heavy duty user of trains and can see the need or the convenience or the importance of it,” Wheaton said. 

Labor Secretary Marty Walsh is also a former union leader. “The opportunity is there to try to say, ‘Hey, this is our time. We need to do something and there’s money on the table.”

Over time, owning trains has become less profitable, leading to consolidation and something of an oligopoly, Wheaton said. 

The Transportation Department — one of the agencies the unions reached out to — referred questions to the Federal Railroad Administration. 

A Federal Railroad Administration spokeswoman said the Railway Labor Act governs rail and airline labor relations and has “long ensured prompt and orderly settlement of disputes between companies and unions.” 

The act is designed to avoid interruption of commerce and ensure workers have the right to join a labor union, the spokesperson said. 

The Colorado Department of Labor and Employment had no open complaints about railroad employers as of Feb. 10, chief of staff Daniel Chase said, when asked about the Hi-Viz policy. Worker safety issues typically fall under the purview of the federal Occupational Safety and Health Administration. 

OSHA spokesperson Denisha Braxton said the agency was not investigating either of the Denver-based incidents because it lacked jurisdiction. “Please refer to the FRA,” the Federal Railroad Administration, Braxton said.

Shannon Najmabadi covered rural affairs and the rural economy for The Colorado Sun from 2021-2023.