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MEMORANDUM OF AGREEMENT
Between
THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY
And
THE BROTHERHOOD OF LOCOMOTIVE
ENGINEERS
This Agreement is presented in two parts. Part I
introduces an alternative approach to discipline that stresses training
and counseling instead of punitive discipline. Part II introduces a new
safety culture that focuses on the active participation of employees,
managers and the union leadership as we partner to create a safer
workplace through recognition that we must all focus as a team on safety.
Part I - Alternative Handling
I. Definition of Alternative Handling
Alternative handling is a non-punitive response to rule
violations that includes training and other non-disciplinary measures. An
alternative handling event will be recorded on the employee’s operational
testing record rather than the employee’s personal record. It will not be
considered discipline and may only be used to determine eligibility for
future alternative handling in the event of a subsequent violation and to
document non-punitive counseling given to the employee. Where possible,
notices of investigation will contain alternative handling options.
II. Scope
Except as modified in this Agreement, existing schedule
agreements remain in effect. Nothing in this Agreement infringes on the
right of an employee to formal investigation under the existing collective
bargaining agreement. However, once the employee agrees to alternative
handling, he/she waives all rights to formal investigation and appeal and
agrees to abide by the terms specified by this Agreement, except as
contained in Part I, Section VII of this Agreement.
III. Applicability
Alternative handling, if requested, will be made
available for all types of rule violations formerly subject to company
discipline except for the following:
A. late reporting of a personal injury
B. non-compliance with the company drug and alcohol
policy
C. gross negligence as defined in Federal Regulations
as a willful violation
D. rule violation resulting in very serious personal
injury to anyone (life threatening or career ending) or major property
damage ($250,000 or greater)
F. violation of personal conduct rule such as
dishonesty, felony conviction, physical altercation
F. serious EEO violation
G. job abandonment as specified in applicable
agreements.
Rule violations to which alternative handling is
applicable are referred to as “covered” rule violations.
IV. Eligibility
Each employee subject to this Agreement is eligible for
alternative handling provided he/she accepts responsibility for the
violation and does not exceed the time period limitations described in
Part I, Section VI (B) of this Agreement.
V. Exceptions
Exceptions to Part I, Sections III & IV may be granted
as part of the dispute resolution process outlined in Part II, Section VII
of this Agreement. If an exception is not granted, the employee retains
full contractual rights established under the applicable schedule
agreement, consistent with Part I, Section VII of this Agreement.
VI. Process
When the company is in possession of information that
causes it to believe that an employee has violated a rule, the employee
will be so notified and may request alternative handling. If the employee
is eligible and the rule violation is covered, training and corrective
action will be based on the “class” of the offense and the employee’s work
history.
A. Classes of Covered Offenses Subject to Alternative
Handling
(i) Class I offenses — rule violations that subject
the company or individual to FRA fines, result in an accident or injury,
or result in decertification, violations of all rules designed to
protect people and equipment (other than PPE)
(ii) Class II offenses — operations testing failures
involving rules designed to prevent Class I violations including test
failures that result in decertification
(iii) Class III offenses — violations of all other
rules not included in Classes I & II
B. Employee Eligibility for Alternative Handling
Calculations for eligibility will consider only those
events that have occurred after the signing of this Agreement. Rule
violations that occur prior to the signing of this Agreement wild
not be used to determine eligibility for alternative handling.
(i) Class I offenses An employee is ineligible for
alternative handling if he/she has: (1) more than three prior
alternative handling events for Class I violations, (2) thee violations
of any kind in the previous 12 months, (3) a Class I violation n the
previous 12 months, or (4) a violation of the same Class I offense in
the previous 24 months.
(ii) Class II offenses — An employee is ineligible for
alternative handling if he/she has had: (1) three alternative handling
events for Class II offenses, (2) one Class I or two Class II violations
in the previous 12 months, or (3) a violation of the same rule in the
previous 12 months,
(iii) Class III offenses — An employee is ineligible
for alternative handling if he/she has more than 3 events of any kind in
the previous 12 months.
C. Alternative Handling
Alternative handling of operating and safety rule
violations shall be accomplished through a written plan of employee
education. Each written plan will be developed based on the following
general guidelines:
(i) The plan will be tailored to the employee’s work
environment and the specific nature of offense, and the entire
alternative handling plan will, in general, be less than ten days.
(ii) An employee participating in alternative handling
will be compensated at the prescribed rate for the entire term of the
plan. If alternative handling is used for a 49 CFR Part 240 event, the
revocation period will be reduced to the shortest revocation period
within the company’s discretion.
