General Chairman Edington's Response to the UP Revised Attendance Policy
August 12, 2021
via email only
Ms Jennifer Powell
Director Labor Relations
Union Pacific Railroad Company
1400 Douglas Street, Stop 0710
Omaha, NE 68179
Re: August 1, 2021 TE&Y Attendance Policy
This is in reference to Carrier’s “TE&Y Attendance Policy” that was implemented on August 1, 2021.
It is the position of this Committee that the proposed TE&Y Attendance Policy is in direct violation of the Collective Bargaining Agreements, specifically, the provisions in the Automatic Mark-Up Interpretation, the 1991 and 1992 Crew Consist Agreements and multiple National Agreements.
Carrier’s proposed policy states “An employee who is unable to work full time and protect their employment obligations may be considered in violation of this Policy regardless of the explanation offered.” The Automatic Mark-Up Interpretation, specifically Side Letter #2, requires Carrier to give consideration when an employee or their family member, is extremely ill or hospitalized. Side Letter #2 reads as follows:
” During the parties' discussions UTU voiced concerns that employees laying off could end up in a disciplinary proceeding should the employee fail to be available as prescribed or agreed, through no fault of their own. UTU further explained that consideration must be given to employees that are extremely ill or hospitalized unexpectedly. The same consideration should be extended to employees whose immediate family members become extremely ill or hospitalized unexpectedly.
This letter will confirm the parties commitment to work together to avoid disciplinary proceedings or abuse of these considerations for employees in the above described dilemmas, provided the involved employees provide valid documentation for themselves or their family member(s) regarding the incident(s) or matter(s).”
Carrier has made it quite clear, both in policy language and in practice, that even when employees provide documentation confirming extreme illness or hospitalization for themselves or their immediate family members, they are subject to disciplinary proceedings. Such disciplinary proceedings are held as a matter of strict internal Carrier policy in nearly every case, despite the unwavering efforts of both this office and Local Chairpersons of this Committee.
The Automatic Mark-Up Interpretation requires a process, similar to what other Carriers have done in order to comply, where employees can provide and/or submit documentation for a layoff involving illness for themselves or an immediate family member. Carrier is then required to work with this Office so consideration may be given and disciplinary proceedings avoided. That has yet to occur and Carrier’s August 1, 2021 policy continues the historic and blatant disregard of the contractual requirements. This reckless path Carriers insists upon following places the livelihoods of all employees and their families in jeopardy.
Secondly, the Organization takes exception to the policy language in Section 2, (a) which states, “Any layoff status (including a portion thereof) that occurs between 0600 hours Friday through 1800 hours Sunday points are accumulated as a weekend layoff.” Taking this at face value, an employee who marks up at 0601 on Friday, then works Friday, Saturday and Sunday, would still be assessed points as if they had been unavailable for the entire weekend. This office has addressed this issue in multiple arbitral hearings over the past few years. Arbitrators have unanimously agreed that the Carrier’s assessment of points in this manner were improper.
Additionally, Section 2: (a) which reads: “For purposes of this Policy, each layoff that encompasses a 24-hour period, or portion thereof, will accumulate points per the matrix in Section 1.” and Q&A #16 which reads: “If an employee is laid off sick for three (3) days, is that considered one occurrence? No. An employee will accumulate points for each 24-hour period; or portion thereof, that the employee is laid off.” are both in direct conflict with the language contained in the Automatic Mark-Up Interpretation, II. F. 1. b. which reads:
“In determining the number of layoff occurrences a trainman/switchman/fireman/hostler makes during a payroll period, a continuous period of unavailability for call shall count as only one occurrence regardless of the number of timely requests (requests made before expiration of the previously authorized or approved time off) that are made by the trainman/switchman/fireman/hostler for extension of the time off.”
This office has and continues to protect the integrity of the Automatic Mark-Up Interpretation. Multiple arbitral boards have ruled in the Organizations favor and converted Carrier’s miscalculation of these layoffs into one occurrence. Carrier gained tremendous increases of manpower utilization with the conditions set forth in the parties’ Automatic Mark-Up Interpretation, providing Carrier with both significant cost savings and increased efficiencies. In an apparent attempt to take through policy, what could not be obtained through negotiations, Carrier has now changed the agreed-upon conditions of the Automatic Mark-Up Interpretation.
The August 1st Policy is also in direct violation of the 1991 and 1992 Crew Consist Agreements, for the Eastern District, C&NW and Pacific Northwest, which requires Carrier to staff extra boards as to allow for reasonable layoff privileges, personal leave opportunities, and vacation relief.
1992 Eastern District, Article II, 5:
The Carrier shall also ensure that a sufficient number of employee are on the boards to provide reasonable lay‑off privileges, personal leave opportunities, and vacation relief.