(iii) Educational and training materials, classroom
training, on-board training, simulators and net sims, rules awareness
training, examinations without recorded scoring (except where required
by existing rule, e.g., six month absence), safety awareness meetings,
independent study, computer aided learning and contractor provided
training are examples of acceptable alternative handling plan elements.
Alternative handling plans are to be challenging and genuine.
(iv) Alternate handling may be accomplished at distant
locations at BNSF’s expense provided this training does not place an
undue hardship on the employee.
(v) The labor representative, or his/her designee,
will participate in the creation of the alternative handling plans and
may participate in the actual administration of the alternative handling
plan without compensation from the company.
(vi) An employee shall not have the same alternative
handling plan as administered for a previous offense within a 12 month
period.
(vii) Each alternative handling plan will be
consistent with established guidelines and designed specifically to
address the offense that gave rise to alternative handling.
(viii) An alternative handling plan must be in place
and started not later than 30 days from the offense unless agreement is
reached between local management and the labor representative for cases
involving unavoidable delay such as medical treatment or other
circumstances whether related to the offense or otherwise.
VII. Time Limits
The time limits listed in the applicable schedule
agreement apply with the following exceptions: In any case where an
employee requests alternative handling, the time limit will stop upon
receipt of the request by a company officer. If, as a result of action
taken by the company, the employee is denied his/her request for
alternative handling, the employee shall be given notice of the decision,
which shall start the remaining time limit running to completion. The
notice of denial by the company must be received by the employee not later
than ten days from submission of request for alternative handling. It by
action or inaction of the employee, the alternative handling plan is
stopped, aborted or otherwise not completed by the employee, the time
limits for investigation and all subsequent time limits for appeal will
start anew in their entirety at the date the company issues notice of
failure to meet the requirements of the alternative handling plan. This
notice of failure to meet the requirements of the alternative handling
plan must be received not later than ten days from the scheduled
completion date of the alternate handling plan for that employee.
VIII. Compensation
The employee will be compensated during any training or
other corrective action stemming from alternative handling. An employee
who participates in alternative handling that lasts four hours or less,
will be compensated at a minimum of one half of a basic day at the
straight time rate of the last service performed. Alternative handling
that lasts more than four hours, will be paid at a minimum of a basic day
at the straight time rate of the last service performed. When an employee
is required to miss time from his/her assignment, he/she will be
compensated for actual lost earnings. Employees withheld from service
pending formal investigation under the terms of existing labor agreements
will be compensated for all time withheld from service if admitted into
the alternative handling process, except that no compensation shall be
paid for time withheld as required by 49 CFR Part 240, except for
alternative handling training as provided for in this Agreement. Extra
board employee’s guarantee will be offset by compensation under this
Section; however, participation in an alternative handling plan will not
count as a layoff for purposes of determining guarantee.
Part II - Safety Participation
The rail transportation workplace is a complex
environment involving employees who are mostly self-supervised. In light
of the complexity of this environment and our desire to create a safer
workplace, we have agreed that our safety culture must be focused on safe
production. One of the hallmarks of our safety culture should be active
participation by our employees, our managers, and the union leadership.
Through this Agreement and our commitment to partnership in promoting
safety, our mutual objective is to identify and eliminate risks (physical
plant risks, behavioral risks, and attitudinal risks) and create a safer
workplace through a process of continuous improvement. To that end, we
agree to the following:
I. Safety Coordinators Positions(s)
On each operating division where the BLE is a party to
this Agreement, that division will have at least one full-time safety
coordinator. Additional full-time or part-time safety coordinators may be
added at the discretion of management. The appropriate BLE General
Committee(s) shall select and/or replace the Safety Coordinator(s).
II. Duties and Responsibilities of a Safety Coordinator
A. The safety coordinator will work with employees,
union leaders and the designated company officer(s) (currently the
general manager and the manager safety) to facilitate change, and
improve the safety process.
B. The evidences of success for this position would
include: behavior changes to reduce risk, environment improvements (e.g.
walking conditions) and improvement in the percentage of safe work
practices. Continuous improvement is expected and quantifiable goals
will be developed jointly.
C. A safety coordinator will not be called to testify
or otherwise furnish evidence of any kind in any formal investigation or
other disciplinary proceeding involving charges against an employee.
111. Establishment of Safety Committees
At any location, the division management and BLE may
agree to establish a local safety committee which will meet on a regular
basis, but not less than quarterly. The number of BLE participants will be
determined by management, with the safety committee members selected by
any involved BLE division. Each BLE division retains the option of
replacing its safety committee members with thirty days’ written notice to
the appropriate company officer. All decisions and recommendations of the
local safety committee will be by consensus. Where issues cannot be
resolved by the local safety committee, the issue in question will
be progressed to the Division General Manager and Safety Coordinator.