1991 C&NW, Side Letter No. 4:
In connection with our Agreement signed today, we agree the Carrier shall maintain a sufficient number of extra board employees to permit reasonable lay-off privileges and to protect the service, including vacations and other extended vacancies. The Carrier will regulate the number of positions on the guaranteed extra boards established pursuant to the Crew Consist Rules effective September 9, 1988, in such a manner as to ensure that there is sufficient number of employees available to protect all vacancies and extra service.
1992 Northwest, Article II, 4:
Effective on the date of this agreement, all Guaranteed Extra Boards will be regulated by the Carrier subject to the Carrier's obligation to keep a sufficient number of employees on such boards to permit reasonable absence privileges.
Carrier does not have the right to arbitrarily determine what constitutes a reasonable amount of absence privileges. That is an agreement provision that must be discussed and agreed upon by both parties, i.e., the Organization and Carrier.
Section 2: (b) states “For purposes of this Policy, Union Pacific recognized holidays and other peak days determined by management will be counted as “Holidays”.” and Q&A #14 of the policy adds holidays not recognized under National Agreements (Super Bowl Sunday, St. Patrick’s Day, Father’s Day, Mother’s Day and Halloween).
This “managerial determination” oversteps the boundaries of what a policy may contain by adding, altering and disregarding the provisions of the prevailing agreements. Carrier has essentially granted themselves the ability to declare any day they see fit, with no warning to the employees, as a “holiday” despite there being no increase in car volumes or service interruption whatsoever. Combined with the vagueness of the language, the Carrier could potentially go back in time, and declare a period of time in the past as a “holiday” thus increasing the points assessed at a whim. This tactic is not only improper but shows little respect for the agreements or for the men and women in train service who dedicate themselves to moving freight day in and day out.
Regarding an employee’s ability to reduce points under the new policy, Carriers proposed method, as listed in Section 1: (b) 3. and Q&A #13 does not give equal treatment to employees working assigned jobs or on AWTS boards. These employees have no ability to earn back points despite many of them working 12-hour days, being subject to call on their rest days and few having the ability to obtain preapproved compensated time off, like through freight Conductors and Brakeman do. These employees, even though they have a regular schedule, still have the same life demands as their peers on the road but are working throughout the week and cannot schedule routine appointments unless they are granted compensated days off. When compensated days are not granted, these employees have no other option but non-compensated time off. The more junior employees are at an even greater disadvantage as they have less compensated time, no personal leave days and are typically forced to work all holidays. There must be process in place for these employees to earn back points and be granted reasonable time off so they can have an improved quality of life and be treated as equals to their fellow co-workers.
Additionally, Carrier fails to credit employees who mark up early, whether from a standard non-compensated layoff or a MC, LN, LW or RF, and do not take the full 24-hours off. FAQ #3 states “there will be no reductions if employee marks up early regardless of whether the employee works within 6 hours.”. Carrier benefits from an employee marking up early yet the employee, despite being available or performing service for Carrier within minutes or a few short hours of a layoff, is still penalized as if they were unavailable for 24-hours. FAQ #21 could easily be modified as to allow employees the ability to have their points removed or reduced in these situations.
Fifth, Carrier has failed to address how layoffs for programs such as Operation Redblock or EAP would be handled. Currently, Carrier is converting these layoffs to LS status’s which would penalize an employee for utilizing a much-needed program. While these programs are designed to assist employees, they fail to accommodate or allow for any excused time off that may be needed while participating in the program. Until this shortfall is addressed by Carrier, the effectiveness and participation in these programs will remain very limited and have little impact.
Furthermore, Section 2, (c), 1, states “LS, LK, and LP layoffs that are not authorized, but rather paid in accordance with a collective bargaining agreement provision for an employee to “burn” available paid leave, are not considered approved layoffs under the Attendance Policy and will accumulate pints as outlined in the matrix in Section 1 above.” Employees who work under burn rules are forced to use a compensated days when their non-compensated layoff is denied. This issue has been brought up in multiple arbitral boards and neutrals have consistently agreed that these converted layoffs cannot be used against an employee’s attendance record.
Lastly, there has been drastic cuts in manpower over the last few years despite the Organizations protests. This has led to a multitude of operational problems, calling procedure issues, delays and unnecessary discipline. The Carrier has an unrealistic expectation that the remaining skeleton workforce can continue working excessive hours in perpetuity. This is simply not a reality as studies have shown that overwork leads to all sorts of health problems, including impaired sleep, depression, diabetes, impaired memory, heart disease and more. Carrier’s safety numbers, delays, inability to attract new employees and programs to address these health issues reflects such.
The recent reroutes in Salt Lake Hub and the Pacific Northwest were a stress test for staffing levels and Carrier failed horribly. Until staffing is increased to an adequate level and Carrier actually takes actions to increase the quality of life for employees in train service, employees will continue to be fatigued, develop health issues or, as in recent months, simply resign.
The Organization requests an immediate meeting to discuss the aforementioned items and work towards an equitable solution that improves the quality of life for train service employees. Action must be taken if Carrier wants to retain employees and attract new employees. I look forward to your response to this important matter.