IV. Duties and Responsibilities of Safety Committees
The duties and responsibilities of each local safety
committee will be to identify safety concerns and make recommendations for
resolution of identified issues.
V. Risk Identification Process
At locations where local union representatives and local
management agree, a formal risk identification process may be included as
one tool in our effort to build a safer workplace. Where the parties agree
to this process, the safety coordinator will work with the designated
company officers to develop a program for training safety observers and
coordinating the information received from them.
A. Management will determine the appropriate number of
safety observers at each location, but selection of the safety observers
will be made by the involved BLE division(s). Safety observers will
monitor specific critical work tasks. They will be given the necessary
training on the process and will keep a “blind’ report of specific risks
identified. The blind report should note whether the work tasks are
performed properly, but make no notation of date, time, train number,
names of employees observed, or any other identifying information.
B. At designated intervals prescribed by the
coordinator and management, safety observers will furnish the safety
coordinator a report of the tasks observed. The safety coordinator will
combine all such reports into a single report. This report will also be “blind” and not contain the names of the safety observers or any other
identifying information as outlined in item A, above.
C. The safety coordinator will work with the
designated company officer to analyze the information contained in the
report to identify areas of risk. They will then jointly develop
countermeasures necessary to address those areas of risk and insure that
risk is reduced.
D. Where the parties have mutually agreed to include
Risk Identification Process as part of the joint safety initiative, this
process may be discontinued by either party serving 10 days’ advance
written notice.
VI. Compensation
A. A fill-time safety coordinator will be paid on a
salaried basis, ensuring that he/she experiences no loss of earnings
compared to what he/she earned in scheduled service during his/her
highest paid six months of the previous calendar year. Lump sums and any
other unusual payments received during that six months shall be
approximately factored into his/her salary to prevent any windfall
either to the employee or company. Service as a safety coordinator shall
not deprive the employee of any element of compensation he/she would
have received had he/she remained in typical scheduled service. All
normal employment benefits which the employee would have received in
typical scheduled service will remain in place on the same basis.
Full-time safety coordinators will be reimbursed for necessary business
expenses consistent with BNSF’s policy.
B. A member of a local safety committee or a safety
observer who attends an authorized safety meeting or training that lasts
four hours or less, will be compensated at a minimum of one half of a
basic day at the straight time rate of the last service performed.
Individuals attending meetings or training sessions that last more than
four hours, will be paid at a minimum of a basic day at the straight
time rate of the last service performed. However, when an employee is
required to miss time from his/her assignment, he/she will be
compensated for actual lost earnings. Compensation received as a member
of a local safety committee or a safety observer who attends an
authorized safety meeting or training session will be used to calculate
vacation credit for following year. Part- time safety coordinators will
be compensated pursuant to this Section B. All positions identified in
this Section B will be reimbursed with necessary business expenses
consistent with BNSF policy.
VII. Dispute Resolution
Disputes may arise between the parties regarding issues
such as whether a particular employee is eligible for alternative
handling, appropriateness of a specific alternative handling plan, safety
coordinator duties or safety committee handling. In the event such
disputes cannot be resolved locally, the following process will be
followed:
A. In the event that an interpretation of this
Agreement causes a disagreement between local labor and management, the
general committee may request a conference with the line AVP or his/her
designee.
B. If no agreement is reached, the incident will be
handled under prevailing collective bargaining agreements, company
policies and procedures. Time limits will be administered in accordance
with Part I, Section VII of this Agreement.
VIII - General Provisions
I. Cancellation Clause
This Agreement will remain in effect for a minimum of
one year, after which it may be cancelled, in its entirety, by the General
Chairman serving sixty days’ written notice to the Vice President,
Labor Relations BNSF. Otherwise, this Agreement will remain in effect for
a minimum of two years, after which it may be cancelled, in its entirety,
by the Vice President, Labor Relations BNSF serving sixty days’ written
notice on the General Chairman. In the event this Agreement is cancelled,
the parties shall fully retain the same rights and prerogatives which they
held prior to this Agreement, as if the Agreement had never been made.
II: Savings Clause
This Agreement is made without prejudice to either
party’s right to exercise any other rights or prerogatives that it may
possess. Except in connection with efforts to enforce any aspect of this
Agreement, the existence of this Agreement shall not constitute evidence
of a course of dealing or past practice, and shall not be cited or
referred to in any other case or controversy to support any argument that
either party has a duty to bargain over any particular subject matter.
Signed this______________ day of
_____________________________, 2002.
Effective
on_________________________________________________, 2002. |
